The opinion of the court was delivered by: HERLANDS
This is a motion by the defendant Peltz under Federal Rules of Criminal Procedure, Rule 33, 18 U.S.C.A. for a new trial. The motion was argued orally on December 13, 1956. The minutes of that argument have been transcribed. On February 6, 1957, a conference or argument on the settlement of the order was had. The minutes of that conference or argument have been transcribed.
Pursuant to the order of the Court as settled and filed, a hearing was ordered and had commencing March 4, 1957. The hearings continued on March 5th, 6th, 7th, 8th, 11th, 12th and 13th. The record of the hearings runs to 1,110 pages.
The indictment herein named Peltz, Michael Peller, and one Torraco, in three counts. On motion of the United States Attorney, the indictment was severed as to the defendant Torraco. The defendant Peller pleaded guilty to Counts 1 and 3 of the indictment at the opening of the trial on January 3, 1956, but before the jury was selected. The first two counts of the indictment charged substantive offenses predicated upon the sale on or about August 21, 1954, of approximately 17 ounces, 375 grains of heroin. The third count is a conspiracy count.
The defendant Peltz was convicted on January 10, 1956, on the three counts. Peltz and Peller were sentenced on or about January 30, 1956. Although Peltz filed a notice of appeal, the appeal was never perfected.
During the trial, the Government called to the stand Narcotic Agent Harry Mattera. In support of the Government's case, Mattera testified, according to the Court's trial notes, that on August 11, 1954, at about nine p.m. he saw Peltz in Hector's Restaurant, that at that time he had a conversation with Peltz, that present at the conversation were Peller and a man named Phil, and a Bureau of Narcotics special employee, known as Jim Adams, also known as Salvy. Later that evening in Hector's Restaurant, located at 50th Street and Seventh Avenue, Borough of Manhattan, Mattera and Jim Adams were joined by Peltz, Peller and Phil. Mattera had been introduced as Ricky.
In the course of the ensuing conversation, according to Mattera, Peller said, 'Ricky, I would like to tell you why I can't deliver a one-half kilo of stuff at this time. I am in business with Harry (referring to Peltz, who was present) and Solly. We have a plant of our own that we can't go to because we know the agents of the Federal Bureau of Narcotics are maintaining surveillance on this plant, and for that reason we are compelled to go to other individuals for narcotics.'
Mattera further testified with reference to this conversation that, at that point, Peltz said, 'Yes, there has been a lot of heat since Solly's bust,' and then Peltz added that it would be foolish to go near the plant at this time and that it would be wiser to stay away for another week or ten days.
Agent Gabriel Dukas, called by the Government, corroborated the fact that on August 11, 1954, at about nine p.m., he saw the special employee and Mattera enter Hector's Restaurant and that he saw the defendant Peltz, Peller, and another individual join Mattera and the special employee. Dukas did not hear any conversation, nor did he testify to any conversation.
Mattera testified with respect to another meeting on August 18, 1954, when Peltz and Mattera met alone in the vicinity of 50th Street and Seventh Avenue. On that occasion, according to Mattera, he asked Peltz, 'Where is Whitey?' Whitey is a nickname for the defendant Michael Peller.
Mattera asked, 'Why didn't he show up for his appointment?'
Peltz said, 'I don't know where he is.' Mattera said that he was angry at Whitey's failure to keep the appointment, and Peltz then said, 'Don't get excited; I will make a telephone call.' And then Peltz left and returned in five or ten minutes.
Peltz told Mattera that he had spoken to some woman over the phone who had advised him the Peller would be in Hector's Restaurant that evening and Peltz then added, 'I will guarantee that he will be there.'
Later that evening, on August 19, 1954, a meeting took place at Hector's Restaurant and present were Dolly Turner, Peltz and Peller. Peller introduced Mattera to Dolly Turner and there was a discussion about some individuals in Chicago. Then ensued a conversation which laster about five or ten minutes between Peller and Mattera which took place outside of Peltz's hearing at a spot about ten feet away.
This conversation was conducted in a low voice. Mattera and Peller sat at another table. The special employee was present at the table where Dolly Turner and Peltz were sitting.
In the conversation between Mattera and Peller, outside the hearing of Peltz, the following ensued:
'Mattera: Whitey, what was the idea of not showing up last night?
'Peller: I smoked a pipe and became sick and I didn't want to get up.
'Mattera: What's the reason for bringing all these persons in to cross examine me about Chicago?
'Peller: I'm ready to deliver a half kilo to you at $ 5,500 for half a kilo.
'Mattera: That's a rather high price. That makes it $ 11,000 for a full kilo.'
And there was some further comment about why the price was raised.
'Peller: I am forced to go to other people for stuff and that will have to be the price. That would be saving you money anyway because this stuff is pure.
'Peller: I will call you at 2 p.m. in Salvy's room.
'Mattera: That's okay with me.'
After this conversation Mattera and Peller rejoined Peltz and Dolly Turner and the special employee at the other table. And then, according to Mattera, Dolly Turner asked him what cut heroin was bringing in Chicago, to which Mattera replied, '$ 11,000 a kilo.'
At that point the defendant Peltz remarked, 'Gee, that's a lot of money. You certainly can make a lot of money there, can't you?
Mattera said, 'Yes, I can.'
The next meeting testified to by Mattera took place some time after midnight in the early morning of August 21, 1954. Mattera described how he and the special employee met Peller at Ratner's Restaurant, how they got into a taxicab, how Peller turned over narcotics to Mattera and Mattera gave Peller $ 5,500.
Mattera then got out of that taxicab, brought the narcotics to the Bureau of Narcotics. Meanwhile the special employee and Peller were in the other taxi.
According to Agent Dukas, he saw the meeting of Peller, Mattera and the special employee in Ratner's Restaurant, and he followed them in a taxicab. Three other agents joined in the ensuing surveillance.
Dukas testified how he observed Mattera leaving the taxi in which Mattera had gone with Peller and the special employee. Dukas continued to follow Peller and the special employee and tailed them into Hector's Restaurant. He observed Peller and the special employee enter Hector's Restaurant, and he testified that this observation concerning Peller and the special employee entering Hector's took place at about one a.m.; that Peller and the special employee went to a table and there Peller and the special employee met Peltz and another individual.
These four persons remained there for a while, until about 1:30 a.m. Agent Dukas stayed there for a while and continued his observation, and he observed that Peller, Peltz and this other man left together, and Dukas followed them.
Upon the trial Mattera testified that he saw Peltz again on August 24, 1954, in the vicinity of 50th Street and Seventh Avenue at about 9 p.m. Peltz was with Peller. A conversation took place. The special employee was present at the conversation according to Mattera, and in substance, according to the Court's trial notes, Mattera said to Peller, 'I didn't like the stuff you sold me. The quality was extremely poor. It was only about 15 or 20 per cent.'
Peller replied, 'You're crazy. That stuff is good stuff.'
Mattera said, 'Don't tell me I'm crazy, I had the stuff tested. I know how good it is. It is only about 15 or 20 per cent.'
At that point, according to Mattera, defendant Peltz said, 'Well, you know how it is, sometimes it is good and sometimes it is bad.'
To which Mattera replied, 'Well, that does not satisfy me.'
The Government chemist gave the usual testimony about testing the narcotics and other related matters, as did Agent John Enright. Continuity of possession of the narcotics was established.
The defense called Harry Peltz' brother, Lou Peltz, who testified in substance to the fact that he had employed the defendant Peltz in his business, which was
Peller replied, 'You're crazy. That the times that were material according to the indictment the defendant Harry Peltz had been working for him.
The defendant Peltz took the stand. He testified to his prior criminal record of two convictions in connection with narcotics. He had been convicted of federal narcotics crimes in the District of Massachusetts and in the Southern District of New York. He admitted that he had met Mattera, Salvy and Peller at various times and places, including Hector's. But the sum and substance of his testimony was that all of the conversations were completely innocent; that narcotics were never mentioned, directly or indirectly; that the conversations related to all sorts of general subjects. He took the position that, while he had met all of the persons mentioned by Mattera at the times and places mentioned by Mattera, the conversations which Mattera testified to did not take place.
In rebuttal, the Government recalled Agent Enright to the stand. He testified that on December 8, 1955, Assistant United States Attorney Donahue called a conference at the United States attorney's office, at which were present Agent Enright and Group Leader Roder, and that Mr. Donahue instructed them to locate the special employee in connection with the forthcoming trial of United States v. Peltz, Peller and Torraco.
Agent Enright testified that he made efforts to locate the special employee since the date of those instructions on December 8, 1955. He described the efforts as including a visit to the special employee's former residence. The special employee was not there and had left no forwarding address. Enright visited former haunts of the special employee, such as various named bars and grills and restaurants. Enright testified that other agents of the Bureau of Narcotics who knew the special employee had also been looking for him; and that the Bureau of Narcotics had not been able to locate the special employee.
As stated, the jury found the defendant Peltz guilty on the three counts of the indictment. Upon this motion for a new trial, the defendant Peltz has submitted various affidavits, including two affidavits by Salvatore Spitale, who was the special employee. The first affidavit of Spitale is sworn to September 26, 1956; the second affidavit is sworn to October 25, 1956.
In support of the motion, the defendant Peltz has also submitted his own affidavit sworn to November 6, 1956; three affidavits by Mr. Delaney, defense counsel, sworn to November 13, 1956, November 26, 1956; and January 3, 1957, an affidavit of Mr. Delaney's partner, Peter J. Donoghue, sworn to January 3, 1957.
Pursuant to the arrangements set forth in the transcribed minutes of the oral argument of the motion, there was obtained an affidavit of Michael Peller, sworn to November 20, 1956, which is part of the record. The Government has submitted through Assistant United States Attorney Donahue, Mr. Donahue's affidavits, sworn to October 19, 1956, and November 20, 1956, and two exhibits which are attached to a letter of transmittal dated January 4, 1957, Exhibit A being a record of the criminal convictions of Salvatore Spitale, Michael Peller and Dorothy Turner, and Exhibit B being the aforementioned affidavit of Michael Peller, sworn to November 20, 1956.
Upon the concluding arguments had in open court this morning, Mr. Delaney, defense counsel, stated (Record, p. 1071)
'Primarily, if the Court please, the motion is based upon the affidavit of Salvatore Spitale, which affidavit was sworn to ...