The opinion of the court was delivered by: MISHLER
MEMORANDUM OF DECISION AND ORDER
Petitioner moves, pursuant to section 2255 of title 28, United States Code,
for an order vacating or modifying sentences imposed on September 27, 1962 for violations of the federal narcotics laws as charged in Counts Nos. 2 and 3 of Indictment No. 60-CR-317.
Actually, petitioner was convicted twice on the same counts. On the first occasion, after a jury returned a guilty verdict, the Honorable Joseph C. Zavatt sentenced him to five (5) years on Count No. 2 and twenty (20) years plus a twenty thousand dollar ($20,000.00) fine on Count No. 3, the prison terms to run concurrently.
Upon remand, the matter was tried to the court, and the undersigned imposed a twenty (20) year sentence plus a fine of twenty thousand ($20,000.00) dollars on each count, the prison terms again to run concurrently. The judgment of conviction was affirmed,
and a section 2255 petition, based upon the use of certain admissions allegedly obtained in violation of petitioner's fifth and sixth amendment rights, also proved unsuccessful.
The present petition, as amended, attacks the validity of the sentences upon the following grounds:
(1) The indictment was improperly obtained in that:
(a) it was supported by perjured and coerced testimony;
(b) a government agent was present while another witness was testifying before the grand jury, in violation of Rule 6(d) of the Federal Rules of Criminal Procedure;
(2) Assistant United States Attorney Joseph J. Marcheso failed to correct Luiz DeAlmeida's testimony relating to a promise of leniency
and the latter's expectation of a reward, which corrections would have impeached DeAlmeida's credibility;
(3) The government failed to comply with petitioner's demands for statements under section 3500 of title 18 in that:
(a) the government failed to produce, upon a proper demand, two letters which DeAlmeida allegedly sent to one Ramon Sanchez, Box 1188, New York, Ramon Sanchez being Agent Moduro's pseudonym;
(b) the government failed to produce, upon proper demands, statements of Agents Pera and Moduro that allegedly were given to a French court in connection with the prosecution of one Gabriel Graziani; and
(4) The prison terms and fines imposed improperly exceeded those imposed under the judgment of conviction entered after the first trial.
First, "[it] is well settled that an indictment may not be collaterally attacked under § 2255 except for lack of jurisdiction or an infringement of [a] defendant's constitutional rights." United States v. Spada, 331 F.2d 995, 996 (2d Cir.), cert. denied, 379 U.S. 865, 85 S. Ct. 130, 13 L. Ed. 2d 67 (1964). Moreover, where the federal court's jurisdiction was properly predicated upon an existing federal criminal statute, the sufficiency of an indictment, generally, is not subject to collateral attack. Rosecrans v. United States, 378 F.2d 561, 566 (5th Cir. 1967). Petitioner does not attack the sufficiency of the indictment, however, i.e., he does not claim that it cannot be reasonably construed as charging the offense for which he was convicted. See, Link v. United States, 352 F.2d 207, 209 (8th Cir. 1965), cert. denied, 383 U.S. 915, 86 S. Ct. 906, 15 L. Ed. 2d 669 (1966). Instead, he complains that the kind of evidence ...