The opinion of the court was delivered by: BARTELS
MEMORANDUM -- DECISION and ORDER
This petition by Harold Wapnick for post-conviction relief, filed on June 18, 1969, approximately one month before his parole expired, is his fifth application. See United States v. Wapnick, 315 F.2d 96 (2d Cir. 1963), cert. denied, 374 U.S. 829, 83 S. Ct. 1868, 10 L. Ed. 2d 1052 (1963), rehearing denied, 375 U.S. 871, 84 S. Ct. 30, 11 L. Ed. 2d 100 (1963) and 383 U.S. 923, 86 S. Ct. 879, 15 L. Ed. 2d 680 (1966); Wapnick v. United States, 355 F.2d 136 (2d Cir. 1966); Wapnick v. Chappell, 376 F.2d 853 (2d Cir. 1967); Wapnick v. United States, 406 F.2d 741 (2d Cir. 1969). Wapnick was convicted in 1961, after a 35-day jury trial, on sixteen substantive counts and a conspiracy count of an indictment charging the transportation of stolen motor vehicles in interstate commerce in violation of 18 U.S.C. 2312. The present application was filed under 28 U.S.C. 2255 and is predicated upon a claim that the prosecutor violated Wapnick's constitutional rights in questioning him concerning an offense with respect to which Wapnick claims he had been acquitted, without informing the jury of his acquittal. Subsequently Wapnick supplemented the petition by two other affidavits raising additional claims involving other illegal questioning and the knowing use of perjured testimony, which will also be hereafter considered. Thereafter, on September 3, 1969, Wapnick moved to disqualify the court on the ground that it was 'personally biased and prejudiced against petitioner', which necessarily will be adjudicated at the outset.
The legal sufficiency of a disqualification application under28 U.S.C. § 144 is tested by the standards enumerated in Berger v. United States, 255 U.S. 22, at 33 to 34, 41 S. Ct. 230, at 233, 65 L. Ed. 481 (1921), requiring an affidavit to show 'a bent of mind that may prevent or impede impartiality', there being 'as much obligation upon a judge not to recuse himself when there is no occasion as there is for him to do so when there is.' Rosen v. Sugarman, 357 F.2d 794, 797 (2d Cir. 1966); In re Union Leader Corp., 292 F.2d 381, 391 (1st Cir. 1961), cert. denied, 368 U.S. 927, 82 S. Ct. 361, 7 L. Ed. 2d 190 (1961). The relevant portions of the affidavit in support of this motion are based upon Wapnick's opinion that his sentence was unduly harsh and that Wapnick had heard from various attorneys who had spoken to the court that the court 'was highly prejudiced against defendant', and that mail sent by Wapnick, while incarcerated, to the court was returned unopened, and that the court participated in the cross-examination of him during the trial. Not only are these allegations vague and conclusory but they also fail to state any facts which in any way establish the requisite personal bias or prejudice. In this connection, a question is raised whether an application which is limited to a mere interpretation of the law as set forth in the authorities and requires no hearing, falls within the purview of 28 U.S.C. § 144 since an erroneous or biased interpretation of the law can be easily discerned from the opinion and corrected by an appellate court. Compare, Palmieri v. United States, 286 F.Supp. 520 (S.D.N.Y.1968). However that may be, the court did apply the standards required by 28 U.S.C. § 144 and finding no basis for disqualification, now proceeds to the merits.
Alleged Illegal Questions Concerning Stolen Cars
In the course of cross-examination the prosecutor posed, among others, the following questions to Wapnick, which he claims fatally affected his trial:
'Q. Did you sell a 1957 Cadillac to Good Friend Automobile?'
'Q. Was that a stolen car?'
'Q. Was it stolen at the time that you sold it?'
The gist of Wapnick's contention is that he was acquitted in the New York State Supreme Court, Bronx County (Bronx court) of a charge of selling stolen cars to Good Friend Auto Sales (Steinbrecher) and that the prosecutor had knowledge of this acquittal at the time of the questioning and should have divulged the acquittal to the jury. In failing to do so Wapnick claims he was denied due process, citing Napue v. Illinois, 360 U.S. 264, 79 S. Ct. 1173, 3 L. Ed. 2d 1217 (1959). This claim has no merit for two reasons.
First, the acquittal to which Wapnick referred in the Bronx court was not a finding that the 1957 Cadillac was not a stolen car. Wapnick was charged in the Bronx court with grand larceny arising out of the receipt of a check illegally obtained from Steinbrecher by false and fraudulent representations that he had legal title to the 1957 Cadillac sold together with a 1958 Ford car (concerning which there was no charge against Wapnick) when, in fact, he knew he had no such title since the Cadillac was stolen. The only thing Wapnick was acquitted of by the verdict of the Bronx court jury was having knowledge that the car was stolen, but the verdict was not a finding that the car was not stolen. Accordingly, the prosecutor's question, 'Was it stolen at the time that you sold it?', was perfectly proper. Nor was the acquittal in the Bronx court a bar to the prosecution of Wapnick in the Federal court under the Dyer Act. See United States v. Wapnick, 198 F.Supp. 359 (E.D.N.Y.1961), affirmed, 315 F.2d 96 (2d Cir. 1963). At that trial the prosecutor had a right to cross-examine Wapnick concerning the essential elements of the Federal offense which involved the 1957 Cadillac. Second, if there were any taint to these questions, the petitioner and his capable attorney were both aware of the prior acquittal in the Bronx court and they had ample opportunity to explore the question and raise the issue at the time of the trial if they thought that this acquittal was pertinent to Wapnick's defense. In addition, it is much too late in the proceedings to now raise an issue of this kind for the first time.
Petitioner also argues that the failure of the prosecutor to disclose his acquittal in the Bronx court prejudiced his trial with respect to eleven other stolen cars involved in the Federal court and mentioned in counts 6 to 16 of the indictment. The fact is that these cars were not involved in the trial in the Bronx court and any possible prejudice concerning the theft of these cars is entirely speculative. In passing, we note that the petitioner quixotically refers to another case in which he says he 'was acquitted again based on the same facts'. This, of course, is not true. The case he refers to is Steinbrecher v. Wapnick, 24 N.Y.2d 354, 300 N.Y.S.2d 555, 248 N.E.2d 419 (1969), which was a civil case in which the New York Court of Appeals held that Wapnick's refusal to answer certain interrogatories on the ground that the answers might incriminate him should not have resulted in a default judgment for the plaintiff.
Alleged Illegal Questions About Co-Defendant's Pretrial Statements
This claim arises out of some afterthoughts that Wapnick had as set forth in his subsequent affidavit of July 9, 1969. In his fourth post-conviction application Wapnick claimed that he had been denied his constitutional right of confrontation in violation of Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968), by reason of the admission into evidence of certain pretrial statements by co-defendant Ezersky. The charge was that Detective Francis had testified as to a confession by Ezersky as to who instructed him to fill out forms, which allegedly implicated Wapnick. There was grave doubt whether the so-called confession in any way identified Wapnick. In all events the Court of Appeals held that there was a possibility that the jury might have inferred that Wapnick was identified by Ezersky's statement to Detective Francis and that the testimony was inadmissible hearsay. But the court also held that in view of the ample admissible ...