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February 10, 1972

Matthew MASSIMO, Petitioner,
UNITED STATES of America, Respondent

Motley, District Judge.

The opinion of the court was delivered by: MOTLEY

MOTLEY, District Judge.

Findings of Fact, Conclusions of Law, and Order on Petition Pursuant to 28 U.S.C. § 2255

 Petitioner Matthew Massimo was convicted by this court on twenty-three counts of using the mails to defraud, and on one count of conspiring to do the same (18 U.S.C. §§ 1341, 1342, and 371) on March 4, 1969 after trial to the court without a jury. United States v. Catanzaro, Massimo, and Morfield, 68 Cr. 9 (S.D.N.Y. March 4, 1969) (Motley, J.) Massimo was found to have obtained credit cards fraudulently, and then used the cards to make purchases in various retail stores. He is presently serving five-year prison terms imposed on each count, to run concurrently. Massimo took a direct appeal from his conviction, the judgment below being affirmed, Judge Friendly dissenting, United States v. Massimo, 432 F.2d 324 (2d Cir. 1970). A petition for writ of certiorari was denied, 400 U.S. 1022, 91 S. Ct. 586, 27 L. Ed. 2d 633 (1971).

 Sentence having been imposed by this court, Massimo now moves here to vacate and set aside the sentence pursuant to 28 U.S.C. § 2255. *fn1" His claim is that he was denied his rights under the Fifth and Sixth Amendments to the United States Constitution: 1) by the fact that agents of the government questioned him while he was in custody at a time when he was not represented by counsel, and then used a statement obtained from him under those circumstances against him at trial; and 2) by the failure of his court-appointed counsel to obtain a ruling by the court on the admissibility of the statement, this being alleged to constitute ineffective assistance of counsel.

 The crux of this case is the statement made by Massimo on December 26, 1967 to a U.S. Postal Inspector, which was introduced by the government by stipulation at trial. That stipulation was to the effect that Postal Inspector Gerard A. Mailloux, if called to the stand, would testify that Massimo had confessed to certain enumerated facts constituting the elements of the crimes charged. (See Stipulation dated 1/20/69, pp. 4-5). The government's case in chief consisted of a number of stipulations and twenty-two exhibits; there were no witnesses. Massimo's defense was that he was insane at the time of the commission of the acts charged. *fn2"

 Massimo raised the issue of the inadmissibility of his statement to the Postal Inspector on his direct appeal, but the majority found the record insufficient to establish his claim. 432 F.2d at 326. They nevertheless addressed Massimo's contentions as follows:

"Appellant's arguments directed at the claimed inadequacy of counsel appear to raise serious questions. Interrogation of an accused in the absence of counsel after arraignment is, of course, suspect. Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964); Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). We do not find in the record before us sufficient support for these claims, however. The most that can be said is that there is a possibility that counsel erred, perhaps seriously, in not pressing formal objections to the admission of Massimo's statements, and in agreeing to the stipulation which placed them before the court. The record suggests, however, another possible alternative, that this course of action was the result of a considered trial strategy by Massimo and his counsel. Massimo had a history of voluntary admissions to mental institutions and a tale of excessive intake of Doriden. Massimo also laid claim to a history of obsessive desire to damage credit card companies, particularly Uni-Serve, which had allegedly harmed him in the past.
In the face of a strong government case Massimo may well have determined early in the proceedings that his best hope lay in admission of the underlying facts and reliance on a defense of lack of mental responsibility. The government informed us at oral argument that Massimo had executed a written waiver of rights at the December 26 interview, which is not in the record before us and was not produced at trial because the question was not then raised. In these circumstances we cannot say that counsel's actions were such as to shock the conscience of the court.
It may well be that the decision to waive constitutional protections and make the statements was part of a strategic plan based on a realization that an insanity defense was the only hope for acquittal and that admission of the credit card acquisition and use was necessary to the defense. If so, the stipulation may not be any indication at all of incompetence of trial counsel. It does not require reversal here.
* * *
If there was any infirmity in the waiver of December 26, or in the decision to agree to the stipulation, not apparent on the record here, the facts may be developed in the district court on collateral attack."
432 F.2d at 325-326 n. 1.

 This court held a hearing on the § 2255 petition on July 2, 1971 in order to further develop the facts. The Postal Inspector, Mailloux, Massimo's trial counsel, Joseph I. Stone, and petitioner himself were called as witnesses. Based on the testimony adduced at the hearing, and the various moving papers and transcripts in United States v. Catanzaro, Massimo, and Morfield, supra, we deny Massimo's § 2255 petition to vacate and set aside his sentence and make the following findings of fact and conclusions of law.

 I. The Events Leading Up To Massimo's Trial

 Massimo was arrested pursuant to a warrant on December 22, 1967. He was arraigned on that day before Commissioner Bishopp, and his preliminary hearing was adjourned until December 27th. Bail was set at $10,000. Massimo, being unable to make bail, was remanded. On December 27th the preliminary hearing was further adjourned until January 3, 1968, and then until January 10th. On January 9th an indictment was filed; as a consequence, no preliminary hearing was ever held. Massimo remained in custody until January 12th when a successful application was made by his court-appointed counsel to reduce his bail.

 It was not until January 12, 1968, after Massimo's first appearance before a district court judge on January 10th, that counsel Joseph Stone was appointed to represent Massimo. Massimo had been unrepresented prior to that time.

 A notice of motion dated January 31st, supported by an affidavit by Massimo signed on January 25th, was filed by Stone on behalf of Massimo on February 2, 1968. No supporting memorandum of law was submitted.

 A significant inconsistency between the relief requested in Stone's notice of motion, and that requested in Massimo's affidavit appended to the notice of motion, is the source of the difficulty in this case. The notice of motion sought the disclosure of certain enumerated particulars, the discovery of the report of any psychiatric examination of Massimo the government may have required, the discovery of Massimo's statements to "agents of the United States Post Office and specifically the United States Attorneys," and the return of all items taken from Massimo at the time of arrest without a search warrant "that are evidentiary in nature." It also requests that a psychiatric report be prepared on Massimo. Conspicuously absent from Stone's notice of motion is any request for suppression of Massimo's statements made to agents of the government. *fn3"

 By contrast, Massimo's affidavit states at pp. 1-3 that:

". . . [This] affidavit is made in support of my motion for a bill of particulars pursuant to the Federal Rules of Criminal Procedure and for discovery and inspection and for the suppression of statements taken from me at the time of my arrest and all other evidentiary material seized in conflict with my Constitutional Rights under the Fourth Amendment of the United States Constitution . . . [ These ] items [driver's registration cards and licenses allegedly taken from Massimo's wallet at the time of his arrest], along with any other written statements taken from me, . . . should be suppressed. . . . I have no recollection at this time as to what was said to me but . . . I made certain statements and several days later while incarcerated and without benefit of counsel, the Post Office inspectors visited me and asked me to sign certain statements. . . . [ These ] statements were taken from me contrary to the Supreme Court ruling in United States v. Miranda (sic) . . . I should be afforded a hearing as to the voluntariness of these statements and the United States Attorney should be precluded from using these statements in evidence. . . . [ It ] is respectfully requested . . . that my statements be suppressed as being not taken within the purview of Miranda v. United States (sic). . . ." (Emphasis added)

 It is apparent that the government was aware that some additional requests had been made in Massimo's affidavit that were not contained in Stone's notice of motion, since the government discussed some of these items in its affidavit in opposition and supporting memorandum. *fn4" However, the government papers contain no acknowledgement of that portion of Massimo's affidavit dealing with the suppression of the statement made to the Postal Inspector on December 26, 1967. *fn5"

 A suppression hearing held by Judge Weinfeld on Massimo's motion on April 1st considered only the admissibility of tangible evidence seized from Massimo at the time of his arrest. No hearing was ever held on the admissibility of any of Massimo's statements.

 II. The Strategy Of Defense Counsel

 The majority in the Court of Appeals has suggested that defense counsel may have been contemplating an insanity defense at the time he made his pretrial motions. If so, it would be entirely understandable for him not to have moved to suppress statements obtained from Massimo in violation of Massimo's Fifth and Sixth Amendment rights since, even if these statements corroborated significant facts underlying the charges in the indictment, they ...

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