The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
These are applications for post-conviction relief, brought under 28 U.S.C. § 2255, by two convicts now in federal custody.
Petitioner Dalli was convicted by a jury, along with Thomas Pytel, on May 26, 1969, on one count of selling, receiving, and concealing five kilograms (approximately eleven pounds) of heroin, in violation of 21 U.S.C. §§ 173 and 174, and on one count of conspiracy to commit the substantive offense, in violation of 18 U.S.C. § 371. He was sentenced on June 13, 1969 to twenty years imprisonment on each of the two counts, the sentences to run concurrently.
Petitioner Simmons jumped bail after the case had been called for trial in the midst of an evidentiary hearing on defendants' motion to suppress evidence on the ground that the seizure of the heroin stemmed from wiretaps by the New York state police. He was apprehended two and a half years later, in November 1971, and, upon his plea of guilty to one substantive count of purchasing five kilograms of heroin, in violation of 26 U.S.C. § 4704(a) and 18 U.S.C. § 2, was sentenced on February 7, 1972 to ten years imprisonment and fined $20,000.
Petitioner Dalli's conviction was affirmed on appeal. United States v. Dalli, 424 F.2d 45 (2d Cir.), cert. denied, 400 U.S. 821, 91 S. Ct. 39, 27 L. Ed. 2d 49 (1970). The facts of the case are fully narrated in the opinion of the Court of Appeals and familiarity with that opinion is assumed. Suffice it to say here that both petitioners, residents of New York City, were arrested and five kilograms of pure heroin were seized from their automobile on September 10, 1968, while they were returning to New York on the New York thruway after purchasing the heroin from the Canadian defendants, Pytel and Bourdeau, whom they had met at the Holiday Inn in Plattsburgh, New York.
Following the filing of the indictment in December 1968, petitioners made a number of motions, one of which sought the suppression of certain evidence, including the five kilograms of heroin, on the ground that the evidence had been seized upon an illegal arrest. The claim that the arrest was illegal was grounded on an allegation that it resulted from tainted information learned from wiretaps by the New York state police.
The motion to suppress was referred to the trial court, and when the case came on for trial on May 12, 1969, we granted a full evidentiary hearing. Following the hearing, we denied the motion to suppress and found that the search was incident to a lawful arrest based on probable cause and that neither the arrest nor the seizure was based on information tainted by wiretaps. Our findings and conclusions were set forth in three opinions, which we append to this opinion. Familiarity with the facts set forth in those opinions will be assumed, but some repetition is necessary to intelligible consideration of the issues raised here.
All the wiretaps sought by the defendants upon the suppression hearing had been duly authorized under New York law (N.Y.Code Cr.Proc. §§ 814-825 (as of 1968)), which had been recently revised to meet the constitutional standards for electronic surveillance taught by the Supreme Court in Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), and cases cited therein. Thus, the warrants and renewals were strictly limited to wiretapping telephones listed to Beautee Trail Hair Stylists, Inc. and to Ronald J. Carr and had been issued initially on August 5, 1968 by Mr. Justice Miles F. McDonald of the Supreme Court of the State of New York, Second Judicial District. The application for the warrants was supported by a detailed affidavit which informed the Justice of the particular need for such wiretaps, the specific basis on which they were to proceed, and the precise intrusion which they would entail.
All of the wiretaps, recordings, and transcripts thereof, along with the warrants, renewals, and affidavits on which they were based, were produced upon the hearing and delivered to the defendants and their counsel for their inspection and selection of any wiretaps or other material which they regarded as relevant. After thorough examination of such materials by the defendant Dalli and his counsel, Richard I. Rosenkranz, Esq., the defendant Simmons and his counsel, Albert J. Krieger, Esq., now appearing for Dalli, and Robert P. Wylie, Esq., counsel for the then absent defendant Pytel, the defendants selected only one wiretap which they believed to be of any relevance.
The relevant wiretap on the telephone line of Beautee Trail Hair Stylists, Inc. intercepted a telephone conversation between Dalli and Simmons on September 7, 1968 to the effect that they would meet at 7:00 o'clock that evening. It then appeared from reports of the Federal Bureau of Narcotics and Dangerous Drugs ("Federal Bureau of Narcotics"), also made available to defendants, that federal agents had observed the 7:00 o'clock meeting.
All witnesses desired by the defendants were produced, and the defendants then called Agent John T. O'Brien of the Federal Bureau of Narcotics, in charge of the investigation of the defendants; his superior, George R. Halpin; Agent John W. Maltz, who actually made the observation of the meeting; and Lieutenant Charles Cassino of the New York state police, who was in charge of a parallel investigation of the defendants by the state police. Despite exhaustive examination of all the witnesses, the defendants failed to establish any connection between any wiretap, surveillance of any defendant, the observation of the defendants Dalli and Simmons at the 7:00 P.M. meeting, and, ultimately, the arrest and seizure of the narcotics.
Agent O'Brien testified that he did not learn any information from any wiretaps during the course of the federal investigation and that he had no knowledge of any wiretaps relating to the defendants by the New York state police until about two weeks before the suppression hearing (May 12, 1969). Halpin testified that the Federal Bureau of Narcotics had not received any information from the state police learned as a result of wiretaps or otherwise which led to the investigation and arrest of the defendants. Lieutenant Cassino of the state police testified that he did not reveal any information learned from state wiretaps to anyone connected with the Federal Bureau of Narcotics.
Petitioners Dalli and Simmons now claim that the prosecution** knowingly used perjured testimony upon the suppression hearing in that Agent O'Brien's testimony that he was unaware of the state wiretaps until two weeks before the suppression hearing and that he did not learn any information from any wiretaps during the course of the federal investigation was false.
The claim is based on an affidavit of now ex-Lieutenant Charles Cassino, who is presently confined to a federal penitentiary following his conviction on one count of interstate and foreign travel or transportation in aid of racketeering enterprises, in violation of 18 U.S.C. § 1952, and on one count of conspiracy to commit the substantive offense, in violation of 18 U.S.C. § 371, in the United States District Court for the Southern District of New York.
Much of Cassino's affidavit is a rehash of the allegations, grounds, and claims raised, heard, argued, considered, and rejected on the merits on the suppression hearing. It would serve neither the ends of justice nor any purpose whatever to reiterate the claims or to reconsider them here. Petitioners have, thus, had their day in court on those claims and we have had "our say." They may not, therefore, raise the same claims again. Kaufman v. United States, 394 U.S. 217, 227 n. 8, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969); Sanders v. United States, 373 U.S. 1, 9, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); Thornton v. United States, 125 U.S.App.D.C. 114, 368 F.2d 822, 833 (1966) (dissenting opinion of Wright, J.).
As new matter, Cassino now avers that after the September 7 meeting between Dalli and Simmons, the state police tapped "telephone numbers presently unknown to me located at or near the residence of Dalli . . . . It was on these telephones that an arrangement was made between Simmons and Dalli to go to upstate New York on September 10, 1968. My best recollection is that that telephone conversation took place on September 9, 1968 and was first heard by our office early in the morning hours of September 10, 1968 . . . . Subsequent to May, 1969, I learned that it was a common practice during the course of this investigation for Investigator Kaynor [sic] to take the tapes representing the previous day's eavesdropping and together with Agent John J. O'Brien of the Bureau of Narcotics and Dangerous Drugs, go to . . . [a cubicle designed for audition of recorded telephone conversations] and there review the tapes . . . . As far as the 10th itself is concerned, I received a call early in the morning from Investigator Kaynor [sic] who told me of this probable meeting and I ordered him to contact all necessary parties immediately as to what we suspected and what we anticipated would occur . . . . Amongst those whom Investigator Kainor [sic] was to contact were Agents of the Bureau of Narcotics and Dangerous Drugs. The investigation and surveillance of September 10, which resulted in the arrest of Dalli and Simmons, Pytel and Bordeau, came about as a result of the orders which I gave after receiving the information from Investigator Kainor [sic] concerning the meeting between Dalli and Simmons."
Cassino's averments are not only indefinite, vague, and conclusory, but, insofar as he seeks to connect information learned by the state police from wiretaps on unknown telephones to the arrest of the defendants and seizure of narcotics from their automobile, his statements are blatant and inadmissible here. Plainly, information learned by Cassino from someone else is hearsay too unsubstantial to require a hearing or to support the instant applications. This is especially so when the hearsay is contradicted not only by the files and records of this case, consisting, among other things, of the inconsistent sworn testimony of Cassino, himself, upon the suppression hearing and before he had any motive to testify falsely, but also by the papers submitted by defendants in support of the previous motion to suppress, the papers submitted by the government in opposition to that motion, the testimony of Agent O'Brien and all other federal agents who testified upon the suppression hearing, all the wiretaps there produced, all the documentary evidence there received, and by the earlier opinions and findings of this court. Finally, it is contradicted here by the affidavit of Edward W. Kayner, the public official now accused by Cassino of revealing information learned from these unidentified wiretaps. Kayner's affidavit specifically and convincingly denies that any wiretaps existed other than those produced on the prior suppression hearing and emphatically denies that he related any information learned from any wiretaps either to Agent O'Brien or to anyone else connected with the Federal Bureau of Narcotics. See United States v. Catalano, 281 F.2d 184 (2d Cir.), cert. denied, 364 U.S. 845, 81 S. Ct. 88, 5 L. Ed. 2d 69 (1960); United States v. Branch, 261 F.2d 530, 533 (2d Cir. 1958), cert. denied, 359 U.S. 993, 79 S. Ct. 1125, 3 L. Ed. 2d 981 (1959); United States v. Smith, 257 F.2d 432, 434 (2d Cir. 1958), cert. denied, 359 U.S. 926, 79 S. Ct. 609, 3 L. Ed. 2d 629 (1959).
The hearsay nature of Cassino's attestations, his long silence, and his guarded averment that he learned about Investigator Kayner's alleged revelations "subsequent to May, 1969," i.e., after Cassino testified upon the suppression hearing, convince us that these applications for a hearing and for habeas corpus should be denied. United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970).
These applications, in reality, seek a second hearing of the defendants' motion to suppress evidence. Such a hearing is not warranted unless there is a substantial and creditable allegation of newly discovered evidence. Townsend v. Sain, 372 U.S. 293, 313, 317, 83 S. Ct. 745, 9 L. Ed. 2d 770 (1963). No such showing is made here.
If there were other wiretaps at or near Dalli's residence, which led to the arrest and seizure, obviously they were in existence at the time of the earlier hearing and it would have been just as easy to seek and obtain them as it was to seek and obtain wiretaps on the telephones of Beautee Trail Hair Stylists, Inc. and Ronald J. Carr. Surely, the most logical places for petitioners to suspect wiretaps would be upon their home telephones. If petitioners had exercised due diligence, such evidence, if it existed, would have been discovered and produced on the earlier hearing. Their failure even to seek such evidence can only be attributed to their inexcusable neglect. To find otherwise would only be to sanction needless piecemeal presentations of constitutional claims in the form of deliberate bypassing of orderly federal procedures. Petitioners make no showing of any justifiable reason or previous inability to seek and obtain such evidence if it existed. This failure alone would warrant denial of these appliations.
In addition to all of the foregoing reasons for denial of relief, there are still other reasons for denying Simmons' application.
As noted earlier, petitioner Simmons jumped bail after the action had been called for trial on May 12, 1969 and while we were conducting the hearing to suppress evidence on the ground that it had been seized as a result of information learned from wiretaps by the state police. Both Simmons and his counsel, Albert J. Krieger, had inspected the tapes of all wiretaps produced before Simmons fled, and we continued the hearing in Simmons' absence.
Some two and one-half years later, Simmons was apprehended and his case again came on for a jury trial before us, sitting by designation in the Northern District of New York, on February 7, 1972. He appeared at the appointed time, represented still by Mr. Krieger, and moved orally for a preliminary hearing on his claim that "there was illegal wire tapping in which there was federal participation, or at least the wiretapping results were transmitted to federal authorities." His counsel represented that he could establish more than just the wiretaps which had been presented upon the previous suppression hearing, that he had information that there was at least one other wiretap on the Dalli telephone in the Bronx, that a wiretap was also installed at a public telephone at the same premises, that a conversation concerning the trip upstate was intercepted by state police and transmitted to federal officers, that the surveillance of September 10, 1968 on the thruway and at the Holiday Inn in Plattsburgh took place because of illegal eavesdropping, and that there was also illegal eavesdropping at the Holiday Inn in Plattsburgh. In short, Simmons put forward the same vague allegations now made in the affidavit of ex-Lieutenant Cassino, who was present in court in response to a defense subpoena at the time of the oral motion to suppress. Mr. Krieger represented that Lieutenant Cassino "has had some personal problems of his own and is no longer with the State Police, but he is here prepared to testify" and that accordingly the defendant Simmons would be prepared to proceed preliminarily with the wiretap hearing.
We denied the application for a hearing without prejudice to a proper written application, supported by affidavits, although it appeared on oral argument that the defendant Simmons was quite clearly bound by our denial of the motion to suppress evidence because he had waived his right to be present by absconding during the hearing. Diaz v. United States, 223 U.S. 442, 453-459, 32 S. Ct. 250, 56 L. Ed. 500 (1912); United States v. Gradsky, 434 F.2d 880 (5th Cir. 1970), cert. denied sub nom. Roberts v. United States, 401 U.S. 925, 91 S. Ct. 884, 27 L. Ed. 2d 828 (1971); United States v. Dalli, supra, 424 F.2d at 48; Glouser v. United States, 296 F.2d 853 (8th Cir. 1961), cert. denied, 369 U.S. 825, 82 S. Ct. 840, 7 L. Ed. 2d 789 (1962); Burley v. United States, 295 F.2d 317 (10th Cir. 1961). We then proceeded to empanel a jury.
After the jury was empanelled, we took a short recess and, upon returning to the courtroom, Mr. Krieger advised that he had discussed the possibility of a disposition with his client, Simmons. Mr. Krieger advised that he had presented Simmons with a written acknowledgment of advice as to his constitutional rights and that Simmons was disposed to enter a plea of guilty to count five of the indictment, which alleged a violation of 26 U.S.C. § 4704(a) and 18 U.S.C. § 2. That count carried a maximum penalty of ten years imprisonment and a fine of $20,000. The defendant then, with the court's permission, withdrew his plea of not guilty and offered to plead guilty to count five. Count five was read to the defendant and he pleaded guilty.
The court then addressed Simmons personally, advised him of his constitutional rights, and interrogated him in full compliance with Rule 11, Fed.R.Crim.P. Simmons acknowledged that he was making his plea freely and voluntarily, after consultation with his counsel, with a full understanding of the nature of the charge and the consequences of his plea. He assured us that he was pleading guilty because he was guilty and for no other reason. We then elicited a factual basis for his plea by his confession in open court that he went to Plattsburgh with Dalli on September 10, 1968 and ...