The opinion of the court was delivered by: WEINFELD
EDWARD WEINFELD, District Judge.
Petitioner Peter Corso, also known as Peter Carbone, was convicted in February, 1972, by this court after a two-day nonjury trial on two counts: (1) possession with intent to distribute three kilograms of heroin; and (2) conspiracy to violate the narcotics laws.
He was sentenced on March 15, 1972 to five years imprisonment on each count, to run concurrently, to be followed by a special parole period of three years. He now moves pursuant to 28 U.S.C., section 2255, to vacate the judgment of conviction, to dismiss the indictment, or alternatively for a new trial.
Petitioner, originally appearing pro se, urged in the main violation of his right (1) to adequate legal representation during his trial and with respect to an appeal; (2) to due process of law based upon perjury committed by government witnesses; and (3) against unlawful search and seizure in the use of illegal wiretaps. The government, after exhaustive investigation, acknowledged the existence of unauthorized wiretaps but contended that his arrest and subsequent conviction were not the result of those taps. It denied petitioner's other allegations and consented to a hearing limited to the issue of whether petitioner's conviction was tainted by the illegal wiretaps. Thereupon this court appointed counsel to represent petitioner and extended the scope of the hearing to embrace all of petitioner's claims. At the hearing, the claim of inadequate representation of counsel during his trial and upon appeal was withdrawn.
To place petitioner's remaining claims in proper perspective, it is desirable first to summarize the trial testimony.
Petitioner was indicted together with Merritt C. Johnston for the substantive crime and conspiracy to commit it. Johnston, prior to trial, pled guilty and the case proceeded against petitioner as the sole defendant. The evidence established that Detective Louis D'Ambrosio of the New York City Police Force, in an undercover role as a narcotics purchaser, came into contact with Johnston. On September 30, 1971, in Johnston's apartment at 46-48 Downing Street, New York City, D'Ambrosio negotiated the purchase of three kilograms of heroin at $18,000 a kilo. In D'Ambrosio's presence, Johnston then made a phone call to his new "connection," asking "are there any more of the shirts that I had seen earlier available?" Johnston, after hanging up, informed D'Ambrosio he would be able to sell him the heroin. Thereafter, various conversations were had between Johnston and D'Ambrosio for its purchase and delivery. On October 5, 1971, at 1:15 p.m., D'Ambrosio again met Johnston at the latter's apartment. Johnston told D'Ambrosio the price now was $20,000 per kilogram, to which the latter agreed. After some discussion they arranged to consummate the sale in Johnston's apartment. Johnston then received a telephone call in D'Ambrosio's presence during which D'Ambrosio heard Johnston say "I have the man right here." When Johnston hung up, he said to D'Ambrosio "that's my man Carbone." Johnston told D'Ambrosio that Carbone would be at the apartment between 3 and 3:30 p.m. that afternoon "to deliver the merchandise" and that D'Ambrosio was to call him at 3:30 p.m. At 1:45 p.m., D'Ambrosio left Johnston's apartment and notified Detectives Joseph Nunziata and Octavio Pons, also of the New York Joint Task Force, of the impending delivery of the narcotics at Johnston's apartment.
The area where Johnston resided was placed under surveillance by Nunziata, Pons and others. At 3:30, petitioner Peter Corso, also known as Carbone, arrived by car at Johnston's building and parked nearby. He entered the building, soon emerged and, joined by Johnston, proceeded to a nearby food shop. They returned to Corso's parked car, where Corso opened the trunk of the car and slid a blue Air France travel bag in Johnston's direction. Johnston picked it up and both men proceeded to enter the foyer of Johnston's apartment house. At this point, Detectives Nunziata and Pons arrested the two men and took possession of the bag which contained six half kilogram packages of heroin.
The witnesses called by the prosecutor at the trial included Detectives D'Ambrosio, Nunziata and Pons, who testified to the foregoing events. Petitioner did not testify, nor did he present any witnesses. This court found the defendant guilty, stating in its findings that the government's "evidence is substantial," as indeed it was.
The judgment of conviction is now challenged upon claims of violation of the constitutional rights already referred to. Nunziata and D'Ambrosio at the trial upon cross-examination denied that there had been any wiretaps in this case. In fact, there had been two unauthorized wiretaps on Johnston's telephone, which both men were aware of at the time of the arrest. In addition, after the arrest but before petitioner's trial it appears that they learned of a third illegal tap, this one on Corso's telephone, placed by a different police unit.
The government contends, however, that petitioner's arrest and conviction are untainted by these three wiretaps -- that the information leading to his arrest was derived solely from the undercover negotiations between Detective D'Ambrosio and Johnston (petitioner's codefendant), and the surveillance observation by Nunziata and Pons shortly before and at the time of his arrest. Thus, the hearing was directed to three issues:
(1) whether Corso's arrest and conviction was based upon information obtained through the use of one or more of the illegal wiretaps;
(2) whether the failure of the government to disclose, pretrial, the existence of the wiretaps requires a new trial; and
(3) whether the perjury of government witnesses in denying knowledge of the existence of the wiretaps requires a new trial.
1. Was petitioner's arrest and conviction tainted by illegal wiretaps ?
Shortly before and at the time of petitioner's arrest, and for some time thereafter, federal, state and local authorities were engaged in criminal investigations which, unknown to one another, pursued at times parallel and at times different lines of investigation. The United States Attorney for this district was engaged in one investigation that was directed towards police corruption in the New York City Police Department. At its center working with the federal authorities as an undercover agent was Robert Leuci, a New York City police detective. ...