Appeal from an order of theUnited States District Court for the Western District of New York, Harold P. Burke, Judge, denying appellant's motion pursuant to 28 U.S.C. § 2255 to vacate illegal sentences.
Smith and Timbers, Circuit Judges, and Weinstein,*fn* District Judge.
In 1967, Pasquale Natarelli and four co-defendants were charged in a two-count indictment with conspiracies to interfere with commerce by threats or violence*fn1 and to transport stolen property in interstate commerce.*fn2 A jury returned a verdict of guilty on both counts, and the United States District Court for the Western District of New York, the late John O. Henderson, Chief Judge, sentenced Natarelli to concurrent terms of twenty years on count one and five years on count two -- the maximum sentences permissible under the applicable statutes. On direct appeal, the judgments of conviction were affirmed by this court, United States v. Caci, 401 F.2d 664 (2d Cir. 1968). That judgment was vacated by the Supreme Court as to Natarelli and one co-defendant, Randaccio, and their cases were remanded to the district court for an evidentiary hearing to determine if their convictions should be set aside on account of unlawful electronic eavesdropping. Giordano v. United States, 394 U.S. 310, 22 L. Ed. 2d 297, 89 S. Ct. 1163 (1969). The district court denied their motions for a new trial; only Randaccio took an appeal, and this court affirmed the district court's decision. United States v. Randaccio, 440 F.2d 1337 (2d Cir. 1971) (per curiam).
In September, 1974, Natarelli moved, pursuant to 28 U.S.C. § 2255,*fn3 that the district court vacate the sentence and direct a resentencing on the ground that, in violation of Braverman v. United States, 317 U.S. 49, 87 L. Ed. 23, 63 S. Ct. 99 (1942), Judge Henderson had imposed a separate sentence for each count even though the proof showed only a single conspiracy.
The evidence at trial, as described in some detail in our opinion in United States v. Caci, supra, 401 F.2d at 665-67, showed that Natarelli and his co-conspirators, meeting in Buffalo in February, 1965, hatched a plan whereby several of their number would travel to Los Angeles, commit two robberies and transport the proceeds back to Buffalo. The intended victims were the armed transport service carrying the daily receipts of the Beverly Hilton Hotel, and a wealthy guest at the hotel known for her expensive jewelry. Various events thwarted the plan, and neither robbery was accomplished. The agreement to rob the armed transport service constituted the conspiracy alleged in count one of the indictment, and the agreement to transport to Buffalo the proceeds of the jewel robbery served as the basis for count two.
In response to the claim raised in Natarelli's § 2255 motion, the district court, Harold P. Burke, Judge, reviewed the trial record and concluded that there was indeed but one conspiracy which had two criminal objects. However, relying on Sunal v. Large, 332 U.S. 174, 91 L. Ed. 1982, 67 S. Ct. 1588 (1947), the court held that Natarelli was precluded from making this collateral attack on his sentence because of his failure to raise the point on direct appeal. Therefore, it denied him any relief to which he might otherwise be entitled under Braverman, supra. We reverse the determination that Natarelli's failure to raise his Braverman claim on direct appeal bars him from raising it now, and we hold that Natarelli should be resentenced.
I. THE GOVERNMENT'S CONCESSIONS.
In its brief on appeal, the government purports to concede (a) that the district court erred in its determination that Natarelli is precluded from raising his Braverman claim at this stage of the proceedings, and (b) that the imposition of two sentences was contrary to Braverman. It contends, however, that the proper remedy here is not a remand for resentencing, but rather a vacation of the conviction and five-year sentence under count two.
We agree that the failure of Natarelli to raise the Braverman claim on direct appeal does not preclude his present claim.*fn4 In addition, we accept the government's concession that there was but one agreement in this case, and hence one conspiracy,*fn5 and that the sentence imposed by Judge Henderson was therefore contrary to the doctrine of Braverman :
Whether the object of a single agreement is to commit one or many crimes, it is in either case that agreement which constitutes the conspiracy which the statute punishes. The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one.
The government urges that we vacate the five-year sentence on count two and let stand the twenty-year sentence on count one. It reasons that the sentence on count two was not tainted by evidence relating to count one, since all the evidence would have been admissible even if only one count had been charged, and ...