The opinion of the court was delivered by: MACMAHON
MacMAHON, District Judge.
This application for post-conviction relief, brought under 28 U.S.C. § 2255, presents a third attempt to reopen issues previously heard and determined against petitioners.
Petitioners Dalli and Pytel were convicted by a jury 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. Each was sentenced on June 13, 1969 to twenty years imprisonment on each of the counts, the sentences to run concurrently.
The convictions were 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. Suffice it to say here that Dalli, a resident of New York City, was arrested and five kilograms of pure heroin seized from his automobile on September 10, 1968 while he and a co-defendant, Simmons, 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 that day at the Holiday Inn in Plattsburgh, New York.
Petitioners and their co-defendants moved before trial to suppress certain evidence, including the five kilograms of heroin, on the ground that the seizure was the fruit of tainted information learned from wiretaps by the New York state police. Following a full evidentiary hearing, we denied the motion, finding that the search was incident to a lawful arrest based on probable cause and that neither the arrest nor the seizure was tainted by wiretaps. Our findings and conclusions were set forth in three opinions which are appended to our opinion in Simmons v. United States, 354 F. Supp. 1383 (N.D.N.Y.1973). A summary of those findings and conclusions is necessary to put the present application in proper perspective.
All the wiretaps challenged 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)
and all recordings and transcripts of all of the tapes were produced and delivered to the defendants and their counsel for selection of any which they deemed relevant. After thorough examination, the defendants selected only one, a wiretap on the telephone line of Beautee Trail Hair Stylists, Inc., which 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 (BNDD), also made available to defendants, that federal agents had observed the 7:00 o'clock meeting.
All witnesses desired by the defendants were produced. The defendants called John T. O'Brien, the BNDD agent in charge of the investigation of the defendants; his superior, George R. Halpin; Agent John W. Maltz, who observed a meeting between Dalli and Simmons on September 7, 1968; 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.
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 BNDD 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 BNDD.
Despite exhaustive examination of all the witnesses, the defendants failed to establish any connection between any wiretap and surveillance of any defendant, or the observation of the defendants Dalli and Simmons at the 7:00 P. M. meeting, or, ultimately, the arrest and seizure of the narcotics.
Following affirmance of their convictions, petitioner Dalli and his co-defendant Simmons raised the identical wiretap issue a second time, on November 16, 1972, in petitions for post-conviction relief under 28 U.S.C. § 2255, claiming 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 at that time was based on an affidavit of former Lieutenant Charles Cassino, who was then confined to a federal penitentiary following his conviction on January 27, 1972 in the United States District Court for the Southern District of New York on one count of interstate and foreign travel or transportation in aid of racketeering enterprises, in violation of 18 U.S.C. § 1952, and one count of conspiracy to commit the substantive offense, in violation of 18 U.S.C. § 371. See United States v. Cassino, 467 F.2d 610 (2d Cir. 1972).
Much of Cassino's affidavit was a reiteration of the allegations and claims previously considered and rejected on the suppression hearing. We, therefore, refused to consider those claims again.
However, as allegedly new evidence, Cassino claimed 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 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."
We denied the petitions without a hearing, finding, among other things, that Cassino's allegations were indefinite, vague and conclusory and that, insofar as he sought to connect information by the state police from wiretaps on unknown telephones to the arrest of petitioners and seizure of the narcotics by federal agents, his statements were hearsay too insubstantial to require a hearing or to support the petition.
The Court of Appeals agreed with our determination,
and in an opinion by Judge Mansfield demonstrated the specific deficiencies and omissions of the Cassino affidavit. Thus, for example, the court noted that while Cassino stated that he "learned that it was a common practice . . . for Investigator Kaynor [of the New York State Police] to take the tapes representing the previous day's eavesdropping and together with Agent John O'Brien of the Bureau of Narcotics and Dangerous Drugs, to go to one of these rooms and review the tapes," he did "not say how or from whom he learned this;" that there was "no indication that the wiretaps or transcripts of them were in fact furnished to the federal officers;" and that Cassino's averment that ...