The opinion of the court was delivered by: POLLACK
Four and a half years after being convicted by a jury of narcotics conspiracy and substantive offenses and sentenced as a second narcotics offender to a thirty (30) year term of imprisonment and a $20,000 committed fine, Elvin Lee Bynum has filed a pro se petition pursuant to § 2255 of Title 28 U.S.C. to vacate and set aside his sentence.
Bynum assigns the contention to be found in a spate of current petitions emanating from detention facilities of having been deprived at trial of the effective assistance of counsel; here because of alleged conflict of interest between his counsel and a government witness. He also asserts that he was promised immunity from prosecution for narcotics conspiracy charges under investigation by government agents and was deceived thereby into cooperating in another connection.
Until this petition was filed in pro se style, Bynum had always been represented by his own chosen private counsel. There is no question raised hereon of his financial ability to be represented by a private counsel. Bynum's wealth disclosed on the trial was very large.
On appellate review of Bynum's conviction questions were raised concerning use of wiretap evidence at trial, and before proceeding further the Court of Appeals remanded those questions for a hearing (United States v. Bynum, 475 F.2d 832 (2d Cir. 1973)). An evidentiary hearing was held and a report was submitted to the Second Circuit (United States v. Bynum, 360 F. Supp. 400 (S.D.N.Y.1973)) which then proceeded with a plenary review of all issues raised by Bynum's appeal from his conviction, including the identical circumstances and issues now put forth in the principal point on this § 2255 petition. That point has been repeatedly and unsuccessfully litigated in the past by Bynum at various points in this case. This issue and all others raised by appeal were found wanting in merit and Bynum's conviction was upheld (United States v. Bynum, 485 F.2d 490 (2d Cir. 1973)). Shortly thereafter the Supreme Court decision in United States v. Giordano, 416 U.S. 505, 94 S. Ct. 1820, 40 L. Ed. 2d 341 (1974) suggested questions not resolved in Bynum and the Supreme Court vacated and remanded Bynum for reconsideration in light of its ruling in Giordano (Bynum v. United States, 417 U.S. 903, 94 S. Ct. 2598, 41 L. Ed. 2d 209 (1974)). This Court in turn received the case back and conducted hearings and found and reported that Giordano did not adversely affect Bynum's conviction (United States v. Bynum, 386 F. Supp. 449 (S.D.N.Y.1974)). The Court of Appeals affirmed this ruling (United States v. Bynum, 513 F.2d 533 (2d Cir. 1975)) and review in the Supreme Court was then denied (United States v. Bynum, 423 U.S. 952, 96 S. Ct. 357, 46 L. Ed. 2d 277 (1975)).
The contention of Bynum that he was denied a fair and impartial trial in accordance with due process of law lacks factual and legal merit and his petition pursuant to § 2255 must be denied.
The petitioner's papers, relying on conclusory self-serving hearsay and devoid of fact on the material aspects asserts that his chief defense counsel, Evseroff, and a key witness against him, Stewart, interfered with Bynum's "constitutional right to the 'untrammeled and unimpaired assistance of counsel for his defense'" (petition 8) citing Glasser v. United States, 315 U.S. 60, 71, 62 S. Ct. 457, 86 L. Ed. 680 (1942).
This identical matter was considered prior to sentence on Bynum's motion in arrest of judgment and for a new trial made on June 14, 1972 and heard on that day and again on June 27, 1972 and found devoid of factual basis impairing Evseroff's representation. Evseroff had in 1969 represented Stewart in connection with a charge of third degree assault which occurred in a restaurant and pertained to a girl. The proceeding resulted in Stewart's acquittal of the assault charge. When Stewart appeared as a witness for the government in Bynum's trial Bynum, his co-counsel Richard R. Ryder of Richmond, Virginia, the prosecutor, and the Court were advised of the earlier representation and Bynum had no objection thereto or to having his lawyer Evseroff proceed for him nonetheless in the case. Bynum, as stated above, raised the point after the trial through another lawyer retained at the time and the complaint was found to be contrived and unworthy of belief and was rejected, this Court finding as follows:
The evidence on which the defendants Bynum and Cordovano base this motion for a new trial and other relief is neither newly discovered since the trial nor sufficient to warrant a new trial.
The defendant Bynum contends that he was denied effective assistance of counsel because his presently retained counsel, Mr. Evseroff, had previously defended George Stewart, the Government's main witness, and informant, in a state court case in which Stewart was charged with criminal assault in the third degree, a misdemeanor.
It is undisputed that this prior state court prosecution ended in acquittal, that it concerned a past and wholly separated case of dissimilar nature and arose in a context utterly removed from narcotics conspiracy.
The record in the present case does not even remotely suggest that confidences of the witness Stewart were or could have been violated by Mr. Evseroff's representation of Bynum or that Evseroff's duties to Bynum could in any material or significant way come into collision with any obligation due his former client.
Bynum's trial counsel unequivocally states that at the beginning of the trial he informed Bynum of the prior representation of the witness, that this information was imparted as soon as counsel learned that this witness would appear.
This notification was unequivocally acknowledged by Mr. Bynum in a signed affidavit submitted June 14, 1972. He said in that affidavit that, "He," meaning himself, "learned at the commencement of the trial herein that said attorney had previously represented the Government witness in this case."
As a matter of fact, Bynum remained indifferent to this information until June 14, 1972, some months after the trial was concluded and the day that sentence was initially scheduled to be imposed. At that time the issue of prior representation was raised by a new lawyer in connection with ...