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BRAWER v. UNITED STATES

December 13, 1978

Alfred BRAWER, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: POLLACK

DECISION

This is a motion pursuant to 28 U.S.C. § 2255 for an order vacating the sentence and judgment of conviction entered on Indictment 72 Cr. 64 (MP). The United States Attorney has filed a lengthy memorandum in opposition to Brawer's motion, and the issues raised by the motion have been fully considered by the Court. For the reasons set forth below, the motion must be denied.

 Petitioner was convicted in July 1972, on three counts of conspiracy to transport and transporting stolen United States Treasury bills in interstate and foreign commerce. Concurrent sentences of five, seven and seven years were imposed, and Brawer is now out of prison and under parole supervision in Nevada. On direct appeal the Court of Appeals remanded the case for consideration of a new claim that the government had improperly concealed exculpatory evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). See United States v. Brawer, 482 F.2d 117 (2d Cir. 1973). This Court held a hearing and found no violation of Brady v. Maryland, supra, had been established. See United States v. Brawer, 367 F. Supp. 156 (D.C.1973). The Court of Appeals adopted the findings of this Court on the Brady issue and affirmed the convictions of all of the defendants. 496 F.2d 703 (2d Cir. 1974). The Supreme Court denied certiorari. 419 U.S. 1051, 95 S. Ct. 628, 42 L. Ed. 2d 646 (1974). *fn1"

 Brawer now moves to vacate his sentence and conviction, alleging several grounds for relief. Primarily, Brawer asserts that prior uncounseled convictions were used to impeach his trial testimony in violation of Loper v. Beto, 405 U.S. 473, 92 S. Ct. 1014, 31 L. Ed. 2d 374 (1972). Brawer also complains that he and his counsel were not permitted to inspect or to correct inaccuracies in his presentence report, that he did not receive effective assistance of counsel, and that testimony concerning his prior criminal record was introduced for the improper purpose of showing his criminal disposition. Brawer has also requested that the Court recuse itself from decision of this motion.

 Briefly, the proof at trial showed the petitioner to have been the moving force behind the attempted negotiation of $ 262,000 worth of stolen United States Treasury bills in the spring of 1969. The evidence established, and the jury by its verdict found, that the bills had been stolen and that Brawer and his co-defendants knew this when they attempted to sell the bills in Canada and Switzerland.

 Brawer and co-defendant Ralph Ignomirello were jointly represented at trial by James Horan, Esq. Their defense was three-fold. First, they disputed the sufficiency of the government's proof that the Treasury bills had been stolen from the Francis I. duPont & Co. brokerage house. Second, they denied any knowledge that the bills were stolen. Finally, they launched a sharp attack on the credibility of Salvatore Mauceli, an accomplice witness who pleaded guilty before trial and who testified for the government.

 As part of the defense of the case, Alfred Brawer testified on his own behalf. The transcript of his trial testimony indicates that his prior criminal record was inquired into first on Direct examination by Mr. Horan, Brawer's attorney:

 
"DIRECT EXAMINATION
 
BY MR. HORAN:
 
Q. Mr. Brawer, have you ever been convicted of a crime?
 
A. Yes, I have.
 
Q. Tell us about it, will you?
 
A. In respect to the many times that I have been convicted, all collectively or singly?
 
Q. Were you convicted more than once of a crime?
 
A. Yes, I was.
 
Q. When was your first conviction?
 
A. Memory will not serve me to dates. I would appreciate it if you tell me the dates and I will corroborate them.
 
Q. All right.
 
In the years 1935 to 1939, were you involved in a conviction of a crime at that particular time, within that period of time?
 
A. In "35 to "39?
 
Q. Right.
 
A. 37 years, let me see. If you have a date there I must have been.
 
Q. Well, I have some information here
 
THE COURT: Mr. Horan, please let the witness testify. When you start out by indicating that you have information, you are putting yourself in the posture of giving the testimony. I think you should ask the witness the questions.
 
Q. Do you recall when you had been convicted of a crime, Mr. Brawer, on your own matter of knowledge at this particular time?
 
A. I believe I recall fairly accurate in a sequential order of events in which I have had legal difficulty, convicted, imprisoned and otherwise. May I recite them in order? Then I will try. But to date exactly, I cannot.
 
Q. That's enough for now."

 At this point Brawer's testimony was interrupted so that another defense witness could testify. Brawer later retook the witness stand, however, and still on direct ...


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