The opinion of the court was delivered by: POLLACK
Vincent Pacelli has moved under 28 U.S.C. § 2255 to vacate his 1972 conviction for conspiracy to distribute cocaine and heroin in violation of 21 U.S.C. §§ 812, 841 and for three substantive offenses connected therewith, involving one or the other of such narcotic substances. His conviction was affirmed, 470 F.2d 67 (2d Cir. 1972), cert. denied, 410 U.S. 983, 93 S. Ct. 1501, 36 L. Ed. 2d 178 (1973). For the reasons appearing hereafter the motion will, in all respects, be denied.
Eight years after his conviction Pacelli asserts he recently learned of further details of the criminal background of a government witness, one Lorenzo Cancio, which allegedly were knowingly and perjuriously suppressed by Cancio and by the government in a conspiracy with the trial judge to defeat justice. He claims that, if revealed, the further details would have tended to corroborate testimony of Elisa Possas, a government witness, attempting to exculpate Pacelli as the source of cocaine and heroin trafficked in by her. Before the trial, Possas had confessed and implicated Pacelli as well as her boyfriend, the co-defendant Papadakos, as the source of the narcotics or the deals involved in the indictment. She pleaded guilty to every count charged. However, when called as a government witness, her testimony at trial, to the government's surprise, had varied diametrically from her plea and was at odds with what she had told government agents orally before her arrest and in the post-arrest written statement she gave. On both occasions she had solidly implicated Pacelli as her source for narcotics and for the heroin she had sold to a government agent on May 20, 1971 which was the basis of Counts III and V of the indictment. At the trial Possas pretended not to know Pacelli and surprisingly named Cancio as her source of all narcotics. However, as is shown by the record, there was ample evidence independent of Possas which sufficiently established that Pacelli was guilty of the charges of narcotics violations on which he was convicted.
Pacelli avers in this application that he learned "recently" (?) from testimony that Cancio gave at a trial which took place six years ago, in 1974, the so-called Torres trial, that Cancio had perjured himself in Pacelli's trial in 1972 when he testified on cross-examination that he was under indictment in only three narcotic cases, although there was a fourth indictment against him, and by denying that he had dealt in drugs prior to 1971, when in fact he was a substantial trafficker with international connections and when he testified he dealt only in cocaine in 1971 between January and October, albeit he had sold heroin on consignment in August. Mr. Rosner, Pacelli's lawyer, astutely observed in his summation to the jury,
Cancio very cleverly, admitted just so much as he had to admit and that is, he admitted that he committed the (narcotic, robbery and gun) crimes that he had been caught committing; he admitted the crimes that he had been indicted for, he didn't admit to anything else. (Tr. 597)
Pacelli says that he has just learned that Cancio had told a grand jury on October 7, 1971 of his sale of heroin in August 1971 on behalf of one, Aspilche. Cancio and others were indicted on the next day for Schedule I and Schedule II narcotics violations, the fourth indictment mentioned above. It is not contended that this August heroin transaction by Cancio was in any way involved in or related to the charges in and the trial of the indictment against Pacelli herein, other than as an additional piece of impeachment matter. It is charged, that this impeaching piece of information was knowingly suppressed by the government prosecutor and that somehow (not explained) the trial judge knew the content of this testimony given in grand jury secrecy and, in alleged conspiracy with the government to obstruct justice, the judge and the prosecutor allowed the witness' "perjurious denial" of any heroin trafficking during the period in question to stand uncorrected.
Pacelli further charges that the government purportedly failed to disclose § 3500 and Brady material concerning Cancio. This charge relates to investigative reports of drug enforcement agents (not assigned to this case) allegedly suppressed by the government and made in the course of a different narcotics investigation originating in California, the Aspilche situation, which were pertinent to and came to light in 1974 at the Torres trial, that included accounts of Cancio's past drug activities, albeit that they are utterly devoid of any admissions of Cancio regarding pre-1971 drug trafficking or any other bad acts; and that nothing in the accounts is exculpatory of Pacelli and the accounts do not bear on Pacelli or the matters for which he was indicted in this case.
Concurrently with this motion under § 2255, Pacelli requested that his petition be assigned to a judge other than the trial judge, on the ground that Pacelli having levelled accusations which the trial judge allegedly would have to answer at a hearing as a probable witness, the trial judge was disqualified to pass on this application. That request has been denied. See Opinion of July 22, 1980 filed herein.
A careful scrutiny of the records and proceedings of the Court has been made. It must be apparent that the review has been seriously hampered by the lapse of about nine years since the events, the dispersal in the meantime of the government officials involved in various phases of the case, the difficulties of locating and assembling obsolete records, marshalling of the many proceedings and the inexorable dimming of memories. These have not been aided by petitioner's self-interested cutting and pasting together of bits and pieces of hearsay, speculation and conjecture. Indeed, it is highly questionable 1), whether legally, an application of this sort labelled under § 2255 to avoid the impact of Rule 33, Fed.R.Crim.P. on the grounds asserted here, should be entertained at all and 2), what fundamental interest of justice is actually served by considering such a belated attack on a conviction under all the facts and circumstances present herein.
However, enough does appear in the available Court records and proceedings that have been assembled to show that the strident contentions and self-serving lurid rhetoric, speculations and conjectures put forth in the moving papers are illusory and wanting in material, objective fact. There is no reasonable likelihood that the disclosures that Pacelli here asserts should have been made in 1972 could conceivably have affected the jury or the outcome of Pacelli's trial in any way whatsoever. No reasonable doubt of Pacelli's guilt could have been created by any of the matters cited here where none existed previously.
On February 7, 1972, the day before the trial actually commenced, Mr. Walker, the government prosecutor, provided Mr. Edmund Rosner, Pacelli's trial lawyer, with the name of Lorenzo Cancio as a prospective government witness who would testify on the next day. Mr. Rosner then stated the following:
I would bring this to Your Honor's attention. If I had this information earlier I might indeed have had sufficient time to interview Mr. Cancio in preparation for this trial. I knew Mr. Cancio's whereabouts prior to today. Indeed, Mr. Cancio is a person who is known to me. However, I did not realize he was in any way involved in this case. (Tr. 10)
Mr. Rosner was quite correct in saying that Cancio is "known to me." He was Cancio's lawyer in three narcotics indictments filed in 1971, as well as Pacelli's lawyer during that time. The Cancio cases were docketed as 71 Cr. 562 and 563 and 71 Cr. 1185 (in which he also represented Maria De Capo, Cancio's girlfriend). In saying that he (Rosner) "did not realize that he (Cancio) was in any way involved in this case" it is apparent that Pacelli had no plan at that time to name Cancio at the trial as the source of the heroin sold on May 20, 1971 to the government agent by Pacelli's agent, Elisa Possas.
Rosner knew then that Elisa Possas had named Pacelli and Papadakos as the source of the heroin, he had a copy of Exhibit 9-A, the Possas confession and knew that she had pleaded guilty to all charges naming her with Pacelli in this indictment.
It is a fair assumption from the trial record and the circumstances that the thought of asserting that Cancio, not Pacelli, was the source of the May 20, 1971 heroin, occurred when Elisa Possas performed her act subsequently on the witness stand. After Cancio's direct testimony, Mr. Rosner had announced "I have no questions of this witness". Mrs. Rosner on behalf of Pacelli's wife followed suit, she had no cross-examination. But Mr. Taikeff, representing defendant Papadakos, against whom alone Cancio had testified, in respect to cocaine only, then conducted a full cross-examination relating to the charges against the defendant Papadakos (Tr. 177).
In presenting Cancio to the jury on his direct examination the prosecutor had elicited from Cancio that he had been convicted of robbery and a gun charge and that he had pleaded guilty to three narcotic indictments each of which was for a 1971 cocaine distribution. Cancio's crimes were then raked over again on Mr. Taikeff's cross-examination along with other destructive impeachment matter. Neither lawyer mentioned yet a fourth, a conspiracy indictment, 71 Cr. 1159, against Cancio which was filed on October 8, 1971 following his appearance before the grand jury on October 7, 1971.
In fact, by the time of the Pacelli trial that fourth conspiracy charge had become dormant and had been lodged on the Court's suspense calendar with the Assignment Committee and removed from the active docket of cases. The moving papers annex the Clerk's docket sheet on that fourth charge. Its contents seem not to have been understood by the moving party or are being misread. What it shows, is that the one count conspiracy indictment filed on October 8, 1971 was processed on that day by Judge Lloyd MacMahon who ordered warrants of arrest against all named defendants, other than Cancio, and the nominal assignment by Judge MacMahon of the case to the calendar of Judge Pollack. The docket sheet is so stamped. It also shows, that thereafter there is no notation of any notification to Cancio of the indictment or service thereof upon him; that he was not arrested thereon; that no bench warrant for his arrest was ordered or issued; and that he was never arrested or arraigned thereon and never pleaded thereto. The docket sheet shows further that no steps were taken in the case until January 18, 1972 when it was transferred from the active docket of Judge Pollack to the "Suspense" docket of the Court and marked "Statistically closed". As of that time no defendant had been apprehended, served with the indictment or arraigned thereunder. So far as Cancio was concerned this case was dormant, in Suspense and actually was nolle prosequid subsequently. An entirely different indictment on the crimes charged superseded this one in 1973 which omitted Cancio as a defendant. That was the indictment which resulted in the so-called Torres trial in 1974.
Thus, at the time of the Pacelli trial in February 1972, there was a dormant statistically closed fourth narcotics conspiracy charge on the Suspense docket that was not adverted to by the government or the witness or defense counsel when Cancio was questioned about the "three" active narcotic indictments.
Indeed when Cancio came up for pleading on the three indictments on November 15, 1971, prior to the time that the fourth case was placed on the dormant calendar, the Court had said
THE COURT: That count in that indictment will be carried until the date of sentence on the other three indictments and the Court will entertain an application (to dismiss) at the date of sentence in respect of the outstanding count in the fourth indictment which is 71 Cr. 1159 where the defendant is charged with the crime of conspiracy in respect to sale and distribution of Schedule I and II Narcotic Drug Substances.
It behooves you, Mr. Epstein, to look into that matter.
MR. EPSTEIN: Yes, Your Honor, I will.
THE COURT: And discuss with the U.S. Attorney and make the proper application at the time of sentence (pp. 11-12)
The obvious purpose of this colloquy was to clear the Suspense docket of that fourth indictment.
In these circumstances, the omitted mention in February 1972 of yet a fourth indictment against Cancio by any of the lawyers or the witness has no significant evidentiary value or substance.
Pacelli also calls attention to Cancio's response to one question by Mr. Taikeff, when he said that between January 1 and October 1, 1971 he had dealt in "cocaine only", although on October 7, 1971 he had told a grand jury that Aspilche had given him heroin on consignment in August 1971 and that he had disposed of it at that time, earning $ 5,000 therefrom.
Again, at the threshold it will be noted that this August heroin delivery from Aspilche was not related to any charge in the indictment against any defendant herein. But Cancio did not mention it and the government did not correct the Cancio answer on cross-examination of, "cocaine only" before October 1st.
The circumstances of record show conclusively both the immateriality of the actual fact and an evident explanation of the omission. 1) Cancio was called only and testified only as a witness against Papadakos on cocaine transactions; 2) The entire tenor of his 31 page cross-examination on which the error or omission occurred was laid on cocaine heroin was never mentioned either on Cancio's direct or cross-examination; 3) The two word reference "cocaine only " came toward the end of a lengthy cross-examination repeatedly mentioning only cocaine transactions; cocaine was mentioned on 18 pages of the 31 page transcript and the word "cocaine " was used 42 times therein. Cancio, was a Spanish-speaking individual who claimed to have at that time an inadequate command of English. The examiner questioned Cancio about the cocaine transactions for which he was arrested first, in May and again, in October of 1971 and the following questions were then asked:
Q. Between January 1, 1971 and October 1, 1971 do you understand that there are nine months?
Q. January 1 and October 1, that is a period of nine months, do you understand that?
Q. Did you sell only cocaine during that period?
A. Cocaine only (Tr. 195-96).
The questions then went on for several pages without any further reference to this matter and related to the amount of bail that Cancio had to post in connection with his crimes, the indictments therefor, his willingness to cooperate with the government and the consideration that he expected therefor. He was questioned about the relationship with a co-defendant in connection with the October 1, 1971 cocaine sale and the testimony he had given as a defense witness in his girl friend's trial on a cocaine charge. (Tr. 197-203)
The chance reference to drugs other than cocaine was an unexpected turn in the evidence which was not followed up; there was no development in the trial up to that time which gave any drug other than cocaine any importance so far as concerned the witness Cancio, or the defendant Papadakos.
In the context and sequence and circumstances involved the omission of the prosecutor to jump up and correct the erroneous isolated response of the witness on a seemingly immaterial inquiry (other than for his character and credibility, already amply disclosed) was both understandable and excusable. The harsh suggestion of conscious omission and subornation of perjury by the prosecutor, or even of consciously purposeful misstatement by the witness, in this ambiguous frame goes too far. The actual trial scene showing both ultimate immateriality at the time of the incorrect answer and at most, excusable neglect, is as follows.
1. Cancio's role in the trial
Cancio was called as a government witness in the case to testify solely against defendant Jimmy Papadakos and that is what he did. The prosecutor, Mr. Walker, stated at the time Cancio was being sentenced by this Court what is undeniable fact, that:
... Mr. Cancio ... specifically gave testimony which contributed materially to the conviction of the defendant Papadakos on a narcotics conspiracy charge. (United States v. Cancio, ...