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September 1, 1981

The UNITED STATES of America,
Raymond MARQUEZ, Defendant

The opinion of the court was delivered by: WEINFELD

The petitioner, Raymond Marquez, the "banker" of a numbers operation in Harlem, was convicted in December 1970 of the crime of forcing by extortionate threats, *fn1" Juan Nieves Monserrate, one of his "runners" in the operation, to travel from New York to Puerto Rico and to return with funds that had been sent there by Monserrate. Marquez now moves, more than ten years after his conviction and after he has served the three-year sentence imposed upon him, for a writ of error coram nobis to vacate his judgment of conviction. Familiarity is assumed with the opinion of the Court of Appeals affirming his conviction, *fn2" and this Court's subsequent opinion denying petitioner's motion for a new trial. *fn3"

The motion for a new trial was based upon the ground that Monserrate and Alvarez, his father-in-law and also a "runner," perjured themselves at the trial by their denials that they had cheated the operation. Petitioner and co-defendant Angelet did not testify at the trial. The third defendant, Pedro Rivera, a "controller" in the gambling operation, testified that Monserrate had admitted cheating and that no threats were made to induce Monserrate to go to Puerto Rico and that he went there voluntarily to obtain and return the money.

At the evidentiary hearing on the motion for a new trial, Monserrate acknowledged that, contrary to his trial testimony, he did cheat the gambling operation. The Court, for reasons set forth in its opinion, denied the motion for a new trial.

 The instant application centers essentially upon the same ground upon which petitioner's prior motion for a new trial was based, to wit, the perjury of Monserrate and Alvarez; however, this time petitioner enlarges his claim and charges that not only was their perjury at the trial known to government agents but that the government agents themselves committed perjury at the trial and the hearing on petitioner's motion for a new trial; and, further, that the government failed to disclose prior to and during the trial documents to which he was entitled under Brady v. Maryland, *fn4" or pursuant to 18 U.S.C. § 3500 and Rule 16 of the Federal Rules of Criminal Procedure. Accordingly, he contends that the government violated his right to due process of law and seeks vacatur of his judgment of conviction.

 Petitioner initially based his motion upon a telex dated December 12, 1969 ("telex"), prepared by the agent of the FBI in charge of the criminal division, *fn5" drawn from information contained in the FBI files relating to the investigation of the charges against petitioner. The telex is a lengthy summary of the origin of the investigation and subsequent events. It includes reference to questioning of Monserrate at Kennedy Airport upon his return from Puerto Rico with the money, proposed action by the United States Attorney, plans to apprehend Marquez and alleged co-conspirators upon delivery of the extorted money, the protection of lookouts and the failure by FBI agents to apprehend one Anibal Carrion, to whom Marquez gave the money after it was delivered to him by Monserrate, and who managed to leave the scene of the crime unapprehended by surveillance agents. Despite an intensive search, Carrion was unavailable at the time of petitioner's trial. The telex, among other matters, states:

After a penetrative interview, Nieves (Monserrate) finally admitted his involvement in the situation (as outlined by Alvarez) *fn6" and reluctantly agreed to cooperate. He stated he had recovered Seven Thousand Four Hundred Thirty Five Dollars of the money swindled from Marquez and had brought that amount with him (emphasis supplied).

 Stressing this excerpt, petitioner urges it supports his claim for the voiding of the judgment of conviction on the grounds here advanced.

 The government in response to petitioner's motion, made available other FBI documents upon which he also relies to support his current charges. One is the FBI report of an interview with Alvarez on December 10, 1969 in which Alvarez admitted that he and Monserrate had "past posted" *fn7" bets in the Marquez operation. The December 10 report was offered by the government as the only source reference to "the money swindled from Marquez" contained in the December 12, 1969 telex.

 The government does not dispute that the two documents, the December 10, 1969 report and the telex, reveal that Alvarez told the agents that Monserrate had cheated the numbers operation by past posting; it does dispute that they indicate that Monserrate himself admitted the cheating prior to or during the trial. It emphasizes that the December 10 report refers only to Alvarez' own statement or admission.

 As to the December 12 telex, the government also contends that it does not establish that Monserrate himself made the statement that the money was "swindled from Marquez." Rather, it contends that this was the language reflecting the conclusion of Richard Baker, Special Agent in charge of the Criminal Division of the New York FBI office, who prepared the telex as a summary report of all matters pertaining to the investigation based on reports by FBI agents who in fact were active in the investigation and eventual prosecution of Marquez. It is represented on this motion that Baker has no present recollection of the case but since the telex bears his initials, he either prepared or approved it but does not recall what he meant by the phrase "swindled from Marquez"; that he does not recall if he inserted the phrase based upon information derived from an informant, Alvarez or Monserrate or was based upon reports prepared by agents working on the case. The government urges that the most plausible explanation is that Baker coined the expression himself either based upon statements of cheating by an informant or Alvarez, rather than that it was based upon anything Monserrate said since there is an absence of any material in the government files prior to 1973 that Monserrate admitted the cheating and further that he consistently, both prior to and during the trial, denied the charge to government agents and the Assistant United States Attorney.

 Thomas J. Fitzpatrick, the Assistant United States Attorney who prosecuted the case affirms his testimony given on petitioner's motion for a new trial that at no time prior to, during or after the trial, did either Monserrate or Alvarez disclose to him that Monserrate had cheated petitioner's gambling business; that during pre-trial conferences he specifically questioned them on the subject and on each occasion each steadfastly denied the cheating; and that it was not until the post-trial hearing in 1973 that he first learned of any evidence that would indicate their testimony at the trial on this subject was false. Further, he swears that he never saw or heard of the December 10, 1969 FBI report, an internal FBI document, until sometime in 1981 when it was turned over to the United States Attorney's office in connection with this motion; finally, he swears that no FBI agent ever indicated to him that either Monserrate or Alvarez admitted they had cheated the numbers operation.

 A second report submitted by the government on this motion, dated December 18, 1969, is attached as an Exhibit to Mr. Fitzpatrick's affidavit. The December 18 report states, among other matters, that the FBI received information that Monserrate and Alvarez "had been engaged in past-posting activities and had subsequently been threatened by Anthony Angelet in the presence of Raymond Marquez." Fitzpatrick states that since the report bears a notation that it was directed to his attention, he must have received it, although he has no recollection that in fact he did; that since he was aware from the inception of the case that Marquez had accused Monserrate of past-posting, the report could not have contributed corroborating evidence of the accusation.

 Petitioner also relies upon the statement in the December 18 report to support his claim of prosecutorial misconduct. The government, however, contends that the report was turned over to the petitioner at the trial as § 3500 material and thus he had information paralleling that which he now relies upon to support his charges. Petitioner, however, disputes that the report was delivered to the defense in its entirety and contends that the portion quoted above was excised. The trial record is not altogether clear on the matter. *fn8" However, this report is hereafter referred to in the discussion of the materiality of the reports of December 10 and December 12, which the government concedes were not disclosed to petitioner.

 The government, in further support of its position that the prosecution was unaware of the falsity of Monserrate's and Alvarez' testimony, has submitted a translation of an interview with Monserrate on December 15 in which he describes events leading to the direction by Marquez that he go to Puerto Rico and states that when Marquez accused him of cheating, he said it "was not true." The statement is typical of others made by ...

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