The opinion of the court was delivered by: CARTER
In a motion filed on November 20, 1981, pursuant to 28 U.S.C. § 2255 and fully submitted as of March 5, 1982, defendant Matthew Madonna moves to vacate and set aside his conviction and sentence.
Madonna was tried and convicted on a two count indictment charging a conspiracy to import heroin into the country and possession of heroin with the intent to distribute the drug. His trial, with two codefendants, began on November 1, 1976, and ended on November 16, 1976, when the jury found the defendant guilty on both counts. Madonna was subsequently sentenced to 15 years imprisonment on each count to run consecutively and a $ 30,000 fine. On April 4, 1977, his conviction on appeal was affirmed from the bench in an oral opinion and summary order. 556 F.2d 562 (2nd Cir. 1977). The disposition of an appeal in summary fashion means that the Second Circuit considered the issues raised to be so insubstantial that no jurisprudential purpose would be served by a written opinion, and such determinations are not citable as precedents pursuant to § 0.23 of the Local Rules of the Second Circuit. Rehearing was denied on May 27, 1977, and the United States Supreme Court refused review on October 31, 1977. 434 U.S. 919, 98 S. Ct. 392, 54 L. Ed. 2d 275 (1977).
On February 27, 1978, defendant filed a Rule 35, F.R.Crim.P., motion to set aside or modify the sentence on the ground that it was illegal and that the court had relied on inaccurate considerations not based on the record. That motion was denied by this court on March 22, 1978, and the claims were rejected by the Court of Appeals on September 29, 1978, this time in a written opinion. 582 F.2d 704 (2nd Cir. 1978). The Supreme Court denied certiorari on January 8, 1979. 439 U.S. 1069, 99 S. Ct. 838, 59 L. Ed. 2d 34 (1979).
The gravamen of the instant motion is (1) that the government allowed a witness, Nicholas Visceglie, who testified on a collateral matter, to give false testimony; (2) that in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), the government suppressed or failed to reveal the substance of what transpired at a hearing involving Visceglie's relations with a codefendant and with the government in a case pending in the United States District Court for the District of New Jersey, thereby barring defendant from access to material which would have enabled defendant to subject Visceglie to more searching cross-examination than was possible at trial and (3) that the government misled the court as to the importance of the transcript of the New Jersey hearing to the conduct of defendant's defense here. It is argued that since Visceglie's testimony was critical to the jury's finding of the requisite intent to convict the defendant, the conviction must now be set aside. In the alternative, a hearing on the issues raised is requested.
The motion is supported by affidavit of counsel and exhibits, including the transcript of the New Jersey hearing and various letters from New York and federal authorities disclosing the time Visceglie became an informer and the nature of his cooperation. The government opposes the motion and in support of its position has filed affidavits of the Assistant United States Attorney who represented the government at defendant's trial and of various prosecutorial personnel involved in the New Jersey hearing. Defendant's counsel has replied with a further affidavit. Both sides have filed memoranda of law.
While counsel has spent considerable time and effort on this matter and expansive discussion is required to dispose of the issues raised, the motion, in essence, is frivolous and is denied in all respects.
In the spring of 1976, Joseph Boriello brought back from Thailand to Salvadore Larca in New York, a codefendant of Madonna, a sample of heroin which, when tested, was found to be pure. Larca authorized Joseph Boriello to return to Bangkok to buy a kilogram of heroin. Boriello returned to New York in June, 1976, with the kilogram of heroin, and it was sold here for $ 100,000. A second trip was then organized. Larca supplied Boriello with four false bottom suitcases and a budget of $ 100,000 for the purchase of 10 kilograms of heroin, travel expenses for himself and two couriers. Boriello secured Jan Portman and Eugene Travers for the latter task. In July, 1976, he returned to Bangkok to purchase the heroin. When the couriers arrived, the heroin was packed in the false bottom suitcases. Boriello left Bangkok on August 16, 1976; the two couriers, carrying the heroin and travelling separately, left for New York the next day. Both were arrested in Honolulu and immediately agreed to cooperate. Most of the heroin Travers carried was replaced with a substitute. On August 19, 1976, he flew to New York with two government agents, with the substituted substance, along with approximately 32 grams of heroin, packed in two of the suitcases.
The same day, Madonna, under the name of Paul de Robertis, rented a red Ford Granada from Hertz at New York's LaGuardia airport. He drove the car from the airport to a parking lot near his home where he left it. On August 20, 1976, Boriello contacted Travers at the latter's apartment in the Bronx. After telling Travers to wait for further instructions, Boriello went to Larca's home where he met with Larca and Madonna. Larca took Boriello to the parking lot to pick up the red Ford Granada that Madonna had rented and parked there the day before. Larca told Boriello to pick up the heroin and deliver it in the Hertz car at 5:00 p.m. to 58th Street and Fifth Avenue, across from F.A.O. Schwartz.
Boriello went to Travers' apartment and took possession of the suitcases that he believed were filled with heroin. While he was loading the suitcases into the trunk of the car, he was arrested. He immediately agreed to cooperate. Boriello then proceeded to the Manhattan rendezvous under government surveillance. He was met by Madonna and Larca. Boriello gave Madonna the keys to the Hertz car. Larca gave Boriello the keys to Larca's car and told Boriello to go home to wait for a call. Madonna entered the car on the driver's side and Larca on the passenger side, at which point both were arrested. Madonna advised the arresting officers that he was Paul de Robertis but subsequently used his real name.
Madonna's defense was lack of knowledge and intent; he claimed that he was innocently accompanying Larca and knew nothing about the heroin. Because of that defense, the government was permitted to adduce through the testimony of Nicholas Visceglie, then under sentence on a state conviction, that he had been involved in 1972 with Madonna and Larca in a deal to buy 10 kilograms of ...