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VIRELLA v. U.S.

September 20, 1990

FRANK VIRELLA, MOVANT,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Leisure, District Judge.

  MEMORANDUM ORDER

United States Magistrate Sharon E. Grubin has filed a Report and Recommendation dated August 15, 1990, which recommends that petitioner's motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, be denied. See also Rule 32 of the Civil Rules of this Court and Rule 4 of the Rules for Proceedings Before Magistrates. After reviewing the petitioner's claims, in which petitioner sought relief pro se, the Magistrate found that petitioner's assertions of defective indictment and impermissibly general verdict were without merit. The Magistrate further found that petitioner's claim of double jeopardy, based on his convictions under the crimes of conspiracy to commit a substantive offense and aiding and abetting the commission of that same offense, was not tenable due to the separate and distinct nature of those crimes. Lastly, the Magistrate found that petitioner's assertion of ineffective trial counsel assistance did not overcome the presumption of competent assistance and did not result in reversible error.

Pursuant to Fed.R.Civ.P. 72 and 28 U.S.C. § 636(b)(1), petitioner had ten days to object to the Magistrate's recommendation. That time expired on August 29, 1990. No objections have been received by the Court or by the Magistrate. Nonetheless, the Court has undertaken a de novo review of the record, as required by Fed.R.Civ.P. 72(b) and 28 U.S.C. § 636(b)(1). Based on that review, the Court accepts and adopts the Magistrate's findings and recommendations regarding the instant petition. Because petitioner's allegations were patently meritless, his petition was properly dismissed without an evidentiary hearing. See United States v. Aiello, 900 F.2d 528, 534 (2d Cir. 1990); United States v. Aiello, 814 F.2d 109, 113-14 (2d Cir. 1987) ("Airy generalities, conclusory assertions and hearsay statements will not suffice because none of these would be admissible evidence at a hearing."); cf. Garcia Montalvo v. United States, 862 F.2d 425, 426-27 (2d Cir. 1988).

CONCLUSION

The Report and Recommendation of Magistrate Sharon E. Grubin, dated August 15, 1990, is adopted in its entirety, and petitioner's motion to vacate his sentence, pursuant to 28 U.S.C. § 2255, is denied in all respects.

SO ORDERED.

REPORT AND RECOMMENDATION TO THE HONORABLE PETER K. LEISURE

Movant, Frank Virella, pro se, seeks relief pursuant to 28 U.S.C. § 2255. He challenges a judgment of conviction entered by the Honorable Lee P. Gagliardi on May 17, 1982 after a jury trial convicting him for aiding and abetting an armed robbery of the Van Nest Post Office in the Bronx and for conspiracy to commit armed robbery in violation of 18 U.S.C. § 2, 371 and 2114 and sentencing him to concurrent terms of imprisonment of twenty-five years on the robbery count and five years on the conspiracy count. The conviction was affirmed without opinion by the Second Circuit Court of Appeals on December 13, 1982 (United States v. Virella, 714 F.2d 119). Briefly summarized, the evidence at trial upon which Virella's conviction was based showed that his involvement with the postal robbery consisted of the following:*fn1 He was present at the apartment of Pedro Martinez during the planning of the robbery by Martinez and two others, Jesus Velazquez and Jose "Gilbert" Santos, although he was not within earshot of the discussion. Martinez, however, asked Virella to lend him his gun and his gypsy cab to use in the robbery. Virella refused to lend Martinez his gun (although at some point prior to the robbery, Virella supplied Martinez with approximately one dozen bullets for his gun), but agreed to permit Martinez to use his cab. Martinez subsequently asked Virella to ride in a "backup car" that would be used to block traffic after the robbery and to be present after the robbery when Martinez met with the two other participants in the robbery to divide the stolen money. On the day of the robbery, Martinez drove Velazquez and Santos to the post office in Virella's cab and parked around the corner. Martinez saw Virella sitting in the passenger seat of the "backup car" which was parked at the appointed location. Thereafter, Velazquez and Santos entered the post office with guns drawn and demanded that a window clerk give them money, money orders and stamps. An off-duty police officer entered the post office, shots were fired, Santos was injured and Velazquez escaped with Martinez. Martinez, who had been on state parole at the time of the robbery, and Santos both pled guilty prior to trial and testified for the government.

Movant asserts four grounds for relief herein.*fn2 First, he claims that his indictment was jurisdictionally defective for failure to either track the language of 18 U.S.C. § 2, the "aiding and abetting statute," or charge aiding and abetting in a separate count. Second, Virella asserts that he was prejudiced by the jury's general verdict, which did not indicate whether the conviction was based on petitioner's role as aider and abettor. Third, Virella claims that his convictions of both conspiracy and aiding and abetting the robbery of a post office violated the fifth amendment prohibition against double jeopardy. Finally, Virella claims ineffective assistance of trial counsel.

For the following reasons, I respectfully recommend that your Honor deny the petition in its entirety.

DISCUSSION

A. Defective indictment

Virella was indicted on two counts: conspiracy under 18 U.S.C. § 371 and aiding and abetting a postal robbery under 18 U.S.C. § 2 and 2114. On the aiding and abetting count, the indictment tracks the language of the postal robbery statute, 18 U.S.C. § 2114,*fn3 and cites that statute as well as the aiding and abetting statute, 18 U.S.C. § 2.*fn4 Virella claims that count two of his indictment is defective because it fails to either track the language of the aiding and abetting statute or charge aiding and abetting as a separate count.*fn5

The claim is meritless as the law is well settled to the contrary. The aiding and abetting statute, which makes punishable as a principal one who aids and abets the commission of a substantive crime, United States v. Campbell, 426 ...


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