Pacelli v. United States

508 F. Supp. 496, 1980 U.S. Dist. LEXIS 16468
CourtDistrict Court, S.D. New York
DecidedNovember 25, 1980
DocketNo. 80 Civ. 3377(MP)
StatusPublished
Cited by3 cases

This text of 508 F. Supp. 496 (Pacelli v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pacelli v. United States, 508 F. Supp. 496, 1980 U.S. Dist. LEXIS 16468 (S.D.N.Y. 1980).

Opinion

OPINION

MILTON POLLACK, District Judge.

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.

I.

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 [498]*498fourth 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.

II.

Lorenzo Cancio

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.

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Cite This Page — Counsel Stack

Bluebook (online)
508 F. Supp. 496, 1980 U.S. Dist. LEXIS 16468, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pacelli-v-united-states-nysd-1980.