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CASELLA v. UNITED STATES

October 8, 1969

Peter CASELLA, Petitioner,
v.
UNITED STATES of America, Respondent



The opinion of the court was delivered by: COHEN

 COHEN, District Judge:

 Petitioner moves, pursuant to 28 U.S.C. § 2255, for an order vacating the judgment of conviction and the sentence of 25 years imprisonment imposed upon him in 1959. He alleges that the charge of the trial judge *fn1" deprived him of his right to a fair trial guaranteed by Article III of the United States Constitution and by the Fifth, Sixth and Fourteenth Amendments thereto, hence warranting his retrial or discharge from federal custody.

 Casella, together with a codefendant, James Santore, was convicted by a jury on Indictment No. 151-58 containing four counts which, in pertinent part, charged that on January 23, 1958, in Gloucester County, New Jersey, the defendants sold heroin and opium in violation of the provisions of the Federal Narcotic Laws, 21 U.S.C. § 174 *fn2" and the Marihuana Tax Act, 26 U.S.C. §§ 4704(a) and 4705(a). *fn3"

 The Government's proof was based largely upon the testimony of two federal narcotic agents, Marshall and Picini, to the effect that prior to the date of the offense mentioned in the indictment they had several meetings with Santore in Philadelphia seeking from him a source for the purchase of narcotic drugs. Eventually, Casella was introduced to these agents by Santore as his New York connection and as the person who could arrange for the purchase of large quantities of opium and heroin. The agents testified that thereafter they purchased narcotics from Casella and Santore in October, 1957, at a New Jersey Motel; that they did likewise in December, 1957 in New York City (these alleged sales are not charged in the indictment); *fn4" that in January, 1958 they met several times with Casella and Santore at a restaurant in the vicinity of Atlantic City, New Jersey, where they again discussed the purchase of large quantities of opium and heroin (200 cans of opium for $100,000 and 5 kilos of heroin for $50,000); that on January 23, 1958 Santore alone, Casella not being present, made the sale in question to agent Marshall at the King Cole Motel near Atlantic City, New Jersey; and that they had not seen or spoken to Casella for a week prior to the date of the purchase in question from Santore.

 Santore testified in his own defense, denying involvement other than as procured by the agents in regard to which he asserted a defense of entrapment and exonerating Casella. Casella did not testify, nor did he offer any evidence in his behalf. The jury found both guilty as charged and, on January 5, 1959, petitioner Casella was sentenced to a total of 25 years imprisonment, which term was to run concurrently with a 40-year sentence of imprisonment imposed upon him in the United States District Court, Southern District of New York. See: United States v. Santore and Casella et al., 290 F.2d 51 (2 Cir. 1960), rehearing en banc at p. 74, cert. den. D'Aria v. United States, 365 U.S. 834, 835, 81 S. Ct. 745, 5 L. Ed. 2d 743 (1961). The convictions here in question were affirmed upon appeal. United States v. Santore and Casella, 270 F.2d 503 and 949 (3 Cir. 1959), cert. den. Casella v. United States, 361 U.S. 930, 80 S. Ct. 370, 4 L. Ed. 2d 353 (1960).

 On the present motion, as we view his position, Casella contends that he was denied a fair trial because the Court's instructions to the jury were fatally defective, in the Constitutional sense, in that guilty knowledge of illegal importation of narcotic drugs *fn5" on his part was mandated by the trial court. Such mandate completely removed from the jury's consideration an appraisal of Santore's testimony wherein he denied any participation by Casella in, or knowledge of, the transaction charged in the indictment, or in any other transaction mentioned in the case. It does not appear that this precise issue was presented to the Court of Appeals. However, in any event, the development of the law, since the affirmance of the petitioner's conviction, gives rise to a paramount issue regarding the constitutionality of the criminal statutory presumption of guilty knowledge of the importation of narcotic drugs.

 Although a motion under 28 U.S.C. § 2255 is no substitute for appeal, Nash v. United States, 342 F.2d 366, 367 (5 Cir. 1965), Eisner v. United States, 351 F.2d 55 (6 Cir. 1965) cited with approval in Kaufman v. United States, 394 U.S. 217, 220, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969), it does embrace the attributes of the ancient writ of coram nobis, as a collateral avenue of review, and the guidelines dealing with its availability are much the same as those governing the grant of a writ of habeas corpus. Kaufman, supra, at pages 221-223, 89 S. Ct. 1068. It is claims in collateral post-conviction proceedings, such as asserted here, which impugn the integrity of the fact-finding process, or which are of constitutional dimension, that warrant judicial scrutiny anew. See: United States v. Hayman, 342 U.S. 205, 219, 72 S. Ct. 263, 96 L. Ed. 232 (1952); Hill v. United States, 368 U.S. 424, 427, 82 S. Ct. 468, 7 L. Ed. 2d 417 (1962); Sanders v. United States, 373 U.S. 1, 83 S. Ct. 1068, 10 L. Ed. 2d 148 (1963); and Kaufman, supra. As stated in Kaufman, supra, at page 228, 89 S. Ct., at p. 1075: "The right then is not merely to a federal forum but to full and fair consideration of constitutional claims."

 Turning to those portions of the Court's charge complained of, the trial judge, after reference to the four counts *fn6" in the Indictment and to the pertinent provisions of the Statutes, instructed the jury as follows:

 
" There has been considerable comment, ladies and gentlemen, made that there is no showing that the defendant, Casella, ever had possession of the narcotics in question or that they were imported into the United States. I will now read to you Section 2 of Title 18: 'Whoever commits an offense against the United States, or aids, abets, counsels, commands, induces or procures its commission is a principal * * *.'
 
"* * * so, if you find that the defendant, Santore, had possession of the narcotics in question, and you further find that the defendant, Casella, had knowledge of Santore's conduct, and that Casella aided and abetted Santore in carrying on such enterprise, then he, Casella, would be legally held to have possession of the narcotics the same as Santore. This, then, if you so find, would bring into full force and effect that portion of the statute that I have previously read to you: 'Whenever on trial for a violation of this subsection, the defendant is shown to have or have had possession of the narcotic drug, such possession shall be deemed sufficient evidence to authorize conviction unless the defendant explains the possession to the satisfaction of the jury.'
 
"So, ladies and gentlemen, if you find that the defendants had possession of the drug, you will then consider whether the defendant or defendants have explained their possession to your satisfaction, as required under the statute, and not concern yourself with the question of importation of the drug into the United States, unless such importation would play some part in the explanation made by the defendants."
 
(Trial Transcript, pp. 376-377.)

 At the time of this trial in 1959, it would appear that the statutory presumption of guilty knowledge of importation from unexplained possession of narcotic drugs, was, as determined in Yee Hem v. United States, 268 U.S. 178, 45 S. Ct. 470, 69 L. Ed. 904 (1925), not to be in violation of the self-incrimination clause of the Fifth Amendment to the Constitution. Then followed, among others, the case of Tot v. United States, 319 U.S. 463, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943), which involved the constitutionality of a statute declaring that possession of a firearm or ammunition by a person convicted of a crime, or by a fugitive from justice, raised a presumption that such was shipped, transported or received from interstate commerce, in violation of the Federal Firearms Act. The Court, applying the test used in a civil case, *fn7" determined that the statutory presumption was ...


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