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UNITED STATES v. DIACO

February 8, 1978

UNITED STATES of America, Plaintiff,
v.
Joseph DIACO, Defendant



The opinion of the court was delivered by: LACEY

 Defendant Diaco moves by motion filed on January 25, 1978, to reduce his sentence under Fed.R.Crim.P. 35.

 He grounds his motion upon an unusual predicate: that on February 3, 1978 another judge of this court, taking issue with the five-year sentence I imposed upon Diaco and his codefendants in June 1975, vacated that sentence and purported to resentence certain of the defendants to a term of six months' incarceration and two and one-half years' probation. *fn1" Unfortunately for Diaco, he was not a beneficiary of this reduction. Only his codefendants Dansker, Haymes, Orenstein and Valentine (Diaco's superior in the corporate defendant Valentine Electric Company) were before my judicial colleague. Diaco's position is simply put: he wants me to treat him similarly. I decline to do so, for the reasons hereafter set forth.

 Procedural History

 The record of this case will not inspire public confidence in the criminal justice system. The defendants Dansker, Valentine, Diaco, Haymes and Orenstein were convicted in March 1975, three years ago. On appeal they succeeded in obtaining reversal on two counts; however, their conviction on the count charging they attempted to bribe the Mayor of Fort Lee was affirmed. They next went to the United States Supreme Court which refused to hear their case.

 They then came before me for reduction of sentence. By this time all but two trial counsel had been replaced. All defendants presented elaborate memoranda bearing on sentencing philosophy, comparisons of sentences imposed by other federal judges, and personal data from which counsel argued the defendants were deserving not of the 5-year sentences of imprisonment I had imposed, but substantially less, in the area of two years.

 After careful consideration of their motions, I denied the requests for reduction of sentence.

 Defendants and their retained counsel also sought a new trial, claiming the United States had violated their rights by having concealed from the defendants Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) information, specifically, the identity of one James Silver and information received from him prior to trial.

 As was developed on argument, the defendants and their then counsel had, during trial, met twice with Silver, had extensively interviewed him, and knew not only what he had told the United States, they also knew he had been interviewed by the United States and had written a letter to the United States Attorney.

 After careful review of all the documents submitted to me on the motion, and having heard from counsel on three separate occasions, I filed a lengthy opinion denying the motion for new trial and denying as well defendants' motion for an evidentiary hearing.

 It struck me that the motions for new trial and an evidentiary hearing were absolutely without merit. Defendants and their trial counsel, all of them exceptionally able and experienced trial lawyers, had, it was clear, made a decision not only not to utilize at trial the information gathered from Silver, but to refrain from bringing to my attention what was now, well after trial, being urged as a Brady v. Maryland violation.

 An appeal was taken from my ruling. The Court of Appeals for the Third Circuit ruled that the defendants other than Diaco should have an evidentiary hearing, reversing my decision.

 At this point the hearing terminated abruptly, and the defendants withdrew their motions for evidentiary hearing and new trial. The defendants stated they did so "in the interest of finality." They did not admit their guilt. At the same time there was set down for February 3, 1978 defendants' motion for resentencing by Judge Meanor. The transcript reflects no promise by Judge Meanor that he would ...


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