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UNITED STATES v. DIACO

September 25, 1978

UNITED STATES of America
v.
Joseph DIACO, Defendant



The opinion of the court was delivered by: LACEY

On June 3, 1975 Joseph Diaco was sentenced by this court to a term of imprisonment of five years and, on November 14, 1977, after extensive proceedings before this court, the Court of Appeals for the Third Circuit, and the United States Supreme Court, he commenced service of that sentence. Under the sentence as imposed, and by virtue of 18 U.S.C. § 4205(a), Diaco would not become eligible for parole until one-third of that sentence has been served, on July 12, 1979.

The Bureau of Prisons, by its Director, Honorable Norman A. Carlson, has now requested the Office of the United States Attorney to file on its behalf a motion for reduction of Diaco's minimum term to time served, pursuant to 18 U.S.C. § 4205(g) of the Parole Commission and Reorganization Act, 18 U.S.C. §§ 4201-18 (Pub.L. No. 94-233, 90 Stat. 219, eff. May 14, 1976). *fn1" Mr. Carlson's letter reads as follows:

 
Under the Parole Commission and Reorganization Act (P.L. 94-233, March 15, 1976), the Bureau of Prisons is authorized to make a motion to a sentencing court for the purpose of reducing a defendant's minimum term of imprisonment to time served (18 U.S.C. 4205(g)). This portion of the Act states as follows:
 
"At any time upon motion of the Bureau of Prisons, the court may reduce any minimum term to the time the defendant has served. The court shall have jurisdiction to act upon the application at any time and no hearing shall be required."
 
In that regard, I hereby request that you file a motion for reduction of the minimum term of Joseph Diaco to time served so that he might be eligible for immediate parole consideration. Mr. Diaco was sentenced on June 3, 1975 in the U. S. District Court for the District of New Jersey by Judge Frederick Lacey to a term of imprisonment of five years for bribery in interstate commerce, in violation of 18 U.S.C. § 1952. Mr. Diaco began serving his sentence on November 11, 1977 and is not presently eligible for parole until July 12, 1979.
 
Mr. Diaco was originally convicted in March 1975 along with four other persons (Norman Dansker, Steven Haymes, Donald Orenstein, and Andrew Valentine) who were also sentenced to five year terms of imprisonment by Judge Lacey. In the course of considerable appellate and post-trial proceedings, the sentence of each of these other four persons was reduced to a term of six months' incarceration and two and one-half years' probation by Judge H. Curtis Meanor on February 3, 1978. Mr. Diaco's motion of January 25, 1978, for reduction of sentence pursuant to Rule 35 was denied by Judge Lacey on February 8, 1978 for lack of jurisdiction.
 
One result of these proceedings is that Mr. Diaco is serving a significantly longer sentence than those of his codefendants. In view of this disparity, the sentencing court may wish to act to reduce Mr. Diaco's minimum term of imprisonment to time served pursuant to 18 U.S.C. § 4205(g). Prior to the passage of the Parole Commission and Reorganization Act, application for relief in cases of this type had to be processed through the Pardon Attorney to the President of the United States. I would emphasize that granting of the motion by the court under § 4205(g) merely makes the defendant immediately eligible for parole consideration, and does not result in immediate release.
 
If you require further information concerning this case, do not hesitate to contact me.

 By motion filed September 14, 1978, the United States Attorney acceded to that request. If this court acts favorably on this motion, Diaco would become immediately eligible for parole. The Office of the United States Attorney urges such favorable action.

 PRIOR PROCEEDINGS

 Joseph Diaco and co-defendants Dansker, Haymes, Orenstein and Valentine were convicted on March 28, 1975 of two substantive violations of 18 U.S.C. § 1952 for attempting to bribe two state officials and of one count of conspiracy to commit those offenses. On June 3, 1975 each defendant was sentenced by this court to concurrent five-year terms and to pay fines of $ 30,000. On June 24, 1976 the convictions on one count were affirmed, on one count vacated, and on one count reversed, and Certiorari was denied on January 11, 1977. *fn2"

 One of the issues raised on direct appeal was the alleged violation by the government at trial of its duty to produce exculpatory evidence, the so-called James Silver information. Defendants alleged that prior to trial the government had received from Silver, a former associate of the government witness Arthur Sutton, written and oral statements which might have materially aided them in discrediting Sutton's testimony, had they had it at trial. The defendants did not, however, advise the Court of Appeals that three of them (not, ironically, Diaco) had become aware of Silver and the nature of his testimony during trial, twice interviewed him, and had made a reasoned decision not only not to call him to testify but to refrain from reporting to the court about the matter and to forego making any Brady claim during trial or at the time of post-trial motions.

 The Court of Appeals decided it would not resolve the Brady claim in the first instance (537 F.2d at 65). Therefore, on January 18, 1977, the defendants moved before this court for a new trial and sought an evidentiary hearing. They also sought my disqualification pursuant to 28 U.S.C. § 455.

 By opinion filed June 2, 1977, 449 F. Supp. 1057 (D.N.J. 1977) and order filed June 3, 1977, I rejected the Brady claims, finding that they rested on an unacceptable analysis of evidence in the case. The motions for a new trial, for an evidentiary hearing, for disqualification, and for reduction of sentence were also denied, and defendants were directed to surrender forthwith. Their application for bail ...


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