were rejected by the Third Circuit. While defendant concedes the general rule that a matter decided adversely to a defendant on direct appeal cannot be relitigated under § 2255, defendant contends that the instant case presents exceptional circumstances and can be considered under the court's discretionary powers.
The exceptional circumstances, according to defendant, arise out of the fact that the Court of Appeals allegedly "misread the record on the question of special verdicts." (Defendant's reply brief at 16.) Defendant makes much of the fact that the Circuit failed to acknowledge that an objection to the use of special verdicts had been registered, and the court thus stated that the question was not properly before it on appeal.
Defendant's position suffers from two deficiencies. First of all, although the court on appeal did conclude that the issue of special interrogatories was not properly before it, it nevertheless went on to consider the question and to hold adversely to defendant on it. In addition, the objection which defendant claims was made to the procedure was not made by defendant or his trial counsel. As the Court of Appeals noted in footnote 7 of the opinion, Mr. Fitzpatrick, counsel for defendant, only registered a general objection to submission of the indictment to the jury, which objection was renewed after the court indicated it would employ the special interrogatories. Moreover, Mr. Fitzpatrick stated that he did not object to the submission of a chart, such as that used in conjunction with the special interrogatories to the jury.
Nor does this court view the jury's verdicts in the special interrogatories suspect because of its finding against Cariello on the Anthony Wayne Bank loans. Defendant argues that no loan from that bank was obtained by Palmeri until after Cariello had deposited union funds with the bank, and that Cariello's deposit decision was wholly innocent. However, the evidence at trial suggested that Palmeri and Campisano met with the president of the Anthony Wayne Bank in the summer of 1973. At the meeting, the bank president solicited deposits and indicated his willingness to offer loans to union employees. After that meeting, in September, 1973, Cariello made his first deposit to the bank. Thus, based on the evidence, the jury could have and apparently did conclude that Cariello's deposit was influenced by or in response to the solicitation. Such a conclusion was bolstered by evidence that defendant Palmeri received a $ 5,000 unsecured loan one month after the deposit.
With regard to defendant's contention that the special verdict procedure deemphasized the mental elements and were particularly prejudicial to himself, such an argument was rejected by the Third Circuit, which held that the use of the procedure reminded the jury of the components of their decision. Nor is this court persuaded that the Circuit's reference to the jury's consideration of the racketeering acts the most crucial element renders its analysis of the special verdict procedure suspect. Certainly, the finding of two or more racketeering acts is its most crucial determination as a threshold proposition. Without such a finding, the statutory scheme is not triggered and further deliberation is unnecessary. To observe that such a determination is crucial in an indictment charging 46 separate acts of racketeering hardly represents a deemphasis of other essential elements. Nor in this court's view did the use of the special verdict result in such a deemphasis.
Defendant's principal basis for arguing in favor of this court's consideration of the special interrogatory issue is his view that the Third Circuit improperly misread the trial record and improperly held that the question was not properly before it on appeal. As noted previously, despite its position, the Circuit went on to consider the special interrogatory question and specifically rejected defendant's arguments. After first noting that special interrogatories are disfavored in criminal cases, the court stated that it had established no per se rule against them. In the instant case, because there were five defendants on trial on a 23 count indictment alleging 46 acts of racketeering and numerous other violations of federal law, the court concluded that special interrogatories were properly employed to decrease the likelihood of juror confusion and to aid the jury in concentrating on each specific defendant and the charges against him rather than incriminating one potentially innocent defendant solely on the basis of his association with the others. Defendant contends that the use of the interrogatories permitted a finding of guilt by association. However, the Third Circuit has already addressed and rejected such a contention. Nothing in the opinion of the Circuit indicates to this court that the Third Circuit would reach a different conclusion on this collateral attack. Therefore, the court's alleged failure to reach defendant's contentions on the merits of the appeal does not present this court with the kind of exceptional circumstances which would warrant a departure from case law that once a matter has been decided adversely to a litigant on direct appeal, it cannot be relitigated in a collateral attack under § 2255. U. S. v. Natelli, 553 F.2d 5 (2d Cir. 1977) (per curiam).
Nor does the Third Circuit's subsequent opinion in U. S. v. Desmond, 670 F.2d 414 (1982), represent, in this court's view, a change in the Third Circuit's approach to the question of special interrogatories. Although the court cited the Palmeri opinion on the procedural point, it did not reject its prior approval of the use of special interrogatories in the facts of that case. Therefore, this court will not reconsider the special interrogatory question decided adversely to defendant on appeal.
5. Sufficiency of the Evidence.
Defendant contends that there was insufficient evidence of guilt and that his conviction must therefore be vacated. Defendant raised such a claim on appeal, and it was rejected by the Third Circuit. Thus, it cannot be relitigated under § 2255.
Defendant's contention that sufficiency can be raised collaterally is without merit since the case authority relied on by defendant, Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979), is an action brought under § 2254, the habeas corpus provision for state criminal defendants. Jackson simply holds that a defendant convicted in state court is entitled to a hearing on his sufficiency claim in a federal constitutional court. Since defendant has already had such a hearing on his direct appeal, the logic of Jackson does not pertain to him. The other case authorities cited by defendant: Ingram v. U. S., 360 U.S. 672, 79 S. Ct. 1314, 3 L. Ed. 2d 1503 (1959); and Direct Sales Co. v. U. S., 319 U.S. 703, 63 S. Ct. 1265, 87 L. Ed. 1674 (1943), must also be rejected because they did not involve § 2255 proceedings.
Defendant also argues that the Third Circuit disregarded controlling Supreme Court precedent in evaluating the sufficiency of the evidence. Defendant's argument misconstrues the purpose of collateral relief under § 2255. It is not the function of this court to consider or to correct alleged errors of the Appellate Court.
In counsel's letter of January 26, 1982, a new ground for § 2255 relief is raised. Defendant argues that, under the Third Circuit decision in U. S. v. Friedland, 660 F.2d 919 (3d Cir. 1981), § 1954 is violated if an investment in fact yields any private person a private advantage, without regard to whether the investment was the product of a bribe. This decision, in defendant's view, explains the Third Circuit's refusal to overturn his conviction on insufficient evidence. Defendant concedes that under such approach, "there is no question that the Government proved (that) Cariello fail(ed) to restrain the banks and his union brethren." However, defendant contends that, assuming Friedland was correctly decided, there is nothing in the text of § 1954 which could have given Cariello fair notice that he was obligated to prevent others from taking advantage of his deposit decisions. Thus, the conviction of defendant violated the constitutional proscription against ex post facto laws.
Defendant raises this argument for the first time in counsel's letter and has not pleaded it as a ground for relief, although the decision of the Third Circuit in U. S. v. Niederberger, 580 F.2d 63 (3d Cir.), cert. denied, 439 U.S. 980, 99 S. Ct. 567, 58 L. Ed. 2d 651 (1978), should have given defendant notice of such a claim. However, defendant will argue that not until the decision in Friedland was he aware of the ex post facto problem in relation to § 1954. Therefore, the court will consider defendant's contentions.
Defendant's characterization of the effect of Friedland is, to say the least, simplistic and potentially misleading. In Friedland, defendants were counsel to union funds. The statute provides:
Whoever being ... counsel ... of any employee welfare benefit plan or employee pension benefit plan receives or agrees to receive or solicits any fee, kickback, commission, gift, loan, money or thing of value because of or with the intent to be influenced with respect to, any of his actions, decisions, or other duties relating to any question or matter concerning such plan ... shall be fined not more than $ 10,000 or imprisoned not more than 3 years, or both ....