United States v. Salvatore Granello, A/K/A Sally Burns, 403 F.2d 337, 2d Cir. (1969)

403 F.
2d 337
68-2 USTC P 9627
UNITED STATES of America, Appellee,

v.
Salvatore GRANELLO, a/k/a Sally Burns, Appellant.
No. 44, Docket 32370.
United States Court of Appeals Second Circuit.

Argued Sept. 17, 1968.
Decided Oct. 18, 1968, Certiorari Denied Feb. 24, 1969, See
89 S.Ct. 878.
Irving Anolik, New York City, Irving Anolik, Michael P. Direnzo, New
York City, for appellant.
John H. Doyle, III, Robert M. Morgenthau, U.S. Attys., for the Southern
District of New York, Roger J. Hawke, Asst. U.S. Atty., of counsel, for
appellee.
Before MOORE, FRIENDLY and FEINBERG, Circuit Judges.
FRIENDLY, Circuit Judge:
Salvatore Granello appeals from a denial by Judge Dimock in the District Court
for the Southern District of New York, of an application under 28 U.S.C. 2255
to vacate his conviction for failure to file income tax returns for 1956 and 1957,
which we affirmed, 365 F.2d 990 (1966), cert. denied, 386 U.S. 1019, 87 S.Ct.
1367, 18 L.Ed.2d 458, rehearing denied, 387 U.S. 959, 87 S.Ct. 2072, 18
L.Ed.2d 1340 (1967).
On the basis of a letter from Lowell M. Birrell stating that his law firm, Birrell
& Larson, 'represented Salvatore Granello and George Levine in various
matters during the period from 1954 through 1957' and 'received many
confidential papers and documents in their capacity as attorneys for Messrs.
Granello and Levine,' Granello seeks to renew the challenge to the use of
material from the Birrell records that was rejected on his appeal. The unsworn
letter does not even claim that Birrell & Larson were acting as Granello's
attorneys in the transaction here at issue and, as Judge Dimock held below, the
trial record made 'evident that the relations between defendants and Birrell, far
from seeming that of clients and attorney, were even more distant than arms
length.' Moreover, the attorneyclient privilege was one of the grounds for
exclusion raised on appeal, and we rejected it in holding that the records were
admissible against Granello. 365 F.2d at 995-996. Except in extraordinary
circumstances not here present, 2255 may not 'be employed to relitigate
questions which were raised and considered on the appeal.' Castellana v. United
States, 378 F.2d 231, 233 (2 Cir. 1967).
3
Granello's second point is that since at the time of the trial the Government had
in its possession a 300-page inventory of the voluminous documents seized
from Birrell, its failure to make this available to defense counsel denied
fundamental fairness. We need not pass on the premise of this argument-- that
the prosecution has a duty to turn over not merely evidence known to it but its
own work product in another case that would assist the defense-- although this
surely would be occupying new ground. The only items among the Birrell
records in which Granello's trial counsel had indicated any interest were the law
firm's general ledger and certain checkbooks. Before denying the application
the court below directed the Assistant United States Attorney to see whether
these were listed in the inventory; the prosecutor reported that the inventory
was silent about the ledger and, at the judge's direction, made available to the
defense the checkbooks that were discovered. Granello's counsel did not avail
himself of the judge's offer to have the inventory checked by the court and
made no further application on the basis of the materials he received.
Furthermore, as our previous opinion shows, 365 F.2d at 996-997, Granello's
former counsel in moving for a new trial availed himself of an indication from
Birrell of what supposedly helpful information the files might contain.
Granello's third point is this: In his brief opposing the petition of Granello and
Levine for certiorari, the Solicitor General disclosed that from May 1962 to
May 1963 the Government had conducted electronic surveillance by a
microphone installed through trespass in a commercial establishment in Florida
in which Levine may have had a proprietary interest. The Solicitor General
reported that no conversation of Granello had been overheard and that, with
respect to Levine, the surveillance covered no conversations related to the
instant case, nor to the years here involved, nor any conversations with his
attorney in this case. The Supreme Court denied certiorari, three Justices
dissenting on the basis that the prosecutor's conclusions should not be
determinative and that 'the facts, circumstances, yield, and fruits of the
electronic surveillance should be exposed in the record of this case so that we
may, at least, be sure that the Geovernment's trespassory surveillance has not
infected the trial of these petitioner.' 386 U.S. 1020-1021, 87 S.Ct. 1369.
Granello's 2255 application sought to accomplish this. Without attempting to
decide what kind of overheard conversations would entitle Granello to relief,
the district court directed the Government to permit examination of all parts of
the logs concerning Granello, Levine, or the handling of the trial. The judge
reviewed the logs to make sure that his directions had been carried out; we
likewise have done this and are similarly satisfied. Granello does not contend
that the logs thus turned over contain anything that was used against him either
directly or as a lead or that related to the trial.
5
Granello's complaint concerns the judge's denial of a defense request that, since
the tapes had been destroyed, apparently in usual course for reuse, the
Government be required to produce for examination the agents who had
conducted the surveillance. The request was supported by three affidavits from
Levine. Two contained merely conclusory statements that the logs he had seen
in Florida mentioned 'conversations pertaining to' this case and that those logs
were 'more complete' than those he examined in New York. The third recited
from the Florida logs three passages referring to Granello and said that there
had been more. Affidavits of two Florida lawyers corroborated the third
affidavit but added nothing to it. In fact the logs turned over to defense counsel
did contain the cited passages although under a different date.
Judge Dimock denied the request because of the lack of any showing that the
monitoring occurred in a place where Granello was 'relying on privacy.' The
recent broadening of Fourth Amendment protection with respect to electronic
surveillance, wrought particularly by Katz v. United States, 389 U.S. 347, 88
S.Ct. 507, 19 L.Ed.2d 576 (1967), will indeed raise new and difficult questions
of 'standing.' As Judge Dimock noted, such a question seems to exist with
respect to one of the defendants in Alderman v. United States, see 390 U.S. 136,
88 S.Ct. 752, 19 L.Ed.2d 962 and 392 U.S. 919, 88 S.Ct. 2257, 20 L.Ed.2d
1381 (1968), which will shortly be reargued in the Supreme Court, and the
Court's decision may cast significant light upon this problem. While we do not
disagree with the district court's views about standing, we thus prefer to rest our
affirmance on the basis that, particularly in light of the Solicitor General's
representation to the Supreme Court that 'neither the existence of the
surveillance nor any information overheard was communicated in any manner
to the Internal Revenue Service or to government counsel who prosecuted this
case,' Granello did not raise a sufficient question concerning the incompleteness
of the logs to require that the agents be called.
Affirmed.

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403 F.

UNITED STATES of America, Appellee,

United States Court of Appeals Second Circuit.

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