MADISON-LEWIS, INC., and Gustave Adolph Godinez, Petitioners, for a Writ of Mandamus v. Hon. Lloyd F. MacMAHON, U. S. District Judge, Respondent.
Docket 27339.
United States Court of Appeals Second Circuit.
Decided Feb. 13, 1962.
Argued Feb. 5, 1962.
It is necessary that the movant substantiate his conclusions by allegations of fact with some probability of verity. O‘Malley v. United States, 285 F.2d 733 (CA6); Stephens v. United States, 246 F.2d 607 (CA10).
In the present case the District Judge who passed upon the second motion to vacate presided at the criminal trial and also heard the first motion. We believe that he was thoroughly familiar with the record and files of the case.
It must have seemed fantastic to the District Judge, as it was to us, that a federal prisoner who was confined in jail for six months awaiting trial could conceal one and one-half ounces of gum opium on his person, avoid detection and keep enough on hand to drug himself to the extent that he was incompetent at his trial. It is almost unbelievable that if Malone had been drugged into incompetency, his condition would have escaped the attention of the presiding judge and those in attendance during the four days of his trial.
If Malone had been under the influence of opium on the date of his conviction we would assume that he had recovered his composure when he arrived at Alcatraz for no claim is made that he was suffering with any of the symptoms of the drug while there.
One year and a half later when he filed his first motion to vacate, he made no mention of his alleged incompetency at the trial. He must have known then what he claims to know now. He waited for five years and then claimed for the first time that he had drugged himself at his trial.
Having failed to assert these claims earlier although he had an opportunity to do so raises a strong inference as to their invalidity. Cain v. United States, 271 F.2d 337 (CA8).
His police record which extends over the period from 1943 to 1955 reveals no history of his present claim of addiction to drugs.
Where successive motions to vacate sentence are filed asking for the same or similar relief, it rests within the sound discretion of the judge whether to entertain the second motion even though it may contain new grounds for relief not in the first motion. Dunn v. United States, 234 F.2d 219 (CA6).
The District Judge, in the exercise of his discretion, determined the motion from the files and records of the case without granting an oral hearing. In our opinion, he did not abuse his discretion in any respect.
The judgment of the District Court is affirmed.
Daniel A. Novok, New York City, for petitioners.
Robert M. Morgenthau, U. S. Atty., Southern Dist. of New York, New York City, for respondent.
Before LUMBARD, Chief Judge, and SWAN and WATERMAN, Circuit Judges.
PER CURIAM.
Petitioner seeks to set aside an order made in the case of United States v. Madison-Lewis, Inc. and Gustave A. Godinez, defendants. The indictment charged importation of merchandise from a Danish corporation by means of fraudulent and fake invoices. Defendants moved for leave to take the deposition of the manager of a Danish corporation from which defendants had purchased the goods referred to in the indictment. The motion was granted on condition “that Fedania A/S, the proposed deponent, consent in writing to open its files to search and investigation by the United States.”
Though we express no opinion on whether the district court should grant the motion for the taking of a deposition, we grant the petition for writ of mandamus and direct the district judge to expunge from any order he may make to take the deposition of Fedania A/S the condition that the deponent consent to open its files to search and investigation by the United States.
This petition for mandamus seeks to have us review on the merits an interlocutory order which is not appealable. I think we should deny the petition without discussing the merits. See Fred Benioff Co. v. McCullock, 9 Cir., 133 F.2d 900; Bank Line v. United States, 2 Cir., 163 F.2d 133.