United States v. Gerardo A. Re, Also Known as Jerry A. Re and Gerard F. Re
372 F.2d 641
2d Cir.
1967
Check Treatment

*1 gain selling of so for sale its the season readiable the in truth readied larger during for as to obtain a allotment season. of tobacco the griev- The record does not sustain this complain on hardly heard B-B can be ance; contrary it indicates space, it superfluous of the score ample opportunity B-B for was afforded Its pari in the vice. delicto stands purpose. procure failure the the The allotment, apparently 800 bas- less than allowance due no fault of the As- was kets, of within could well taken care be sociation or District Court. the yet of 40,000 ft., sq. warehouse it has a and, repeat, 168,000sq. ft. more than adjudica The and declarations floorage selling of granted on a time was tions the decree now on review will 268,000. more than observe, be modified. In conclusion we super- nevertheless, permanent plan is decried the The Commission the generally, certainly ideal, fluity space hold it recommend- nor do we and up aas criterion in all Association of reasonableness ee that it be remedied outlining plan, regulations. its circumstances. competence, do not have the In space pointed on now as we out oi. the first Commission used all appeal, Although duty, plans. taken as not to be construct Our market. this is here, existing simply approval, is it does show to examine an as its recognized problem plan legal in Commission ascertain whether the imputed practically and within firmities to it in truth exist. must be resolved The Danville market. facts Affirmed. Commission said: that, opinion as “It our therefore proper general proposition, any surplus standard for space, control selling time, e., mar-

i. these equality of treat-

kets should envision among mar-

ment all members of the

ket, present future under whatever system respective trade each board of America, UNITED STATES of system adopt. elects to Each such Appellee, only the moreover should countenance space use of is in fact ‘suitable Jerry RE, as A. Re A. also known Gerardo dealt can available’. This best be Re, Appellants. F. and Gerard by way appropriate with definition 208, Docket 30710. No. by-laws appropriate in the or other Appeals Court media.” Circuit. Second too, prevailed, Dis- This view in the Argued Nov. regulations present do trict Court. The agree standard of Commission’s 6, 1967. Decided Feb. and available” warehouse. “suitable permanent plan accepted Judge, assume, upon District we the con- appropriation dition that of ware- rigidly supervised space house will

enforced the Association.

In we declare circumstances cannot

the District Court in error for not sus-

taining space ex- B-B’s indictment of the

cess as an antitrust evil. Lastly, alleges B-B it

IV. opportunity

denied an Board to show the *2 Cir., also 2 336 F.2d 306. City Dorsen, York New M. David Atty. Morgenthau, for

(Robert M. U. S. York, Robert L. of New Dist. Southern brief), Atty., King, Asst. U. S. appellee. for City, Greenberg, York New H. Daniel appellants. for WATERMAN, MOORE Before Judges. HAYS, Circuit Judge: HAYS, Circuit Re A. F. Re Gerard Gerardo Dis- the United States from an order Southern District trict Court under York New statute, for a their mo- all writs We treat U.S.C. § having of error under sec- of a writ tion as made nature been writ convicted tion. coram nobis. violating of 1933 Act Securities I. Exchange Act of 1934.

and the Securities first contention is that convictions, This court affirmed *3 rights their constitutional invaded were Supreme 336 F.2d 306 when certain were used as evi- records certiorari, Court denied against dence them. con- These records They by sisted of cash books one maintained their now attack convictions on originally Birrell. Birrell was indicted ground they de- that at their trial were along appellants but his trial was rights. We nied certain constitutional appel- severed because at the time appellants’ find ho merit in contentions fugitive lants’ justice. trial he a from and therefore affirm the order objected At their trial to their motion. on admission the cash books proba Since on are ground they as that should be excluded they custody tion are in and are entitled hearsay. con- On the from their remedy to a seek under 28 2255.1 U.S.C. § this court cash books viction held that the Washington, See United States v. properly were admitted as rec- business cert, (3d Cir.), F.2d denied sub ords. 336 F.2d at 312-314. DeGregory nom. years appellants’ Two after conviction by suppress a motion Birrell to these rec- cf. United ex rel. Brewer States against granted ords as evidence him was Maroney, (3d 1963); 315 F.2d 687 ground that the records had been Dillingham unlawfully seized. Bir- custody; “§ 2255. Federal attack, on remedies to ble collateral the court shall attacking motion judgment sentence. vacate set the aside and prisoner custody A discharge in prisoner under shall sentence or resentence by Congress a grant court established Act of him or a new trial or correct the claiming right upon may appear appropriate. to be released sentence as ground imposed may that the sentence was A court entertain and determine pro- violation requiring of the Constitution or laws such motion without prisoner hearing. of the United or that court duction of at the jurisdiction impose sentencing was without sentence, such court shall not be re- quired or that the sentence inwas ex- to entertain a second or successive law, by cess of the maximum authorized motion for similar relief on behalf of the subject prisoner. or is otherwise at- collateral same tack, may appeal may move the court im- An which be taken to the court posed vacate, appeals the sentence to set aside or from the order entered on the judgment correct the sentence. motion plication from final as a may A motion corpus. for such relief be made for a writ of habeas application time. An for a writ of habeas cor- pus prisoner Unless the motion and the files behalf of a who is au- conclusively apply records by of the case show thorized to for relief prisoner pursuant section, is entitled to no re- this shall be en- lief, appears applicant the court shall cause notice there- tertained if it that the upon motion, of to attorney, on, apply relief, by be served the United States has failed to grant prompt hearing him, there- to the court which sentenced relief, determine the issues find- make court has him such ings appears remedy of fact and conclusions of law with unless it also respect inadequate thereto. If the court finds that motion is ineffective judgment ju- legality was rendered without test the of his detention.” risdiction, imposed or that the sentence A writ of error coram is avail nobis was not authorized law or otherwise able to one who has been custody. released open attack, Morgan, to collateral or that there See United States v. infringement has been such denial or 98 L.Ed. rights pris- Garguilo, of the constitutional of the United States v. judgment oner as to render the vulnera- F.2d rell, (S.D.N.Y.1965); F.Supp. II. F.Supp. (S.D.N.Y.1965). second contention is wrongfully en- from a contend that are excluded advantage suppres- place of the to take took

titled which in the trial records, judge’s i. e. that their sion Birrell's chambers and which con- possible aside because the cerned conviction must be set with a conflict of interest attorney suppressed formerly repre- to Bir- of an records which were as had who against claim, procedure, they them. rell were used sented them. This deprived them constitutional appellants did move Since public to a con- and to be suppress own this evi against fronted the witnesses them. although they of the dence were aware ap obtained, decide whether circumstances in it was need *4 .not right appellants be pellants of a constitutional cannot now raise the claim had illegal former present and to confront seizure. United States v. Indi concerning viglio, hearing his (2d 1965), 352 at F.2d 276 Cir. cert. counsel the Snyder denied, conflicting Compare 907, 887, 383 15 interests. 86 S.Ct. U.S. 97, Massachusetts, (1966). Moreover, 54 S.Ct. L.Ed.2d 663 291 U.S. v. 330, v. Stein L.Ed. 674 78 proceeding does not 2255 “[A] § (9th 518, States, F.2d 522 313 United appeal. Butler an the office serve denied, 1962), U.S. 373 Cir. cert. (8 States, 63 F.2d Cir. 340 v. United 918, 1307, 417 10 L.Ed.2d 83 S.Ct. 847, denied, 86 1965) 382 [cert. States, (1963 ); 296 Glouser (1965)] 92, and 87 15 L.Ed.2d S.Ct. denied, 1961), (8th cert. F.2d 853 Cir. cited; there Glouser cases (1962); Cox 825, 369 U.S. 82 S.Ct. 840 1961) (8 853, States, 856 Cir. 296 F.2d States, 614, F.2d 615-616 United 309 v. 825, denied, 82 S.Ct. 369 U.S. [cert. Lupo (8th People 1962) rel. ex Cir. and 840, (1962)]. it is 7 L.Ed.2d And 789 399, Fay, 253, 246 N.Y.S.2d v. 13 N.Y.2d question whether evi settled denied, 376 cert. 196 N.E.2d 56 ordinarily illegally dence was seized 979, 976 958, 84 11 S.Ct. successfully may a raised in be Texas, (1964) Pointer v. State proceeding col constitutes 1065, 400, 13 L.Ed.2d 380 U.S. 85 S.Ct. sentence, must lateral but attack Anderson, (1965) People 16 923 and v. appeal presented 110, 282, N.E. 266 N.Y.S.2d 213 N.Y.2d Springer United the conviction.” v. any (1965). Appellants 445 2d waived (8th States, 950, 340 951 Cir. F.2d failing present ob such to be 1965); Jenkins, v. 281 ject alleged at to their exclusion either 1960); Kyle (3d F.2d 193 Unit Cir. v. upon appeal. Stein or direct 670, (2d ed 266 F.2d 672 Cir. States, supra, 522 v. F.2d at United 870, 1959), denied, cert. 361 U.S. (alternative holding); Kyle United v. 131, (1959). S.Ct. 4 L.Ed.2d 109 672; States, supra, United 266 F.2d at Jenkins, supra, F.2d at States v. any appellants’ In claim event 193-194. They no substantial merit. had lacks personal proprietary interest in these Moreover, only “it is there when standing records and no therefore to se has been the substance denial of Wong suppression. cure their v. Sun validity pro- fair 471, 491-492, United 371 U.S. * * * collaterally ceedings may be 407, L.Ed.2d 441 United questioned motion in attacked or Bozza, 206, States v. F.2d 222-223 petition for of error nature of a writ (2d 1966); Cir. United States v. Granel 2255.” coram or under 28 nobis U.S.C.A. lo, 1966), peti 365 F.2d States, supra, F.2d Glouser United cert, filed, tion for U.S.L.Week quoting Howell v. United cert, denied, (U.S. 15, 1966) (No. 750). (4th Cir.), 172 F.2d Nov. judge properly appellants L.Ed. a hear 337 U.S. ing and (1949). therefore occasion his testimony never arose. We need not de hearing Appellants’ from the absence cide the extent to which considerations of voluntary entirely apparently and was judicial efficient administration been admitted had would have particularly purpose “the of section 2255 presented at Their counsel themselves. * * * permit judge, the trial because hearing ac had tended the familiarity proceedings his with the transcript of the hear cess to the entire ability supplement record,” ing indeed before their first may scope limit the of Section 455. See ap reprinted appendix it in on that Smith, 51- hearing peal. The issue considered at 1964), denied, cert. ap previous this court on the before peal. impropriety that no concluded prejudice appellants’ had been The order question appellants’ shown.2 ab affirmed. hearing sence from the raised by appellants counsel nor themselves Judge WATERMAN, (con- Circuit during proceedings. time earlier curring) : con claim affirming I concur in the denial of con in chambers flict of interest matter pellants’ motion, my *5 and concur in broth- equally public trial stituted denial of a Hays’s opinion disposing er ap- of two of States, Hayes v. without merit. United pellants’ three claims: the claim that 1961), 657, (8th 668 cert. 296 F.2d Cir. pellants’ rights constitutional were in- denied, 867, 1033, L. 8 369 vaded when Birrell’s cash books ad- Ed.2d 85 trial, mitted into evidence at and the Judge claim that Bonsai should dis- have circumstances, “motion In these qualified acting upon * * * himself from of the case files records motion. conclusively [appellants are] show that 3 any enough However, I do not find in entitled to relief” trial court no satisfy appellants, correctly hearing. at me them a Sim- record that denied States, 71, counsel ar- the time when their mons v. United 302 F.2d ranged 1962); Burley for the in camera rela- Cir. Z, 1961). to Mr. been admitted 295 F.2d tive would have Cir. satisfy Judge chambers, or Bonsai’s III. they voluntarily' them- me that excluded knowing what tes- selves attendance argue that the Dis timony Therefore, was there to taken. Judge disqualified trict should have him agree I do not 455,4 self under 28 he U.S.C. since § relinquished intentionally a constitutional any would be a material witness at evi they of at were aware dentiary hearing held to determine time. from the circumstances their absence hearing. fully charge conflict agree they interest “[T]he I do are (1958) knowledge literal terms of 28 U.S.C. able of the § with awareness and require disqualification judge only printed appendix if the contents of the Hughes, is witness.” United States v. filed with us direct when took their 789, (2d Cir.), appeals, Re, 325 F.2d cert. 792-793 United 336 F.2d States v. denied, 907, 1167, 904, (2 Cir.), denied, S.Ct. cert. 379 U.S. (1964). Here, the trial 85 S.Ct. 188 from their eonvic- disqualify 2. 336 F.2d at 318-319. shall himself in case interest, in (cid:127)which he has a substantial supra 3. § 28 U.S.C. 2255. See note 1. counsel, has been of is or has been a ma- * * justice judge. Interest § terial *. witness Any justice judge the United tions, appendix com contained the hearing. plete transcript of the camera

The issue collaterally to raise now seek implicit in the claims appeal,

made to us the direct Re, supra 318-319; States v. and the court, previous trial position dis view our issue, properly

of the this collateral motion. Marchese, (9 Cir.), 341 F.2d denied, cert. 382 U.S. (1965); Matysek L.Ed.2d 64 (9 1964), 339 F.2d denied,

cert. 381 U.S. Stein United 1962), (9 denied,

cert. 83 S.Ct. 1307 Jenkins, United States v. (3 F.2d 193 Cir. *6 Shelby COFFEY,

J. Jr., Trustee Bank ruptcy for Oakes Furniture Manufac turing Company, and Manufacturers Corporation, and Commercial Factors Plaintiffs-Appellants,

INDIANA LUMBERMAN’S MUTUAL IN COMPANY, SURANCE Defendant- Appellee. America,

UNITED STATES of Plaintiff-Appellant,

INDIANA LUMBERMAN’S MUTUAL IN COMPANY, SURANCE Defendant- Appellee.

Nos. Appeals

United States Court of

Sixth Circuit.

Feb.