Virgil Alessi v. United States , 628 F.2d 1133 ( 1980 )

TIMBERS, Circuit Judge:

This appeal calls upon us for the fifth time to address claims arising out of two indictments charging appellant with various federal narcotics and tax offenses, and appellant’s guilty pleas thereto. E. g., Alessi v. United States, 593 F.2d 476 (2 Cir. 1979); United States v. Alessi, 544 F.2d 1139 (2 Cir.), cert. denied, 429 U.S. 960 (1976); United States v. Alessi, 536 F.2d 978 (2 Cir. 1976). Briefly, the instant appeal comes to us by the following route.

In November 1976 appellant withdrew previously entered pleas of not guilty to charges contained in the two indictments mentioned above, and — in satisfaction of all charges against him — pled guilty to one count of a Southern District narcotics indictment and one count of an Eastern District tax indictment. In January 1977 Judge Bonsai sentenced appellant to thirteen years imprisonment on the narcotics count, to be followed by six years special parole; and two years imprisonment on the tax count.

In May 1978 appellant filed two motions pursuant to 28 U.S.C. § 2255 (1976) to vacate the judgments of conviction entered upon his guilty pleas. In these motions, appellant primarily claimed that he did not understand the nature of the charges to which he pled guilty and that there was no factual basis for his pleas. Appellant’s motions were denied by Judge Bonsai and appellant appealed. On appeal, this Court upheld appellant’s claims regarding the tax count. We therefore directed the district court to vacate appellant’s conviction on the tax count and to grant appellant leave to replead to that count. With regard to the narcotics count, however, we concluded that “a hearing might develop both that Alessi had a full understanding of the charge and that there was a factual basis for the plea.” 593 F.2d at 481 (footnote omitted). We therefore remanded the case to the district court so that an evidentiary hearing could be held with respect to appellant’s claims that he lacked an understanding of the narcotics charge and that there was no factual basis for his guilty plea to that charge. We further directed that the hearing encompass appellant’s claim that he lacked an understanding of his liability for special parole.

The evidentiary hearing mandated by this Court was held by Judge Bonsai in May 1979. At the conclusion of the hearing, Judge Bonsai found that appellant in fact did understand the charge to which he had pled guilty, that he understood his liability for special parole as a result of the plea, and that there existed a factual basis for the guilty plea on the narcotics count. Appellant then took the instant appeal attacking these findings.

In view of the prior procedural history of this case — in particular, our most recent decision directing the district court to hold an evidentiary hearing on the validity of appellant’s plea — the issue before us today is a relatively narrow one: namely, did the district court err in reaching the factual findings described above and in concluding that appellant was not entitled to have his conviction vacated pursuant to § 2255? We hold that there was no error.

At the outset, we note that much of the evidence presented to the district court consisted of witness testimony, including recollections of past events by appellant and his attorneys. Witness credibility, therefore, played a major role in the district court’s findings. The court expressly found that appellant’s testimony was lacking in credibility and was “tailored” to support his contentions. The court further found that the credible testimony at the hearing did not support appellant’s claims. Courts must be wary of overturning findings based on such determinations of credibility. E. g., Harned v. Henderson, 588 F.2d 12, 23 (2 Cir. 1978). We find no reason to depart from that salutary rule in this case.

We believe that the evidence, both testimonial and non-testimonial, fully supports the district court’s findings. Ordinarily, the burden of proof in this type of proceeding rests upon the petitioner. Harned v. Henderson, supra, 588 F.2d at 22. Even if the burden were on the government in this proceeding, as appellant contends, we would affirm.

With regard to the issue of appellant’s understanding of the narcotics charge, Nancy Rosner — appellant’s attorney at the time of the plea — and other attorneys with whom appellant was in contact testified that they had several discussions with appellant concerning various aspects of the government’s prosecution of appellant. Mrs. Rosner further testified that she normally kept her clients informed of the nature of charges against them and of the conduct of pretrial proceedings; it was also her practice to supply clients with copies of all papers filed on their behalf. Finally, despite appellant’s claims to the contrary, appellant’s own affidavit indicates that he in fact knew that he was being charged with distribution of narcotics in the Southern District of New York.

Evidence at the hearing also demonstrated that appellant understood his liability for special parole. Appellant had stated at an earlier plea allocution that he understood special parole. Furthermore, one of appellant’s former attorneys testified that he had discussed special parole with appellant. Finally, considering appellant’s own admission that Mrs. Rosner had advised him under which statute he was going to plead guilty, it is reasonable to assume that she also informed him of the ramifications of pleading under that statute, including the effect of special parole.

Finally, the district court did not err in concluding that there was a factual basis for the guilty plea. Appellant’s admission during the guilty plea allocution, the government’s bill of particulars, the testimony of appellant’s cohort, Manfredonia, during the trial of United States v. Panebianco (at which Judge Bonsai presided), and testimony by the Assistant United States Attorney who had been in charge of appellant’s prosecution provided a sufficient factual basis for appellant’s plea of guilty. This evidence established that appellant had given narcotics to Manfredonia, knowing that the latter intended to take the narcotics to the Southern District for distribution.

We have carefully considered all of appellant’s remaining claims, including the claims that he was denied effective assistance of counsel, that he had not been informed of his fifth and sixth amendment rights, that this Court’s earlier decision to vacate appellant’s tax conviction automatically invalidated his narcotics conviction, and that the evidentiary hearing was unfair. Although there is substantial doubt that any of these claims are properly before us, we have examined appellant’s supporting arguments, and we hold the claims to be without merit.

We find no error in the findings of fact and conclusions of law made by the district court. We affirm the order of the district court denying appellant’s § 2255 motion.

Affirmed.