" It is inconceivable to the Court that any jury would place credence in anything to which Spitale might testify." - Judge Herlands, 1957, NYC
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UNITED STATES of America, v. Michael PELLER, Harry Peltz and Anthoney Torraco, Defendants
No Number in Original
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
151 F. Supp. 242; 1957 U.S. Dist. LEXIS 3536
March 18, 1957
Paul W. Williams, U.S. Atty., New York City, for the United States, by John
J. Donahue, Special Asst. to the U.S. Atty., New York City.
Delaney & Donoghue, New York City, for defendant Harry Peltz, by Joseph Leary
Delaney, New York City, of counsel
Florence M. Kelley, New York City, for Salvatore Spitale, by Bernard Moldow,New York City, of counsel.
OPINION BY: HERLANDS
This is a motion by the defendant Peltz under Federal Rules of Criminal
Procedure, Rule 33, 18 U.S.C.A. for a new trial. The motion was argued orally on
December 13, 1956. The minutes of that argument have been transcribed. On
February 6, 1957, a conference or argument on the settlement of the order was had. The minutes of that conference or argument have been transcribed
Pursuant to the order of the Court as settled and filed, a hearing was
ordered and had commencing March 4, 1957. The hearings continued on March 5th,
6th, 7th, 8th, 11th, 12th and 13th. The record of the hearings runs to 1,110
The indictment herein named Peltz, Michael Peller, and one Torraco, in three
counts. On motion of the United States Attorney, the indictment was severed as
to the defendant Torraco. The [**2] defendant Peller pleaded guilty to Counts
1 and 3 of the indictment at the opening of the trial on January 3, 1956, but
before the jury was selected. The first two counts of the indictment charged
substantive offenses predicated upon the sale on or about August 21, 1954, of
approximately 17 ounces, 375 grains of heroin. The third count is a conspiracy
The defendant Peltz was convicted on January 10, 1956, on the three counts.
Peltz and Peller were sentenced on or about January 30, 1956. Although Peltz
filed a notice of appeal, the appeal was never perfected.
During the trial, the Government called to the stand Narcotic Agent Harry
Mattera. In support of the Government's case, Mattera testified, according to
the Court's trial notes, that on August 11, 1954, at about nine p.m. he saw
Peltz in Hector's Restaurant, that at that time he had a conversation with
Peltz, that present at the conversation were Peller and a man named Phil, and a
Bureau of Narcotics special employee, known as [*244] Jim Adams, also known as
Salvy. Later that evening in Hector's Restaurant, located at 50th Street and
Seventh Avenue, Borough of Manhattan, Mattera and Jim Adams were joined by
Peltz, [**3] Peller and Phil. Mattera had been introduced as Ricky.
In the course of the ensuing conversation, according to Mattera, Peller said,
'Ricky, I would like to tell you why I can't deliver a one-half kilo of stuff at
this time. I am in business with Harry (referring to Peltz, who was present)
and Solly. We have a plant of our own that we can't go to because we know the
agents of the Federal Bureau of Narcotics are maintaining surveillance on this
plant, and for that reason we are compelled to go to other individuals for
Mattera further testified with reference to this conversation that, at that
point, Peltz said, 'Yes, there has been a lot of heat since Solly's bust,' and
then Peltz added that it would be foolish to go near the plant at this time and
that it would be wiser to stay away for another week or ten days.
Agent Gabriel Dukas, called by the Government, corroborated the fact that on
August 11, 1954, at about nine p.m., he saw the special employee and Mattera
enter Hector's Restaurant and that he saw the defendant Peltz, Peller, and
another individual join Mattera and the special employee. Dukas did not hear
any conversation, nor did he testify to any conversation. [**4]
Mattera testified with respect to another meeting on August 18, 1954, when
Peltz and Mattera met alone in the vicinity of 50th Street and Seventh Avenue.
On that occasion, according to Mattera, he asked Peltz, 'Where is Whitey?'
Whitey is a nickname for the defendant Michael Peller.
Mattera asked, 'Why didn't he show up for his appointment?'
Peltz said, 'I don't know where he is.' Mattera said that he was angry at
Whitey's failure to keep the appointment, and Peltz then said, 'Don't get
excited; I will make a telephone call.' And then Peltz left and returned in five
or ten minutes.
Peltz told Mattera that he had spoken to some woman over the phone who had
advised him the Peller would be in Hector's Restaurant that evening and Peltz
then added, 'I will guarantee that he will be there.'
Later that evening, on August 19, 1954, a meeting took place at Hector's
Restaurant and present were Dolly Turner, Peltz and Peller. Peller introduced
Mattera to Dolly Turner and there was a discussion about some individuals in
Chicago. Then ensued a conversation which laster about five or ten minutes
between Peller and Mattera which took place outside of Peltz's hearing at a spot
about ten feet [**5] away.
This conversation was conducted in a low voice. Mattera and Peller sat at
another table. The special employee was present at the table where Dolly Turner
and Peltz were sitting.
In the conversation between Mattera and Peller, outside the hearing of Peltz,
the following ensued:
'Mattera: Whitey, what was the idea of not showing up last night?
'Peller: I smoked a pipe and became sick and I didn't want to get up.
'Mattera: What's the reason for bringing all these persons in to cross
examine me about Chicago?
'Peller: I'm ready to deliver a half kilo to you at $ 5,500 for half a kilo.
'Mattera: That's a rather high price. That makes it $ 11,000 for a full
And there was some further comment about why the price was raised.
'Peller: I am forced to go to other people for stuff and that will have to be
the price. That would be saving you money anyway because this stuff is pure.
'Mattera: I will try it.
'Peller: I will call you at 2 p.m. in Salvy's room.
'Mattera: That's okay with me.'
After this conversation Mattera and Peller rejoined Peltz and Dolly Turner
and the special employee at the other [*245] table. And then, according to
Mattera, Dolly Turner asked [**6] him what cut heroin was bringing in Chicago,
to which Mattera replied, '$ 11,000 a kilo.'
At that point the defendant Peltz remarked, 'Gee, that's a lot of money. You
certainly can make a lot of money there, can't you?
Mattera said, 'Yes, I can.'
The next meeting testified to by Mattera took place some time after midnight
in the early morning of August 21, 1954. Mattera described how he and the
special employee met Peller at Ratner's Restaurant, how they got into a taxicab,
how Peller turned over narcotics to Mattera and Mattera gave Peller $ 5,500.
Mattera then got out of that taxicab, brought the narcotics to the Bureau of
Narcotics. Meanwhile the special employee and Peller were in the other taxi.
According to Agent Dukas, he saw the meeting of Peller, Mattera and the
special employee in Ratner's Restaurant, and he followed them in a taxicab.
Three other agents joined in the ensuing surveillance.
Dukas testified how he observed Mattera leaving the taxi in which Mattera had
gone with Peller and the special employee. Dukas continued to follow Peller and
the special employee and tailed them into Hector's Restaurant. He observed
Peller and the special employee enter Hector's [**7] Restaurant, and he
testified that this observation concerning Peller and the special employee
entering Hector's took place at about one a.m.; that Peller and the special
employee went to a table and there Peller and the special employee met Peltz and
These four persons remained there for a while, until about 1:30 a.m. Agent
Dukas stayed there for a while and continued his observation, and he observed
that Peller, Peltz and this other man left together, and Dukas followed them.
Upon the trial Mattera testified that he saw Peltz again on August 24, 1954,
in the vicinity of 50th Street and Seventh Avenue at about 9 p.m. Peltz was with
Peller. A conversation took place. The special employee was present at the
conversation according to Mattera, and in substance, according to the Court's
trial notes, Mattera said to Peller, 'I didn't like the stuff you sold me. The
quality was extremely poor. It was only about 15 or 20 per cent.'
Peller replied, 'You're crazy. That stuff is good stuff.'
Mattera said, 'Don't tell me I'm crazy, I had the stuff tested. I know how
good it is. It is only about 15 or 20 per cent.'
At that point, according to Mattera, defendant Peltz [**8] said, 'Well, you
know how it is, sometimes it is good and sometimes it is bad.'
To which Mattera replied, 'Well, that does not satisfy me.'
The Government chemist gave the usual testimony about testing the narcotics
and other related matters, as did Agent John Enright. Continuity of possession
of the narcotics was established.
The defense called Harry Peltz' brother, Lou Peltz, who testified in
substance to the fact that he had employed the defendant Peltz in his business,
Peller replied, 'You're crazy. That the times that were material according
to the indictment the defendant Harry Peltz had been working for him.
The defendant Peltz took the stand. He testified to his prior criminal
record of two convictions in connection with narcotics. He had been convicted of
federal narcotics crimes in the District of Massachusetts and in the Southern
District of New York. He admitted that he had met Mattera, Salvy and Peller at
various times and places, including Hector's. But the sum and substance of his
testimony was that all of the conversations were completely innocent; that
narcotics were never mentioned, directly or indirectly; that the conversations
related to all [**9] sorts of general subjects. He took the position that,
while he had met all of the persons mentioned by Mattera at the times and places
mentioned by Mattera, the conversations which Mattera testified to did not take
[*246] In rebuttal, the Government recalled Agent Enright to the stand.
He testified that on December 8, 1955, Assistant United States Attorney Donahue
called a conference at the United States attorney's office, at which were
present Agent Enright and Group Leader Roder, and that Mr. Donahue instructed
them to locate the special employee in connection with the forthcoming trial of
United States v. Peltz, Peller and Torraco.
Agent Enright testified that he made efforts to locate the special employee
since the date of those instructions on December 8, 1955. He described the
efforts as including a visit to the special employee's former residence. The
special employee was not there and had left no forwarding address. Enright
visited former haunts of the special employee, such as various named bars and
grills and restaurants. Enright testified that other agents of the Bureau of
Narcotics who knew the special employee had also been looking for him; and that
[**10] the Bureau of Narcotics had not been able to locate the special
As stated, the jury found the defendant Peltz guilty on the three counts of
the indictment. Upon this motion for a new trial, the defendant Peltz has
submitted various affidavits, including two affidavits by Salvatore Spitale, who
was the special employee. The first affidavit of Spitale is sworn to September
26, 1956; the second affidavit is sworn to October 25, 1956.
In support of the motion, the defendant Peltz has also submitted his own
affidavit sworn to November 6, 1956; three affidavits by Mr. Delaney, defense
counsel, sworn to November 13, 1956, November 26, 1956; and January 3, 1957, an
affidavit of Mr. Delaney's partner, Peter J. Donoghue, sworn to January 3, 1957.
Pursuant to the arrangements set forth in the transcribed minutes of the oral
argument of the motion, there was obtained an affidavit of Michael Peller, sworn
to November 20, 1956, which is part of the record. The Government has submitted
through Assistant United States Attorney Donahue, Mr. Donahue's affidavits,
sworn to October 19, 1956, and November 20, 1956, and two exhibits which are
attached to a letter of transmittal dated January [**11] 4, 1957, Exhibit A
being a record of the criminal convictions of Salvatore Spitale, Michael Peller
and Dorothy Turner, and Exhibit B being the aforementioned affidavit of Michael
Peller, sworn to November 20, 1956.
Upon the concluding arguments had in open court this morning, Mr. Delaney,
defense counsel, stated (Record, p. 1071
'Primarily, if the Court please, the motion is based upon the affidavit of
Salvatore Spitale, which affidavit was sworn to by him on September 26, 1956.
The Court will, nevertheless, consider all of the evidence which has been
adduced upon the hearing.
The testimony of a so-called special employee of the Bureau of Narcotics
should be scrutinized, particularly on a motion for a new trial which is based
upon a convicted defendant's contention that the special employee's exculpatory
testimony is newly discovered. Anyone familiar with criminal law enforcement in
the field of narcotics knows the part played by these civilian undercover
informers. The Bureau of Narcotics is compelled to use them because of the
nature of narcotic crimes and the difficulty in investigating and detecting
them. Many of these informers, like Spitale, have criminal records and [**12]
contacts in the underworld. Some have been or are drug addicts. By their very
character and background, they are suspect and vulnerable to approaches by the
underworld or threats by the underworld once their function and identity become
If, therefore, a narcotic conviction which has not been appealed from is to
be impeached upon the basis of the allegedly newly discovered testimony of a
special employee who takes the stand on behalf of a convicted narcotics
defendant, the Court must make a close and careful evaluation of the motives,
background and associations of the informer [*247] where, in effect, he has
assumed the dual role of informing against the defendant and the narcotic
In many of the narcotic cases coming before the courts for trial, such type
of special employee has necessarily been utilized. It would be establishing a
tempting and dangerous invitation to convicted narcotics defendants to approach
such informers if the courts were lightly to entertain motions for new trials
predicated upon so-called newly discovered evidence emanating from such special
employees. This is especially so where, as here, it appears that the special
employee was a [**13] boyhood friend of Michael Peller, one of the defendants;
a 10-year acquaintance of Harry Peltz, the convicted defendant; and where, as
here, there are unsatisfactorily explained circumstances as to how the special
employee established contact with Peltz's attorney who then makes a motion for
a new trial based primarily upon the affidavit of the special employee.
These general observations furnish a frame of reference within which the
testimony of Salvatore Spitale, the special employee, must be appraised.
Spitale took the stand before the Court and testified at great length, as the
transcript indicates. The Court observed his demeanor closely, scrutinized the
manner of his testifying, and made every effort to determine and weigh the
reliability and credibility of Spitale's testimony. This is not to suggest that
the ultimate determination of this motion rests solely upon considerations of
relative credibility. The controlling principles of law will be set forth later
in this opinion.
Spitale testified that he had used so many different aliases that he could
not remember all of them; that he had used about twenty different aliases,
including such names as Spencer, Soto, Salvy, [**14] Sam Salvin, James Martin,
and Jim Adams.
His criminal record consists of a conviction for unlawful entry in 1914, for
which he received a one-year suspended sentence.
In 1939, he was convicted of grand larceny in the first degree. He received
a sentence of five to ten years. He served approximately six years.
In 1948, upon his having been found guilty of violating the conditions of
parole, he went back and served approximately twenty-three months.
In addition to the foregoing record of crimes to which he had pleaded guilty
or of which he had been found guilty, Spitale testified that he had engaged in
the illicit whiskey business during Prohibition. At one time he was interested
in a speakeasy. For many years, from about 1929 until about two years ago, he
engaged in rather widespread gambling activities in connection with horses and
craps. For many years, he had no source of income, except through gambling. At
one time he had, to use the argot of the underworld, a piece of a book.
He filed a false income tax return, showing income from a legitimate
business, although, in fact, the money had been earned from gambling. The
evidence establishes that he furnished a false application [**15] for a pistol
It is, of course, the law that the fact that a person has a criminal record
does not disqualify him as a witness, although the criminal record bears upon
Spitale testified that he began working for the Bureau of Narcotics in 1953
or 1954. It is clear that he worked for the Bureau of Narcotics in 1953, 1954,
and up to December, 1955. He received about $ 12,000 from the Bureau of
Narcotics during those three years as rewards and compensation for information
He testified that he knew Peltz as 'Harry' for about ten years (Record, p.
300). He testified that he knew Peller since they were together in Dannemora in
1946 (Record, p. 175). Peller testified that they had been boyhood friends and
that Peller had also known Spitale's mother.
On or about November 9, 1955, Spitale went to San Francisco, California, and
[*248] he began working for the Bureau of Narcotics there and in Los Angeles.
It is significant that Spitale's own testimony is that he was sent to California
at his own request, or, as Spitale puts it, he 'asked to go anywhere' (Record,
pp. 499-500). He worked there about 20-odd days during the period from about
November [**16] 11, 1955 to November 30, 1955, and he testified that he came
back to New York in December, 1955, or sometime around the first week of
December, 1955, and that it might be a week either way (Record, pp. 141-144,
After he returned to New York he did not see any narcotic agents (Record,
pages 158, 387).
Spitale's memory was patently defective on dates and other details which
might lend themselves to verification. He testified that there were quite a
number of things he would like to forget and that he was able to forget the
things that he wanted to forget (see, for example, pages 448, 488, 489-491).
He impressed the Court as utterly unreliable, unworthy of belief, and as
representing the almost absolute zero of credibility. It is inconceivable to the
Court that any jury would place credence in anything to which Spitale might
He said he signed the moving affidavit in May, 1956, in the spring of 1956
(see, for example, pages 271, 279, 323), and that he had met Peltz' attorney a
week before he signed the affidavit (pages 278, 291, 322, 325). The record
shows that the first affidavit signed by Spitale was sworn to September 26,
He testified concerning [**17] the manner in which he had established
contact with the defendant's attorney as follows: he had met somebody in
Hector's Restaurant in April or May, 1956; this person told him that Peltz had
been tried and convicted, whereupon Spitale remarked that an injustice had been
done, because Peltz had not been mixed up with narcotics. Thereupon this other
individual suggested that Spitale should look up Peltz' attorney. Spitale
testifies that that was the first time that he had learned that Peltz had been
arrested or convicted.
The Court is of the unqualified opinion that Spitale flagrantly lied when he
testified that the first time he learned that Peltz had been arrested or
convicted was in April or May, 1956.
The Court accepts Agent Mattera's testimony that Spitale had been told on or
about June 26, 1955, which was before the arrest of Peller and Peltz, that Peltz
was going to be arrested; and that at that time Spitale made no comment, protest
or remark to indicate that Spitale thought that Peltz was innocent or that Peltz
should not be arrested.
Spitale's testimony as to how he learned, allegedly in April or May, 1956,
that Peltz had been arrested or convicted is most unsatisfactory. [**18]
Thus, at pages 172 to 173, when Spitale was asked, 'Who told you Peltz had
been convicted?' he replied, 'I don't know, Somebody at the table,' referring to
the table in Hector's Restaurant.
'Q. What was the name of the person who gave you that information?
'A. If I knew, I would tell you. I don't know the name. I don't remember
the name. It could be Harry James. That is all we know people as, by their
At page 283 Spitale testified in response to the question:
'Q. Can you recall the name of that individual? A. No, I cannot. Quite a
few of them there.
'The Court: No, he isn't asking you about a few.
'The Witness: I am sorry, I cannot.
'The Court: Just a minute, now. He is asking you about a particular man. Do
you understand the question?
'The Witness: Yes.
'The Court: That is the man he wants to know about.
'The Witness: No, I cannot.
'The Court: Do you know his first name?
'The Witness: I think it was Jimmy.'
[*249] The Court is of the opinion that the foregoing testimony of Spitale
is a fabrication.
At page 285 Spitale testified that, after he told 'Jimmy' that Peltz had
nothing to do with it, Jimmy said, 'Why don't you tell that to his lawyer?'
Whereupon Spitale said, 'I don't know who his lawyer is.'
Jimmy said, 'I believe it's Mr. Delaney. He is over on 47th Street and Fifth
'I says, 'Well, I don't know his office."
Jimmy said, "I know he goes to that bar on Third Avenue, a restaurant on
Third Avenue,' and he gave me the name.'
At page 287 Spitale admitted that he had seen this man once every two or
three months for 10 years at various places, but that he did not even know his
He did admit at pages 310 to 311 that this person by the name of Jimmy had
been present at some of the conversations at which were also present Peller and
Peltz and Spitale, saying that Jimmy was there 'quite a few times.' But then he
switched his testimony to say, 'He might have been there once.'
Reverting to Spitale's testimony of his alleged lack of knowledge of Peltz'
arrest or conviction, when pressed as to whether or not he had been told by
Mattera or any other agent about the arrest having taken place, Spitale said
that he did not remember whether Mattera or any other agent had told him that
Peltz had been arrested for narcotics, and that he could not positively deny
that he had been told that Peltz had been arrested [**20] (pages 360-361, 411,
It would unduly lengthen this opinion to go through each and every aspect of
Spitale's testimony. He testified, for example, that on quite a number of
occasions Peller, Peltz and he would be together; on other occasions various
other persons together with Peltz had been present. He described various
meetings and conversations, and according to Spitale each and everyone of these
numerous conversations dealt with the weather, baseball games, politics, the
nice clothing that somebody was wearing, and inconsequential subjects.
Spitale's testimony taxes the Court's credulity to the breaking point.
He testified he did not know when he first met Peltz and his memory was
equally vague as to the genesis of his acquaintanceship with Peltz. Although he
said he knew Peltz for about 10 years, he stuck to his story that he never spoke
to Peltz except about horses, weather and clothes, or other similar subjects.
Were Spitale to testify at a new trial, there is not the slightest likelihood
that his testimony would have the probable effect of producing a verdict of
acquittal or of substantially influencing a jury in favor of the defendant
We now come to a consideration [**21] of the testimony of the defendant
Peltz, who took the stand at this hearing in connection with the motion for a
new trial as he did on the original trial.
Upon the original trial, as upon the hearing of this motion, the Court
closely observed the demeanor and manner of testifying of the defendant Peltz.
Upon the trial, in view of the fact that there was an issue of credibility
involved, the Court scrupulously refrained in its charge to the jury from
commenting on any phase of the evidence, lest, in spite of the most careful
instructions, the jury might possibly be influenced by some comment on the part
of the Court.
Now that there has been a conviction. the Court desires to state for the
record that upon the trial Peltz impressed the Court as a person without
conscience and without the slightest regard for the sanctity of the oath. He is
a hardened criminal. He exhibited the capacity to twist and turn his testimony
to suit the exigencies of each question with a blandness and nonchalance that
bespeak consummate skill.
[*250] The Court did not believe his testimony at the trial and does not
believe his testimony upon this hearing.
The Court will not detail Peltz' criminal [**22] record. It is all spread
forth upon the minutes of the sentence proceedings.
One or two items will suffice to show the caliber of Peltz as a witness.
Upon the hearing he testified that the first effort he made to locate Spitale
was the weekend before the trial began on January 3, 1956, or, as he puts it,
approximately two days before the trial. He contradicted this testimony when he
was shown his affidavit and also, under further questioning, when he testified
that he first tried to locate Spitale about a week after June 31, 1955, and that
he continued to do so for the next six months. At another point, he testified
that he tried almost daily to locate Spitale from about the first week in
December, 1955. Although he had learned from Peller in July or August, 1955,
that Spitale had lived at the Great Northern Hotel, he did not go to the Great
Northern Hotel to look for Spitale until five or six months later, toward the
end of December, 1955.
He testified that he had been framed by Agent Mattera; and that during the
trial his fiancee, Dolly Turner, had offered to take the stand and to contradict
Mattera. However, in order to avoid embarrassing Dolly Turner, Peltz did not
accept [**23] her offer.
When asked whether he had informed his attorney, who was trying the case,
that Dolly Turner was willing to take the stand and to contradict and refute
Mattera's testimony, Peltz stated that he did not even tell his attorney about
Dolly Turner's offer.
The Court does not believe this testimony; it is utterly incredible.
He admitted that the statement in his affidavit that, since the summer of
1954, he had not seen Salvatore Spitale was incorrect, but he said that that was
a typographical error.
We now come to a consideration of the testimony of the witness Dorothy
Stirrat, who testified before the Court on this motion. Dorothy Stirrat has also
used the following aliases: Sally Williams, Mary Earle, Dolly Turner and Hazel
Wood. She was convicted of petit larceny in 1929, shoplifting in 1932, and
robbery in the first degree in 1940. For the latter crime she was sentenced to
serve a term of from 10 to 30 years.
She testified that she knew Peller for 30 years, that she knew Peltz for
about 30 years; that at one time she was planning to marry the defendant Peltz;
that marriage plans were first made in the Christmas season of 1951; that she
considered herself Peltz' fiancee, [**24] and that, although the marriage
plans apparently 'petered out' in 1953, as she puts it, she still regards
herself as engaged to Peltz, and she regards herself as a good friend of Peltz.
She represents an underworld character of the worst type. Her 'black-book'
of names, telephone numbers and addresses shows her to be the friend of a number
of persons who, according to her own testimony, had been dealers in narcotics.
She testified that she offered to take the stand in behalf of Peltz during
the trial and to refute Mattera's testimony as to the alleged conversation in
Hector's Restaurant at which she was present, and where according to Mattera,
narcotics was discussed by Peltz.
Assuming that she made such an offer to Peltz, as both Peltz and she
testified to, it is clear that her testimony is not 'newly discovered'. For, on
the basis of the uncontradicted testimony even as adduced in behalf of the
defense, her testimony was available during the trial.
By virtue of her record, by virtue of her close friendship with Peltz and by
virtue of the fact that her testimony is not newly discovered, her testimony is
of no value for purposes of the present motion.
In the moving affidavit [**25] of Peter J. Donoghue, sworn to January 3,
1957, referring to Dorothy Stirrat's information [*251] to Mr. Donoghue, the
following statement appears:
'Miss Stirrat also advised me that at or about the time of her arrest the
United States narcotic agent told her in effect that she was in serious trouble,
but that if she could help the United States Bureau of Narcotics, he might be
able to help her.'
That is a rather ambiguous statement. It is equivocal and might possibly
give rise to the inference that some sort of a deal was suggested by the
narcotic agents to Miss Stirrat that if she supported the narcotic agent's
version of the case, the narcotic agent might help her. But, be that as it may,
upon the trial she testified that the narcotic agents never asked her to lie and
that, in fact, they had questioned her closely about information concerning
narcotic dealers and various persons, whose names were read to her from a list.
The names appear in the record; and no purpose would be served by listing them
in this opinion.
It is crystal clear that no improper suggestions were made by the narcotic
agents, Agent Rudden and another agent, who interviewed Dorothy Stirrat.
We now [**26] come to the testimony of Michael Peller. Peller has been an
opium smoker for forty years. He has a criminal record that goes back to 1912,
when he was sentenced to two years in the State prison for grand larceny.
In 1917, he was sentenced to an indefinite term in the penitentiary for
In 1924, he received an 18-month sentence for possession of narcotics.
In 1932 or 1933, he was found guilty of possession of an opium pipe.
In 1938 or 1939, he was sentenced to Fort Leavenworth for a year and a day on
a Federal narcotics charge arising out of possession of opium or an opium pipe.
As a result of proceedings in the State courts, commenced in or about 1942,
he eventually pleaded guilty in 1946 to manslaughter, for which he received a
sentence of seven to eight years.
As already stated, he pleaded guilty to Counts 1 and 3 in this case.
Peller has taken the stand on this motion and has given testimony which is
exculpatory of Peltz. Peller testified, in substance, that at no time during
any of the conversations between or in the presence of Mattera, Spitale, Dolly
Turner, or any other person, was the word narcotics ever mentioned in the
presence of Peltz.
Before the Court [**27] considers the details of Peller's testimony, it is
important to point out that the defense has not shown that Peller's exculpatory
evidence could not have been offered at the trial if the Peltz defense had then
thought it worth while and had used diligence.
If, as claimed, Peltz and his attorney knew that Peller was in position to
give exculpatory testimony in favor of Peltz by contradicting Agent Mattera,
then it was incumbent upon Peltz and his attorney to make a reasonable effort to
get Peller's testimony before the jury. The only alleged stumbling block was
Peller's and Peller's attorney's position, allegedly expressed to Peltz and
Peltz's attorney, that if Peller were put on the stand in behalf of Peltz, he
would claim his privilege notwithstanding the fact that Peller had pleaded
guilty to Counts 1 and 3 of the indictment at the opening of the trial on
January 3, 1956.
There is some authority for the proposition that where a defendant has
pleaded guilty to an indictment, his plea of guilty constitutes a judicial
admission of guilt with respect to the specific crime set forth in the
particular indictment. According to such authority, a plea of guilty under such
circumstances [**28] operates as a waiver of the defendant's constitutional
privilege which he might have otherwise exercised to refuse to answer questions,
the answers to which would incriminate or tend to incriminate him with respect
to the specific crime for which he had pleaded guilty. See Krogmann v. U.S., 6
Cir., 1955, 225 F.2d 220-226.
It is unnecessary for this Court to rely upon or to express any opinion with
[*252] respect to the foregoing proposition of law, in view of the following
facts in this case. Peltz's attorney argues that, until Peller was sentenced,
Peller could have moved to change his guilty plea and that until Peller was
sentenced there was no judgment of conviction. Let us assume, auguendo, that
such argument is valid. The official entries in the Clerk's files and records
show that on January 3, 1956, the sentencing of Peller was set down for January
6, 1956, at 10:45 a.m. On January 5, 1956, the Court ordered a presentence
report for Peller and adjourned the sentencing to January 18, 1956. As stated,
this trial commenced on January 3, 1956.
Had Peltz's attorney indicated at any time to the Court that, in the interest
of justice, he desired to have Peller's testimony [**29] in behalf of Peltz,
Peller's alleged objection -- that he would claim his constitutional
privilege -- could have readily been obviated by simply having the sentence
proceed on January 6, 1956, as originally scheduled and having a presentence
report prepared immediately. Instead, the defense strategy was to proceed
without Peller's testimony.
The Court will not speculate as to why Peller did not want to testify in
behalf of Peltz prior to Peller's being sentenced.
Peller's allegedly exculpatory story was and is not, in fact, 'newly
discovered', even according to Peltz's attorney, who argues that it is now newly
available and hence, in legal effect, equivalent to newly discovered. The
Court's view is that, by the exercise of due diligence, Peller's exculpatory
testimony, for whatever it may be worth, could have been available to Peltz at
the trial if it had been genuinely desired. The Peltz defense strategy with
respect to Peltz's alleged story of Peltz's innocence conforms with the defense
strategy with respect to Turner's alleged story of Peltz's innocence, that is,
to put it in deep freeze. The Peller and Turner stories have now been defrosted
for purposes of this motion [**30] for a new trial.
According to the official transcript of the proceedings, on January 3, 1956,
which is part of the Clerk's file, Peller stated, in response to the Court's
question, that he had read the entire indictment. However, upon the hearing of
this motion, Peller testified that he had not read the indictment. He did,
however, admit that the indictment had been explained and read to him.
Peller pleaded guilty on January 3, 1956, to Counts 1 and 3 of the indictment
which not only named Peller as a defendant, but also Peltz. The third count to
which Peller pleaded guilty charged a conspiracy between Peller and Peltz. By
pleading guilty to the conspiracy count, Peller admitted in open court that he
was guilty of conspiring with Peltz. This judicial admission does not square
with Peller's present story that Peltz has nothing to do with him and narcotics.
Of course, Peller's plea of guilty is not binding on Peltz. The Court
adverts to Peller's plea of guilty to the third count as bearing upon Peller's
credibility when he states that Peltz had nothing to do with him in the
In his testimony upon this hearing, Peller clearly demonstrated that he was
utterly [**31] unreliable and unworthy of the slightest belief. In the Court's
opinion, the oath means nothing to him. He is a hardened and vicious criminal
who would change his testimony to suit the exigencies of any situation. No
reasonable person on or off a jury would accept his word for anything.
His testimony about purchasing $ 5,500 worth of narcotics on credit from one
'Shorty' whom he had not seen in 19 years is incredible.
He could not remember whether his sale of the narcotics to Mattera for $
5,500 took place in March or April, 1954, or August, 1954.
The Court will not detail the testimony concerning his employment at Fada
Radio & Television Company. He testified that he had been employed there every
day from September, 1950 to April, 1955. The indisputable documentary proof
contradicts his testimony. His [*253] memory was completely unreliable as to
when he was operated upon, when he went into the hospital, when he was employed,
when he was unemployed, and similar matters.
His testimony as to his residence was not truthful.
His testimony, which he puts in positive form, that Peltz was not present
with him in Hector's Restaurant at the early morning meeting on August 21,
[**32] 1954, is refuted by Agent Dukas.
He admitted that his testimony, that he was not married during the period of
time referred to in a question, was wrong.
He would have the Court believe that he handled a narcotic transaction for $
5,500 and that he refused a $ 200 commission which was offered to him, at a time
when he was unemployed and receiving unemployment insurance.
The most fantastic tale is Peller's testimony as to how he and Spitale
handled the distribution of the $ 5,500.
He says that they sat at a table in the front part of Hector's Cafeteria, in
the second row of tables from the front window, a window through which passersby
can readily look, and that he handed the $ 5,500 in cash (in tens, twenties,
fifties and hundreds), to Spitale. The money was not in an envelope or
covering, and the $ 5,500 in greenbacks was passed across the top of the table.
He then testified that Spitale gave him $ 5,000, after Spitale counted out the $
5,000, and that Spitale kept $ 500. He had previously testified that he was
suspicious about being seen with Spitale in Hector's, and that he did not want
to be seen in company with Spitale by any persons in the cafeteria who were
known to him. [**33]
In sum, the evidence adduced in behalf of Peltz is most unimpressive, is
completely lacking in substance, credibility or reliability, and has not the
slightest persuasive or probative value, and would in the Court's view have not
the slightest effect upon a jury in demonstrating Peltz' innocence.
With respect to one other phase of the matter, the Court desires to state
that there is no reason to believe that either the prosecutor or the narcotic
agents were engaged in an attempt to keep Spitale away from the trial. Spitale
testified that he himself was the one who wanted to get out of New York, and
that it was at his suggestion that he was sent to California, where he worked
for the Bureau of Narcotics.
The proof shows that he came back to New York in December of 1955. The proof
convincingly establishes that on December 8, 1955, instructions were given to
Agent Enright's testimony and Group Leader Roder's testimony to the effect
that they made efforts beginning December 8th to locate Spitale is impressive
and convincing, and the Court accepts the testimony as completely reliable.
It is true that the New York Bureau of Narcotics office did not get in touch
with [**34] the California office. But in the light of the evidence, although
such an inquiry might have well been made as an obvious step in the
investigation, Spitale was no longer in California. Any such inquiry would have
been fruitless, had it been made.
The charge leveled against the Bureau of Narcotics in defense counsel's
concluding argument -- that there was a wilful and deliberate attempt on the
part of the narcotics agents to keep Spitale away from the trial -- is
unjustified. That charge is not supported by the evidence; it is an unwarranted
attack on these narcotic agents; and it is rejected by the Court. These agents
have impressed the Court with their sincerity and their devotion to duty. They
have been reliable witnesses in this proceeding.
The Court vividly recalls Agent Mattera's testimony at the trial. The Court
states that Agent Mattera impressed the Court as being a truthful and reliable
The vital elements that must be shown by a party seeking a new trial [*254]
on the ground of newly discovered evidence, Federal Rules of Criminal Procedure,
Rule 33, have been frequently expounded by the courts. United States v. On Lee,
2 Cir., 1953, 201 F.2d [**35] 722; United States v. Hiss, D.C.S.D.N.Y.1952, 107
F.Supp. 128, 136, affirmed 2 Cir., 201 F.2d 372, certiorari denied 1953, 345
U.S. 942, 73 S.Ct. 830, 97 L.Ed. 1368; United States v. Rutkin, 3 Cir., 1953,
208 F.2d 647, 649; Johnson v. U.S., 8 Cir., 1929, 32 F.2d 127, 130; Hamilton v.
U.S., 1944, 78 U.S.App.D.C. 316, 140 F.2d 679; Coates v. United States, 1949, 84
U.S.App.D.C. 359, 174 F.2d 959.
In the On Lee case supra, Chief Judge Swan said, 201 F.2d 723:
'A motion for a new trial on the ground of newly discovered evidence is
addressed to the discretion of the trial judge. In deciding it he may utilize
the knowledge he gained from presiding at the trial as well as the showing made
on the motion.'
Chief Judge Swan added, 201 F.2d 723, note 3:
'It is generally said that five requirements should be met before a new trial
will be awarded on the grounds of newly discovered evidence. See the statement
of Johnson v. United States, 8 Cir., 32 F.2d 127, 130, quoted in Brandon v.
United States, 9 Cir., 190 F.2d 175, 178: '* * * (a) The evidence must be in
fact, newly discovered, i.e., discovered since the trial; (b) facts must be
alleged from which the court may infer diligence on the [**36] part of the
movant; (c) the evidence relied on, must not be merely cumulative or impeaching;
(d) it must be material to the issues involved; and (e) it must be such, and of
such nature, as that, on a new trial, the newly discovered evidence would
probably produce an acquittal."
On a motion for a new trial on the grounds of newly discovered evidence it
is, among other things, incumbent upon the moving party to offer new matter
which, if true, would 'probably' produce an acquittal. United States v. On Lee,
supra; Wolcher v. U.S., 9 Cir., 1956, 233 F.2d 748, 751, citing Balestreri v.
U.S., 9 Cir., 1955, 224 F.2d 915, and United States v. Johnson, 7 Cir., 1944,
142 F.2d 588, petition for certiorari dismissed 1944, 323 U.S. 806, 65 S.Ct.
264, 89 L.Ed. 643. See Davis v. Yellow Cab Co., 5 Cir., 1955, 220 F.2d 790,
After a full and close analysis and consideration of all that the defendant
has offered, the Court is of the opinion that the defendant Peltz has failed to
establish a record of evidence that satisfies the basic requirements set forth
in the authorities cited above. The defendant Peltz is not entitled to a new
There is no newly discovered evidence which would [**37] justify the
conclusion that, if it were presented to a jury, it would probably result in a
verdict of acquittal.
Defendant's showing does not have the substance which should invoke the
exercise of judicial discretion in his favor on this motion.
The motion is denied.
In the Matter of ARTHUR J. CILENTO, on Behalf of
SALVATORE SPITALE, Appellant. THE PEOPLE OF THE STATE OF
NEW YORK, Respondent. Court of Appeals of New York
302 N.Y. 616; 96 N.E.2d 900; 1951 N.Y. LEXIS 809
Argued January 4, 1951
January 18, 1951, decided
Matter of Spitale (People), 276 App. Div. 632, affirmed.
APPEAL from an order of the Appellate Division of the Supreme Court in the third
judicial department, entered May 4, 1950, which (1) reversed, on the law and the
facts, an order of the Supreme Court at Special Term (RYAN, J.), entered in
Clinton County, sustaining a writ of habeas corpus and directing that the
above-named Salvatore Spitale be released from Clinton State Prison, and (2)
remanded the prisoner to the custody of the warden of said prison. The prisoner
had been convicted on November 29, 1939, by the Court of General Sessions of the
County of New York of the crime of grand larceny in the first degree and had
been sentenced on December 21, 1939, for a term of not less than five years and
not more than ten years. He was received in prison on December 22, 1939, with a
credit of twenty-three days' jail time. On September 5, 1946, he was paroled
and on October 13, 1948, rearrested and returned to prison on October 22, 1948.
On November 10, 1948, at a hearing held pursuant to section 218 of the
Correction Law, he admitted the charge that he had violated his parole. At such
hearing there was evidence before the [**2] Board of Parole that the prisoner
had made false reports to his parole officer while on parole and the board
determined that he had violated his parole as of January 25, 1948.A rule
established by the Board of Parole pursuant to section 215 of the Correction Law
provided that: "Any reports either verbal or written, made to or submitted by a
parolee to a parole officer, which are subsequently found to be false, will be
rejected by the Board of Parole, and will not be used in crediting parole time
served and may be considered a violation of parole." Section 218 of the
Correction Law provided that: "Whenever there is reasonable cause to believe
that a prisoner who had been paroled * * * has violated his parole, such board
of parole at its next meeting shall declare such prisoner to be delinquent and
time owed shall date from such delinquency." Appellant contended that all of the
prisoner's jail time plus all of the time he was on parole from September 5,
1946, until he was rearrested on October 13, 1948, must be credited on his
sentence with the result that his term of imprisonment would have expired on
November 28, 1949. The People contended that the period from January 25, 1948,
to [**3] October 13, 1948, must be excluded in determining the expiration date
of the sentence.
Crimes - sentence - habeas corpus - prisoner while on parole made false
reports to parole officer and Board of Parole determined that prisoner had
violated parole as of date nine months prior to his return to prison -
contention on behalf of prisoner that full period of parole time must be
credited on sentence - contention by People that prisoner not entitled to credit
for period of time during which Parole Board had determined prisoner was
violating parole - order sustaining writ of habeas corpus properly reversed and
prisoner remanded to custody of warden.
John T. Sullivan, Franklin P. Gavin and Arthur J. Cilento, in person, for
Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden, Wendell P. Brown
and Herman N. Harcourt of counsel), for respondent.
[*617] Order affirmed; no opinion.
Concur: LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, DYE, FULD and FROESSEL, JJ.
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