United States District Court, Northern District of Illinois, E.D
November 21, 1972
DANIEL ESCOBEDO, PLAINTIFF,
UNITED STATES OF AMERICA, DEFENDANT.
The opinion of the court was delivered by: Austin, District Judge.
MEMORANDUM OPINION and JUDGMENT ORDER
These two petitions under 28 U.S.C. § 2255 (1970) attack the
validity of plaintiff Escobedo's convictions in indictment
numbers 67 CR 555 and 564, which were consolidated for trial, and
in indictment number 67 CR 562. For the reasons stated below,
this court dismisses plaintiff's petitions without a hearing.
Plaintiff assigns nine reasons why his convictions should be
(1) The trial judge ruled that the government was not required
to produce recorded conversations between Escobedo and a
(2) Tape-recorded telephone conversations were improperly
admitted contrary to Illinois law.
(3) The trial judge refused to consolidate for trial the heroin
indictments with the marihuana indictment.
(4) Plaintiff was improperly impeached on the basis of his
(5) Improper joinder of the offense of unlawfully transferring
a narcotic without an order form with the offense of receiving,
concealing, and facilitating the transportation and concealment
(6) Plaintiff was denied the effective assistance of counsel.
(7) Plaintiff was improperly denied access to fingerprint
(8) The trial judge improperly conducted the voir dire to
determine if any jurors had been prejudiced by publicity.
(9) Denial of the right to confront witnesses in that the trial
judge sustained an objection to the disclosure of the home
address of a government agent.
Of these nine alleged errors, the first four were squarely
presented on appeal and rejected by the Seventh Circuit in United
States v. Escobedo, 430 F.2d 14 (7th Cir. 1970), cert. denied,
402 U.S. 951, 91 S.Ct. 1632, 29 L.Ed.2d 122 (1971) and in United
States v. Escobedo, 430 F.2d 603 (7th Cir. 1970), cert. denied,
402 U.S. 951, 91 S.Ct. 1632, 29 L.Ed.2d 122 (1971). No useful
purpose would be served in relitigating these four issues because
there are no intervening
decisions which would retroactively set aside plaintiff's
convictions nor has plaintiff demonstrated "that the ends of
justice would be served by permitting" such a relitigation.
Sanders v. United States, 373 U.S. 1, 16, 83 S.Ct. 1068, 1078, 10
L.Ed.2d 148 (1963); DeMaro v. Willingham, 401 F.2d 105, 106 (7th
Cir. 1968); Annot., 10 A.L.R.Fed. 724 (1972).
Plaintiff asserts that the joinder of two distinct offenses in
a single indictment was prejudicial in that he was thereby
whipsawed between his right not to testify on one count and to
testify on his own behalf in another. Count I of the challenged
indictment charged Escobedo with the unlawful transfer of a
narcotic. Count II charged him with possession of marihuana,
which carried with it the now unconstitutional statutory
presumption that a defendant knows that the marihuana is imported
and that possession is sufficient to convict unless explained to
the satisfaction of the jury. By joining these counts in the same
indictment, Escobedo asserts that he was caught in the dilemma of
having to choose between asserting his right to remain silent in
Count I or taking the stand on his own behalf to explain the
possession charged in Count II.
This objection is not well taken and has already been
implicitly overruled by the Seventh Circuit, which rejected
plaintiff's assertion that "if the basis for Count II was held
unconstitutional, then the conviction under Count I must also be
reversed because of the prejudicial effect of Count II." 430 F.2d
at 18. The Seventh Circuit stated that plaintiff "was adequately
protected by the instructions and that prejudicial error did not
occur as a result of the presence of Count II." 430 F.2d at 18.
Similarly, plaintiff's most recent objections to the joinder of
these offenses in a single indictment should also be overruled.
Plaintiff next alleges that he was denied effective assistance
of counsel in the trial of 67 CR 562 because sometime prior to
that trial the government served his attorney with a petition for
disciplinary action for conduct arising out of Escobedo's trial
on a prior indictment. Escobedo states that his attorney "was not
acting at his best." (Paragraph 10, Plaintiff's Exhibit A, 72 C
781.) However, even if this appraisal of counsel's performance is
accurate, the allegations of the petition nevertheless fall short
of constituting a violation of the sixth amendment. As stated by
the Seventh Circuit, "The constitutional guarantee of the
assistance of competent, effective counsel does not require
perfection. That guarantee is satisfied when the conduct of
counsel is such that the essential integrity of the proceedings
as a trial is preserved . . and the trial has not made a travesty
of justice." United States v. Dilella, 354 F.2d 584 (7th Cir.
1965). Moreover, a review of the record reveals that defense
counsel's conduct was hardly anything less than vigorous and
forceful and that Escobedo's present objections are meritless.
With respect to plaintiff's objection that he was improperly
denied access to fingerprint reports, there is no evidence that
the United States Attorney in 67 CR 562, 555, and 564 ever had
the result of any fingerprint reports conducted by the FBI or by
any other agency. Assuming arguendo that the United States
Attorney had such evidence in his possession, suppression of it
would violate due process only if it was material to guilt or
punishment. Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10
L.Ed.2d 215 (1963). But even if this evidence was material and
error resulted in its suppression, that error will be
insufficient to overturn the conviction if the evidence is
comparatively insignificant in view of the independent evidence
of plaintiff's guilt. Schneble v. Florida, 405 U.S. 427, 92 S.Ct.
1056, 31 L.Ed.2d 340 (1972); Chapman v. California, 386 U.S. 18,
87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Here the independent
evidence against Escobedo was overwhelming. Moreover, the absence
of his latent fingerprints on the paper bags which he delivered
to a federal narcotics agent would be comparatively insignificant
in view of the fact that persons frequently fail to leave latent
fingerprints. Crown, The Development of Latent Fingerprints with
Ninhydrin, 60 J.Crim.L.C. & P.S. 258, 264 (1969). Therefore,
plaintiff's conviction cannot be overturned because of the
alleged suppression of fingerprint evidence.
The eighth reason plaintiff assigns in support of his § 2255
petition is that the trial judge improperly conducted the voir
dire to determine if any of the jurors had been prejudiced by
publicity. Judge Napoli asked only whether any jurors had read or
seen any pretrial publicity with regard to the defendant and, if
so, whether they would be unable to render a fair and impartial
verdict based upon the evidence presented in open court. This
procedure did not comport with the individual questioning
required by Margoles v. United States, 407 F.2d 727, 735 (7th
Cir. 1969). However, Margoles was decided subsequent to
Escobedo's trials and is clearly not retroactive. United States
v. Solomon, 422 F.2d 1110, 1116 (7th Cir. 1970), cert. denied sub
nom. Sommer v. United States, 399 U.S. 911, 90 S.Ct. 2201, 26
L.Ed.2d 565 (1970). Therefore, since Judge Napoli's conduct of
the voir dire was not erroneous at the time of trial, it cannot
now be asserted as a ground for § 2255 relief.
Finally, plaintiff contends that he was denied his sixth
amendment right to confrontation because the court sustained an
objection to a question asked by co-defendant's counsel which
sought the home address of a federal narcotics agent. This was
not error since the trial court had the duty to weigh the
prejudicial effect of this limitation on the defendant against
the necessity for protecting the witness. Smith v. Illinois,
390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968) (White, J.
concurring); United States v. Saletko, 452 F.2d 193 (7th Cir.
1971), cert. denied, 405 U.S. 1040, 92 S.Ct. 1311, 31 L.Ed.2d 581
(1972); United States v. Caldarazzo, 444 F.2d 1046 (7th Cir.
For all these above reasons, this court dismisses plaintiff
Escobedo's § 2255 petition without a hearing.
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