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Aleman v. United States

decided: July 10, 1989.

HARRY ALEMAN, PETITIONER-APPELLANT
v.
UNITED STATES OF AMERICA, RESPONDENT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87-C-5819 -- Stanley J. Roskowski, Judge.

Bauer, Chief Judge, Cummings, Circuit Judge, and Eschbach, Senior Circuit Judge.

Author: Eschbach

ESCHBACH, Senior Circuit Judge

Harry Aleman ("petitioner" or "Aleman") appeals from the district court's denial of his 28 U.S.C. § 2255 petition without holding an evidentiary hearing.*fn1 Aleman claims that Robert Harder and William "Butch" Petrocelli were government informants when he committed the crimes for which he was ultimately convicted (1972, 1973, and 1978). Petitioner urges this court to remand his petition for discovery and a full evidentiary hearing based on circumstantial documentary evidence and his sworn affidavit attached to his petition. We find that Aleman has not made a sufficient showing to warrant a hearing and affirm the district court's denial of his habeas petition.

I. PROCEDURAL HISTORY

Aleman was convicted in 1978 of one count of conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("Act"); one count of violating the Act; and one count of transporting stolen goods in interstate commerce. 18 U.S.C. §§ 1962(c), 1962(d), 2314. Judge Stanley J. Roszkowski sentenced Aleman to two concurrent twenty-year terms of imprisonment on the first two counts and a consecutive ten-year sentence on the third count. The jury conviction and sentences were upheld on appeal. United States v. Aleman, 609 F.2d 298 (7th Cir. 1979), cert. denied, 445 U.S. 946, 100 S. Ct. 1345, 63 L. Ed. 2d 780 (1980).

Aleman next sought, and was denied, a motion for correction of his sentence under Fed.R.Crim.P. 35 in 1980. In 1985, Aleman sought government records through the Freedom of Information Act (FOIA), but that suit was dismissed. Aleman v. Shapiro, No. 85-C-3313, April 30, 1987 (Dist.Ct.D.C.). In June 1987, Aleman filed his § 2255 petition.*fn2 Aleman attached an affidavit to his petition stating that in 1986, he learned that Robert Harder had been a government informant around the time of the criminal acts for which Aleman was convicted.*fn3 Aleman asserted that Harder gave information to DEA agent Francis Tucci, who testified at Aleman's trial.

Aleman also appended government reports to his § 2255 petition, which showed that William "Butch" Petrocelli, a confidant of Aleman's, had been investigated for murder by the government. Aleman averred that the reports, plus the fact that Petrocelli was never charged for the murder (though Aleman was) or indicted on the RICO charges, established that Petrocelli was an informant.*fn4 Aleman further alleged that Petrocelli was privy to his defense strategy at trial.

The district court denied Aleman's § 2255 petition without a hearing, finding that Aleman's allegations did not rise to "even the weakest evidence" that Petrocelli and Harder were informants. Judge Roszkowski also denied Aleman's motion for an evidentiary hearing.

II. FACTUAL BACKGROUNDS*fn5

An unindicted co-conspirator, Louis Almeida, provided much of the testimony to convict Aleman. Almeida testified that in 1972 and 1973, he and Leonard Foresta (Aleman's co-defendant) committed three home robberies (in Oak Lawn and Chicago, Illinois and Indianapolis, Indiana). Before each robbery, Almeida and Foresta conferred with Aleman and Petrocelli.

Aleman provided a stolen car for the first robbery and paid Almeida and Foresta each $500 for the deed. Aleman provided a sheriff's badge and a contact in Indianapolis, Leo Miroff, for the second robbery. Afterwards, Miroff, Jane Powers, Foresta, and Almeida drove to Aleman's house in Chicago with the Indianapolis loot. Aleman paid Almeida and Foresta each $500 again, and told Miroff to sell the stolen goods piecemeal. However, before Miroff sold the goods, he and Powers became Harder's houseguests, storing the goods in the bedroom in which they stayed. Almeida also testified that Aleman participated in the third robbery, again supplying a sheriffs badge to gain entry to the house.

It was Almeida's testimony that Petrocelli participated in the planning sessions before each of the home robberies. Harder, on the other hand, did not directly participate in the home robberies, the conspiracy, or the transportation of the stolen goods. Harder simply opened his home to Miroff, Powers, and their belongings. Later, Harder gave police permission to search his residence when they arrived with arrest warrants for him, Miroff, and Powers. In the search, the Indianapolis loot and ...


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