Genovese v. United States, 378 F.2d 748 (2d Cir. 1967)

United States Court of Appeals, Second Circuit, No. 465, Docket 30780; argued May 16, 1967, decided May 26, 1967. Before Lumbard and Moore, Circuit Judges, and Bartels, District Judge of the Eastern District of New York sitting by designation; the opinion is by Moore.

Under the heading “Previous Proceedings” the court states: “Indicted in July 1958, appellant and 16 other defendants were tried jointly for conspiring to violate sections 173 and 174 of Title 21 of the United States Code. In April 1959 appellant and 15 co-defendants by jury verdict were convicted.” It then lists the later steps: the direct appeal, United States v. Aviles, with certiorari denied in 1960; a motion for a new trial, denied in 1961; a second phase on the government’s production of certain notes, which went to the Supreme Court as Evola v. United States (1963) and back; and certiorari denied again in 1965. The opinion does not print the district court’s docket number for the 1958 indictment.

On September 14, 1965 Genovese moved under 28 U.S.C. § 2255, or in the alternative under Rule 35, to vacate the judgment, arguing that there was no evidence that he knew the narcotics were illegally imported. The court held that the sufficiency of the evidence had already been reviewed on direct appeal and could not be raised again, and noted that “there was ample evidence of constructive possession from which the jury could have easily inferred knowledge of illegal importation.” The order denying relief was “Affirmed.”