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330 F2d 612 United States v. Capsota

330 F.2d 612

UNITED STATES of America, Appellee,
v.
John CAPSOTA, Appellant.

No. 435.

Docket 25609.

United States Court of Appeals Second Circuit.

Argued April 22, 1964.

Decided April 23, 1964.

Edward Q. Carr, Jr., New York City (Anthony F. Marra, New York City, on the brief), for appellant.

Charles J. Fanning, Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty. for Southern District of New York, on the brief; Charles A. Stillman, Asst. U. S. Atty., of counsel), for appellee.

Before LUMBARD, Chief Judge, and WATERMAN and MARSHALL, Circuit Judges.

PER CURIAM.

1

Appellant, by his application for a writ of error coram nobis, seeks to vacate two judgments of conviction in the United States District Court for the Southern District of New York on August 10, 1937, and April 30, 1941. He is presently incarcerated in the New York State Penitentiary, Dannemora, New York as a multiple offender. His original application was denied without a hearing. On appeal (2 Cir., 260 F.2d 566) we ordered a hearing in accordance with United States ex rel. Farnsworth v. Murphy, 358 U.S. 48, 79 S.Ct. 76, 3 L.Ed.2d 46 (1958), vacating and remanding 254 F.2d 438 (2 Cir.). Pursuant thereto Judge Edelstein held a full hearing and decided that the Government's testimony was sufficient to meet the requirements of Farnsworth. We have examined the record before us and find that the weight of the evidence supports his finding that appellant intelligently waived his right to counsel before the 1937 plea of guilty and was represented by counsel at the 1941 conviction. The judgment is, therefore, affirmed.