Taylor v. United States

• Decision Date: 06 February 1956
• Docket Number: No. 15255.,15255.
• Citation: 229 F.2d 826
• Parties: Ernest Eugene TAYLOR, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

229 F.2d 826 (1956)

Ernest Eugene TAYLOR, Appellant, v. UNITED STATES of America, Appellee.

No. 15255.

United States Court of Appeals Eighth Circuit.

February 6, 1956.

COPYRIGHT MATERIAL OMITTED

Charles S. Scott, Topeka, Kan. (Elisha Scott and John J. Scott, Topeka, Kan., on the brief), for appellant.

Joseph L. Flynn, Asst. U. S. Atty., St. Joseph, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., on the brief), for appellee.

Before STONE, WOODROUGH and VOGEL, Circuit Judges.

STONE, Circuit Judge.

This is an appeal from an order denying a motion by appellant to set aside and vacate, 28 U.S.C. § 2255, a sentence for unlawful sale of narcotics under § 2554 (a), Title 26 U.S.C.

Appellant urges here three claimed errors, as follows:

1. Error in denial of hearing upon the alleged charge of use of perjured testimony of the Government.

2. Error in determining that appellant came within the purview of § 2554(a), 26 U.S.C.

3. Error in entering a second judgment.

As originally filed, the motion attempts to set forth the basis for each of the matters so claimed as erroneously determined by the trial court. On September 7, 1954, the trial court filed a "Memorandum and Order" on the motion. The effect of this was to deny the motion in so far as the second and third above issues were involved; to determine that the perjury issue was not sufficiently stated; and to give appellant fifteen days to file an amendment to his motion "with respect to the alleged use of perjured testimony at his trial" — lacking which, the entire motion "will be overruled." An amendment was filed. This was deemed insufficient by the court, who gave another extension of time. A second amended motion was filed. Regarding this last amendment as not sufficient, the court entered an order denying the motion. This appeal followed. The situation on this appeal is such that these three issues are clear-cut and can be separately understood and examined without further general description or explanation of the entire controversy.

1. The Perjured Testimony Issue.

The contention of appellant is that he "was entitled to be heard respecting the perjured testimony as alleged in his motions." The issue here is not whether perjured evidence was offered by the Government; but it is whether appellant failed so to plead the use of such character of evidence as to entitle him to a hearing thereon. This situation necessitates examination of three matters: (a) Appellant's pleadings; (b) the action of the trial court thereon; and (c) the applicable law. Consideration of (a) and (b) together will result in a more understandable narrative of what occurred.

(a)(b) Pleadings and Rulings Thereon. There were two successive amendments of the motion. The original motion alleged:

"His conviction was influenced and predicated upon perjured testimony the same to be known or should have been known by the Prosecuting Attorney representing the Government of the United States, and that the same was known or should have been known that said witness or witnesses were going to present perjured testimony in an effort to convict this Defendant."

In a carefully prepared "Memorandum and Order" on the original motion, the court denied the two other pleaded grounds of the motion and — giving time to file an amendment — disposed of this "perjury" ground as follows. The court stated two reasons why the motion was not sufficient in that respect. The first is that appellant does not unequivocally charge actual knowledge on the part of the Government attorney but only that "the same to be known or should have been known", while positive knowledge and use of such character of evidence is necessary. The second is that:

"Unless defendant can allege that perjured testimony was knowingly, willfully and intentionally used against him, and supports said allegation by setting forth facts as to his knowledge thereof or evidence that he has thereon, his instant motion must be held to be insufficient to present any such charge to this Court."

Appellant then had amended the perjury part of his motion to read:

"His conviction was influenced and predicated upon perjured testimony the same being willfully and intentionally used and with the knowledge of the prosecuting attorney and the United States agents of the Narcotic Bureau and that the defendant is able to produce evidence that will support the above allegations."

The thus amended motion was ruled not sufficient, in a careful memorandum, and further leave to amend given. The court therein stated:

"In ruling his previous motion with respect to an allegation of the use of perjured testimony at his trial, we directed the defendant to set `forth facts as to his knowledge thereof or evidence that he has thereon\'. Defendant has not complied with the mandate of this Court. By our previous order, we intended that defendant should set forth in his application to this Court the specific testimony that he charges to be perjurious, and such evidence as he has or expects to adduce that the Prosecuting Attorney and the United States agents of the Narcotic Bureau had knowledge that such evidence was perjurious at the time it was adduced before this Court."

Appellant filed a second amendment as follows:

"His conviction was influenced and predicated upon perjured testimony to wit:

"That Franklin Carter, who testified on behalf of the Government, stated in substance, under oath, that he was not a user of narcotics and that he did not smoke marijuana cigarettes, when in fact he was, prior to and during the trial, a user of narcotic and smoked marijuana cigarettes and further testified that he had at no time ever borrowed any money from the defendant; and further that he stated that the defendant approached him on the proposition of going to Chicago, when in fact, he at no time ever was approached by the defendant regarding a trip to Chicago to secure narcotic drugs; and that he and the defendant never did have any arguments, which in fact, they have had arguments; and he further stated that he and the defendant were going to form a partnership regarding the traffic of narcotics, when in fact, no partnership was ever discussed with the defendant; and he further stated that he was never arrested by agent Hall for possession of narcotic and that he did not place narcotics in his brother\'s pocket so that he would not be accused, when in fact, he was arrested for possession of narcotic and he did place in his brother\'s pocket narcotics to avoid arrest.

"That the above was willfully and intentionally used and with the knowledge of the prosecuting attorney and the United States agents of the Narcotic Bureau for reason that they and each of them knew that the said Franklin Carter was a user of narcotic and smoked marijuana cigarettes, and the record of the United States Narcotic Bureau discloses that he was arrested for possession of narcotic.

"That the said Franklin Carter advised this defendant that the above testimony would be given and that the narcotic agent advised Franklin Carter that they were out to get the defendant, and that it was advisable that said Franklin Carter should state that he was not a user of narcotics.

"The defendant is able to produce evidence that will support the above allegations regarding perjured testimony of Franklin Carter, and that the record of said Franklin Carter, which was or should have been available to the narcotic agent and to the prosecuting attorney, which reflected a contrary report to that which he testified to."

In ruling this last amendment not sufficient, the Court filed a third careful memorandum as follows:

"In ruling previous motions filed by defendant, the Court directed that the defendant should set forth the specific testimony that he charges was perjurious and the evidence that he expected to adduce to the effect that the District Attorney and Agents of the Narcotics Bureau had knowledge that such evidence was perjurious, and induced and encouraged the introduction thereof at defendant\'s trial.

"The defendant in his instant motion sets forth certain testimony of the witness Franklin Carter which he charges was perjured. He does not set forth, as he was directed to do, the facts which establish knowledge of such alleged perjured testimony on the part of the prosecuting officials or any facts establishing that such officials aided or abetted the adduction of the same before the Court. The most that can be said from the instant application is that the Narcotics Agents had knowledge that Carter was a user of narcotics and a smoker of marihuana cigarettes. The defendant then alleges that:

"`The defendant is able to produe evidence that will support the above allegations regarding perjured testimony of Franklin Carter, which was or should have been available to the narcotic agent and to the prosecuting attorney, which reflected a contrary report to that which he testified to.\'

"Manifestly, the foregoing allegations are not in compliance with the previous order of this Court and are wholly insufficient to raise the issue that defendant\'s constitutional rights have been invaded by the prosecuting officials knowingly using perjured testimony to obtain a conviction of the defendant. As pointed out in previous memorandums of the Court, it is only perjured testimony knowingly used to secure a conviction that voids a judgment and sentence in a criminal case.

Perjured testimony, standing alone, is not sufficient to present any issue to this Court under Section 2255, Title 28, U.S.C. Before this Court will direct that a defendant be produced before the Court for a hearing under said section, where perjured testimony is made the premise of a motion filed thereunder, it must be made to affirmatively appear that there is substance to such a claim. This can only be done by setting forth the facts establishing knowledge on the part of the prosecuting officials that they knowingly encouraged the use of perjured

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