Wagner v. United States, 22112.

• Decision Date: 19 November 1969
• Docket Number: No. 22112.,22112.
• Citation: 418 F.2d 618
• Parties: Raymond John WAGNER, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

418 F.2d 618 (1969)

Raymond John WAGNER, Appellant, v. UNITED STATES of America, Appellee.

No. 22112.

United States Court of Appeals Ninth Circuit.

November 19, 1969.

Raymond John Wagner, in pro. per.

Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., Ronald S. Morrow, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, DUNIWAY and ELY, Circuit Judges.

DUNIWAY, Circuit Judge:

On February 14, 1957, Wagner was adjudged guilty of violating 18 U.S.C. § 2114. He and two others were found to have held up and robbed two postal officials in a car carrying postal funds to a bank. A possible eye witness was a man in a "7-Up" truck nearby, who gave one of the victims the license number of the get-away car. The government declined to give the name and address of this witness to Wagner before trial. On appeal, we held that this was not error, and affirmed. Wagner v. United States, 9 Cir., 1959, 264 F.2d 524.

On October 25, 1965, Wagner filed a motion under 28 U.S.C. § 2255. The trial judge denied it, without hearing, on November 2, 1965. On December 20, 1965, Wagner filed a motion for reconsideration in which, for the first time, he alleged that there had been "illegal suppression of evidence favorable to his defense by the government." The motion was denied. On appeal, we affirmed the November 2 order, and declined to consider the motion for reconsideration, saying:

"There cannot be `reconsideration\' of an issue which has not previously been considered. If appellant, as he now contends that he intended to do, desired to make a contention not previously advanced, he should have done so by a separate motion, and not by one which, by its definition, embraced contentions already advanced and correctly rejected."

Wagner v. United States, 9 Cir., 1967, 374 F.2d 86, 87.

In response to our views, Wagner filed a new § 2255 motion on March 29, 1967. To the moving papers was attached an affidavit containing the allegations quoted in the margin.¹ The trial court, without a hearing, dismissed the motion with leave to amend within 30 days. The material parts of the court's order are set out in the margin.² Wagner filed an amendment.³ The court dismissed, by written order.⁴ Wagner appeals. We reverse.

1. The contention was not previously advanced.

On appeal from his conviction, Wagner claimed only that the court should have required the government to disclose the name and address of the "7-Up" man. He made no such claim as is now advanced. It is one thing to say that the government need not, before trial, give the defendant the name and address of an eye-witness to the offense. It is quite another to say that the government, knowing that a witness' testimony may help the defense, can tell the witness not to tell anyone what he knows, and to stay away from court. See Lee v. United States, 9 Cir., 1968, 388 F.2d 737. Compare Velarde-Villarreal v. United States, 9 Cir., 1965, 354 F.2d 9. There has been no decision on the merits of this "ground" for relief. Cf. Sanders v. United States, 1963, 373 U.S. 1, 16, 19-20, 83 S.Ct. 1068, 10 L. Ed.2d 148; Gomez v. United states, 9 Cir. 1968, 396 F.2d 323, 326.

2. The factual allegations were sufficient.

The case turned primarily upon identification. One government witness testified that Wagner did not have a mask on, another that Wagner's mask had slipped down. If the "7-Up" man's story was that he could not identify Wagner (see note 1), and that both men, Wagner and co-defendant, wore masks during the entire course of the robbery (see note 3), it would have been very helpful to Wagner. As it was, it took two trials to convict, the first jury having been unable to reach a verdict. And if the U.S. Attorney and postal inspectors instructed the "7-Up" man to avoid giving statements or testimony in the case, as Wagner alleges that they did (see note 1), there was indeed suppression of evidence.

The rule that merely conclusionary statements in a § 2255 motion are not enough to require a hearing does not mean that the moving party must detail his evidence. It means only that he must make factual allegations, as Wagner has done. See Wilson v. Wilson, 9 Cir., 1967, 372 F.2d 211; Pembrook v. Wilson, 9 Cir., 1966, 370 F.2d 37. Compare Norris v. Wilson, 9 Cir., 1967, 378 F.2d 324.

What we have said does not mean that the trial court must immediately order a hearing. It may require the government to file a reply, permit the government to direct interrogatories to Wagner, impose sanctions if Wagner declines to answer, provide for deposing the witnesses named by Wagner, including the "7-Up" man, and take such other pre-hearing steps as may be appropriate. In the particular circumstances of this case, we believe that Wagner should be represented by counsel, and the court may, of course, appoint such counsel even though there is now no authorization for his compensation in a civil proceeding such as this. It can then decide whether a hearing in open court is required.

3. The judge was not disqualified.

Wagner claims that the trial judge was disqualified because he had tried the case and also passed on the first § 2255 motion. The rule in this circuit is to the contrary. King v. United States, 9 Cir., 1968, 402 F.2d 58, 60; Dukes v. United States, 9 Cir., 1969, 407 F.2d 863.

The order appealed from is reversed; the matter is remanded to the trial court for further proceedings consistent with this opinion.

BARNES, Circuit Judge (dissenting):

I dissent. This petitioner has been before this court twice before. Wagner v. United States, 264 F.2d 524 (1959). The denial of his earlier § 2255 petition was affirmed. Wagner v. United States, 374 F.2d 86 (9th Cir. 1967).

In Wagner's appeal from his conviction, one of the grounds claimed for reversal was that the trial court erred in not directing the Government to give Wagner the name and address of a Seven-up truck driver. Cf.Wagner, supra, 264 F.2d 524 at 537. With the long transcript of the trial available to our reviewing panel, this issue was considered and determined adversely to appellant.

On February 6, 1967, a panel of this court (Judges Barnes, Ely and Peckham, the latter sitting by assignment, with Judge Ely writing the per curiam opinion) affirmed a denial of relief under § 2255, saying the same three errors urged in the petition "had been rejected by our court on the direct appeal from the judgment of conviction."

Appellant then filed a second § 2255 petition which did not raise the same three questions by use of the same language utilized on his first motion, but which did, in my opinion, raise a precisely similar issue to that raised on the direct appeal, i. e., the testimony of the Seven-up driver.

In disposing of that same issue, the panel on the original appeal (Judges Chambers, Barnes and Hamley, with Judge Hamley the author) stated as follows:

"Prior to the first trial appellant Wagner moved for a bill of particulars which would have supplied the names and addresses of persons present at the alleged robbery. It was later stipulated that this motion would also be deemed to be made in connection with the second trial. The motion was denied. During the course of the second trial there was testimony to the effect that at the time of the robbery a man was in a Seven-up truck nearby. The government did not give appellants the name and address of this truck driver. In view of these circumstances appellants argue under their sixth specification of error that the trial court erred in denying the motion for a bill of particulars.

"Bonner, one of the victims of the robbery, testified that a Seven-up truck was standing directly behind the robbers\' Oldsmobile. After the robbery the driver of this truck gave Bonner the license number of the `get-away\' car written on an envelope or a piece of paper. Robert Hunt, another witness called by the government, saw the driver of the Seven-up truck take down the license number of the Oldsmobile. No other record references to the truck driver have been called to our attention.

"The record of this trial therefore hardly supports appellants\' assertion that `it is clear\' that the name of the driver of the Seven-up truck was given to one of the government witnesses and that his name and address were within the knowledge of the government. It is true that the government brief makes reference to this driver as a `Mr. Hall.\' This reference, however, is based on testimony taken at the first trial which is not in the record before us.

"If we do consider that testimony, however, it establishes that appellants could have obtained the information in question prior to the second trial footnote omitted. There is no contention that appellants made such an effort, or that if they did so without success the court was advised of that fact. Nor, even with the disclosure concerning the testimony at the first trial regarding a `Mr. Hall,\' is it established that the government had the address of the driver of the Seven-up truck.

"Where a witness is equally available to both parties no inference should be drawn from the failure to produce such a witness. Shurman v. United States, 5 Cir., 233 F.2d 272, 275. On like reasoning, where the name and address of a witness is equally available to both parties, no prejudice results from the denial of a motion requiring one party to supply that information to the other footnote omitted." 264 F.2d at 531.

The majority of this panel now reverse the trial judge on the claim the Seven-up driver's testimony was suppressed; despite the vague, uncertain and conclusionary nature of a petition that does not relate a single circumstance that establishes any suppression; is not supported by any affidavits made by any witness as to what they could or would testify to; and merely alleges, in purely conclusionary language of the petitioner himself, without detailed description as to what, how, when or where:

(1) that he saw "documentary...