U.S. v. Robinson

• Decision Date: 14 April 1978
• Docket Number: Nos. 77-1097,77-1098,s. 77-1097
• Citation: 585 F.2d 274
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Stanley B. ROBINSON, Defendant-Appellant. Stanley B. ROBINSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee. . En Banc Rehearing
• Court: U.S. Court of Appeals — Seventh Circuit

Page 274

585 F.2d 274

UNITED STATES of America, Plaintiff-Appellee, v. Stanley B. ROBINSON, Defendant-Appellant.

Stanley B. ROBINSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

Nos. 77-1097, 77-1098.

United States Court of Appeals, Seventh Circuit.

En Banc Rehearing April 14, 1978.

Decided Oct. 6, 1978.

Rehearing Denied Jan. 11, 1979.

Ann C. Tighe and Robert M. Stephenson, Asst. U. S. Attys., Chicago, Ill., for United States.

Willard J. Lassers, Chicago, Ill., for Robinson.

Before FAIRCHILD, Chief Judge, and SWYGERT, CUMMINGS, PELL, SPRECHER, ^* TONE,* BAUER and WOOD, Circuit Judges.

SWYGERT, Circuit Judge.

The issues presented on appeal arise out of the district court's denial of Robinson's Rule 33 motion for a new trial based on the ground of newly discovered evidence and his petition under 28 U.S.C. § 2255 for relief from sentence. ¹ Robinson's section 2255 petition was based on the same newly discovered evidence and also alleged Government suppression of documents relevant to his defense in violation of 18 U.S.C. § 3500 and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Alternatively, Robinson disputes the propriety of the district court's dismissal of the motion and petition without holding an evidentiary hearing.

I

In August 1973, Stanley B. Robinson was convicted after a jury trial of conspiracy, violation of civil rights, and kidnapping resulting in murder, in violation of 18 U.S.C. §§ 241, 242, and 1201(a), and sentenced to three concurrent terms of life imprisonment and an additional concurrent term of one year. Because the essential facts are comprehensively set forth in our prior decision affirming the convictions, United States v. Robinson, 503 F.2d 208 (7th Cir. 1974), Cert. denied, 420 U.S. 949, 95 S.Ct. 1333, 43 L.Ed.2d 427 (1975), it is necessary only to summarize those portions of the testimony pertinent to this appeal.

William O'Neal, Jr., a paid Government informer, testified that he and Robinson kidnapped Jeff Beard and drove him to Indiana where Robinson shot and killed Beard with a .45 caliber Colt automatic pistol. Robinson then gave O'Neal, Jr. the gun which was covered with mud, soil, and hair as a result of the struggle between Robinson and Beard immediately preceding the killing. O'Neal, Jr. stated that after receiving the weapon, he gave it to his father.

William O'Neal, Sr. testified that because the gun was full of mud, he soaked it in a pan of salt water for twenty-four hours and thereafter disassembled it and cleaned the barrel with a clothes hanger and a cloth. According to O'Neal, Sr., he attached the cloth to the end of the hanger and proceeded to "saw up and down" the barrel, using machine oil as a lubricant. The cloth occasionally slipped off the hanger and might have caused the hanger to rub against the core of the barrel.

Following O'Neal, Sr.'s testimony, a Government firearms expert, Robert Frazier, testified that the fatal bullet was fired from a weapon which had the same general rifling characteristics as the .45 pistol he examined. Frazier further testified, however, that he had compared the fatal bullet with test firings from the .45 and determined that a conclusive identification could not be made because of differences in the microscopic markings inscribed on the bullets by the barrel core upon firing. Frazier indicated that various ways of handling the weapon could have caused changes in the microscopic markings on the barrel core between the time the bullet that killed Beard was fired and the time the gun was examined, and that such changes could explain his inability to make a positive identification of the .45 as the murder weapon. In response to a hypothetical question, Frazier stated that the cleaning procedure described by O'Neal, Sr. could have altered the markings on the inside of the barrel and therefore could explain the failure to make a conclusive connection. Frazier was not asked whether his examinations had disclosed that O'Neal, Sr. had in fact treated the weapon as he had testified.

Robinson denied involvement in the Beard killing. He testified that the .45 pistol used to kill Beard had been stolen from him, and frequently implied that O'Neal, Jr. had used the weapon to kill Beard.

On January 28, 1974, six months after trial and while the initial appeal was pending, Robinson made his first request for a scientific examination of the gun to determine whether it actually had been soaked and reamed as described by O'Neal, Sr. and whether the gun had fired the bullet that killed Beard. The Government refused this request. After his conviction was affirmed on appeal, ² Robinson moved for such examination. The district court granted the motion on October 24, 1975.

The reports from the microscopic and microprobe analyses conducted by three experts on the .45 pistol, the fatal bullet, and the four test bullets fired by the FBI were submitted to the district court with Robinson's motion for a new trial and section 2255 petition. One expert, James Dahn, concluded "to a reasonable degree of scientific certainty" that the weapon had not been soaked in salt water and was not reamed with a clothes hanger. Additionally, Dahn was convinced that "the .45 calibre Colt automatic pistol did not fire the bullet recovered from the body of Jeff Beard. . . ." A second expert, Professor Joseph D. Nicol, concurred with Dahn's finding that there was no evidence that the cleaning procedures described by O'Neal, Sr. had been performed on the weapon. Nicol concluded, however, that it remained possible that the weapon in evidence had fired the fatal bullet. In response the Government filed an affidavit by its expert Frazier, based on his previous examination, which generally accounted for the failure of Robinson's experts to link the gun and the bullet.

II

Robinson contends that he should have been granted a new trial because the results of the examinations of the gun established that O'Neal, Sr. committed perjury when he testified that he cleaned the gun in the manner described. Robinson asserts that since the jury might have reached a different conclusion if it had known that O'Neal, Sr.'s testimony was false, he is entitled to a new trial under Larrison v. United States, 24 F.2d 82 (7th Cir. 1928). ³ Alternatively, Robinson contends that even if the affidavits supporting his motion and section 2255 petition do not conclusively prove that O'Neal, Sr. committed perjury, they still present newly discovered evidence which necessitates a new trial under the test set forth in Berry v. Georgia, 10 Ga. 511 (1851), ⁴ or under 28 U.S.C. § 2255. ⁵

The district court denied Robinson's motion finding that Robinson had not satisfied the Larrison test because he had failed to prove O'Neal, Sr. had testified falsely. The court then held that Robinson's failure to have the gun examined prior to or during trial showed a lack of due diligence resulting in the defeat of his Berry claim. Apparently on the basis of the same reasoning, the court denied that part of Robinson's section 2255 petition based upon new evidence.

Subsequent to oral argument in this court, but prior to the decision by the original panel, both parties were allowed to supplement the record. The Government produced an FBI laboratory report dated June 14, 1972. Robinson stipulated that he had received a copy of this report on March 15, 1973, seven weeks before the opening of the trial on June 5. ⁶ The report stated that a conclusion could not be reached as to whether the fatal bullet had been fired from the .45 weapon, "possibly due to changes in the barrel of this pistol due to cleaning procedures." The Government offered this document to establish that Robinson had received notice of the cleaning issue before trial and therefore the district court's finding that Robinson's lack of diligence prevented the new evidence from being heard at trial was correct.

Among other documents, Robinson introduced an FBI report of an interview with O'Neal, Sr., dated October 13, 1972. According to this report, O'Neal, Sr. had originally informed FBI agents that he "disassembled the weapon and boiled it in water to clean it." Robinson contends that this report contradicts O'Neal, Sr.'s trial testimony as to the cleaning procedure and therefore supports the allegation that O'Neal, Sr. committed perjury. Robinson argues that even if we do not find that the district court erred in its original findings, we must remand to the district court for a reconsideration of its decision on the perjury issue under Larrison in light of this conflicting evidence. ⁷

At the outset we note that although the district court based its rejection of the application of the Larrison standard on a finding that Robinson failed to establish O'Neal, Sr.'s perjury, we need not address that finding here. It is fundamental that a defendant seeking a new trial under either the Berry Or Larrison rule must establish that the material asserted to be newly discovered could not have been discovered with due diligence before or during trial. United States v. Costello, 255 F.2d 876, 879 (2d Cir.), Cert. denied, 375 U.S. 937, 78 S.Ct. 1385, 2 L.Ed.2d 1551 (1958). As Judge Dimock concluded in United States v. Flynn, 131 F.Supp. 742, 743 (S.D.N.Y. 1955), "(r)equirement (c) of the Larrison rule, like so many of the other rules of our law, requires due diligence of him who invokes it." See also United States v. Becker, 466 F.2d 886 (7th Cir. 1972), Cert. denied, 409 U.S. 1109, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973). It is only necessary, therefore, to determine whether the district court's denial of Robinson's motion for a new trial on the basis of a lack of due diligence was "wholly unsupported by evidence." United States v. Johnson, 327 U.S. 106, 111, 66 S.Ct. 464, 90 L.Ed. 562 (1946).

The record established that the .45 pistol was available to Robinson in advance of trial. At that time he could have...