Barkan v. United States

• Decision Date: 06 July 1962
• Docket Number: No. 13590.,13590.
• Citation: 305 F.2d 774
• Parties: Bernard Robert BARKAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

305 F.2d 774 (1962)

Bernard Robert BARKAN, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.

No. 13590.

United States Court of Appeals Seventh Circuit.

July 6, 1962.

George W. McBurney, Chicago, Ill., for appellant.

Edward R. Phelps, U. S. Atty., Marks Alexander and Leon G. Scroggins, Asst. U. S. Attys., Springfield, Ill., for appellee.

Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.

KNOCH, Circuit Judge.

Petitioner, Bernard Robert Barkan, filed a motion in forma pauperis, pursuant to Title 28, U.S.C. § 2255, to vacate the judgment and sentence against him. The District Court appointed counsel for petitioner and held extensive hearings, at the conclusion of which the District Judge denied petitioner's motion. The District Judge wrote a lengthy, carefully reasoned opinion, in which he analyzed the evidence and explained in a wealth of detail the bases for his decision, (No. 5870, Oct. 5, 1961).

Petitioner states the contested issues as follows:

1. Is defendant Bernard R. Barkan entitled to have his sentences vacated on the ground that his convictions were procured through the use of perjured testimony known to be perjured by the prosecuting authorities and knowingly used by them to procure the convictions?

2. Is defendant Bernard R. Barkan entitled to have his sentences vacated on the ground that his convictions were procured through the use of perjured testimony irrespective of whether the prosecuting authorities knew of such perjury at the time it was committed?

3. Is defendant Bernard R. Barkan entitled to have his sentences vacated on the ground that, although under indictment for a capital crime, he did not have the assistance of two lawyers at his trial?

Petitioner was tried and convicted of violating the Federal Bank Robbery Statute, Title 18, U.S.C. § 2113, and of conspiracy to violate that statute. The capital counts to which he refers consisted of three counts charging him with kidnapping in violation of § 2113(e), which were dismissed on the government's motion at the end of his trial. Petitioner was sentenced to twelve years' imprisonment. He is now serving that sentence.

The District Court found that petitioner was advised of his rights by the Marshal and was particularly told that he could remain in the local jail for a 10-day period during which he could perfect his appeal. Petitioner waived this right in writing and requested removal to the designated institution of confinement for service of his sentence. No appeal was perfected.

At petitioner's trial one of the most damaging witnesses against petitioner was Cecil McAfee. The District Judge studied the complete testimony of this witness at the trial and summarized it in his opinion, setting out the detailed account of numerous conversations between petitioner, Mr. McAfee and one Daniel Lee Pritchard, both of whom were petitioner's tenants, during which plans were laid to rob the State Bank of Nebo, Nebo, Illinois; of various trips to the site of the crime; of the financing of the project by the petitioner; of the delivery of proceeds of the robbery to petitioner; of petitioner's maintaining custody of Mr. McAfee's pistol and then turning it back to him for use in the robbery. Mr. McAfee described how he and Mr. Pritchard perpetrated the crime at Nebo, Illinois, while petitioner remained in Chicago. Mr. McAfee gave this same account in several statements to the authorities at different occasions.

In support of his motion to vacate the judgment and sentence, petitioner offered retraction statements made by Mr. McAfee.

As Mr. McAfee explains it, he was temporarily confined as a "hold over" at the U. S. Penitentiary, Leavenworth, Kansas, en route to the U. S. Penitentiary at Atlanta, Georgia, to which he was being sent to serve a sentence of 10 years after conviction of the Nebo bank robbery. He was originally sentenced to 20 years, but on motion of an attorney appointed by the Court to represent him at the proceedings for reduction of sentence, the term was cut to 10 years.

By virtue of having waived his right to remain in the local jail for a ten-day period in which to perfect his appeal as indicated above, the petitioner, Mr. Barkan, was at the Leavenworth Penitentiary during the short period that Mr. McAfee remained there. Mr. McAfee, in his subsequent statement to the authorities, in which he repudiated the retractions, reported that petitioner and two other convicts sat beside him and remained with him until he signed a handwritten document which constituted a retraction of his testimony at Mr. Barkan's original trial, but which he was not permitted to read at that time. Several days later, an employee of the Penitentiary presented a typewritten statement for his signature. He read that statement. It consisted of a retraction of his testimony and exculpated petitioner. Mr. McAfee asserted that he signed both statements because he feared severe bodily harm or death. He said that when petitioner had presented the original document for signature, petitioner had said in substance:

"If you don\'t sign it, you won\'t make it to Atlanta."

District Judge Poos in discussing the retractions points out that:

"The original retraction was written out by Barkan in his own handwriting at a time before he saw or talked to McAfee at the prison. This statement contains a serious mis-statement of fact when it says that McAfee gave his testimony at the original trial under pressure of six additional undisposed of charges held over his head. The records of this court show that all charges against McAfee were disposed of prior to the time of the Barkan trial."

and

"McAfee knew that all charges against him were disposed of, but the admitted author of this statement, Barkan, did not have knowledge of the records of this court."

Petitioner produced witnesses who testified that the retraction statements were not signed under duress. The question of credibility was a matter for decision by the District Court before whom they testified.

On this issue, Judge Poos states:

"Prisoners brought into court testify that there was no duress and that the statement was freely and voluntarily made. Their testimony is to be viewed in the light of the fact that they are in prison for felonies and the like. It is a fundamental rule of criminal law that evidence of prior conviction can be used to impeach and test the credibility of such witnesses. As against this, McAfee comes into this court and affirms his original story which was first given to the authorities when he was in a hospital suffering from a severe stomach ulcer condition at a hospital in Kentucky. After Barkan filed his petition, McAfee was interviewed by a Federal Bureau of Investigation agent, at which time he said he gave the retraction statement while under fear and duress of the prison code, and again affirmed his story as told to the jury."

A similar question of credibility for the District Court was presented by the testimony of John Hancock, an inmate of Leavenworth Penitentiary, who stated that Mr. McAfee told him petitioner had not been involved in the...