Elliott v. United States
| Decision Date | 11 June 1959 |
| Docket Number | No. 16155.,16155. |
| Citation | 268 F.2d 135 |
| Parties | Richard Lee ELLIOTT, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Richard Lee Elliott, pro se.
Roy L. Stephenson, U. S. Atty., and Richard J. Wells, Asst. U. S. Atty., Des Moines, Iowa, filed brief for appellee.
Before GARDNER, Chief Judge, and JOHNSEN and VOGEL, Circuit Judges.
Richard Lee Elliott, appellant, was convicted of three counts of an indictment charging violation of the narcotic laws (§ 174 of Title 21 U.S.C.A.). Count 9 charged selling and facilitating the sale of two (2) grains of heroin on October 12, 1957; count 10 with facilitating the sale of and giving away of one (1) grain of heroin on October 14, 1957; and count 11 of conspiracy with other defendants to violate § 174 of Title 21 U.S.C.A. Upon trial the appellant was found guilty on all three counts and was sentenced to 14 years' imprisonment on each count, such sentences to run concurrently.
On August 21, 1958, pursuant to 28 U.S.C.A. § 2255, appellant filed a motion to vacate judgment and to set aside illegal sentence and motion to proceed in forma pauperis. On the same day the United States District Court for the Southern District of Iowa entered an order denying both motions. On November 19, 1958, appellant again filed a motion to vacate judgment and to set aside illegal sentence, which was overruled by the same court on November 20, 1958. On December 15, 1958, appellant filed notice of appeal to this court. Subsequent thereto, on January 28, 1959, he filed motion for transcript of trial and another motion to proceed in forma pauperis. On the same day, the District Court overruled both motions, stating:
"This Court is still of the opinion that the appeal is frivolous and has no merit whatsoever, and that the government should not be put to the expense of furnishing this defendant with the transcript of the trial proceedings."
On March 2, 1959, appellant filed a motion before this court for leave to proceed in forma pauperis, such motion being supported by his affidavit. On March 11, 1959, we granted appellant leave to have his appeal heard on the original files under the provisions of our Rule 8(j), 28 U.S.C.A.
Appellant's only contention of possible substance is that he was convicted upon perjured testimony. He has attached to his brief his own affidavit setting forth that two witnesses who testified against him, Carolyn Ann Jefferson and Felix Parks, committed perjury in so testifying. He also attaches the affidavit of Warren Albert Swanson, a co-defendant.1 The Swanson affidavit indicates that at a meeting of co-defendants and their counsel during the trial of the case he overheard Richard Lee Elliott's attorney ask a co-defendant, Felix Parks, (who changed his plea to guilty during the trial and testified against appellant) whether or not Elliott in any way participated with him in the crime of which they were accused, and that Felix Parks stated in reply that Elliott had in no way participated with him, or words to that effect. This was in contradiction to Parks' testimony.
In the first place, nowhere is it alleged that the government knowingly used perjured testimony in its prosecution of the appellant. Appellant alleges:
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Jackson v. United States
...with the rule that he waived the point by not presenting facts of which he had knowledge at the time of the trial. Elliott v. United States, 8 Cir., 268 F.2d 135 (1959); United States v. Smith, 2 Cir., 306 F.2d 457 (1962); United States v. Abbinanti, 2 Cir., 338 F.2d 331 (1964). With the fu......
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O'malley v. United States
...the allegation that the conviction is based upon perjured testimony. Taylor v. United States, 9 Cir., 221 F.2d 228; Elliott v. United States, 8 Cir., 268 F.2d 135. There remains for consideration appellant's additional contention that he was denied the effective assistance of counsel, and p......
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State v. Matera
...256 F.2d 483 (CCA 1st), cert. denied, 358 U.S. 854, 79 S.Ct. 83, 3 L.Ed.2d 87 (1958).15 256 F.2d 483, 484 (CCA 1st 1958).16 268 F.2d 135, 137 (CCA 8th 1959).17 346 F.2d 559, 560 (CCA 7th), cert. denied, 382 U.S. 871, 86 S.Ct. 149, 15 L.Ed.2d 110 (1965).18 266 F.2d 670 (CCA 2d), cert. denied......
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Perry v. United States, Civ. A. No. 1676.
...testimony said to have been knowingly used, we would be justified in refusing to consider this contention." In Elliott v. United States, (8 Cir. 1959) 268 F.2d 135, at page 137, the court "In Taylor v. United States, 8 Cir., 1956, 229 F.2d 826, 832, certiorari denied 351 U.S. 986, 76 S.Ct. ......