Gardiner v. United States, Civ. A. No. 64-L-3.

• Citation: 237 F. Supp. 692
• Decision Date: 07 May 1964
• Docket Number: Civ. A. No. 64-L-3.
• Parties: Hunilda Balbas GARDINER, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of Texas

237 F. Supp. 692

Hunilda Balbas GARDINER, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 64-L-3.

United States District Court S. D. Texas, Laredo Division.

May 7, 1964.

Joyce Cox, Houston, Tex., and Robert R. Slaughter and Allen G. Schwartz, New York City, for plaintiff.

Woodrow Seals, William A. Jackson and James R. Gough, Houston, Tex., for defendant.

CONNALLY, Chief Judge.

This is a proceeding under Section 2255 of Title 28 U.S.C.A.

The present motion is nothing more than an attempt to retry issues which were fully considered on the appeal (Gardiner v. United States, 5 Cir., 321 F.2d 159) and to point out that had different trial tactics and strategy been employed, there might have been a different result. The motion is without merit and is denied.

The record reflects that Robert Gardiner, husband of petitioner, was charged with conspiring to violate the narcotic laws. He was a resident of New York City, spending a substantial part of his time in Mexico. Evidence on the trial showed that he was a wholesale dealer who recruited others to transport large quantities of marihuana from Mexico to New York City for him. Three of his shipments of approximately 100 pounds each were disclosed in the evidence.

Before indictment, Gardiner had employed William Kleinman, Esq., of the New York Bar to represent him. After indictment, with Kleinman's help and advice he employed Bernard Golding, Esq. of the Houston Bar as his trial counsel. As the charges were pending in the Laredo Division, shortly before trial he employed Horace Hall III, Esq. of the Laredo Bar as local counsel.

Petitioner was indicted at a later date, and charged to be a member of the same conspiracy with her husband. For an additional fee, Golding undertook to represent petitioner as well. The cases were consolidated for trial, over the protest of petitioner, and were heard together at the September 1962 term. Following a trial to a jury, both defendants were convicted. Evidence of Robert's guilt was overwhelming. Evidence of the petitioner's active participation was abundant.

Robert did not testify as a witness. Petitioner elected to do so. In short, her testimony was consistent with that of the Government witnesses, verified by much documentary evidence, in all respects except one. She and her husband made the same trips — were present at the same places — in company with the same persons, all as testified by a number of the Government witnesses. The only difference lay in the fact that petitioner completely and unequivocally denied that either she or her husband had any connection with marihuana, that it was handled, packaged, transported or discussed. Much additional testimony in complete contradiction of many phases of the Government's case was also offered on behalf of both defendants. The jury apparently felt — and I think with much justification — that considerable perjury was involved on the part of petitioner as well as other defense witnesses.

The complaint which petitioner makes here is that she was not adequately represented by counsel. It is contended that there was a conflict between her own interests and those of her husband and that the trial counsel (Golding, assisted by Hall) showed much zeal in protecting the rights of Robert, but none in protecting hers. It is contended that counsel did not consult with her as fully as with Robert; that having an opportunity to...