Gordon v. United States, 10850.

• Decision Date: 05 December 1949
• Docket Number: No. 10850.,10850.
• Citation: 178 F.2d 896
• Parties: GORDON v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

178 F.2d 896 (1949)

GORDON v. UNITED STATES.

No. 10850.

United States Court of Appeals Sixth Circuit.

December 5, 1949.

Richard G. Finn, Chicago, Ill. (Donald B. Frederick, Detroit, Mich., John Young Brown, Louisville, Ky., on brief), for appellant.

Vincent Fordell, Detroit, Mich. (Edward T. Kane, Detroit, Mich., Harold D. Beaton, Washington, D. C., on brief), for appellee.

Before SIMONS, ALLEN, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

Meyer Gordon was convicted under an indictment containing two counts, charging him with transporting, or causing to be transported, stolen goods in interstate commerce, and also of conspiring to commit such offense in violation of the National Stolen Property Act.^* Specifically, it was claimed that Gordon was a fence for certain jewelry stolen from Walter Ollendorff in the Book-Cadillac Hotel in Detroit. His conviction was affirmed by this court in an opinion in which the details of the crime and of his trial are set forth. Gordon v. United States, 6 Cir., 164 F.2d 855; and certiorari was denied, 333 U.S. 862, 68 S.Ct. 741, 92 L.Ed. 1141. Gordon was sentenced to a twenty-year term in the federal penitentiary and to a fine of $20,000. He thereafter filed a motion for a new trial on newly discovered evidence on the ground of recantation of testimony given on his trial by the principal government witness. He also filed a motion for vacation of judgment. These motions were denied by the district court; and Gordon appeals from the orders denying the motions.

The principal witness against Gordon was Herman Frank Banning, a co-defendant under the indictment, and, admittedly, one of the criminals engaged in the actual robbery. After Gordon's conviction, Banning, who had pleaded guilty to the same indictment, was released upon his personal bond. While at liberty, Banning engaged in the robbery of two filling stations in Detroit and was apprehended after a gun battle in which he and a Detroit policeman were shot. He pleaded guilty to this crime in the state court and was sentenced to a term of from fifty to sixty years in the Michigan State Penitentiary, where he is now confined.

After his arrest for the filling station robbery, Banning made three affidavits exonerating appellant Gordon of any complicity in the jewel robbery of which he had been convicted. These and certain other affidavits were made the basis of a motion for a new trial by Gordon on the ground of newly discovered evidence, which was denied by the district court. Appellant then filed a motion for vacation of judgment, disqualification of the trial judge and reassignment of the cause to another district judge. This motion was also denied by the district court. Appeal is from denial of all the aforementioned motions.

Prior to the trial of appellant Gordon, Banning had been serving a term of twenty years in a federal penitentiary for the so-called Weiss holdup committed in Detroit, Michigan. Banning was not guilty of this crime. Actually, he was engaged in a robbery at Akron, Ohio, at the very time the Weiss holdup was carried out. He, however, was convicted of the Weiss hold-up on the testimony of one McMann who was one of those engaged in that robbery. McMann had confessed, and implicated Banning, to avoid being tried on a murder charge.

Banning, in his affidavits filed in the instant case, says that he felt that he could have the Weiss conviction set aside and secure his freedom if he would implicate appellant Gordon as the "fence" in the Ollendorff robbery, as he knew that the government officials were greatly interested in convicting Gordon. Banning, therefore, after serving five years of his sentence for the Weiss robbery, commenced writing letters from prison to the district attorneys in Chicago and Detroit, suggesting that he would disclose the name of the fence, and also that he had been wrongly convicted of the Weiss holdup, although he was guilty of the Akron robbery. As a result of these disclosures, Gordon was thereafter indicted for the Ollendorff robbery, and, as mentioned, Banning was the principal government witness against him, and his testimony largely resulted in Gordon's conviction.

After Gordon's trial, a Presidential pardon for the Weiss robbery (in which, it is admitted, Banning did not participate) was secured by the government officials for Banning. Further, he was released on bond in the Ollendorff case, although he had pleaded guilty as a co-defendant with Gordon. Other similar considerations were given him for his assistance in the Gordon case, and government officials finally secured a job for him in Detroit, where he had been employed up to the time of his robbery of the filling station. In none of these matters, however, did the government officials ever make any offers or inducements to Banning for his testimony.

In his affidavits, which were made a part of Gordon's motion for a new trial, Banning stated that on Gordon's trial, he testified to matters of which he had no personal knowledge for the purpose of obtaining a conviction against Gordon, knowing that unless he so testified, the government would not have sufficient evidence to convict Gordon, and that he was aware that unless Gordon were convicted, Banning himself would not receive any consideration from the government authorities. He further stated that after the theft of the jewelry from Ollendorff in Detroit, it was taken to Chicago and sold by the others who were implicated in the crime; that Banning did not know to whom the jewelry was sold in Chicago; that he did not see appellant Gordon in that city or have any conversation with him relative to the jewelry which had been stolen in Detroit at that time or at any other time; and that the testimony which Banning gave on Gordon's trial relative to what took place after he had registered at the Southmore Hotel in Chicago subsequent to the Detroit robbery was false and given solely for the purpose of convicting Gordon, because of a personal grudge he had against him on account of his association with Banning's wife.

In all of the foregoing, Banning directly contradicted the testimony he had given on the trial. There he testified that on the morning after the robbery, he and the others engaged in the crime arranged to meet Gordon at the Southmore Hotel in Chicago; that Gordon arrived at the hotel and went to Banning's room to inspect the stolen jewelry; that Banning told Gordon that they had stolen the jewelry from the Book-Cadillac Hotel in Detroit; that after some discussion about the price, Gordon agreed to pay $1,000 for the stolen merchandise; that he paid $100 down and agreed to pay the balance of $900 the next day; and that Banning arranged with Gordon to pay Banning's share of $250 to one of the others who had participated in the robbery.

In a second affidavit upon which Gordon's motion for a new trial was also based, Banning stated that although no definite promises had been made to him that he would be freed, the treatment that he received from government officials and his conversations with them satisfied him that he would be discharged from a sentence he was then serving during the pendency of Gordon's trial, and that he would not be sentenced for the robbery to which he had pleaded guilty and in which he had, as he now says, falsely implicated Gordon. Banning declared that the government agents were so determined to get Gordon that Banning was convinced that in return for his testimony, he would be "on the street." Another affidavit in support of the motion for a new trial was executed by Banning's wife, in which she stated that before his testimony implicating Gordon, Banning told her that he was intending to testify falsely against Gordon in order to get out of prison himself. She further deposed that Victor D. Johnson, an agent of the Federal Bureau of Investigation, in a conversation with her and Banning, while the latter was in custody, asked her if she was going to "co-operate" with regard to Gordon; that she replied she knew nothing of Gordon's activities; that the agent then became angry and told her that if she took the witness stand against Banning, they would get her for perjury, but that if she would cooperate, she could stay at the best hotel in Detroit, visit her husband, would not have to worry about anything in the way of money or expenses, and, if necessary, could have clothes until the case was tried; that her reply was that she would have nothing to do with the matter inasmuch as she knew nothing about the activities of Gordon and had no intention of "cooperating" to send an innocent man to prison. All of these statements with regard to what Agent Johnson told her were categorically denied by him in an affidavit in support of the government's opposition to the motion for a new trial. Johnson did, however, state in his affidavit that in answer to his request to testify in the case, Mrs. Banning said she did not want to be a "stool pigeon" and also that she feared something would happen to her if she took the witness stand; and that "Deponent (Johnson) then advised her that it would not be advisable for her to take the stand and give false testimony to aid the defendant Gordon, because if she did, consideration might be given by Federal authorities to prosecution of her for perjury." Obviously, inferences unfavorable to the government's case could be drawn from this latter statement, so gratuitously volunteered. However, there was no showing on the part of appellant that Mrs. Banning was not available as a witness for Gordon on his trial.

In his affidavits, Banning further stated...