Green v. United States, 5345.
| Decision Date | 13 June 1958 |
| Docket Number | No. 5345.,5345. |
| Citation | 256 F.2d 483 |
| Parties | Theodore GREEN, Petitioner, Appellant, v. UNITED STATES of America, Respondent, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
Theodore Green, pro se.
Charles F. Barrett, Asst. U. S. Atty., Boston, Mass., with whom Anthony Julian, U. S. Atty., and William J. Koen, Asst. U. S. Atty., Boston, Mass., were on brief, for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
Consideration of this fruitless appeal has involved a complete waste of our time.
On October 27, 1952, the United States District Court for the District of Massachusetts, after verdict of guilty by the jury, entered judgment imposing sentence of twenty-five years' imprisonment on a charge of bank robbery and incidental crimes in violation of 18 U.S.C. § 2113. At the time of the trial, Green was represented by an able and experienced criminal trial lawyer of his own choice, Herbert F. Callahan, Esq., since deceased. Green was convicted chiefly on the testimony of one of his co-defendants, Roccaforte, who turned state's evidence. A motion for a new trial was filed on behalf of Green, which set forth, among other grounds, that "the record discloses perjury by the prosecution witnesses Roccaforte and Bistany." No suggestion was made at the time that this alleged perjury was at the connivance, or with the knowledge, of the prosecuting attorney. Green took an appeal from this judgment of conviction, but on April 17, 1953, we entered an order reciting as follows: "Upon motion of appellee, and after notice, It is ordered that this case be docketed, and It is further ordered that the appeal herein be, and the same hereby is, dismissed for want of diligent prosecution."
Subsequently, Green filed in the district court a motion under 28 U.S.C. § 2255. It was claimed that his constitutional right to a fair trial had been violated by the action of the trial judge in allowing to go to the jury the original indictment, which had on it certain penciled notations by the Clerk to the effect that a co-defendant, Roccaforte, had retracted a plea of not guilty and had entered a plea of guilty; and to the effect that an order had been entered admitting Green to bail provided he furnish bail in the sum of $25,000. The district court denied the motion under 28 U.S.C. § 2255. On appeal, it appeared to this court, from an inspection of the indictment, that the penciled notations thereon were in abbreviated form and indeed hardly legible. The government obliged us with a full translation of the purport of the notations. We summarily affirmed the order of denial. Green v. United States, 1956, 238 F.2d 400.
Green came back with another motion under 28 U.S.C. § 2255, containing some brand-new allegations as the basis for a claim of the denial of due process of law at the trial. Now Green alleged that, on the morning of October 2, 1952, which was before he was put on trial, he and his co-defendant Jacobanis were in custody in a cell in the U. S. Marshal's office, and that co-defendant Roccaforte was similarly in custody in an adjoining cell; that Green and Jacobanis overheard a conversation in the neighboring cell between Assistant U. S. Attorney Hassan and Roccaforte, which conversation indicated that Attorney Hassan knowingly persuaded Roccaforte to commit perjury against Green at the...
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