Hunter v. United States
| Decision Date | 16 January 1969 |
| Docket Number | No. 22823.,22823. |
| Citation | 405 F.2d 1187 |
| Parties | Earl HUNTER, Appellant, v. UNITED STATES of America, Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Earl Hunter, in pro. per.
Wm. M. Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Crim. Div., James E. Shekoyan, Asst. U. S. Atty., Los Angeles, Cal., for appellee.
Before POPE, HAMLEY and KOELSCH, Circuit Judges.
On November 5, 1963, Earl Hunter was convicted on both counts of a two-count indictment charging violations of federal narcotics laws. On December 2, 1963, a ten-year sentence was imposed on each count, the sentences to be served concurrently. We affirmed. Hunter v. United States, 9 Cir., 339 F.2d 425, decided February 4, 1965. On January 26, 1967, Hunter tendered in the district court a motion under 28 U.S.C. § 2255 (1964) to vacate the judgment and sentence. The motion was filed on May 8, 1967 and denied, without hearing, on June 6, 1967. This appeal followed.
The grounds for relief asserted in the section 2255 motion pertain to the breach of an alleged promise of immunity from prosecution, the terms of which Hunter assertedly accepted and fulfilled, and to the alleged misuse of statements made by Hunter after the promise of immunity.
The essential facts relating to this matter, as alleged in appellant's motion, are as follows: Hunter was arrested on June 18, 1963, by Agents Lipschutz and Perret of the Federal Bureau of Narcotics for the offenses which led to his subsequent conviction.1 Immediately after arresting him, the agents told Hunter that he could avoid an indictment being returned against him if he would agree to cooperate with them in certain narcotics investigations. They assured him that all they expected was that he try to provide leads and information which would result in the arrest and conviction of narcotics dealers, it being immaterial whether Hunter was actually successful in this effort. The Chief of the Los Angeles Division of the Bureau unequivocally assured Hunter that he would support any agreement reached between the agents and Hunter.
Hunter further alleged that he agreed to the arrangement and cooperated fully with the agents. He was actually unable to provide the desired leads and information. However, this was not because of any lack of cooperation and diligent effort on his part, but apparently because he had become marked as one who was cooperating with law enforcement officers. During this period, Hunter allegedly told the agents about his own narcotics activities. On July 9, 1963, in alleged violation of the oral agreement, an indictment was returned against him.2
The district court denied the section 2255 motion on the ground that since Hunter's immunity contention was not advanced in support of a motion to dismiss the indictment or as a defense at the trial, it could not be advanced for the first time in this collateral proceeding.
We affirm without passing upon the question of whether Hunter's failure to present his immunity defense before or during his trial or on appeal precludes consideration of this defense in this section 2255 proceedings. Accepting as true all of Hunter's allegations, as summarized above, they show that he is not entitled to relief on either of the asserted grounds.
Hunter contends first that he relied on the promise of immunity from prosecution and fulfilled his part of the bargain by cooperating in obtaining evidence against others. However, he points to no statute authorizing enforcement officers to grant immunity from prosecution on such a ground, nor has our research disclosed such a statute. In the absence of such a statute or of allegations to the effect that in consideration of the promise of immunity, Hunter surrendered constitutional or statutory safeguards, the alleged oral arrangement provides no defense in this case. See In...
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