Jackson v. United States

• Decision Date: 17 August 1966
• Docket Number: Civ. A. No. 4-385.
• Citation: 258 F. Supp. 175
• Parties: Charles Edward JACKSON v. UNITED STATES of America.
• Court: U.S. District Court — Northern District of Texas

258 F. Supp. 175

Charles Edward JACKSON v. UNITED STATES of America.

Civ. A. No. 4-385.

United States District Court N. D. Texas, Fort Worth Division.

August 17, 1966.

William Callaway, U. S. Asst. Dist. Atty., Fort Worth, Tex., for the Government.

Wallace Craig, Fort Worth, Tex., for Jackson.

OPINION

BREWSTER, District Judge.

The petitioner's motion under 28 U.S. C.A. § 2255, seeking to vacate his conviction and sentence in this Court for sale of heroin in violation of 21 U.S.C.A. § 174, alleges two grounds: (1) The government knowingly used perjured testimony. (2) The petitioner's co-defendant, Hathman White, was permitted to plead guilty in the presence of the jury that tried petitioner.

The conviction was affirmed in Jackson v. United States, 5 Cir., 311 F.2d 686 (1963). A judgment denying petitioner's first Section 2255 motion to vacate, Jackson v. United States, D.C.Tex., 225 F. Supp. 53 (1964), was also affirmed. Jackson v. United States, 5 Cir., 339 F.2d 210 (1964).

The Court appointed mature, able and experienced counsel to represent the petitioner in this proceeding. A pre-trial hearing and two evidentiary hearings, all without the petitioner being present, have been held. The Court has reached the conclusion that it is not necessary to bring the petitioner back for a further hearing, and that his present motion should be denied for the reason that it conclusively appears from the hearings already held that he could not be entitled to any relief.

The claim that White pleaded guilty in the presence of the jury that tried petitioner is not supported by the record. He and petitioner were jointly charged in one count of the four count indictment, and were put to trial jointly. A jury was selected and each one pleaded not guilty.¹ Court was then recessed for the day. On the next morning, before any further proceedings in the presence of the jury were had, counsel for White and the government informed the Court that White was going to change his plea to guilty on Count 3. The plea was thereupon taken, and the case against petitioner then proceeded to trial. All matters connected with White's plea of guilty occurred out of the presence and hearing of the jury, and the jury had no knowledge of the plea until counsel for the petitioner cross-examined White about it when he testified as a witness for the government.² These facts appearing from the files and records conclusively show that this claim presents no ground for setting aside the petitioner's conviction for each of the following reasons:

(1) Even if petitioner's allegations were true, this is a matter that happened during the trial and should have been complained of on the original appeal. Smith v. United States, 5 Cir., 265 F.2d 14, 16 (1959); United States v. Walker, 2 Cir., 197 F.2d 287 (1952); Warren v. United States, 8 Cir., 311 F.2d 673 (1963). The following is quoted from the Warren case, at p. 676: "`* * * It is likewise settled law that errors occurring in a criminal proceeding which can be made the subject of review upon direct appeal from a conviction and sentence cannot be used as the premise for a collateral attack thereon under a Section 2255 petition (Callanan v. United States, 274 F.2d 601, 8 Cir. 1960) and this is so as to "errors committed in the course of a trial even though such errors relate to constitutional rights." United States v. Haywood, 208 F.2d 156, 159 (7 Cir. 1953).'"

(2) Even if the point could properly be raised in a post-conviction proceeding, there would be no merit in it because:

(a) The petitioner made no request that the jury selected to try him and White be discharged. Plea was joined before the jury the previous afternoon; and the Court had no authority to discharge the jury under the existing circumstances except upon request of the petitioner. If the Court had declared a mistrial on his own motion, petitioner would have been put in position to raise a serious question of former jeopardy. Downum v. United States, 372 U.S. 734, 83 S.Ct. 1033, 10 L.Ed.2d 100 (1963).

(b) The petitioner, himself, brought to the jury the first knowledge it had of White's plea of guilty. As far as the jury knew, up to the time of the petitioner's cross-examination of White about the plea, White might have been granted a continuance or a severance. The petitioner wanted it before the jury that White had pleaded guilty, as the main argument he had for attacking White's credibility was that White was facing a sure sentence on his plea of guilty and was seeking leniency by testifying as a witness for the government. There was never any intention on the part of petitioner to conceal White's actual guilt from the jury. His own testimony on the trial was that he was acting only as an agent for White in making the delivery of the heroin on the occasion in question.³ The fact that White pleaded guilty added little or nothing to the blame that petitioner's own testimony before the jury put on him. The petitioner's motion in the present case, his affidavit attached thereto, and his letters attached to other pleadings filed by him in this proceeding, all show that it is still his claim that White was guilty of possessing and selling heroin on the occasions alleged in the indictment.

Under these circumstances, Rogers v. United States, 5 Cir., 304 F.2d 520 (1952), and the other cases cited by the petitioner in support of this point would have no application here, even if this matter could be properly raised in a post-conviction motion.

The other ground of the motion is that the prosecution knowingly used perjured testimony against the petitioner in his criminal trial. A conviction obtained by the government's knowing use of perjured testimony is void because it is in violation of due process of law under the federal constitution. Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791, 98 A.L.R. 406 (1935); Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed. 2d 9 (1957); Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L. Ed.2d 1217 (1959); Enzor v. United States, 5 Cir., 296 F.2d 62 (1961), cert. den. 369 U.S. 854, 82 S.Ct. 940, 8 L.Ed.2d 12; United States v. Spadafora, 7 Cir., 200 F.2d 140, 142 (1952); United States v. Schultz, 7 Cir., 286 F.2d 753, 755 (1961); Lauer v. United States, 7 Cir., 320 F.2d 187 (1963); United States v. Gonzalez, D.C.N.Y., 33 F.R.D. 280, affirmed, 2 Cir., 321 F.2d 638 (1963); United States v. Abbinanti, 2 Cir., 338 F. 2d 331 (1964); Estes v. United States, D.C.Tex., 254 F.Supp. 314 (1966).

The Court is of the opinion that it conclusively appears from the files and records and from the matters developed at the hearings held on the present motion that petitioner's second ground should be rejected because: (1) The alleged false testimony could not possibly have contributed to the conviction. (2) The petitioner has no proof that the government had knowledge of any perjured testimony. The following quotations taken from the cases above cited show that either one of these reasons is adequate basis for denial of a motion of this kind.

Spadafora, 200 F.2d at p. 143: "In order to obtain a hearing under Sec. 2255, a petitioner must make a more substantial showing than merely charging perjury and making the unsupported claim that perjured testimony was knowingly used by the prosecuting authorities. Nor does he meet the burden upon him by pointing out trivial inconsistencies or conflicts in the evidence." (Emphasis added.)

Enzor, 296 F.2d at p. 63: "* * * The use by the government knowingly of perjured testimony in order to obtain a conviction would, if proved, be ground under Section 2255, supra, for vacation of conviction. However, a defendant has the burden of not only showing that material perjured testimony was used to convict him, but that it was knowingly and intentionally used by the prosecuting authorities for such purpose. United States v. Spadafora, 200 F.2d 140, 142 (7 Cir., 1952). The differences in the testimony relied on by the Appellant here are no more than immaterial inconsistencies and do not begin to meet this test. * * *" (Emphasis added.)

Lauer, 320 F.2d at p. 188: "* * * Appellant points to conflicts in trial testimony relating to the circumstances under which, and at whose request, an informer-witness was released from an Indiana county jail, where he was in custody on a narcotics charge, and used to secure evidence against appellant. But the existence of such conflicts or inconsistencies does not of itself support a conclusion of perjury much less the knowing use of perjured testimony. * * *"

Abbinanti, 338 F.2d at p. 332: "* * Abbinanti claims that Moreton gave perjurious testimony as to the time when Moreton first met Abbinanti and when Moreton first dealt in narcotics. Even if Moreton was mistaken as to these matters, they have no direct bearing on whether Abbinanti purchased, possessed and sold narcotics himself for the period of time commencing in May, 1959." (Emphasis added.)

Gonzalez, opinion by Judge Kaufman, 33 F.R.D., at p. 282: "While knowing use of perjured testimony by the government to convict a defendant is a ground for relief under 28 U.S.C., § 2255, see, e. g. United States v. Sobell, 142 F.Supp. 515 (S.D.N.Y.1956), aff'd 244 F.2d 520 (C.A. 2, 1957), cert. denied, 355 U.S. 873, 78 S.Ct. 120, 2 L.Ed.2d 77 (1957), such perjury is not a ground for relief if it does not contribute to the conviction." (Emphasis added.)

Estes, 254 F.Supp. at p. 318: "* * * The essential elements of an action to set aside a conviction on this theory are, first, that material perjured testimony was actually given, and, second, that the prosecution either knowingly used it or allowed it to go uncorrected * * *" (Emphasis added.)

Petitioner claims that White was guilty of perjury in two particulars: first, in his testimony that at the time he entered his plea of guilty to Count...