Kyle v. United States, 323

• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
• Citation: 266 F.2d 670
• Docket Number: Docket 25586.,No. 323,323
• Parties: Alastair KYLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Decision Date: 21 May 1959

266 F.2d 670 (1959)

Alastair KYLE, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 323, Docket 25586.

United States Court of Appeals Second Circuit.

Argued April 23, 1959.

Decided May 21, 1959.

266 F.2d 671

Jon O. Newman and Ritter, Satter & Newman, Hartford, Conn., for petitioner-appellant.

Cornelius W. Wickersham, Jr., U. S. Atty., Eastern District of New York, Brooklyn, N. Y., Averill M. Williams, Asst. U. S. Atty., Brooklyn, N. Y., of counsel, for respondent-appellee.

Before LUMBARD, Circuit Judge, and GALSTON and ANDERSON, District Judges.

ANDERSON, District Judge.

The appellant, Alastair Kyle, was tried and found guilty under an indictment charging him and others with six counts of using the mails to carry out a fraudulent scheme, and one count of conspiracy to commit the substantive offense. On December 19, 1957, Kyle was given concurrent sentences of a year and a day on each of the seven counts. He appealed, but this Court affirmed the conviction, 2 Cir., 1958, 257 F.2d 559, and denied a petition for rehearing. After his petition for certiorari was denied, 358 U.S. 937, 79 S.Ct. 327, 3 L.Ed.2d 308 (Jan. 12, 1959), Kyle commenced this proceeding by filing a motion pursuant to 28 U.S.C. § 2255 to vacate his sentence. The United States District Court for the Eastern District of New York, Bruchhausen, J., denied this motion without a hearing, because it found that the motion, files and records of the case conclusively showed that the prisoner was not entitled to the relief sought. That ruling of the District Court is now before this court for review.

As no hearing was held at which testimony was presented, it is necessary to treat as true all facts stated in the petition, the accompanying affidavits and exhibits, and to disregard all contrary statements of fact in the Government affidavits. This does not mean, however, that conclusory allegations asserted by the appellant must also be accepted as true. United States v. Rosenberg, 2 Cir., 1952, 200 F.2d 666, 668.

The petition sets out four separate grounds, each of which the appellant claims is enough to show that he is entitled to a hearing. These will be described and considered seriatim.

Suppression of correspondence:

Prior to trial, the appellant turned over to the Government certain files of the defendant corporation, Toys of the World Club, Inc., of which Kyle was president. Included in these files was correspondence between the corporation and one Gessele, an Austrian toy manufacturer, who was to be a supplier of toys for the corporation. At the trial, the Government put into evidence certain letters from Gessele to the corporation. Kyle then demanded production of the letters from the corporation to Gessele; but the United States Attorney stated that he had no such letters, that they were not in the file, and that he had never seen them. Subsequently, the files were made available to appellant's counsel in order that he might search for the letters but he was unable to find them. The appellant now introduces an affidavit of an attorney for one of the co-defendants at the trial, who alleges that before trial, and while the files were in the Government's

266 F.2d 672

possession, he examined the files and at that time saw the missing letters

Even assuming the truth of these facts for the purposes of the motion, the District Judge was correct in refusing to hold a hearing. The appellant had a full opportunity to press his claim that the correspondence was suppressed during the trial of the case. The appellant knew or had ready at hand the means of knowing as much about the missing letters as he knows now. Cf. United States v. Sobell, D.C.S.D.N.Y.1956, 142 F.Supp. 515, 528, 530, affirmed 2 Cir., 1957, 244 F.2d 520. He had the opportunity to raise this point both at the trial and on the appeal. It does not appear that the statements made by the prosecutor were as misleading as appellant's counsel now claims. Statements that the files would be made available to the defense did not contradict representations that the prosecutor did not know of the letters in question.

The appellant claims that because he is raising the constitutional issue for the first time, he may utilize § 2255. But the remedy afforded by § 2255 is not a substitute for an appeal, "to correct errors committed in the course of a trial, even though such errors relate to constitutional rights." United States v. Walker, 2 Cir., 1952, 197 F.2d 287, 288; United States v. Rosenberg, supra. The section "may not be used to retry the case or to raise questions which might have been raised upon appeal." Sanders v. United States, 4 Cir., 1956, 230 F.2d 127, certiorari denied 351 U.S. 955, 76 S.Ct. 852, 100 L.Ed. 1478.

Use of false testimony of the witness Messig:

The appellant claims a denial of due process from the allegedly false testimony of one Meesig, who was a United States Postal Inspector. Cf. Smith v. United States, 5 Cir., 1955, 223 F.2d 750; Curran v. State of Delaware, 3 Cir., 1958, 259 F.2d 707. The facts...