Kyle v. United States, 323

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation266 F.2d 670
Docket NumberDocket 25586.,No. 323,323
PartiesAlastair KYLE, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
Decision Date21 May 1959

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 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 surrounding this claim involve a change by the corporation in its accounting methods for tax purposes. In April 1956, Edgar Bilton, who had done accounting work for the corporation, made closing entries as of October 31, 1955 which computed liabilities in terms of the entire amount received from customers, rather than on the estimated cost of toys needed to fill customers' subscriptions. The Government used these figures as evidence that the Corporation was insolvent and knew it was insolvent in October of 1955. Meesig, the Government inspector who had examined the corporate books, was asked if he knew when the entries were made, and he testified that he did not. The appellant now claims that this testimony was false, since Meesig had been told by Bilton that the entries were made in April, 1956.

But the District Judge was correct in finding that the answer, "I don't know," was not false testimony. Meesig was under no obligation to accept the accountant's statement as the truth, nor was he obliged to amplify his answer. If, indeed, this gave rise to an inference damaging to the appellant, counsel should have gone into the matter on cross-examination. See McGuinn v. United States, 1956, 99 U.S.App.D.C. 286, 239 F.2d 449, 451. Moreover witnesses were available who could have testified about the circumstances. In any event, there was nothing in the Meesig matter that could not have been argued at the trial and on the appeal. In fact, the subject matter was fully argued on appeal.

False statement made at time of sentencing:

At the time of sentencing, appellant's counsel called the Court's attention to an audit, made by agents of the Internal Revenue Service, which allegedly would have accounted for any funds supposed to be missing. The appellant sought to have the audit produced to counter any inference that he had acquired hidden profits. At this time the prosecutor told the Court that he had contacted the Internal Revenue Service, and had been told that they had made no such audit. The appellant now asserts that there are witnesses who will testify that they discussed this audit in the presence of the prosecutor, and that his statement to the court...

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29 cases
  • Sanders v. Sullivan, 177
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 2, 1988
    ...Evidence: Why a Need for the Prosecutorial Tie?, 1969 Duke L.J. 1171. This circuit is no stranger to this rule. In Kyle v. United States, 266 F.2d 670 (2d Cir.), cert. denied, 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed.2d 109 (1959), the petitioner alleged that his conviction for mail fraud was bas......
  • Kyle v. United States
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • November 29, 1961
    ...again on appeal from the denial, without an evidentiary hearing, of an application under 28 U.S. C. § 2255 to vacate the sentence, 266 F.2d 670 (2 Cir. 1959). Both appeals were unsuccessful. The case now comes to us on appeal from an order denying a second application under § 2255, again wi......
  • Bistram v. United States, Cr. No. 7885.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • February 8, 1960
    ...to urge the claims of his motion and failed to do so, thereby raising a conclusive inference of their invalidity. Kyle v. United States, 2 Cir., 1959, 266 F.2d 670, certiorari denied 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed.2d 109; Juelich v. United States, 6 Cir., 1958, 257 F.2d 424, certiorari ......
  • United States v. Re
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • February 6, 1967
    ...Springer v. United States, 340 F.2d 950, 951 (8th Cir. 1965); United States v. Jenkins, 281 F.2d 193 (3d Cir. 1960); Kyle v. United States, 266 F.2d 670, 672 (2d Cir. 1959), cert. denied, 361 U.S. 870, 80 S.Ct. 131, 4 L.Ed.2d 109 In any event appellants' claim lacks substantial merit. They ......
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