Marcella v. United States, 18794.

• Decision Date: 04 June 1965
• Docket Number: No. 18794.,18794.
• Citation: 344 F.2d 876
• Parties: Anthony MARCELLA, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

344 F.2d 876 (1965)

Anthony MARCELLA, Appellant, v. UNITED STATES of America, Appellee.

No. 18794.

United States Court of Appeals Ninth Circuit.

April 30, 1965.

Rehearing Denied June 4, 1965.

Anthony Marcella, Steilacoom, Wash., in pro. per.

Manuel L. Real, U. S. Atty., John K. Van de Kamp, Asst. U. S. Atty., Chief, Crim. Sec., Robt. J. Timlin, Asst. U. S. Atty., Los Angeles, Cal., for appellee.

Before BARNES, JERTBERG and DUNIWAY, Circuit Judges.

JERTBERG, Circuit Judge.

Following conviction by jury, imposition of sentence, and the affirmance of the judgment of conviction by this court on appeal therefrom, See: Marcella, Appellant, v. United States of America, Appellee, 285 F.2d 322 (9th Cir. 1960), Rehearing denied February 3, 1961, C.D. 366 U.S. 911, 81 S.Ct. 1085, 6 L.Ed.2d 235, appellant filed a petition in the District Court seeking relief under 28 U.S.C. § 2255. Following extensive hearings before the District Court, at which hearings appellant, represented by court appointed counsel was present, the District Court denied appellant's petition for relief, as follows:

"The court, being now fully advised, finds that during the trial of the petitioner upon the charges for which he was convicted the Government did not knowingly use perjured testimony, if indeed the testimony was in fact perjured, and the court further finds that the remaining grounds asserted in petitioner\'s motion are not proper grounds for collateral attack upon the judgment of conviction.

"IT IS THEREFORE ORDERED that petitioner\'s motion to vacate and set aside the sentence, judgment and indictment is hereby denied."

Appellant filed a timely notice of appeal from such order. Appellant's motion under 28 U.S.C. § 2255 stated:

"I. That petitioner\'s indictment, sentence, and conviction is void and a nullity as the grand jury setting (sic) within and for the Southern District of California, Central Division, is without jurisdiction.

"II. That the prosecuting officials knowingly used the perjured testimony of Marie Rose Santino at the trial of your petitioner, denying to petitioner by such perjured testimony due process of law under the Fifth Amendment to the Constitution of the United States.

"III. That petitioner was denied the effective assistance of Counsel, when such Counsel refused to effectively cross-examine witnesses, object to evidence and protect petitioner\'s rights without more money in violation of the guarantee to right to assistance of counsel contained in the Sixth Amendment to the Constitution of the United States."

The petition was set for hearing on December 3, 1962, at which appellant and his counsel were present. At that time the District Court stated that the only ground it felt it could inquire into was the allegation that there had been perjured testimony at the trial since the other grounds raised in the motion had been decided by this court. The court continued the hearing to December 10, 1962. On that occasion appellant's counsel stated that he had been unable to uncover any basis for perjured testimony in the case, whereupon appellant asked for the appointment of another attorney.

On February 8, 1963, appellant, through new counsel, filed a motion to reopen the hearing on appellant's motion. Further proceedings were held on February 18, 1963 when the District Court vacated the order appointing former counsel and appointed appellant's new counsel. The District Court granted appellant's motion to reopen the hearing and ordered that the further hearing be held on March 25, 1963. At the same time the District Court ordered that a Writ of Habeas Corpus ad Testificandum be issued for appellant's appearance in Los Angeles on March 11, 1963, in order to give appellant an opportunity to discuss the case with his counsel and to subpoena any necessary witnesses. On March 25, appellant, through his counsel, sought a continuance of the hearing in order to facilitate subpoenaing witnesses he felt would be necessary, and the matter was set for hearing on April 1, 1963.

On March 29, 1963, appellant's new counsel filed a "Petitioner's Hearing Memorandum" prepared by appellant which raised nine grounds for granting appellant's 2255 motion.

On April 1, 1963, a complete evidentiary hearing was held. In addition to appellant's testimony, the testimony of four witnesses subpoenaed by him was received, and two witnesses testified at the instance of appellee. All of the witnesses whom appellant requested were subpoenaed prior to the hearing and appeared, except one individual whom the Marshal was unable to serve. At the conclusion of the hearing the District Court allowed appellant's original motion to be amended to include all of the grounds raised in appellant's "hearing memorandum". The grounds stated in the "hearing memorandum" are:

"I. Petitioner was not taken before a commissioner or other magistrate `without unreasonable delay\'.

"II. Petitioner was denied a fundamental and sacred right by the refusal of his express demand for representation by his attorney.

"III. Petitioner was deprived of his right to a trial in the district where the purported crime was committed.

"IV. The indictments were insufficient.

"V. Petitioner was convicted without any evidence on a material element of the case.

"VI. Petitioner was convicted in reliance upon perjured testimony, employed by the prosecution.

"VII. The sentence and judgment are unintelligible and it is impossible to ascertain therefrom the actual nature and extent of imprisonment imposed on the petitioner under each.

"VIII. Petitioner\'s rights were infringed by an unfounded denial of bail pending appeal.

"IX. Under the circumstances of the case, the sentence imposed upon petitioner constituted a cruel and unusual punishment."

Appellant's specifications of error are that the District Court erred:

1. In finding that appellant was not convicted on perjured testimony knowingly used at the trial by the government;

2. In ruling that the following errors specified by appellant were not proper grounds for collateral attack upon the judgment of conviction:

(A) the denial by the United States Commissioner of appellant\'s right to counsel at his arraignment;

(B) the insufficiency of the indictment to charge a federal offense;

(C) that he was deprived of the right to trial in the district where the charged offenses were committed; and

(D) that the sentences imposed constitute cruel and unusual punishment.

We first consider appellant's contention that the District Court erred in its finding that:

APPELLANT WAS NOT CONVICTED ON PERJURED TESTIMONY KNOWINGLY EMPLOYED BY THE GOVERNMENT.

Appellant argues that the District Court erred in its finding that the Government did not knowingly use perjured testimony. A general allegation is made, in support of this specification of error, that Marie Santino and Matthew Santino, co-defendants who testified for the Government following their pleas of guilty, gave false testimony at the trial concerning the activities of appellant in connection with the charges set out in the indictment. Appellant does not point to any specific testimony of the Santinos at the trial which he alleges to be false. Instead, he asserts an inference of perjury arises from the following facts: (1) the Santinos and Quentin Browning, an unindicted Government witness, were all old friends who were involved in the sale of narcotics and who were rewarded for their testimony by the Government; (2) Marie Santino's testimony at the hearing below was inconsistent with her testimony at the trial; and (3) those persons best in a position to testify as to the knowledge of the Santinos' false testimony were not present at the hearing of appellant's motion under 28 U.S.C. § 2255.

The allegation of friendship among the adverse witnesses and their common involvement in the sale of narcotics is insufficient to show a lack of truthfulness in their testimony. Of the three Government witnesses who were assigned to the Marcella case and who testified at the hearing, two were examined about possible rewards offered to the Santinos for their testimony. Both testified that they had offered none and that they knew of no such offer. Marie Santino testified that no one had offered her leniency but that she and her husband, Matthew, had pleaded guilty because: "That's the way we felt." Matthew Santino also testified that no one had promised him leniency.

Of the three statements appellant alleges Marie Santino made at the hearing which were inconsistent with her testimony at the trial, two related to the use of an assumed name and the length of time she had known Quentin Browning. We have found no material inconsistency. The third statement, made at the hearing, that she had never used heroin is contradicted by her testimony at the trial that she had used heroin and knew what it tasted like. This is not an inconsistency which prejudices appellant or which will support the inference that her testimony was false, in toto.

As beforementioned, all of those persons requested by appellant to be present at the hearing were subpoenaed and were present save one who could not be served. Appellant does not assert that he was unaware of the identity of those "who worked concertedly to rig this trial" at the time of his request.

Before a sentence may be vacated on the ground of perjured testimony, the movant must show that the testimony was perjured and that the prosecuting officials knew at the time such testimony was used that it was perjured. Black v. United States, 269 F.2d 38 (9th Cir. 1959). In addition, the perjured testimony said to have been knowingly used must be particularized definitely. Holt v. United States, 303 F.2d 791 (8th Cir. 1962); Accord, United States v. Jenkins, 281 F.2d 193 (3rd Cir. 1960).

In view of the complete absence of any evidence at the hearing that any testimony of the Santinos was prejudicially false and further that the Government was aware of any such perjury, we can...