Meyers v. Welch, 6003.

• Decision Date: 13 January 1950
• Docket Number: No. 6003.,6003.
• Citation: 179 F.2d 707
• Parties: MEYERS v. WELCH.
• Court: U.S. Court of Appeals — Fourth Circuit

179 F.2d 707 (1950)

MEYERS v. WELCH.

No. 6003.

United States Court of Appeals Fourth Circuit.

Argued January 4, 1950.

Decided January 13, 1950.

Stanley Suydam, Washington, D. C. (John O. Dahlgren, Paul L. Delaney and Dahlgren, Darragh & Close, Washington, D. C., on brief), for Appellant.

Ross O'Donoghue, Assistant United States Attorney, Washington, D. C. (George R. Humrickhouse, United States Attorney for the Eastern District of Virginia, Richmond, Va., and George Morris Fay, United States Attorney for the District of Columbia, Washington, D. C., on brief) for Appellee.

Before PARKER, Chief Judge, and DOBIE, Circuit Judge, and WARLICK, District Judge.

PARKER, Chief Judge.

This is an appeal from on order dismissing a petition for a writ of habeas corpus. Appellant was convicted in the United States District Court for the District of Columbia of the crime of subornation of perjury and was sentenced to a term of imprisonment, which was affirmed on appeal by the United States Court of Appeals for that Circuit. Meyers v. United States, 84 U.S.App.D.C. 101, 171 F.2d 800. Certiorari to review this decision was denied by the Supreme Court on February 14, 1949. See 336 U.S. 912, 69 S.Ct. 602. One of the points made on the trial, by requests for instructions to the jury, was that appellant could not be convicted if a majority of the Congressional Committee was not present at the time of the giving of the perjured testimony which appellant was charged with suborning; and this question was thoroughly dealt with by the appellate court in its opinion holding that the testimony given by the witness, when only a minority of a subcommittee was present, could not be considered as perjury, but that practically all of the witness' testimony was given when a quorum was present. See 84 U.S. App.D.C. 101, 171 F.2d 811-812.

On June 27, 1949, the Supreme Court decided the case of Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, in which it held that there was error on the part of the trial court in that case in allowing the jury to find that a quorum of a Congressional Committee was present, so as to constitute a competent tribunal within the meaning of the perjury statute, merely because such quorum was present when the committee convened. The court distinguished the case of appellant here in a footnote appearing at 338 U.S. 89, 69 S. Ct. 1450, saying: "In Meyers v. United States, 84 U.S.App.D.C. 101, 171 F.2d 800, the appellant made contentions similar to those of petitioner. The Court of Appeals for the District of Columbia Circuit held the same view expressed here. `On October 6, 1947, however, only two senators were present at the hearing. Since they were a minority of the subcommittee, they could not legally function except to adjourn. For that reason, the testimony of Lamarre given on that day cannot be considered as perjury nor can appellant be convicted of suborning it.' 84 U.S.App. D.C. at 112, 171 F.2d at page 811. The conviction was affirmed on the ground that all the perjurious statements alleged in the indictment were made on October 4, when a quorum was present. 84 U.S.App. D.C. at 113, 171 F.2d at page 812."

After the decision of the Supreme Court in the Christoffel case, the appellant here made a motion under 28 U.S.C.A. § 2255 in the United States District Court for the District of Columbia to vacate and set aside the judgment and sentence against him on the ground that, on his trial, he was denied the benefit of the rule as declared by the Supreme Court in the Christoffel case. This motion was denied on the ground that motion under 28 U.S.C. A. § 2255 was not available to correct mere errors of law committed on the trial of the cause but was appropriate only where there had been such denial of due process as to render the trial void and subject the judgment to collateral attack. United States v. Meyers, D.C., 84 F.Supp. 766. This was in accord with the decisions of this court in Howell v. United States, 4 Cir., 172 F.2d 213, Birtch v. United States, 4 Cir., 173 F.2d 316, and Taylor v. United States, 4 Cir., 177 F.2d 194, 195, in the last of which we said: "Only where the sentence is void or otherwise subject to collateral attack may the attack be made by motion under 28 U.S.C.A. § 2255, which was enacted to take the place of habeas corpus in such cases and was intended to confer no broader right of attack than might have been made in its absence by habeas corpus." An appeal was taken from the denial of the motion; and it is now pending in the United States Court of Appeals for the District of Columbia.

Appellant was imprisoned for the service of his sentence in the Eastern District of Virginia; and, after the...