Smith v. United States

Decision Date15 December 1967
Docket NumberCiv. A. No. 18279.
Citation277 F. Supp. 850
PartiesJohn Kent SMITH v. UNITED STATES of America.
CourtU.S. District Court — District of Maryland

COPYRIGHT MATERIAL OMITTED

William B. Kempton, Baltimore, Md., appointed by the court to represent petitioner.

Stephen H. Sachs, U. S. Atty., and Paul M. Rosenberg, Asst. U. S. Atty., Baltimore, Md., for the Government.

NORTHROP, District Judge.

On May 20, 1964, a jury in the United States District Court for the District of Maryland found John Kent Smith guilty on three counts of a six-count indictment charging violations of Title 18, United States Code, Sections 371, 2113, 2113(a), (b), (c), and (d), 2312, and 2. Petitioner was sentenced by the then District Court Judge Winter to ten years' imprisonment on the second and third counts charging violation of Sections 2113(a), 2, and 2113(b), and 2, in the robbery on July 8, 1963, of the Eastover Branch of the Citizens National Bank of Oxon Hill, Maryland, and aiding and abetting. Smith was further sentenced on the sixth count, charging violation of Section 2312 and 2, in the transportation in interstate commerce of a stolen motor vehicle and aiding and abetting. Both sentences were imposed to run consecutively.

The Court of Appeals for the Fourth Circuit affirmed the judgment, 342 F.2d 525 (4th Cir. 1965), and a petition for certiorari to the United States Supreme Court was denied, 381 U.S. 913, 85 S.Ct. 1535, 14 L.Ed.2d 434 (1965).

Under Section 2255 of Title 28, United States Code, Smith advances four separate grounds for relief:

1. There was a denial of due process and a fair trial because certain witnesses falsely testified, and the prosecuting attorney, although knowing the testimony to be false, made no effort to correct it.
2. His constitutional rights under the Fifth and Sixth Amendments to a fair trial were violated by his being absent at critical stages of the trial proceedings.
3. The conviction and sentence imposed under counts two, three and six are a violation of his constitutional rights in that he was subjected to double jeopardy.
4. The arrest made by agents of the Federal Bureau of Investigation on July 15, 1963, was illegal and in violation of the Constitution and laws of the United States.
The petitioner alleges that
"the errors complained of herein have never been presented for review * * * for the reason these errors were dehors the record and were unknown to your petitioner until recently."

An examination of the record discloses otherwise. All of petitioner's grounds for relief herein raised were as evident at the time of his trial and/or appeal as they are now and, thus, ordinarily cannot be raised in a Section 2255 motion. McDowell v. United States, 336 F.2d 435 (6th Cir. 1964), cert. denied, 379 U.S. 980, 85 S.Ct. 685, 13 L.Ed.2d 571 (1965); Medrano v. United States, 315 F.2d 361 (9th Cir. 1963); Ingram v. United States, 299 F.2d 351 (5th Cir. 1962); McFarlane v. United States, 231 F.Supp. 191 (S.D.N.Y.1964).

Many courts have alluded to the abuse of post-conviction remedies in general, including Section 2255, Johnson v. United States, 267 F.2d 813 (9th Cir. 1959); United States v. Cooper, 222 F. Supp. 661 (D.D.C.1963). In part the abuse is the result of the notion that these procedures provide a routine review of convictions and sentences at the whim of the defendant who is dissatisfied with his sentence. United States v. Cooper, supra, at 664.1

That Section 2255 is available only in the extraordinary and unusual case is evidenced by the clear language of the statute. Thus, in order for the district court to give relief it must find

"that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack."

Title 28, U.S.C. § 2255. Besides the fact, as noted above, that all of petitioner's grounds for relief could have and should have been raised at the instance of his appeal from his conviction it is clear that several of his contentions are not cognizable in this type of proceeding. McFarlane v. United States, supra (arrest without a warrant); Boisen v. United States, 181 F.Supp. 349 (S.D.N.Y. 1960) (double jeopardy). On these two grounds, a strict and literal interpretation of the statute and the cases thereunder would ordinarily lead this court to reject summarily a claim for relief. However, the petitioner has been granted a full hearing. All of his contentions were carefully considered for it is the opinion of this court that the petitioner had presented the unusual case contemplated by the statute, and the court has been liberal in its interpretation of the section so as to enable the petitioner to substantiate his charge of denial of fundamental constitutional rights.

In deciding whether relief was available under this section this court concurs in the decision of United States v. Sobell, 314 F.2d 314 (2d Cir. 1963) wherein that court concluded that relief would be available if the petitioner could show either (1) a significant denial of a constitutional right, even though he could have raised the point on appeal and there was no sufficient reason for not doing so, or (2) a defect seriously affecting his trial, even though not of constitutional magnitude, if it was not correctible on appeal or there were exceptional circumstances excusing the failure to appeal.

Petitioner's first ground is that codefendants who pleaded guilty and testified at his trial on behalf of the government had been promised leniency by the government in consideration for their testimony. He alleges that the government attorneys concealed this fact from the court and opposing counsel, and at trial acquiesced in both codefendants' denials that they had not been the recipients of any promises or considerations from the government in return for their testimony.

Smith further intimates that Judge Winter foreclosed the development by his attorney, John Hargrove, of the "deal." But the transcript of the colloquy between Mr. Hargrove and the judge does not substantiate this implication.2

The gravity of this charge is evidenced by a long series of cases where the Supreme Court has denounced various misconduct on the part of the prosecuting attorneys similar to that alleged by the petitioner. See Giles v. State of Maryland, 386 U.S. 66, 87 S.Ct. 793, 17 L.Ed. 2d 737 (1967); Miller v. Pate, 386 U.S. 1, 87 S.Ct. 785, 17 L.Ed.2d 690 (1967); Napue v. People of State of Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. State of Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); White v. Ragen, 324 U.S. 760, 65 S.Ct. 978, 89 L.Ed. 1348 (1945); Pyle v. State of Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942); and Mooney v. Holohan, 294 U.S. 103, 55 S.Ct. 340, 79 L.Ed. 791 (1935). Petitioner relies primarily upon Napue v. People of State of Illinois. In that case a witness for the government falsely testified that he had received no promise of consideration in return for his testimony, though in fact the Assistant State's Attorney had indeed promised the witness consideration and did nothing to correct the false testimony. The court said:

"The principle that a State may not knowingly use false evidence, including false testimony, to obtain a tainted conviction, implicit in any concept of ordered liberty, does not cease to apply merely because the false testimony goes only to the credibility of the witness. The jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." Emphasis supplied.

But the conclusionary statement that the government is guilty of misconduct is not sufficient for relief. The petitioner has the burden of proving that perjury was an element in the evidence or testimony presented by the government, and it was material testimony, United States v. Abbinanti, 338 F.2d 331 (2d Cir. 1964), and that this perjury or false testimony was knowingly used or left unchecked by the government, Marcella v. United States, 344 F.2d 876 (9th Cir. 1965).

The petitioner relies primarily upon a letter from the United States Attorney's office, addressed to counsel of two of the defendants charged with the robbery of the Oxon Hill bank, Sims and Ugaro:

/copy/ /copy/ United States Department of Justice United States Attorney District of Maryland 409 Post Office Building Baltimore, Maryland 21202 April 15, 1964 George L. Russell, Jr., Esq 418 One Charles Center Baltimore 1, Md John Martin Jones, Jr., Esq 900 First National Bank Building Baltimore 2, Md William T. Winand, Jr., Esq 2410 Maryland National Bank Building Baltimore, 2, Md. Re: U. S. v. Warren Arthur Sims, Roger John Ugaro, et al, etc. Cr. 26448 Dear Sir:

Pursuant to our earlier conversations of even date, please be advised that at the time of sentencing of the above-named defendants, if asked by the Court, the office of the United States Attorney will register no objection to the Court's considering the imposition of a concurrent sentence on the charges of bank robbery presently pending in the Eastern District of New York.

In no event will the Government recommend affirmatively that the sentence be made concurrent.

Very truly yours, Thomas J. Kenney United States Attorney By /s/ Robert W. Kernan Robert W. Kernan Assistant United States Attorney /copy/ /copy/

The substance of the letter is that the government would take a neutral position at the time of sentencing of the defendants, neither recommending nor opposing the imposition of concurrent sentences. At this point, it is necessary to review the events leading up to the writing of the letter in order to...

To continue reading

Request your trial
16 cases
  • People v. West
    • United States
    • California Supreme Court
    • December 3, 1970
    ...699, 702.13 In addition to authorities cited in text, see Bailey v. MacDougall (4 Cir., 1968) 392 F.2d 155, 160; Smith v. United States (D.C., 1967) 277 F.Supp. 850, 859; In re Tahl (1969) 1 Cal.3d 122, 132--133, 81 Cal.Rptr. 577, 460 P.2d 449, and dissenting opinion of Peters, J. at p. 138......
  • State v. Buchanan, No. 317A89
    • United States
    • North Carolina Supreme Court
    • December 6, 1991
    ...the court and whether the court would accept a nolo contendere plea] clearly was not a stage of the trial."); Smith v. United States, 277 F.Supp. 850, 860-63 (D.Md.1967), aff'd, 401 F.2d 773 (4th In the case at bar, twelve of the eighteen conferences occurred during jury selection and six o......
  • Jeffers v. United States
    • United States
    • U.S. District Court — Northern District of Indiana
    • May 22, 1978
    ...of a prisoner who is dissatisfied with his sentence, but is available only in the extraordinary and unusual case. Smith v. United States, 277 F.Supp. 850 (Md.D.C.1967) aff'd 401 F.2d 773 (4th Cir. While the doctrine of res judicata is not applicable to motions under § 2255, Bennett v. Unite......
  • Gilbert v. United States
    • United States
    • U.S. District Court — Southern District of New York
    • April 7, 1969
    ...385 U.S. 826, 87 S.Ct. 59, 17 L.Ed.2d 63 (1966); United States v. Kramer, 289 F.2d 909, 913 (2d Cir. 1961); Smith v. United States, 277 F.Supp. 850, 863-864 (D.Md. 1967). The test of identity of offenses, as stated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT