U.S. v. Scherer

• Decision Date: 01 March 1982
• Docket Number: No. 81-1408,81-1408
• Citation: 673 F.2d 176
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Anthony SCHERER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 176

673 F.2d 176

UNITED STATES of America, Plaintiff-Appellee, v. Anthony SCHERER, Jr., Defendant-Appellant.

No. 81-1408.

United States Court of Appeals Seventh Circuit.

Argued Oct. 2, 1981.

Decided Jan. 26, 1982.

Rehearing and Rehearing En Banc Denied March 1, 1982.

Lonny Benn Ogus, Chicago, Ill., for defendant-appellant.

Michael Wise, Robert Walter Tarun, Asst. U.S. Attys., Chicago, Ill., for plaintiff-appellee.

Before SPRECHER and WOOD, Circuit Judges, and BROWN, Senior District Judge. ^*

HARLINGTON WOOD, Jr., Circuit Judge.

Defendant-appellant, Anthony J. Scherer, Jr., appeals from the order of the district court, which denied a petition to vacate his conviction for certain violations of the Gun Control Act of 1968. ¹

I.

In 1974, Scherer was found guilty of nine counts of failure to record the disposition of firearms in violation of the Gun Control Act, and was sentenced to concurrent two-year terms for each count. This court affirmed. United States v. Scherer, 523 F.2d 371 (7th Cir. 1975), cert. denied, 424 U.S. 911, 96 S.Ct. 1108, 47 L.Ed.2d 315 (1976) (Scherer I ). In 1976, the trial court granted defendant's motions for reduction of sentence with the result that Scherer's incarceration lasted from March 19 to May 26, 1976, followed by a three year period of probation which expired on May 17, 1979. In July, 1978, while still on probation, Scherer petitioned the trial court for habeas corpus relief under 28 U.S.C. § 2255, alleging violations of his Fourth, Fifth, and Sixth Amendment rights. The district court denied the petition, and this court affirmed in an unpublished order. United States v. Scherer, 622 F.2d 592 (7th Cir. 1980), cert. denied, 449 U.S. 873, 101 S.Ct. 214, 66 L.Ed.2d 94 (1980) (Scherer II ).

Scherer again petitioned the trial court in June, 1980, seeking to have his conviction vacated. He based the petition on Fed.R.Crim.P. 35, for correction of an illegal sentence; 28 U.S.C. § 2255, as a petition for habeas relief; the All Writs Act, 28 U.S.C. § 1651, as a petition for a writ of error coram nobis ; and the common law writ of error coram nobis. Scherer argued that newly discovered evidence, not disclosed to him by the government at trial, recently came to light pursuant to discovery conducted in a related civil forfeiture action, United States v. Misc. Firearms, No. 74 C 877 (N.D.Ill., filed March 28, 1974). ² Scherer claimed that this new evidence showed that perjured evidence was used against him at trial, that the act for which he was convicted was not a crime, and that several warrantless searches of his property in 1972 were unlawful under the Fourth Amendment. He also included several other allegations of irregularity in the events leading to his arrest and prosecution. Scherer asserted that this new evidence demonstrated a fundamental flaw in his trial and warranted vacating his conviction.

The district court, finding Fed.R.Crim.P. 35 ³ and 28 U.S.C. § 2255 ⁴ inapplicable, treated Scherer's petition as one for a writ of error coram nobis. On March 3, 1981, the court denied relief, finding that Scherer's new evidence failed to demonstrate such fundamental error in the proceedings against him as to warrant the granting of the writ and vacating his conviction. Scherer appealed to this court.

II.

In its modern treatment, the writ of error coram nobis is available in a criminal proceeding and is of the same general character as habeas corpus relief under 28 U.S.C. § 2255. United States v. Morgan, 346 U.S. 502, 506 n.4, 74 S.Ct. 247, 249 n.4, 98 L.Ed. 248 (1954); United States v. Keogh, 391 F.2d 138, 140 (2d Cir. 1968). The writ will not lie for every error discovered after judgment. It is an extraordinary remedy and may be used to vacate a judgment of conviction "for errors of fact ... where the errors (are) of the most fundamental character, that is, such as render the proceeding itself irregular and invalid." United States v. Addonizio, 442 U.S. 178, 186, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979); United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 19, 59 L.Ed. 129 (1914); United States v. Dellinger, 657 F.2d 140, 144 (7th Cir. 1981). Coram nobis review may offer a unique possibility of relief since, unlike § 2255 habeas relief, it remains available to a defendant after he has been released from custody. United States v. Dellinger, 657 F.2d at 144; United States v. Balistrieri, 606 F.2d 216, 220 (7th Cir. 1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). It is presumed that the proceedings leading to conviction were correct, and the burden is on the petitioner to demonstrate that "the asserted error is jurisdictional or constitutional, (and) involves an error of law that results in a complete miscarriage of justice." Morgan, 346 U.S. at 512, 74 S.Ct. at 253; United States v. Hedman, et al., 655 F.2d 813, 815 (7th Cir. 1981). To the extent that the petition is based on newly discovered evidence, the defendant must also show that due diligence on his part could not have revealed the evidence prior to trial. Hedman, 655 F.2d at 814. Further, the new evidence must be such that, if known at trial, it would have allowed the defendant to present his case in a manner which would have likely led to a different result. Keogh, 391 F.2d at 148; Bateman v. United States, 277 F.2d 65, 68 (7th Cir. 1960).

III.

Scherer argues that certain documents, undisclosed by the government at trial, but recently revealed by discovery in a related civil case, demonstrate fundamental error calling for coram nobis relief. The first of these documents consists of a four page affidavit from a Bureau of Alcohol, Tobacco and Firearms ("BATF") agent. The newly discovered document appears to contain the original notes of Trial Exhibit 30, which was offered and admitted at trial. Scherer contends, however, that Exhibit 30 is a perjured document since it is dated October 5, 1972, but describes an event of October 12, 1972. Moreover, while Exhibit 30 is dated October 5, 1972, the newly discovered document has a December 11, 1972 date crossed out with "October 5, 1972" inserted. ⁵ Scherer contends that he was prevented from effective cross-examination because he could have used the document to cross-examine a BATF agent.

While some differences do exist between the two documents, we agree with the district court that there are "no substantive differences which would have prejudiced petitioner at trial." United States v. Scherer, No. 74 CR 99 at 5 (N.D.Ill. March 3, 1981) (Scherer III ). The existence of minor differences does not amount to perjury. Anderson v. United States, 403 F.2d 451 (7th Cir. 1968), cert. denied, 394 U.S. 903, 89 S.Ct. 1009, 22 L.Ed.2d 215 (1969); United States v. Spadafora, 200 F.2d 140 (7th Cir. 1952). Moreover, Scherer's contention that the date discrepancy could have been used for cross-examination purposes fails. Exhibit 30, dated October 5 and containing a description of events on October 12, was available at trial. Therefore, defendant's discovery of the discrepancy on the newly discovered document brings no new significant facts to this case and does not warrant coram nobis relief.

Moreover, Scherer argues that his trial attorney probably did not make effective use of Exhibit 30 for impeachment purposes because the document contains a reference to his attorney as a "shyster" and relates events which Scherer claims reveal a conflict of interest on the attorney's part. If the newly discovered document had been available at trial, he asserts, more effective cross-examination may have been possible, since the newly discovered document does not contain these references. Even if it was clear how the newly discovered document could be effectively used for impeachment purposes, Scherer overlooks the principle that new evidence which is merely impeaching is not grounds for granting a new trial. See Hedman, 655 F.2d at 815; United States v. Robinson, 585 F.2d 274, 278 n.4 (7th Cir. 1978) (en banc), cert. denied, 441 U.S. 947, 99 S.Ct. 2171, 60 L.Ed.2d 1051 (1979). Further, defendant does not cite the contents of the document as evidence of any new information, nor does he show that it is material to the issues involved in this case. Speculation as to what probably occurred or what may have been possible does not lead to the conclusion that Scherer's trial was so fundamentally flawed as to constitute a miscarriage of justice, Hedman, 655 F.2d at 815, or that the newly discovered document would have allowed him to present his case in a manner likely to produce a different result. Bateman, 277 F.2d at 68. See United States v. Balistrieri, 606 F.2d 216, 222 (7th Cir. 1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980).

Scherer also discovered eleven pages of handwritten notes of unidentified origin in a government file. He urges that since these notes may pertain to his case, he should now have the opportunity to learn who wrote them, when they were made, and whether they contain information which might have been material to his case. It is unclear, however, what argument Scherer is making. If, on one hand, he argues that he should now have the opportunity to discover whether his speculations regarding the notes' relevance to his case are true, a petition for a writ of error coram nobis may not be used "to allow a defendant to fish for facts that may or may not exist and may or may not justify the motion in the first instance." United States v. Balistrieri, 423 F.Supp. 793, 795 (S.D.Ill.1976), aff'd, 606 F.2d 216 (7th Cir. 1979), cert. denied, 446 U.S. 917, 100 S.Ct. 1850, 64 L.Ed.2d 271 (1980). If, on the other hand, he argues that his speculations alone-that these pages may refer to him and may contain evidence material to his case-call for vacating his conviction, then Scherer "offer(s) no new evidence at all, but only new suspicions," and "(t)he existence of some new evidence is a prerequisite to granting a new trial on the...