United States v. Carter

• Decision Date: 20 November 1969
• Docket Number: Cr. No. 2158.
• Citation: 319 F. Supp. 702
• Parties: UNITED STATES of America v. Albert Houston CARTER.
• Court: U.S. District Court — Middle District of Georgia

319 F. Supp. 702

UNITED STATES of America v. Albert Houston CARTER.

Cr. No. 2158.

United States District Court, M. D. Georgia, Albany Division.

November 20, 1969.

Charles T. Erion, Asst. U. S. Atty., Macon, Ga., for plaintiff.

Albert Houston Carter, pro se.

BOOTLE, Chief Judge:

On July 1, 1969, defendant filed in this court his "Motion for Writ of Error Coram Nobis" to vacate the judgment of conviction previously entered in this cause. The motion alleges that in October, 1961, the defendant was tried before a jury in this court on two charges: (1) for causing to be transported in interstate commerce a forged check in violation of 18 U.S.C.A. § 2314, and (2) for perjury committed before the United States Commissioner at Albany, Georgia; that said trial resulted in a mistrial because of the inability of the jury to agree upon a verdict and that he was tried again on both of said charges before a jury in this court in April, 1962, when the jury again deadlocked on the forged check charge but convicted him upon the perjury charge. His motion points out that the conviction was affirmed by the Court of Appeals for the Fifth Circuit (Carter v. United States, 325 F.2d 697) and that the Supreme Court denied certiorari on May 25, 1964 (Carter v. United States, 377 U.S. 946, 84 S.Ct. 1353, 12 L.Ed.2d 308). He points out that he has completely served the sentence imposed for the perjury violation and that the forged check charge has been dismissed.

Defendant now seeks to vacate the conviction of perjury upon five specified grounds. This court has carefully examined the motion and all of said grounds and has examined also "Exhibit E in the case of Albert H. Carter v. Robert Seamans, Jr., Civil Action No. 64-H-30 in the United States District Court for the Southern District of Texas, Houston Division", which Exhibit E is entitled "Article 32 Investigation in the case of Captain Albert H. Carter, AO 300 7296", and was caused by the defendant to be transmitted to the Clerk of this Court for consideration by this Court, which transmission was procured upon an application by the defendant to the District Court for the Southern District of Texas, Houston Division and an order of Honorable Joe Ingraham, dated September 29, 1969, ordering Arthur E. Fay, Esquire, or such other attorney of the United States Department of Justice as may at present be in possession of the said exhibit to transmit the same to the Clerk of this Court, and said exhibit having been forwarded to the Clerk of this Court with a letter of October 9, 1969 signed by William D. Ruckelhaus, Assistant Attorney General, Civil Division, by Thomas J. Lydon, Chief, Court of Claims Section, and after said examination this court has concluded that the said motion and the said Exhibit and the files and records of this court show that the defendant is entitled to no relief, and that it is proper now for this court summarily to dispose of the said motion by dismissing the same pursuant to a motion to dismiss filed by the Government on November 4, 1969. This conclusion has been reached after careful consideration of written arguments filed by each side.

The Supreme Court in the case of United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954) holds that a motion in the nature of a writ of error coram nobis is available under the all-writs section of the Judicial Code, 28 U.S.C.A. § 1651(a) and was not abolished by 28 U.S.C.A. § 2255. In so holding, however, it reaffirmed its earlier holding in United States v. Mayer, 235 U.S. 55, 35 S.Ct. 16, 59 L.Ed. 129, as follows:

"This jurisdiction (coram nobis) was of limited scope; the power of the court thus to vacate its judgments for errors of fact existed, as already stated, in those cases where the errors were of the most fundamental character; that is, such as rendered the proceeding itself irregular and invalid. In cases of prejudicial misconduct in the course of the trial, the misbehavior or partiality of jurors, and newly discovered evidence, as well as where it is sought to have the court in which the case was tried reconsider its rulings, the remedy is by a motion for new trial. * * *" (Emphasis supplied).

In Morgan, speaking of Mayer, the Court said:

"There a convicted defendant alleged he discovered through no fault of his, only after the end of the term in which he was convicted, misconduct of an assistant United States Attorney and concealed bias of a juror against him, the defendant. This Court refused to direct consideration of the motion after the term expired because the remedy, if any, was by writ of error or motion for new trial."

The fundamental type irregularity for which the motion was held available in Morgan was the Court's acceptance of a plea of guilty from a 19 year old youth unlettered in the law, not advised as to his rights, and without counsel.

None of the errors complained of by defendant rises to the height "of the most fundamental character" required by Mayer. Ground I is that:

"The prosecuting of Defendant on the charge of perjury was illegally impermissible because such was the direct result of, and therefore punishment for, his refusal to waive his constitutional right to a fair and impartial jury trial on a separate charge, to-wit: interstate transportation of a forged check (referred to herein as the forged check charge)."

This charge amounts to no more than that defendant's retained counsel at the time of his arraignment at Americus, Georgia (he was represented by very able court appointed counsel at both trials) and Government counsel had undertaken some plea bargaining looking toward the dropping of the perjury charge in the event the defendant desired to plead guilty to the check forgery charge. Apparently from the motion defendant's retained counsel desired to enter such plea and the defendant disagreed. Thus no harm was done and the defendant exercised his constitutional right to be tried before a jury on both charges.

Ground II reads:

"The Government authorities either failed or refused to disclose vital exculpatory evidence in their possession, and there is substantial evidence that

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