United States v. Jonikas, 10570.

• Decision Date: 03 July 1952
• Docket Number: No. 10570.,10570.
• Citation: 197 F.2d 675
• Parties: UNITED STATES v. JONIKAS.
• Court: U.S. Court of Appeals — Seventh Circuit

197 F.2d 675 (1952)

UNITED STATES v. JONIKAS.

No. 10570.

United States Court of Appeals Seventh Circuit.

July 3, 1952.

Maurice J. Walsh, Chicago, Ill., for appellant.

Otto Kerner, Jr., U. S. Atty., Anna R. Lavin and John Peter Lulinski, Asst. U. S. Atty., Chicago, Ill., for appellee.

Before MAJOR, Chief Judge, and DUFFY and SWAIM, Circuit Judges.

SWAIM, Circuit Judge.

A jury in the District Court found the defendant, Stanley A. Jonikas, guilty of possessing and passing four counterfeit bills in violation of 18 U.S.C.A. § 472. The defendant was sentenced by the court to 15 years imprisonment.

The defendant appealed to this court, contending that there was not sufficient evidence to sustain the finding that the bills were counterfeit, nor to sustain the finding that the defendant knew that they were counterfeit. On February 21, 1951, this court affirmed the judgment of the District Court, holding that there was sufficient evidence to sustain the verdict. 7 Cir., 187 F. 2d 240.

Thereafter, on a motion to modify the sentence, the District Court reduced the defendant's sentence to 7½ years but denied two motions for a new trial which alleged newly discovered evidence.

On June 29, 1951, the defendant filed a motion in the District Court under 28 U.S. C.A. § 2255 to vacate and set aside the sentence and to release the defendant. This motion alleged that the sentence was imposed on the defendant in violation of the constitution and laws of the United States, in that the trial court's instructions "were so erroneous and prejudicial and so insufficient as to fail to safeguard the rights of the Defendant, and did so greatly prejudice the Defendant that he did not secure a fair and impartial trial by a jury in accordance with the Constitution and Laws of the United States."

In this motion the defendant admitted that the evidence of the Government tended to show that the defendant had passed one of the said counterfeit bills in each of four liquor establishments and that the police apprehended him at the fourth tavern while he was in the act of passing one of the counterfeit bills. The motion stated further that the defendant "although he admitted that he may have passed the bills in question (the four counterfeit bills), he did not know whether he had, and he further stated that he did not know whether they were counterfeit." The motion also admitted that the defendant, after his arrest, went around to the taverns and repaid the persons to whom he had passed the counterfeit bills.

The purpose of the proceeding provided for by 28 U.S.C.A. § 2255 is to give the prisoner a method for a direct attack on his sentence in the court in which he was tried and sentenced; but to attack the sentence successfully in such a proceeding the prisoner must have grounds which would support a collateral attack on the sentence. Mere errors of law occurring in the trial which could be corrected by an appeal, cannot serve as grounds for an attack on the sentence under § 2255.

In Pullian v. United States, 10 Cir., 178 F.2d 777, a prisoner tried to vacate his sentence on the ground that the indictment had been deficient. There the court said, 178 F.2d at page 778:

"Section 2255, supra, does not give a prisoner the right to obtain a review, first by the court which imposed the sentence and then on appeal from a denial of a motion to vacate, of errors of fact or law that must be raised by timely appeal. * * * While the nature of the attack is direct, the grounds therefor are limited to matters that may be raised by collateral attack. It is only where the judgment was rendered without jurisdiction, the sentence imposed was not authorized by law, or there was such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack that a motion to vacate will lie under such section."

In Taylor v. United States, 4 Cir., 177 F.2d 194, 195 the court said:

"Prisoners adjudged guilty of crime should understand that 28 U.S.C.A. § 2255 does not give them the right to try over again the cases in which they have been adjudged guilty. Questions as to the sufficiency of the evidence or involving errors either of law or of fact must be raised by timely appeal from the sentence if the petitioner desires to raise them. 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."

In Hastings v. United States, 9 Cir., 184 F.2d 939, the court denied such a motion which alleged insufficiency of evidence and the giving of an erroneous instruction. The court there affirmed the decision of the trial court denying the motion, saying, 184 F.2d at page 940:

"There was no appeal from the judgment of conviction and what appellants seek in this § 2255 proceeding is a retrial of their case."

See also Hallowell v. Hunter, 10 Cir., 186 F.2d 873, 874; Parker v. United States, 4 Cir., 184 F.2d 488, 490; Barrett v. Hunter, 10 Cir., 180 F.2d 510, 513, 20 A.L.R.2d 965; Howell v. United States, 4 Cir., 172 F.2d 213; Kenion v. Gill, 81 U.S.App.D.C. 96, 155 F.2d 176.

In the instant case the defendant was represented at the trial by counsel he had chosen. At the beginning of the trial the defendant's counsel asked the trial judge if he gave his own instructions and the trial judge replied:

"If you don\'t ask for some, you are not likely to get it. I will not take the burden of preparing all the instructions."

The court at that time told the defendant's attorney that he had and gave the usual stock instructions that apply to all criminal cases, but that if the attorney wanted anything special he should prepare it and submit it. At the beginning of the last day of the trial the court again asked the attorney for the defendant if he had any special requests for instructions and was told that the defendant's attorney had just one. It is not shown that the one instruction which the attorney wanted was prepared and submitted to the court.

The court, in instructing the jury, told them that the defendant was charged with possessing and passing counterfeit money, knowing it to be counterfeit; that it was necessary before the jury could find the defendant guilty that they find as a preliminary thereto that the defendant knew the money to be counterfeit; and that if he had the counterfeit money innocently and did not know that it was counterfeit, then the jury should find him not guilty. The court told the jury that he did not think there was "any great amount of question in the evidence" that the defendant "did pass these bills at the places indicated," so that "it narrows itself down pretty much in this case to the question of whether or not he knew these bills to be counterfeit." The court told the jury further that:

"That they are counterfeit has been admitted and has been proved. I do not think there is any doubt about that in the evidence. They are before you and they have been identified. They all bear the same serial number, which is impossible in anything but counterfeit money. You can see that for yourself. No two bills that are genuine carry the same serial number. These four bills all do carry the same serial number. So you do not have to spend a great deal of time on that * * *.

"It narrows itself down to a question of whether or not this man knew this money was counterfeit. In that connection you must consider all of the evidence, not just part of it — but all of it."

In explaining to the jury the manner in which they should consider the evidence given by the defendant, the court said:

"The defendant in this case is a competent witness in his own behalf, and you have no right to disregard his testimony merely because he is a defendant. You must treat his evidence the same as you would that of any other witness. You saw him on the witness stand and observed his demeanor, and you have heard his story. In so far as he is corroborated by other witnesses that is to his advantage. If he is not corroborated, that is for you to consider as to whether or not he spoke the truth. You have a right to consider his interest in the outcome of this case. You have a right to consider his frankness or lack of frankness, whichever you consider, on the witness stand. But you must treat him the same as any other witness, adjudge his testimony as to truth or falsity the same as you would the testimony of any other witness. Consider the knowledge of the truth, consider the testimony and consider the demeanor of the witness on the stand, just the same as any other witness."

The court also defined and explained circumstantial evidence and explained that it was proper for the jury to consider such evidence.

On the question of "reasonable doubt" the court told the jury:

"The law requires that no defendant in any criminal case be convicted unless the evidence has proved his guilt beyond a reasonable doubt. The courts have many times tried to define a reasonable doubt, but most courts agree that it is a mistake to try and define `reasonable doubt.\' The term defines itself. It is not an unreasonable doubt. It must be a doubt founded on reason. It does not mean you must hunt for doubts where none exists. It does not mean you shall find doubts where none exists. Probably the best definitions are those which say that you are convinced beyond a reasonable doubt if you would receive it without hesitation in some grave affair of your own personal life or business. You are not supposed to go out and hunt for doubts. Your oath does not require that.

"If the evidence satisfies you to a moral certainty that the defendant is guilty then your conscience should not bother you any about finding him guilty. If you have a grave and serious doubt, or some doubt that arises from reason or lack of

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