United States v. Spadafora

• Decision Date: 05 December 1952
• Docket Number: No. 10674.,10674.
• Citation: 200 F.2d 140
• Parties: UNITED STATES v. SPADAFORA.
• Court: U.S. Court of Appeals — Seventh Circuit

200 F.2d 140 (1952)

UNITED STATES v. SPADAFORA.

No. 10674.

United States Court of Appeals, Seventh Circuit.

December 5, 1952.

Hugo M. Spadafora, pro se.

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

Before DUFFY, FINNEGAN and SWAIM, Circuit Judges.

DUFFY, Circuit Judge.

On February 14, 1952, appellant filed a petition in the district court which he entitled, "Petition for Writ of Error Coram Nobis and/or Motion To Vacate Fraudulent Trial Court Proceedings." In support of said petition appellant filed an affidavit executed by one Bruno Basile, a co-defendant upon his previous trial hereinafter mentioned, and also a lengthy affidavit executed by himself, wherein he set forth in some detail what he claimed certain named persons would testify on a hearing of his petition. He also requested the court to issue various writs of subpoena "to certain persons named in the affidavits annexed hereto * * * for the purpose of giving testimony and/or presenting evidence at the hearing on the Petition for Writ of Error Coram Nobis, the said testimony and/or evidence being needed to prove the perjury, etc., and that it was knowingly used by the United States Government in order to falsely convict petitioner." Appellant also filed a motion for a writ of habeas corpus ad testificandum, which would require that he be produced at the hearing. Apparently appellant prepared the petition and motions hereinbefore described without the assistance of counsel.

The district court construed the petition as being one filed under Title 28 U.S.C.A. § 2255, and denied the petition and the motions, stating that appellant had previously filed a similar petition and that under the provisions of Sec. 2255 the court is not required to entertain a second petition or motion. The court further stated that the files and record in the case conclusively show that petitioner (appellant) is entitled to no relief.

On December 12, 1949, appellant was convicted, after a trial before a jury, of possession of forged and counterfeit $20 and $10 Federal Reserve Notes, and for conspiracy to pass, utter and to keep and possess, with intent to defraud, counterfeit $10 and $20 Federal Reserve Notes. On appeal to this court we held that the evidence sustained the conviction of possession of the counterfeit notes. We held specifically that the evidence did not sustain the defendant's claim that he was entrapped by government agents, nor his claim that there was an unlawful search and seizure. United States v. Spadafora, 7 Cir., 181 F.2d 957, certiorari denied 340 U.S. 897, 71 S.Ct. 234, 95 L.Ed. 650, petition for rehearing denied 340 U.S. 916, 71 S.Ct. 283, 95 L.Ed. 662. In our opinion, after detailing evidence showing that appellant had possession of the counterfeit notes, we said, 181 F.2d at page 958: "Additional evidence linked the defendant with the seized counterfeit currency, but enough has been stated to show that as to the charge of possession, the evidence of defendant's guilt was overwhelming." At the trial and on the previous appeal to this court, appellant was represented by competent counsel.

Subsequently appellant filed a motion with the district court under Title 28, U.S. C. § 2255, to vacate the sentence and judgment. This motion was denied on May 23, 1951. An appeal was taken to this court, and the judgment of the district court was affirmed on September 20, 1951, without opinion (Appeal No. 10447). Petition for a rehearing was denied on October 5, 1951.

On this appeal appellant filed a brief and a reply brief, but as he was unable to be present personally, the government waived oral argument, and submitted its case upon its brief.

We consider first whether the district court properly treated appellant's petition for a writ of error coram nobis as a motion under Title 28, U.S.C.A., § 2255. Rule 60(b), Federal Rules of Civil Procedure, 28 U.S.C.A., provides, " * * * Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action." As writs of coram nobis have been abolished, we hold the district court correctly treated appellant's petition as a motion under said Sec. 2255.

Sec. 2255 provides, "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." The section also provides that the court shall grant a prompt hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." A further provision is, "A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner."

On the previous appeal to this court from the order of the district court denying a hearing under Sec. 2255 (Appeal No. 10447), appellant urged that he had been convicted upon perjured testimony. We would be justified in resting this decision on that part of Sec. 2255 which provides that the sentencing court shall not be required to entertain a second or successive motion under that section. However, appellant appears pro se, and apparently believes that if a writ of error coram nobis be granted he might have the right to litigate again his claim that perjured testimony was used. Furthermore, in the present petition he charges for the first time that the government knowingly and intentionally used such perjured evidence to bring about his conviction. We shall therefore consider...