United States v. West, Cr. No. 22230.

• Decision Date: 04 February 1959
• Docket Number: Cr. No. 22230.
• Citation: 170 F. Supp. 200
• Parties: UNITED STATES of America v. James WEST, Andrew Remes, Hyman Lumer, Sam Reed, Eric Reinthaler, Marie Reed Haug and Fred Haug.
• Court: U.S. District Court — Northern District of Ohio

170 F. Supp. 200

UNITED STATES of America v. James WEST, Andrew Remes, Hyman Lumer, Sam Reed, Eric Reinthaler, Marie Reed Haug and Fred Haug.

Cr. No. 22230.

United States District Court N. D. Ohio, E. D.

February 4, 1959.

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Sumner Canary, U. S. Atty., Cleveland, Ohio, Herbert G. Schoepke, William Greenhalgh, Dept. of Justice, Washington, D. C., for the United States.

Chester K. Gillespie, Cleveland, Ohio, for West.

Paul J. Gnau, Cleveland, Ohio, for Remes.

Alan D. Sophrin, Cuyahoga Falls, Ohio, for Lumer.

Henry P. Kosling, Youngstown, Ohio, for Reed.

Fred Mandel, Cleveland, Ohio, for Marie Reed Haug and Fred Haug.

Frank J. Donner, New York City, for Reinthaler.

Victor Rabinowitz, New York City, Ann F. Ginger, for West, Remes, Lumer and Reed.

WEICK, District Judge.

The seven defendants were convicted by a jury on the charge of conspiracy to file false non-Communist affidavits of union officers with the National Labor Relations Board. Title 18 U.S.C. §§ 371, 1001; 29 U.S.C.A. § 159(h). Motions for a new trial or for judgment of acquittal were overruled. The defendants have prosecuted appeals to the Court of Appeals for the Sixth Circuit and have been released on bond pending appeal.

During the pendency of their appeals, the defendants filed in this Court a motion for a new trial on the ground of newly discovered evidence under Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. They have also filed a Supplementary Motion under Rule 33 and Petition under Title 28 U.S.C. § 2255 which they claim should be treated as invoking the extraordinary remedy of Coram Nobis.

Prior to the adoption of Rule 33, the District Court had no jurisdiction to hear and determine a motion for a new trial in a criminal case during the pendency of the case in the Court of Appeals. Under Rule II(3) of the Rules, Practice and Procedure (292 U.S. 662), such a motion could only be entertained by the District Court after the remand of the case from the Court of Appeals. Levinson v. United States, 6 Cir., 1929, 32 F.2d 449; Hamel v. United States, 6 Cir., 1943, 135 F.2d 969.

The substantial question is whether this necessity for remand has been perpetuated by Rule 33 which provides:

"A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after a final judgment, but if an appeal is pending the court may grant the motion only on remand of the case." (Emphasis added.)

The Court of Appeals for the Ninth Circuit, commenting on this change in terminology stated:

"It will be noted that a change from entertain to grant was made in the rule. This change requires that an application for a new trial on the ground of newly discovered evidence first be made to the district court. If that court signifies a willingness to grant the motion then this court will remand for that purpose." Zamloch v. United States, 1951, 187 F.2d 854, 855.

Jurisdiction of the District Court to hear a motion under Rule 33 without first obtaining remand was recognized in Smith v. Pollin, 1952, 90 U.S.App.D.C. 178, 194 F.2d 349, 350, wherein the viewpoint of the Advisory Committee on the effect of the change in the rule was set forth.

"Under the proposed rule a motion for a new trial could be made without securing a remand. If, however, the trial court decides to grant the motion, prior to the entry of the order granting it, a remand will have to be obtained. This course will eliminate the need of a remand in those cases in which the trial court determines to deny a motion for new trial." Federal Rules of Criminal Procedure p. 131 (2nd Preliminary Draft).

See also Knight v. United States, 5 Cir., 1954, 213 F.2d 699; United States v. Minkoff, 2 Cir., 1950, 181 F.2d 538; Rakes v. United States, 4 Cir., 1947, 163 F.2d 771.

This exact question has not been passed upon by the Sixth Circuit Court of Appeals. However, the recent decision in Herring v. Kennedy-Herring Hardware Co., Inc., 261 F.2d 202, indicates the approval of that Court of the procedure just discussed, and states that motions for a new trial should be addressed to the District Court.

The District Court, therefore, has jurisdiction to hear the motion and need not secure a remand of the case unless it determines to grant the motion.

The remedy sought by defendants under Title 28 U.S.C. § 2255 is available only to persons who are "in custody." Rowland v. State of Arkansas, 8 Cir., 1950, 179 F.2d 709, certiorari denied 339 U.S. 952, 70 S.Ct. 841, 94 L.Ed. 1365; United States v. Young, D.C.W.D. Wash.1950, 93 F.Supp. 76.

The defendants, in the present case, are not in custody. They are out on bond. Hence Title 28 U.S.C. § 2255 is not applicable.

Defendants contend that notwithstanding the fact that this motion cannot be considered under Section 2255, this Court should follow the decision in Shelton v. United States, 5 Cir., 1957, 242 F. 2d 101, and consider it in the nature of an application for a Writ of Coram Nobis.

The function of Coram Nobis is to bring to the attention of the court some fact unknown to the court, which if known would have resulted in a different judgment. Allen v. United States, 6 Cir., 1947, 162 F.2d 193.

Until recent years there was considerable doubt whether this writ was available in the federal courts, as it was generally considered obsolete. 24 C.J.S. Criminal Law § 1606a. By its decision in United States v. Morgan, 1953, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, the Supreme Court held Coram Nobis still lives. Four Justices dissented, pointing out that the majority had resurrected the ancient writ from the limbo to which it had presumably been relegated. Supra, 346 U.S. at page 513, 74 S.Ct. at page 253. Counsel for defendants rely on the Morgan case in support of their contention that Coram Nobis is available to them.

There is one basic distinction between Shelton and Morgan and the case at bar. In both Shelton and Morgan the only remedy available to review the judgment under attack was to treat the motion under Section 2255 as a proceeding in the nature of Coram Nobis. Here, defendants have obtained review of the factual issues of which they complain by the motion for new trial under Rule 33 of the Federal Rules of Criminal Procedure. Hence, it is not necessary for them to resort to Coram Nobis.

Coram Nobis will not lie where there is another adequate remedy, as by motion for a new trial. United States v. Mayer, 1914, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129; 24 C.J.S. Criminal Law § 1606b(3). The extraordinary nature of this remedy was emphasized by Justice Jackson in United States v. Smith, 1947, 331 U.S. 469, 475, note 4, 67 S.Ct. 1330, 1334, 91 L.Ed. 1610, when he stated:

"It is difficult to conceive of a situation in a federal criminal case today where that remedy coram nobis would be necessary or appropriate."

Defendants not only have a plain and adequate remedy under Rule 33 of the Criminal Rules, but have utilized it to the utmost. The important thing is that the defendants have been given a hearing on their motion and all their claims have been considered. So long as they have a remedy in this case, it is really immaterial what it is labelled. Cf. United States v. Derosier, D.C.W.D. Pa.1956, 141 F.Supp. 397, 401.

This brings us to a consideration of the merits of the motion.

A hearing was held in open court for three and one-half days and witnesses were examined under oath and documents received in evidence. Briefs were filed by the defendants before and after the hearing.

The principal complaint of the defendants was that the Government witness Fred Leonard Gardner gave untruthful testimony at the trial when he testified, on cross-examination, to the effect that he had never been in the armed services. It is claimed that he gave false testimony in order to conceal his record of desertion from the army.

No question relating to his military service had been asked of the witness on direct examination.

The specific question asked of Gardner on cross-examination at the trial was negative in form and was answered in the negative as follows:

"Q. You have never been in the armed forces? A. No, Sir." (Trans. p. 896.)

Gardner's explanation of his answer was that he thought that the question propounded to him on cross-examination related to whether he had been in the Armed Forces in World War II. He had not served in that war.

The evidence offered at the hearing on the motion was to the effect that Gardner had voluntarily enlisted in the Army on January 25, 1922, at the age of 15 and served until he was discharged on May 30, 1925. He accomplished this by misstating his date of birth as December 13, 1903, instead of the true date of birth which was July 13, 1906.

The Army records reveal that Gardner was absent without leave from February 14, 1924, until March 22, 1924. He was tried by court martial and sentenced to be confined at hard labor for two months and to forfeit $20 a month salary for said period. The Army records further disclose that his character was excellent.

Gardner reenlisted in the Army on January 21, 1926 and was assigned to a school at Fort Riley, Kansas. The records reflect that he deserted on May 11, 1926 and never returned, but that he is not now wanted as a deserter.

Gardner testified at the hearing that he had registered for the draft in World War II and had filed a questionnaire with his Local Selective Service Board; that he was employed at that time by the United Electrical Radio and Machine Workers of America, hereinafter referred to as U. E. He had served the Union as organizer, business representative and international representative.

He testified that U. E. handled his case before the Local Board and filed with the Board the necessary papers to establish that his work for the Union was essential to the war effort and resulted in his deferment.

Gardner further testified that in 1944 he consulted with ...