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July 15, 1949


The opinion of the court was delivered by: FOLLMER

James Edgar Lowrey was convicted in this Court of violating the National Motor Vehicle Theft Act, 18 U.S.C.A. § 408 (now Secs. 2311-2313), and his motion for a new trial was denied. 77 F.Supp. 301. He appealed and indicated in his appeal that he had after discovered evidence. The decision of this Court was affirmed by the Court of Appeals. *fn1" In its opinion of affirmance the Court suggested the defendant be afforded an opportunity to address a motion to this Court for leave to produce said after discovered evidence pursuant to Rule 33 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. *fn2"

The matter is now before the Court on motion and supplemental motion to vacate judgment (pursuant to 28 U.S.C.A. § 2255) or grant a new trial (pursuant to Rule 33 of the Federal Rules of Criminal Procedure).

 Petitioner predicated his claim for vacation of his judgment of conviction on a great variety of reasons, most of which are moot because of the affirmance by the Court of Appeals of the decision of this Court in refusing defendant's motion for a new trial. He does allege however:

 (1) Counsel appointed by the Court to represent him did not have time to adequately prepare for trial.

 (2) That he, the defendant, was incompetent to waive his right to a postponement of his trial because he was not informed by the Court or his counsel of his right to such postponement.

 (3) Court erred in not excluding confession which had been obtained by circumstances amounting to duress.

 (4) Court erred in not calling to the attention of the jury the contradiction in the testimony of Government witnesses Bronzie and Hehr, the former stating that the license number of the subject automobile was 1X29Z, while the latter gave the number as 1X29Y.

 (5) Double jeopardy.

 In the opinion of this Court, 77 F.Supp. 301, denying defendant's motion for a new trial, the Court specifically passed, inter alia, upon the following grounds on which defendant predicated the first motion above referred to:

 (1) Double jeopardy.

 (2) Did not have counsel of his own choosing.

 (3) Counsel did not have time to prepare case.

 (4) Government witnesses were prejudiced and gave false testimony.

 As above stated, the views of this Court on the matters above referred to were affirmed by the Court of Appeals and need no further elaboration here.

  As to the competency of counsel and his state of preparation, a further word might be added. On the hearing of that motion there was introduced in evidence, with the consent of the defendant and his attorney, and with the same force and effect as though he were personally present and testifying, affidavit of Gerald J. Webber, Esq., the attorney who represented defendant in his trial at Erie. The colloquy between the Court and the defendant, together with the affidavit, appear in a footnote hereto. *fn3" Furthermore, there is no merit to his contention relative to the discrepancy of the testimony concerning the license plates of the automobile. The car was properly identified and the jury so found.

 The opinion of this Court above referred to probably contains the best answers to defendant's complaint that he was not advised by the Court or his counsel of his right to a postponement. Prior to the calling of the case for trial at Erie, defendant was granted at least three continuances for various reasons, i.e., no counsel, at request of counsel, and in connection with the transfer from West Virginia to Pennsylvania. As indicated in the former opinion, before arraignment, upon inquiry by the Court, he indicated his satisfaction with his appointed counsel and made no request for continuance or for the production of witnesses. From his own wealth of experience gained in this very case he must have known without advice from his counsel or the Court, that for good and sufficient reason a continuance would have been granted. It seems to be the prerogative of an unsuccessful litigant in retrospect to point to acts of commission or omission on the part of his attorney that caused or contributed to the loss of his case. It is a criticism which the attorney, whether justified or not, is supposed to take and like. The comment of the Court in United States ex rel. Mitchell v. Thompson, D.C.S.D.N.Y., 56 F.Supp. 683, at page 688, is apropos, ' * * * Unquestionably, now that the record is made, able counsel can go over every question and perhaps frame a better one, may assign better reasons for objections taken, may suggest avenues of cross-examination which did not occur to him who actually faced the court and jury. So, too, military strategists go over the movements of lost battles and demonstrate how it might have been won. The short answer to this line of argument is that the constitution does not guarantee the assistance of the most brilliant counsel.' I personally heard counsel try this case and it is my considered opinion that he handled the assignment conscientiously and ably.

 As to the confession: When Kennedy, the former Agent of the Federal Bureau of Investigation, was produced as a witness, counsel for defendant was asked by the Court if he desired to interrogate the witness relative to nature of witness' interview with defendant, the latter's confession, and whether or not the procedure was free of duress. He replied that he did so desire and accordingly questioned the witness at length, after which he withdrew the objection which he had interposed to this line of testimony.

 The proceedings under 28 U.S.C.A. § 2255, being taken in the sentencing court in lieu of a writ of habeas corpus, the general principles applicable to habeas corpus apply. Consequently, the contention that the confession was secured under circumstances rendering it inadmissible presents a question of admissibility of evidence which was an appropriate matter for an appeal, and hence not subject to review by habeas corpus. *fn4" Nevertheless, I am constrained to make this observation. The jury apparently believed, and I believe, that the defendant freely and voluntarily made his statement to the Agent within twenty-four hours after he was placed in confinement by the State officers and prior to the adoption of the case by the Federal authorities; and furthermore, that defendant's chief concern at that time was to exculpate his brother and sister-in-law of any participation in the alleged offense and to assume full responsibility therefor himself.

 At the inception of the hearing on the motions presently under consideration, counsel for defendant made this statement to the Court 'The newly discovered evidence consists of a letter written to me by an inmate- present inmate of the Lewisburg Penitentiary. The name of this inmate is Peter R. Grinage * * * '. *fn5" The letter *fn6" was filed with the Clerk of the Court on that day and became part of the files of the case. The Court then indicated that arrangements would immediately be made at the Penitentiary for counsel to interview Grinage and to secure his deposition or sworn statement and for that purpose continue the case. Counsel for defendant went in person to the Penitentiary and secured from him his sworn statement *fn7" in question and answer form as prepared and propounded by counsel for defendant. The Grinage statement discloses no new material. He states that he told defendant the substance of his conversation with Thomas Lowrey, Jr., brother of defendant, in 1946, long before the trial of his case at Erie. Secondly, the burden of his statement is in connection with his own experience as a defendant awaiting trial in the United States District Court for the District of West Virginia. The time element indicated in the statement, together with its entire content, having particularly in mind the fact that the same was taken on questions propounded in person by counsel for defendant, are not in any sense of the word after discovered evidence. Furthermore, even if it were, in view of the fact that this same Thomas Lowrey, Jr., was produced as a Government witness at the Erie trial, where he was subjected to cross-examination by counsel for defendant in the presence of defendant, renders any reference to him in the statement completely valueless.

  As I have indicated before, it is my opinion that this defendant had a fair trial and nothing has been produced in the nature of newly discovered evidence which would in any wise change the result.

 Motion to vacate judgment in lieu of Writ of Habeas Corpus pursuant to 28 U.S.C.A. § 2255 is denied.

 Motion for new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure is denied.

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