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.
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.
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.
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:
(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 ...