The opinion of the court was delivered by: MARSH
The petitioners, Roland Ernest Derosier and Alexander Yorkey Kreffka, were found guilty by a jury on November 12, 1954 of 'transporting a stolen motor vehicle in interstate commerce' 18 U.S.C. § 2312. On December 9, 1954 they were duly sentenced. The evidence in support of the conviction was convincing; the defense submitted at best would strain credulity.
Beginning on January 3, 1955, and thereafter, the petitioners presented various motions to this court for relief from their conviction and sentence. Inter alia, they averred as follows:
'(1) That the prosecution permitted admission of incompetent evidence. Said evidence in turn was prejudicial to the defendants. (2) That said evidence was never substantiated by the prosecution as to the actual existence of said evidence. (3) That said evidence was false evidence and statements made with the expressed intentions of influencing the courts and juries Judgment. * * * (10) The defendants, have new evidence further showing that the aforesaid verdicts were rendered contrary to facts as said in assignment, 9.'
These general statements were followed by a paper called 'Motion to Amend Motion For New Trial'. That document requested that 1, 2 and 3 of the above quoted 'Assignments' of said motion and others be stricken and a number of new 'assignments' substituted including:
'(4) That the new evidence that the defendants now hold are material evidence. (5) That the aforesaid evidence in turn will show enclusively that, the defendants were framed by the law authorities in this case. (6) That they can fully show proof of false testimony of a Government witness by legal Court documents. (7) That the aforesaid false testimony will show wilful and corrupt perjury by the aforesaid Government witness. (Section 1001 of the Criminal Code). (8) That the defendants verdict of guilty was the results of perjured testimony and suppressed evidence by the defense counsel. Achoa v. United States, (C.C.A.Calif, 1948). (9) That all the aforesaid assignments deprived the defendants of a fair trial.'
Believing that these averments were not sufficient to warrant a hearing, the court dismissed the application. Upon appeal, the judgment was vacated and a hearing ordered. 3 Cir., 229 F.2d 599. Accordingly, a writ of habeas corpus was issued to the Warden of the United States Penitentiary at Atlanta, Georgia, to produce the petitioners for hearing on March 21, 1956. Counsel was appointed to represent petitioners. On March 21st, the hearing was continued to give counsel opportunity to consult with petitioners and prepare their case, and another hearing was fixed for and held on April 9, 1956.
In his defense at the criminal trial, Kreffka denied the accusation of knowingly transporting a stolen motor vehicle in interstate commerce. He also testified that he had been twice charged with armed robbery: first, in 1937 in Columbus, Ohio where he was sentenced to the Ohio State Penitentiary, and, second, in 1945 in Worcester, Massachusetts where he was sentenced. He denied ever being on the witness stand before and said, 'Well, whenever I was guilty I pleaded guilty. I am not guilty, I don't plead nothing.' On cross-examination he admitted he did not plead guilty in Worcester but was found guilty by a jury. He said, 'I didn't plead guilty, but I never took the stand.' In rebuttal, Lieutenant Daley of the Worcester Police Department was called. He testified that Kreffka and two accomplices were tried in Worcester County in September of 1945; that he attended the trial and that Kreffka took the witness stand and testified.
Following this testimony, outside the courtroom and in the presence of the Assistant United States Attorney, petitioner sharply challenged Daley and accused him of perjury. This alleged perjury, and the accusation thereof in the presence of the Assistant United States Attorney, is the basis of petitioners' assertion that their constitutional rights have been violated and that they are entitled to a new trial.
At the hearing on the petition, Kreffka testified that he is certain he did not take the stand at his trial in Worcester, Massachusetts, because he later filed a motion for a new trial alleging, inter alia, that he was deprived of the right to take the witness stand to testify in his own behalf; that his mother did not testify that he had been a convict in the Ohio State Penitentiary or had been a champion boxer in that institution; and that a communication he received from the Clerk of the Worcester County Courts advises that the name of Kreffka or Kriff was not included in the list of witnesses who testified. The list of witnesses referred to was not introduced into evidence.
He desires compulsory process to call as witnesses the Clerk of Courts and those persons, in addition to the Clerk, who have indicated that they remember that Kreffka did not take the witness stand, and also those persons who recall he did take the stand after talking to Lieutenant Daley. Of the latter group is one John J. Siarkiewicz, Esq., counsel for a co-defendant at the Massachusetts trial, who has advised in a letter to Kreffka's present counsel that according to his recollection all three defendants took the stand and testified in their defense; that he has no records, but that he contacted Lieutenant Daley who told him that it was also his recollection that they all testified. A letter from John L. Bianchi, Esq. who represented Kreffka at the Massachusetts trial, was introduced into evidence, This letter to petitioners' present counsel was to the effect that he (Bianchi) did not remember whether Kreffka took the stand or not. Kreffka testified that no reporter was present at the trial.
Petitioners admit that they have no evidence and do not contend that the prosecution used this alleged perjured testimony knowingly. It was argued, however, that the assistant United States Attorney who overheard Kreffka challenge Daley in the hall after the trial should have checked immediately with the authorities in Worcester and discovered that Daley had perjured himself. But we think that the absence of Kreffka's name on the list of witnesses who took the stand at his trial in 1945 does not necessarily prove that Daley perjured himself. Indeed, the indications are that if that disputed issue were tried now, there would be considerable conflicting testimony and doubt would be cast upon the accuracy of that list. Recollections are now dim and only Kreffka and Daley claim to have good present recollections, and they are completely at variance.
Even if we assume that the testimony of Lieutenant Daley was perjured, false or mistaken, the petitioners are not entitled to a new trial under 28 U.S.C.A. § 2255. Taylor v. United States, 8 Cir., 1956, 229 F.2d 826, 831. As was there said:
'Perjured testimony, standing alone, is not sufficient to present any issue to this Court under Section 2255, Title 28, U.S.C.'
It is clearly established that the petitioners must to more to void their conviction than to show the conviction was secured by perjured testimony. They must also show that the prosecution used such testimony knowingly and willfully to secure the conviction. Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791; United States v. Rutkin, 3 Cir., 1954, 212 F.2d 641; Cobb v. as well as a motion under 28 U.S.C.A. Ryles v. United States, 10 Cir., 1952, 198 F.2d 199. The petitioners ...