UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
November 7, 1949
The opinion of the court was delivered by: MEANEY
This is a motion in the nature of an application for a writ of error coram nobis under section 2255, Title 28 U.S.C.A. to vacate and set aside a judgment of conviction and sentence for sending a communication out of the United States intended for delivery to enemies of the United States, a violation of section 3(c), Title 50 U.S.C.A. Appendix, and for using a code, a violation of section 618 Title 50 U.S.C.A. Appendix. The grounds for this motion in substance are: (1) that the verdict on the second count of the indictment is not supported by the evidence and that this was admitted by the government after sentence; (2) that the person to whom the letters were allegedly transmitted, wife of defendant, was an American citizen and hence not an enemy within the meaning of the statute; (3) that no tangible proof was ever offered that any letter existed or that defendant made any contribution to the context of any letter; (4) that the person to whom the letters were addressed never received them; (5) that the person who allegedly wrote and sent the letters under defendant's direction was never indicted; (6) that defendant's age, original German nationality and the then current war hysteria were used by the prosecution to obtain an illegal conviction; and (7) that the government did not meet the burden of proof.
Some of the matters set forth as grounds to support this motion, enumerated above as (1), (2), (3), and (7), were determined adversely to defendant on appeal, United States v. Krepper, 3 Cir., 1946, 159 F.2d 958, certiorari denied 330 U.S. 824, 67 S. Ct. 865, 91 L. Ed. 1275. The court held that the evidence sustained the conviction, that the term enemy applied to defendant's wife, and that defendant's trial was fair and impartial. Nowhere in the record does it appear that the government admitted any inadequacy of proof. Moreover, motions made under this section may not be used as a means of review as upon appeal. Birtch v. United States, 4 Cir., 1949, 173 F.2d 316. The function of the proceeding is to bring to the attention of the court errors of fact which if known in time would have prevented rendition of the judgment. Ex parte Atkinson, D.C.E.D.S.C. 1949, 84 F.Supp. 300.
The remaining grounds upon which petitioner relies do not suggest errors of fact which if corrected would have prevented a judgment of conviction. The jurisdiction of the court is not attacked: it is not suggested that the sentence was not authorized by law or that there has been a denial of constitutional rights. Under these circumstances the record shows conclusively that the petitioner is entitled to no relief. In view of these findings under the terms of the statute, it will not be necessary to conduct a hearing. Let an order be entered.
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