The opinion of the court was delivered by: AUGELLI
This is a forma pauperis application filed pursuant to 28 U.S.C. § 2255 to vacate the judgment of conviction and sentence imposed upon petitioner on November 10, 1966, in Criminal Action No. 120-66.
Petitioner's first trial, before Judge Coolahan, commenced on June 28, 1966, but ended in a jury disagreement. The second trial, presided over by Judge Wortendyke, resulted in a jury verdict of guilty on all three counts of the indictment, following which Judge Wortendyke sentenced petitioner to the term he is now serving. On appeal, the conviction was affirmed. United States v. Boone, 401 F.2d 659 (3 Cir. 1968). Thereafter, petitioner applied to Judge Wortendyke for a vacation of his sentence and for other relief. The application was denied, except for correction of the sentence imposed upon petitioner to reflect the merger of the offenses alleged in Counts I and II of the indictment with the more aggravated offense charged in Count III. See opinion and order filed September 18, 1969, in Artis Jackson v. United States of America, Civil Action No. 785-69. This was followed by the present 2255 application, which was accompanied by petitioner's affidavit charging Judge Wortendyke with "personal bias or prejudice", and requesting that the Judge disqualify himself from hearing the matter. Thereupon, Judge Wortendyke voluntarily disqualified himself, and the entire file in this case was transferred to the writer of this memorandum for review and determination of the issues raised by petitioner.
In support of his charges of personal bias or prejudice, petitioner alleges that Judge Wortendyke showed such "deep prejudice" against petitioner during the course of the trial as to deprive him of a fair trial; that the Judge permitted evidence to be used against petitioner that was known to be false by the prosecution; and that the Judge denied petitioner a fair trial and equal justice because he was a "poor negro". This Court has made a painstaking examination of the complete record in this case and finds absolutely no basis in fact to justify, even remotely, the charges levelled against Judge Wortendyke. Consideration will now be given to the grounds asserted by petitioner for relief under 28 U.S.C. § 2255.
Petitioner claims to be entitled to a hearing on his 2255 application, and in connection therewith requests that counsel be assigned to him and witnesses subpoenaed to testify in his behalf. Petitioner alleges that such a hearing will establish a violation of his constitutional rights and result in the grant of a new trial or his release from custody. The particulars in which petitioner's constitutional rights have been violated, are said to be the following:
1. petitioner's arrest was effected without a warrant or probable cause;
2. the prosecution knowingly used perjured testimony to obtain petitioner's conviction;
3. out-of-court photographic identification of petitioner, in the absence of counsel, violated his right to counsel under the Sixth Amendment; and
4. petitioner was given a harsher sentence than his codefendants because he would not waive his Fifth Amendment right to a jury trial.
Petitioner's claim that he is entitled to relief because he was arrested without a warrant or probable cause, is without merit. There was more than a sufficient showing of probable cause to justify the arrest without a warrant. Petitioner was arrested on the basis of information supplied by his codefendants. They informed the arresting officers that petitioner participated in the bank robbery with them. Moreover, even assuming that the arrest was illegal, it does not appear from the record that the arrest in any way affected the fairness of petitioner's trial and subsequent conviction. No confession by petitioner or other evidence emanating from him during any alleged period of unlawful detention found its way into the trial. The arrest was not related to an illegal search and seizure such as in the case of Kaufman v. United States, 394 U.S. 217, 89 S. Ct. 1068, 22 L. Ed. 2d 227 (1969). There is only the bare allegation of an illegal arrest. Such an arrest, without more, does not void a conviction and is not grounds for a collateral attack under 28 U.S.C. § 2255. Moreland v. United States, 347 F.2d 376 (10 Cir. 1965); Hayes v. United States, 419 F.2d 1364 (10 Cir. 1969).
Petitioner's second ground, that his conviction was obtained by the use of perjured testimony, is likewise without merit. The charge here is that the bank employee, Gabriel Bergamo, and petitioner's codefendants, Howard and Loffa, committed perjury when they testified at petitioner's trial; that this was known to the prosecution; and that such perjured testimony was deliberately used to aid in obtaining petitioner's conviction. In order to prevail on this ground, the burden is on petitioner to show that the witnesses' testimony was, in fact, perjured; that the perjured testimony was material to the conviction; and that the prosecution either participated in or had knowledge of the perjury. United States v. Spadafora, 200 F.2d 140 (7 Cir. 1952); Dansby v. United States, 291 F. Supp. 790 (S.D.N.Y. 1968). There can be no quarrel with the proposition that the knowing use of perjured testimony by the prosecution violates due process of law. Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935).
A careful reading of the record discloses nothing more than minor and inconsequential variations in the testimony given by the witness Bergamo in the first and second trials of petitioner. It is alleged that Bergamo perjured himself at the second trial when he testified as to the manner in which the robbery was carried out and his ability to view the robbers. The variations dealt with minutiae and not substance. Petitioner stresses the fact that at the first trial, Bergamo testified that his view of petitioner lasted only 1 1/2 seconds, whereas, at the second trial, Bergamo said it was of longer duration, to wit, 1 1/2 minutes. Bergamo was extensively and thoroughly cross-examined by petitioner's counsel concerning this and other minor differences between his testimony at the first and second trials. The weight to be given to Bergamo's testimony was for the jury to decide. By no stretch of the imagination can it be said that such inconsistencies as did appear in Bergamo's testimony were even remotely indicative of perjury, or, a fortiori, that the prosecution made knowing use of "perjured" testimony. See Chapman v. United States, 408 F.2d 11 (2 Cir. 1969).
As to Howard and Loffa, who implicated petitioner in the crime, the broad allegation is made that they perjured themselves in return for a promise of leniency by the prosecution. Indicative of this, claims petitioner, is the fact that both men were permitted to tender guilty pleas to only Count I of the indictment, which pleas were accepted by the Court, and that subsequently Counts II and III were dismissed on motion of the Government as to each codefendant.
In the case of Howard, much stress is laid on a letter dated July 29, 1966, sent by Mr. Baime, the Assistant United States Attorney who conducted the first trial against petitioner, to Judge Coolahan, who presided at that trial. A copy of that letter was mailed to Howard by Mr. Baime. The letter calls attention to the fact that Howard was one of the defendants who had originally agreed to testify for the Government at petitioner's first trial, but that he later "reneged on his promise." The letter goes on to say that the Government intended to allow Howard to retract his former plea of guilty to Count I of the indictment and to try Howard on all three counts. At petitioner's second trial, before Judge Wortendyke, which was conducted by another Assistant United States Attorney, Howard did testify for the Government and implicated petitioner in the bank robbery. Petitioner argues that Howard's testimony at the second trial, when viewed in light of the letter of July 29, 1966, is tantamount to an admission by Howard that he would "sell his testimony to the prosecution" in exchange for a deal whereby he would escape the consequences of the offenses charged against him in Counts II and III of the indictment.
Despite vigorous efforts made by defense counsel to show the existence of a "deal", Howard just as vigorously denied any promises were made to him, such that if he entered a plea of guilty to Count I of the indictment and testified against petitioner, the other counts would be dismissed. Moreover, Howard denied that his decision to testify for the Government was in any way related to the letter of July 29, 1966, or that he made up his mind to do so only after he received a copy of said letter. A perusal of Howard's testimony makes it clear that he refused to testify for the Government at petitioner's first trial because he "wanted a deal" and that since the prosecution did not promise him anything, he refused to testify and "reneged on the stand." What eventually motivated Howard to testify against petitioner is the fact that he received only $7500.00 as his share of the money stolen from the bank, instead of $15,000.00. As stated by Howard:
"Had Mr. Jackson [petitioner] been man enough -- to give me the balance of my money to my mother or to my common law wife for my children, I would definitely not be here today. This is my reason for being here. There is no deal with the Government, no promises, no ...