Opinion
No. 323, Docket 26710.
Argued March 24, 1961.
Decided April 13, 1961.
Frances Kahn, New York City, for appellant.
Winthrop J. Allegaert, Asst. U.S. Atty., New York City (Morton S. Robson, U.S. Atty. for Southern District of New York, Kevin Thomas Duffy, Asst. U.S. Atty., New York City, on the brief), for appellee.
Before MOORE, FRIENDLY and SMITH, Circuit Judges.
Defendant, convicted of violation of Federal narcotics laws, moved to vacate the judgment (28 U.S.C.A. § 2255). From a denial of the motion, defendant appeals. The burden of defendant's argument is that a government witness testified falsely that no promises had been made by the government in return for his testimony; that such perjurious testimony, elicited by the prosecutor, was known by him to be false, and that despite such knowledge the prosecutor permitted it to stand uncorrected.
The trial judge who had heard the case without a jury, although entertaining doubts as to the sufficiency of the Section 2255 petition, "in view of the serious nature of the charges" and "in the interest of the administration of justice and the full protection of petitioner's rights" granted a hearing at which all persons who might shed light on the factual issues testified.
The court concluded that the witness "did not give false or perjurious testimony upon the trial" and that "there is no substance to the serious accusation made against the trial assistant that he knowingly permitted false testimony to be given and to go by unchallenged." The court's finding that there was "not a scintilla of evidence" in support of such a charge is completely justified by the record.
The order denying the motion is affirmed.