Before DUFFY, CASTLE and MAJOR, Circuit Judges.
Arnold George Lauer, petitioner-appellant, was convicted of unlawful sales of narcotics in violation of 26 U.S.C.A. § 4705(a). The indictment was in two counts, each of which related to a different sale. Appellant was found guilty by a jury on both counts and was sentenced for a period of 7 1/2 years on Count I, together with a fine of $3000.00, and for a concurrent 7 1/2 year term on Count II. The convictions were affirmed by this Court in United States v. Lauer, 7 Cir., 287 F.2d 633, cert. den., 368 U.S. 818, 82 S. Ct. 34, 7 L. Ed. 2d 24.
Thereafter, on October 31, 1962, the District Court denied a motion filed by appellant to vacate and set aside the sentences pursuant to 28 U.S.C.A. § 2255. This appeal is from the order denying such motion. The motion as amended asserts the insufficiency of the indictment to charge an offense because of the failure of each of the counts to set forth the name of the person to whom the alleged unlawful sale of narcotics was made. It also asserts constitutional infirmity of the convictions because of alleged knowing use of perjured testimony by the prosecution.
Neither of these issues was raised or considered in appellant's previous appeal to this Court (287 F.2d 633).
On June 6, 1963 we filed an opinion in this appeal. The government filed a petition for rehearing. That petition is denied but this modified and enlarged opinion is substituted for the June 6, 1963 opinion which is withdrawn.
We perceive no error in the District Court's denial of appellant's motion for § 2255 relief in so far as such relief was sought on the basis of alleged knowing use of perjured testimony by the prosecution. The broad assertion of appellant's motion that perjured testimony was knowingly used by the Government in obtaining appellant's conviction is not accompanied by the averment of the existence of any fact which supports a conclusion that perjury was committed as to any material evidence. Appellant points to conflicts in trial testimony relating to the circumstances under which, and at whose request, an informer-witness was released from an Indiana county jail, where he was in custody on a narcotics charge, and used to secure evidence against appellant. But the existence of such conflicts or inconsistencies does not of itself support a conclusion of perjury much less the knowing use of perjured testimony. In United States v. Schultz, 7 Cir., 286 F.2d 753, 755, we had occasion to observe in this connection:
"Except for his own unsupported assertions, there is nothing in the record to indicate that perjured or coerced testimony was received at appellant's trial. Appropriate here is the comment of this Court in United States v. Spadafora, 7 Cir., 200 F.2d 140, 143. 'In order to obtain a hearing under Sec. 2255, a petitioner must make a more substantial showing than merely charging perjury and making the unsupported claim that perjured testimony was knowingly used by the prosecuting authorities. Nor does he meet the burden upon him by pointing out trivial inconsistencies or conflicts in the evidence.'"
We turn to consideration of whether the District Court erred in rejecting § 2255 relief sought by appellant on the basis of the asserted insufficiency of the indictment. On this issue the District Court's denial of the appellant's motion was premised on the fact that a motion to dismiss the indictment, which motion included the ground now urged, was overruled prior to appellant's trial, and that by reason of the appeal to this Court (287 F.2d 633) the appellant is now precluded from raising the question in a § 2255 proceeding.
But, as heretofore pointed out, that issue was neither raised nor considered in appellant's appeal of his convictions. It is true that appellant failed to avail himself of the opportunity he had to present this issue on appeal. We are of the opinion, however, that where an indictment fails to charge an offense under any reasonable construction, neglect to present that issue by or on appeal does not preclude its assertion by proper motion under 28 U.S.C.A. § 2255. In connection with whether the sufficiency of an indictment is subject to attack in a § 2255 proceeding this Court has stated the rule to be that an indictment is not open to collateral attack under § 2255 unless it fails to charge an offense under any reasonable construction. United States v. Koptik, 7 Cir., 300 F.2d 19, 22. In United States v. Shelton, 7 Cir., 249 F.2d 871, 874, it was stated:
"On a motion to vacate the sentence under Section 2255, the sufficiency of the indictment cannot be questioned, unless it is so defective on its face as not to charge an offense under any reasonable construction. United States v. Nickerson, 7 Cir., 211 F.2d 909; Walker v. United States, 7 Cir., 218 F.2d 80; Klein v. United States, 7 Cir., 204 F.2d 513."
Failure to prosecute an appeal from an indictment which so fails to charge an offense, or neglect to raise the issue of the validity of such an indictment on an appeal, does not in our opinion preclude relief under § 2255. There can be no waiver of the fundamental requirement that a conviction be based on an indictment or information which charges an offense.
But it is not every defect or imperfection in an indictment which will render it vulnerable to attack under § 2255. As pointed out in Shelton, supra, it must be "so defective on its face as not to charge an offense under any reasonable construction". Thus, the issue presented for our determination here is a narrow one. It is limited to the question of whether it is essential in order to validly charge the offense of an unlawful sale of a narcotic in violation of 26 U.S.C.A. § 4705(a) that the indictment name the purchaser.
In United States v. Simmons, 96 U.S. 360, 24 L. Ed. 819, the defendant was charged in the second count of an indictment with causing and procuring someone else to use a still, boiler and other vessels for the purpose of distilling but the count did not state the name of that person. It was held that the count was ...