Kiley, Swygert and Cummings, Circuit Judges.
This is an appeal from an order denying the petitioners' motions under 28 U.S.C. § 2255 to vacate the convictions and sentences under which they are serving. Petitioners' motions alleged unlawful imprisonment arising from the use of perjury at their separate trials. Both petitioners further alleged that their convictions were the product of the knowing use of perjury by Government agents and an assistant United States Attorney.
The petitioners contended and the Government agreed that the relevant facts are contained in the official transcripts of evidence submitted at the two trials, and accordingly there was no need for an evidentiary hearing. No hearing was requested by the petitioners in their original motions and consequently none was held.
The district court considered the petitions jointly and dismissed them without hearing. The court ruled that the records showed that the petitioners were entitled to no relief and that careful examination did "not reveal * * * any of the inconsistencies which each of the petitioners would read into the testimony and which each alleges to exist."
Petitioner Harold Moffett was charged in a four-count indictment with the unlawful receipt, concealment, and sale of narcotics on October 13, 1964 and December 18, 1964. At a nonjury trial before District Judge Michael L. Igoe, Moffett was found guilty on all four counts and given concurrent ten-year sentences on each count.
Petitioner William Anderson was charged in a four-count indictment with the unlawful sale, concealment, and transportation of narcotics on December 17, 1964 and January 11, 1965. At a jury trial, held three weeks after the Moffett proceedings, before District Judge Joseph Sam Perry, Anderson was convicted on the counts relating to the January transaction, but acquitted on the counts relating to the December charge. Concurrent sentences of fifteen years for the convictions arising from the two January counts were imposed on Anderson.
Both defendants appealed their convictions and both convictions were affirmed by this court. United States v. Moffett, No. 15509 (7th Cir. 1966); United States v. Anderson, 362 F.2d 81 (7th Cir. 1966).
The evidentiary transcripts of the individual trials reveal the following sequence of events during the night in question, December 17-18, 1964. About 5 p.m., on December 17, Federal narcotics agents Tucker, Hill, and Pringle met an informant, Pendleton, at 45th and the Dan Ryan Expressway in Chicago. They drove together to the Grand Prix Tavern at 35th and Indiana. Between 5:30 and 6 p.m. agents Pringle and Hill maintained a watch from their car outside while agent Tucker and the informant went into the Grand Prix where they met defendant Moffett. After talking with Moffett, Tucker and Pendleton stayed at the Grand Prix about ten minutes and then walked one-quarter block down the street to the Subway Lounge where Moffett rejoined them about 6:10 p.m.
A conversation with Moffett, during which agent Tucker gave him money for heroin, took place at the Subway Lounge between 6:10 and 6:20 p.m. Moffett promised Tucker and Pendleton that he would return to the Subway Lounge about 8 p.m. to conclude the narcotics deal. Tucker testified that from inside the Subway Lounge he watched Moffett leave the Lounge at 6:20 p.m. Agents Hill and Pringle also watched Moffett leave the Lounge and followed him by car to a point about three and one-half miles from the Subway where they lost his car in heavy traffic.
While Hill and Pringle pursued Moffett, agent Tucker and the informant were meeting with Anderson at the Grand Prix. Agent Tucker testified that sometime during the twenty or thirty minutes before 6:30 p.m. he discussed the purchase of narcotics with Anderson and that at 6:30 p.m. Anderson left the Grand Prix. About 7:45 p.m. a phone call from Anderson to the informant was monitored by Tucker at the Grand Prix. Tucker and the informant left the Grand Prix and drove a short distance to a parking lot where Tucker saw Anderson stoop down, pick up a small package from the ground and deliver it to the informant. At 7:55 p.m. the informant consummated the purchase from Anderson. The informant and Tucker proceeded about ten blocks to a point where a test was made which established the package's contents as narcotics.
Testimony in the Moffett trial next places the informant and agent Tucker back at the Subway Lounge between 8 and 8:30 p.m. where they waited until 2:30 a.m. on December 18th when they made a narcotics purchase from Moffett.
Although Anderson was acquitted on the charges covering the December 17th transaction, in this proceeding he claims that his sentence and conviction are the product of Government perjury in regard to that transaction. Likewise, Moffett complains that because the testimony relating to the events of December 17th and 18th was perjured, he was convicted on two counts of the indictment relating to the sale and possession of narcotics on December 18, 1964. However, Moffett was also convicted on two counts covering possession and sale of narcotics for a wholly unrelated transaction which occurred on October 13, 1964. Therefore, it is hard to imagine what petitioners could possibly gain if successful in this appeal since they still would stand convicted of the offenses which were unrelated to the December 17-18 events.
Nonetheless, petitioners attempt to avoid this observation by claiming that if the trier of facts in each case had been aware of the alleged perjury of the agents covering the December 17th and 18th events, then the respective triers of fact would have been highly unlikely to find the petitioners guilty as to the occurrences on the other dates. In other words, the petitioners contend that the alleged perjury so pervaded the entire proceedings that all the convictions are tainted. Since, as we will indicate below, these perjury allegations are unsupported by the record, we need not consider this argument advanced by the petitioners.
The law applicable to the knowing use of perjury at trial is settled. A criminal conviction procured by the use of testimony known by the prosecuting authorities to be perjured and knowingly used by them in order to procure a conviction does not comport with due process of law and is violative of a defendant's constitutional rights. Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340, 79 L. Ed. 791 (1935); Hysler v. State of Florida, 315 U.S. 411, 62 S. Ct. 688, 86 L. Ed. 932 (1942); United States v. Spadafora, 200 F.2d 140 (7th Cir. 1952). The knowing use by the Government of perjured testimony in order to obtain a conviction would, if proved, be grounds under section 2255 for vacation of a conviction under circumstances such as exist here where the petitioners assert that they were unaware of the alleged perjury both at the time of the trial and the appeals. A defendant has the ...