Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 72-C-2525 EDWIN A. ROBSON, Judge.
Cummings, Pell and Stevens, Circuit Judges.
This appeal is from the denial of petitioner's motion under 28 U.S.C. § 2255 claiming that his conviction for armed robbery of the Citizens Savings and Loan Association ("Citizens") in Chicago was based upon false testimony of Joseph Archie resulting from a deal between him and the prosecutor.
After having been sentenced to 25 years for armed robbery, petitioner appealed to this Court. We affirmed the conviction. United States v. Teague, 445 F.2d 114 (7th Cir. 1971). Our opinion noted that four employees of Citizens had identified petitioner as the person who held them at gunpoint while ordering the president of the association to hand over currency from the tellers' desk drawers. As we noted, those witnesses first gave the Federal Bureau of Investigation descriptions of the robber's weight and age which differ from those of the petitioner. However, in trial testimony, each witness was positive that petitioner was the robber.
As to Joseph Archie, our opinion stated:
"The defendant was also identified by Joseph Archie, who was in the process of opening up a checking account under a false name when the robber entered the building. He testified that he had observed Teague point a shotgun at a teller. Archie stated that he was directed by Teague to place the money in a briefcase. After the money was collected, Teague ordered all persons in the area into a back room." (445 F.2d at 117)
This is the entire discussion of Archie's testimony in our prior opinion which emphasized the testimony of the four employees of the association. Thus we stated:
"The positive and undisputed identification of the defendant by the employees of Citizens, who were eyewitnesses to the robbery, constitutes sufficient evidence to sustain the jury's verdict of guilty beyond a reasonable doubt. * * * his guilt was more than adequately proved by the employees who observed the defendant committing the robbery." (445 F.2d at 118)
In his Section 2255 motion, petitioner claimed under oath that in the course of his trial the Government failed to inform the jury that a deal or promise for leniency had been made to Joseph Archie, described "as a key witness." Petitioner asserted that the prosecutor knowingly permitted Archie to perjure himself and knowingly suppressed evidence regarding Archie's character, criminal convictions and charges against him.
According to petitioner's affidavit attached to his motion, Archie perjured himself when he testified at petitioner's trial that he was not then under federal arrest nor accused of any federal offense, that the prosecutor had not offered him leniency for his testimony, and that he had been convicted of only two felonies (burglary in 1961 and strongarm robbery in 1963). Actually, according to this affidavit, Archie had been a federal prisoner under charges involving 18 U.S.C. §§ 1708 and 2114 since the day before his appearance as a government witness at petitioner's trial. Archie allegedly was granted leniency upon conviction for said federal offenses and was also granted leniency in an unrelated state felony case through the intervention of the federal prosecutor and his superior. In addition to the two felonies about which he testified, Archie was allegedly also convicted of a 1958 armed robbery, a February 1961 burglary and three armed robberies in March 1964.
In support of these sworn allegations, petitioner attached several exhibits to his motion. One such exhibit was a transcript of parts of Archie's testimony, showing that he gave the answers alleged. Another exhibit was the record of proceedings before the United States Commissioner, showing that on June 17, the same day he testified against petitioner, a criminal complaint was filed charging Archie with assaulting a postal employee in violation of 18 U.S.C. § 2114. The exhibit also showed that Archie appeared before the Commissioner the same day and waived hearing after being advised of the complaint and of his rights. The complaint was superceded by an indictment one month later, which added a count of possessing a check stolen from the mails in violation of 18 U.S.C. § 1708. A final judgment order was also attached to the motion, showing that Archie pled guilty to the postal offenses and was sentenced on Count I to two years under 18 U.S.C. § 4208(a) (2) with recommendation that he be sent to a medical center rather than a prison, and that he be given "early parole by use of the Halfway House in Chicago." Sentence on Count II was suspended and five years' probation was imposed. The possible maximum was five years on Count I and ten years on Count II.
Another exhibit was a transcript of a hearing in Archie's prosecution for forgery on November 7, 1969, in the Circuit Court of Cook County. In argument on a motion to dismiss for excessive pre-trial delay, Archie's counsel and the Assistant State's Attorney both represented that Archie had been arrested by state officers and delivered into federal custody on June 16, 1969, the day before he testified against petitioner. After the motion to dismiss was denied and a finding of guilty entered, the Assistant State's Attorney informed the court of Archie's criminal record, mentioning at least five felonies which predated petitioner's trial.
The Assistant State's Attorney observed in mitigation that he had been in contact with petitioner's federal prosecutor. The federal prosecutor had advised the Assistant State's Attorney that "Mr. Joseph Archie was the key witness in a bank robbery case [against petitioner] * * * and his ...