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November 23, 1955

Benjamin ROCKOWER, Defendant

The opinion of the court was delivered by: BYERS

This defendant filed on February 8, 1955, a petition for an order setting aside the judgment of conviction entered against him in this court on February 1, 1928, and for a hearing in that behalf.

The application is described as being for relief in the nature of a writ of error coram nobis, and has been so dealt with to avoid any technical confusion between that remedy and the office of Tit. 28 U.S.C. 2255.

 The petition was required by the undersigned to be supplemented by an affidavit containing, among other things, a statement admitting or denying in detail the correctness of the defendant's criminal record as set forth in Appendix I to the Government's opposing brief filed February 25, 1955.

 Such an affidavit was filed June 24, 1955 and as to two of the offences so recited, denial is made; also one sentence is said to have been for two years instead of three. Otherwise the defendant's criminal record as a whole is now deemed to have been accurately stated.

 The present application is to be distinguished in the legal sense, from the one discussed in U.S. v. Rockower, 2 Cir., 171 F.2d 423, wherein the denial of an earlier petition was affirmed. Certiorari was denied in 337 U.S. 931, 69 S. Ct. 1484, 93 L. Ed. 1738.

 The instant petition asserts that the possibility of relief in the courts of the State of New York referred to in the opinion last referred to, has been dissipated by later decisions, and that relief by habeas corpus has proved unavailing for reasons stated by Judge Brennan in the District Court for the Northern District of New York. As a result, the pending application was sanctioned by Judge Swan, who induced the defendant's present attorney to act for him, as a public service. Mr. Griffin ably responded to that call to duty, and this court is indebted to him for his performance of a difficult task.

 All procedural problems have been clarified by the latest decisions in U.S. v. Morgan, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 and 2 Cir., 222 F.2d 673. Accordingly a hearing was held in this court on October 13, 18 and November 10, 1955, these dates having been selected by defendant's counsel as convenient to him; the defendant and his counsel were present on these several days.

 The purpose of the hearing was to bring to light all available testimony concerning the events of late January and early February 1928 involving the defendant's arrest, arraignment and plea of guilty.

 Only in reference thereto was anything of substance developed, in addition to the facts discussed in the said opinion reported of our Court of Appeals, supra.

 No one is forbidden to realize that the provision of the Sixth Amendment touching the right of a defendant in a criminal prosecution to have 'the Assistance of Counsel for his defence' was intended to prevent injustice to an accused person; nor that the right can be waived. Johnson v. Zerbst, 304 U.S. 458, at page 465, 58 S. Ct. 1019, 82 L. Ed. 1461.

 At the hearing, the defendant testified in his own behalf, and called Mr. Robert N. Gilmore as a witness. The Government called Mr. Chester L. Cain, retired Post Office Inspector, Mr. James Amadei, now an attorney and formerly assistant secretary of the Brooklyn Bar Association when Henry Rasquin was secretary; the latter gentleman, now deceased, was the United States Commissioner acting at the time of this defendant's arrest, and before whom he was brought for arraignment. Also Mr. Herbert W. Halls, now a U.S. Postal Inspector and in 1928 a confidential employee in the Post Office Inspection Office in Brooklyn. He testified that he was present when this defendant was brought before the Commissioner and remembers what took place; also that he was present in court on February 1, 1928 when the defendant entered his plea of guilty to two counts, of a fourteen count indictment which charged seven different forgeries of money orders and seven different utterings and passings.

 Also Mr. Wilson D. McKerrow, executive director of the Brooklyn Society for the Prevention of Cruelty to Children, and the custodian of its records. He brought those records, and testified in part to their showing, but since the matters so revealed had to do with earlier incidents of the defendant's career, they were of little moment in dealing with this petition.

 The defendant's testimony showed that he was 28 years or thereabouts of age, on February 1, 1928, and briefly recited his family relationships, and boyhood. He was arrested in Syracuse on January 11, 1928, by the Syracuse police, at the request of the Postal authorities in Brooklyn. On the following day he was interviewed in the former city, by Post Office Inspectors William Plath (now deceased) and Chester L. Cain above mentioned.

 While on the train he stated that in response to a suggestion by Plath that he plead guilty, he had said, '* * * Well, I may have to get a lawyer,' thus revealing an awareness of the necessities which would soon confront him -- a 'rather complete legal sophistication' to quote from the ...

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