The opinion of the court was delivered by: LEVET
This is a motion for a writ of error coram nobis by the above-named defendant, Simon Bloom, to secure an order vacating a judgment of conviction signed on December 14, 1945, whereby he was sentenced to serve a year and a day in jail.
The facts are as follows:
The defendant was indicted on May 14, 1942, under twelve counts, charging the sale of narcotics in violation of Title 26 U.S.C.A. § 2554. He pleaded not guilty on June 10, 1942. The trial was delayed at the request of the defendant because of illness; it commenced on October 29, 1945, and on November 2, 1945, the jury returned a verdict of guilty on counts 9, 11 and 12 of the indictment. Sentence was on December 14, 1945.
A motion to set aside the verdict of guilty was denied on December 14, 1945. A notice of appeal was filed on December 18, 1945, but the defendant subsequently elected to serve his sentence; the appeal was not prosecuted and it was dismissed in 1950.
Subsequently, other motions were made by the defendant to set aside the verdict. On April 28, 1947, one such motion was denied by Judge Bondy of this Court. A motion for reargument of this motion was denied by Judge Bondy on May 14, 1947. A motion to reargue the motion denied on December 14, 1945, as well as the two motions decided by Judge Bondy were also denied.
On May 19, 1947, the defendant filed a notice of appeal from the denial of his 1945 motion by the Trial Court, Judge Moore, and from the denial of motions by Judge Bondy. The opinion of the Court of Appeals is printed at 2 Cir., 164 F.2d 556. The Court, although the appeal from the 1945 motion was untimely, affirmed the denial of the 1947 motions on the ground that they likewise were untimely, examined the merits and ruled that there was no merit in the applications. Certiorari was denied by the United States Supreme Court in 333 U.S. 857, 68 S. Ct. 726, 92 L. Ed. 1137.
On August 22, 1949, the defendant again moved for similar relief, which motion was denied by Judge Clancy on August 29, 1949. An appeal was taken but subsequently dismissed. Again, on April 9, 1952, the defendant moved in the Circuit Court of Appeals for relief, which was denied.
It would appear, therefore, that the defendant has certainly had his day in court.
Apparently, the alleged bases of this application are:
(1) Alleged errors in the Judge's charge to the jury and alleged misinterpretation of the penal sections involved; in other words, errors of law; and
(2) A contention that the defendant was represented inadequately by counsel.
As to the first basis of this application, it would appear that it is elementary that a motion in the nature of an application for a writ of error coram nobis cannot be availed of in lieu of a writ of error or appeal to correct errors committed in the course of a trial, even though such errors relate to constitutional rights. It is only when there has been a denial of the substance of a fair trial that the validity of the proceedings may be thus collaterally attacked or questioned by motions in the nature of a petition for a writ of error coram nobis. United States v. Walker, 2 Cir., 1952, 197 F.2d 287; Howell v. United States, 4 Cir., 1949, 172 F.2d 213.
The Court of Appeals of the State of New York has also clearly indicated that a defendant may not by coram nobis attack a judgment of conviction where the asserted error could have been reviewed by appeal. People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188, certiorari denied 338 U.S. 952, 70 S. Ct. 483, 94 L. Ed. 587; People v. Kendricks, 300 N.Y. 544, 89 N.E.2d 257. In the Kendricks case, the defendant sought by writ of error coram nobis to vacate a judgment rendered upon a verdict convicting him of three crimes of feloniously selling narcotic drugs. The defendant asserted that his right of confrontation by witnesses and due process of law under the State and Federal Constitutions had been violated by the Court's failure to have an informer produced. The Trial Court denied the application, saying that since the alleged violation of constitutional rights could have been reviewed upon an appeal by the defendant from the judgment of conviction, an application in the nature of a writ of error coram nobis was not available. The Court of Appeals affirmed upon the same ground, citing People v. Sadness, 300 N.Y. 69, 89 N.E.2d 188.
In any event, it does not appear that alleged errors of law exist. See Jin Fuey Moy v. United States, 254 U.S. 189, 41 S. Ct. 98, 65 L. Ed. 214; United States v. Bloom, 2 Cir., 1947, 164 F.2d 556; United States v. Lindenfeld, 2 Cir., 1944, 142 F.2d 829, certiorari denied 323 U.S. 761, 65 S. Ct. 89, 89 L. Ed. 609; United States v. Abdallah, 2 ...