Before SWAN and MOORE, Circuit Judges, and KAUFMAN, District Judge.
In May 1954 the appellant was convicted upon a jury trial of having made an unlawful sale of heroin to Thomas Stewart, Jr., an agent of the Bureau of Narcotics, on August 18, 1953. He was sentenced as a fifth offender to a term of 15 years which he is now serving in the Leavenworth penitentiary. The only testimony as to the sale was given by Agent Stewart. The defendant set up an alibi defense but the jury did not believe his witnesses. He filed notice of appeal from his conviction but the appeal was dismissed for lack of prosecution.
The present appeal is from an order entered March 10, 1958 by judge Murphy, the trial judge, denying without a hearing a motion brought under 28 U.S.C.A. § 2255 to set aside the appellant's conviction and sentence on the ground that the prosecution knowingly used perjured testimony.*fn1
The basis for the motion is an unsworn written statement signed by a special employee of the Narcotics Bureau named Eason. On September 3, 1954, during the pendency of appellant's first appeal, he encountered Eason in the Federal House of Detention in New York, and obtained from him the above mentioned statement, which was to the effect that Eason had accompanied Agent Stewart to appellant's home in August 1953 but no sale of heroin was there made, and that in Eason's opinion appellant had been "framed." Five days later on September 8, 1954, at the office of the United States Attorney and in the presence of Mr. William Richter, the attorney who represented appellant at his trial, Eason made an unsworn retraction of his September 3rd statement. He said that he was induced to give that statement because of fear of appellant and because appellant had promised to help him get out on bail.*fn2 He said also that in fact a sale of hereoin had occurred as Stewart had testified and that his (Eason's) statement to the contrary was untrue. A stenographic report of what Eason said in his retraction was presented on the present motion. Also presented was a letter dated February 5, 1958, which was a reply to a request by appellant's counsel that Eason write him "what actually happened in the Branch case." This letter again repudiates the September 3rd statement and corroborates Stewart's testimony. In opposition to the motion there was also submitted to Judge Murphy Eason's testimony before the grand jury which indicted appellant. This testimony long antedated Eason's unsworn statement of September 3, 1954. It corroborated Agent Stewart's testimony as to the sale. The motion was denied in a memorandum printed in the margin.*fn3
We think the order should be affirmed.*fn4 The present motion, if treated as though presented for the first time, does not assert a proper basis for relief under § 2255. Eason was not called as a witness at the trial, although the trial record clearly shows that Eason, under the alias James Farber, was known to appellant. Agent Stewart testified that Eason had accompanied him to appellant's home and was present when the sale was made. The appellant heard this testimony and could have called Eason as a witness before the trial ended. While witness Cusack was on the stand, in response to a question by the court, he stated that James Farber (Eason) "is available * * * he is in the city of New York." Record 285. In an application for bail pending sentence, appellant's attorney asserted that Eason had approached appellant a couple of weeks before for money to leave town and had left his address and the telephone number where he could be reached. Record 349. Thus it is clear that appellant, relying on his alibi defense, made a deliberate choice not to call Eason. Having done so he cannot now by way of motion under § 2255 assert a defense (proof by Eason of alleged perjury by Stewart) which was available but not presented at the trial. Taylor v. U.S., 8 Cir., 229 F.2d 826, 833, certiorari denied 351 U.S. 986, 76 S. Ct. 1055, 100 L. Ed. 1500; Shibley v. U.S., 9 Cir., 237 F.2d 327, 332, certiorari denied 352 U.S. 873, 77 S. Ct. 94, 1 L. Ed. 2d 77; United States v. Rosenberg, 2 Cir., 200 F.2d 666, 668, certiorari denied 345 U.S. 965, 73 S. Ct. 949, 97 L. Ed. 1384.
In addition to the above grounds for affirmance we think Eason's unsworn statement of September 3 that no sale occurred when he was present with Agent Stewart in appellant's home was too unsubstantial to require a hearing. It was contradicted not only by Easonhs two unsworn retractions but by his grand jury testimony given under oath. See United States v. Smith, 2 Cir., 257 F.2d 432, 434.
Nor was any error committed by Judge Murphy's examination of the grand jury minutes. They were part of the trial record and as such he was entitled to consider them either on his own motion or on request of the United States Attorney. Indeed, they were considered by him in denying appellant's 1954 motion for a new trial. Nor is it clear that present counsel ever asked that he be furnished with a copy of the grand jury minutes. They are printed in the Appendix to the Government's brief, and we cannot conceive of any way in which they could have aided counsel in presenting the present motion, if he had been furnished with a copy.
The court wishes to express to appellants counsel thanks for his voluntary services and appreciation of the competent manner in which his client's interests have been presented.