The opinion of the court was delivered by: BRUCHHAUSEN
The defendant moves to vacate his sentence under 28 U.S.C. Section 2255 upon various grounds, hereinafter mentioned.
The judgment of conviction was affirmed on appeal and certiorari was denied by the United States Supreme Court.
The said statute provides, in effect, that a petitioner thereunder is not entitled to a hearing on the motion if the files and records of the case show that he is entitled to no relief.
As To The Alleged Suppression Of Evidence
The trial record shows that this claim was fully explored. The cases cited by the defendant pertain to situations wherein the defendants belatedly acquired information or evidence, which might have aided them if known at the time of trial.
It disclosed that, preceding the trial, the United States Attorney took possession of the records of the defendant Toys of the World Club, Inc., including correspondence had with one Gessele, a foreign manufacturer of toys. The Government introduced into evidence some of the letters whereupon the defendant's attorney sought the production of copies of letters written by the defendant Kyle or his corporation to Gessele. The plaintiff's attorney stated to the Court that he had no such letters in the files. During the discussions on this subject, the Court directed that the files be placed in a room convenient to the court room and that the defendant and his attorney be afforded free access to them. The affidavit of Edward Greenbaum, attached to the moving papers, adds no weight to the position of the movant, Kyle. The gist thereof, was made a part of the trial record to the effect that prior to the trial, on behalf of one of the defendants, he examined the copies of the letters to Gessele and made notes thereof, including the subject matter. Upon this information, the defendant, Kyle, was at liberty to offer secondary evidence of the contents of the letters. The failure to do so is an indication that the concluded not to further pursue the matter as is the statement in Kyle's reply brief herein that the said 'notes were undoubtedly useless on the issue central to Kyle's defense.'
Kyle maintained the same position in his appeal brief, viz.:
'It would serve no useful purpose to enter upon an analysis of the voluminous one-sided Gessele correspondence, in the light of the stipulation read into the record (Def. Ex.LL, 1001-1004) to which we have previously referred.' The stipulation provided, viz.:
'* * * That if the following persons were called as witnesses they would testify as follows:
'Mr. Hannes Gessele of Salzburg, Austria, would testify that in or about June and October, 1955, he was called on by the defendant Kyle in Salzburg.
'That as a result of the agreements entered into with Kyle and Toys of the World Club Incorporated, many thousands of toy Tyrolean villages manufactured in his factory were mailed directly to subscribers of Toys of the World Club Incorporated and many more thousands of said Toy Tyrolean villages were shipped to Halifax.
'That through error on the part of the shippers many thousands of said toy Tyrolean villages were delayed in arriving at Halifax and were too late for Christmas delivery.
'That he was willing and able to supply toys to Toys of the World Club Incorporated throughout the period from ...