The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
Petitioner, James Vincent Keogh, and two codefendants, Elliott Kahaner and Antonio Corallo, were convicted in 1962 of conspiracy to obstruct the due administration of justice. The judgment of conviction was affirmed upon appeal,
and certiorari denied.
Keogh now seeks a writ of error coram nobis
to vacate the judgment of conviction and for a new trial upon the grounds that the prosecution knowingly (1) suppressed exculpatory evidence, and (2) used and sponsored perjured testimony.
Familiarity is assumed with the summary of evidence in the Court of Appeals' opinion affirming the conviction.
Briefly, the principal government witnesses were Robert M. Erdman, petitioner's friend and doctor, and Sanford J. Moore, two codefendants as to whom the indictment was severed. Moore testified that he paid $35,000 corruptly to influence a criminal proceeding in the Eastern District of New York wherein he was charged with other officers and employees of Gibraltor Amusements, Ltd. with concealment of its assets in a bankruptcy proceeding in that district.
Erdman testified that he was the conduit through whom the moneys paid by Moore were delivered to Keogh and Kahaner; that Kahaner, on February 23, 1961, and again around March 7, received cash payments of $5,000 each; that Keogh received $5,000 on or about March 7, and $17,500 on March 29.
Moore testified that on March 29, the day before the sentencing of Moore and others in the concealment of assets prosecution, he met Erdman with $20,000 in cash, the balance of the $35,000 bribe. Moore then testified, as did Erdman, that he, in Erdman's presence, delivered $2,500 to Kahaner; that immediately thereafter he accompanied Erdman, who had earlier been given the balance of the $20,000 to the Supreme Court, Kings County, where Erdman entered the courthouse, stating he was going to give the money to Keogh. Erdman testified he went to Keogh's chambers, where he gave him the envelopes containing $17,500 received from Moore, this being the second payment to Keogh. In addition to Moore and Erdman, six others, who were named as co-conspirators, testified to matters which spelled out the corrupt arrangement. Petitioner denied he received the $22,500; Kahaner denied he received the $12,500.
Erdman and Moore were subjected to searching and grueling cross-examinations by each defense counsel. Their credibility was attacked and they were bitterly assailed in summation. The court instructed the jury that their testimony was to be viewed with great caution and carefully scrutinized. After further admonitory instructions with respect to the self-confessed participants, the jury was instructed that if it did not believe these witnesses, particularly Erdman and Moore, to acquit the defendants. The jury convicted.
Now, five years later, upon affidavits containing much hearsay, the petitioner makes the conclusory charge that the case against him was "steeped in perjury."
Three affiants have been convicted of serious crimes - one, a multiple federal felony offender; another, a former lawyer convicted, upon his plea of guilty, of subornation of perjury;
and Moore, the central figure in the concealment of assets case, convicted there upon his plea of guilty. Other affiants include witnesses who testified upon the trial, who give their present recollection of events as to which they then testified, and still others who were not witnesses. Petitioner claims the matter now presented is newly discovered during the disbarment proceedings against him.
This court, having presided over this five-week trial, is in a position to appraise these affidavits against the background of the trial testimony.
A careful review of all the affidavits, weighed against the trial record and files, demonstrates they do not support the serious charges of constitutional infirmity based upon prosecutorial misconduct; that essentially they are vague and conclusory,
interwoven with much hearsay
and irrelevant matter,
and constitute a palpable attempt to relitigate contested trial issues. The legal insufficiency of the moving papers makes unnecessary consideration of the affidavits submitted by the prosecution staff, who vigorously deny the charges of misconduct. In sum, the moving affidavits fail to give evidential support to the charges of suppression of exculpatory evidence or perjury; they are without the slightest factual basis for the further charge that the government knowingly used, permitted and contrived the use of perjured testimony by Erdman or any other witness. Finally, if petitioner's application is treated as a motion for a new trial on the basis of newly discovered evidence, apart from the fact that such a motion is time barred,
measured by either the Berry or Larrison test,
there is no basis for granting a new trial.
The instant petition, in large measure, is a renewal of the attack upon Erdman's credibility - the same attack that was focused upon him during his extended four-day cross-examination and in the bitter denunciatory summations by skillful defense lawyers. But to bring petitioner's claim within the rubric "suppression of evidence," an attempt is made to depict Erdman as mentally disturbed and prone to make false accusations of corruption against public figures, of which the petitioner was unaware but the government knew and concealed from him.
To support this charge, petitioner submits the affidavit of Joseph Abrams, who was not a witness at the trial. Abrams is a four-time felon, presently serving a five year term for SEC violations. His other crimes include defrauding the Federal Government under a manufacturing contract; income tax evasion, and conspiracy to corrupt a government employee.
The grand jury investigation which resulted in the indictment herein extended to other instances of alleged endeavors corruptly to influence criminal prosecutions in the federal courts.
Erdman was questioned before the grand jury about other "fixes" and as to payments or gifts allegedly made in connection therewith. One such matter related to income tax evasion charges against Abrams and a corporation of which he was the principal stockholder.
The plot, according to Erdman, contemplated that upon Abrams' plea of guilty he would receive a sentence to run concurrently with one he already was serving for an entirely different crime. Erdman testified that both Keogh and Kahaner essayed roles in the Abrams affair; that Abrams had paid Kahaner a substantial sum of cash; that he, Erdman, had given Keogh a $4,000 car in 1959, for which he, Erdman, personally paid.
Upon petitioner's trial, Erdman, on direct examination, was not questioned either as to the Abrams or other alleged fixes. Accordingly, upon the government's application, any references thereto were excised from his grand jury testimony and Jencks Act material. Now petitioner presents an affidavit by Abrams, disputing Erdman's grand jury testimony of a "fix" in his case. The claim, as advanced by petitioner's present attorney, appears to be that had Erdman's grand jury testimony as to Abrams
been revealed to petitioner and his trial attorney (assuming for the they were unaware of the Abrams charges), Erdman could have been subjected to further cross-examination, ostensibly to show that he had a penchant for making such charges and was not to be believed.
Obviously Erdman's testimony, to the extent that Keogh was implicated thereby, is not exculpatory, but deeply inculpatory, and had evidence of the Abrams and other alleged fixes been admitted as similar acts and conduct on the issue of intent,
it would have had a devastating impact. But the government scrupulously refrained from offering such testimony, and now it is taxed with suppression because of the excision of the Abrams "fix" references.
That Abrams, in his largely incompetent affidavit,
disputes Erdman and denies he participated in a conspiracy to "fix" his income tax evasion case, does not establish that he is telling the truth and that Erdman lied with respect thereto; much less does it permit the inference that Erdman committed perjury when he testified at the trial with respect to the Moore fix. Entirely independent of Erdman's testimony, the ultimate disposition of the Abrams tax case,
the undisputed fact that petitioner did receive from Erdman a gift of a car in 1959, and other circumstances which could be deemed corroborative,
would permit a fact finder to conclude that Erdman's account of an Abrams fix was not the product of imagination. The government would have been entitled to establish these independent circumstances to support Erdman's testimony had the Abrams fix been inquired into in an effort to impeach Erdman. It taxes credulity beyond the breaking point to accept the utterly extravagant claim of present counsel that any use could or would have been made of the Abrams "fix" material
- its only use would have been to open the floodgates of collateral matters, including other alleged "fixes," which would have more deeply engulfed petitioner and his codefendant Kahaner. The fact is that petitioner's former counsel, of considerable experience in the trial of criminal cases, was most vigilant in keeping any reference to Abrams or other prejudicial extraneous matter from the jury,
as any lawyer worth his salt would have done. When the prosecution was about to offer in evidence Keogh's grand jury testimony, his counsel opposed reading those portions which contained references to Abrams, and the matter was deleted.
The utter speciousness of the present claim that any of the Abrams fix testimony could have been used to advantage in further cross-examination of Erdman is readily exposed. Abrams, among other denials of Erdman's grand jury testimony, swears "[Erdman's] statement that on July 21, 1959 he gave Keogh a car on my behalf is pure fiction." It was not denied that in July 1959 petitioner did receive a gift of a car from Erdman.
Thus, the only disputed issue raised by the Abrams affidavit with respect to the gift is whether it was made "on my behalf." Upon the trial, the gift of the car, as well as other gifts and loans, was admitted in evidence for the very limited purpose of showing the close relationship between petitioner and Erdman. This was over the vigorous protest of defense counsel
- indeed it was urged upon appeal as "one of the major errors in this case,"
requiring reversal because of the danger, despite the court's admonition as to its limited purpose, that the jury would view the gifts and loans "as evidence of other corrupt endeavors."
Now present counsel states he would have probed into the reasons for the gift!
Entirely apart from the foregoing, a realistic reading of the record demonstrates that at the time of trial petitioner was aware of Erdman's accusations in the Abrams affair; further, that he not only knew of Erdman's psychiatric history, but himself had called it to the prosecutor's attention. Petitioner was questioned extensively before the grand jury as to his relationship with Abrams, and specifically whether Erdman had ever asked him "to attempt to extricate Mr. Abrams from his legal difficulties?"
After a denial he was asked: "Why do you think that Dr. Erdman would make allegations of pay-offs to you in connection with the fixing of the Moore case or any other case? "
Taken in context, it is clear the "any ...