Unpublished Disposition, 896 F.2d 555 (9th Cir. 1990)

No. 89-35080.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and NELSON, Circuit Judges, and STEPHEN V. WILSON,^*  District Judge.

MEMORANDUM^** 

Appellant John Stuart Robertson was convicted in July 1985

of crimes concerning the possession and importation of

firearms. His subsequent efforts to persuade the district

court to enter a judgment of acquittal or order a new trial

proved unsuccessful, as did his direct appeal to the Ninth

Circuit. He then brought a motion to vacate sentence under

28 U.S.C. § 2255 claiming prosecutorial misconduct and

ineffective assistance of counsel. The district court

denied the motion and we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant was convicted in July 1985 of conspiracy to illegally receive, possess, transfer and import firearms (Count I) and of knowingly aiding and abetting the importation of 33 Polish military rifles into the United States (Count II). After the denial of his motion for a judgment of acquittal or alternatively for a new trial, Robertson appealed the conviction to the Ninth Circuit alleging prosecutorial misconduct, the suppression of exculpatory Brady material, lack of subject matter jurisdiction of the district court, and insufficient evidence to support a verdict of guilty. The panel rejected these arguments and affirmed the decision below. United States v. Endicott, 803 F.2d 506 (9th Cir. 1986).¹ 

Before the Ninth Circuit decision was announced, appellant appealed again to the district court in a lengthy letter alleging, inter alia, that the government had suppressed Brady evidence and used perjured testimony. He also claimed, for the first time, that he had received ineffective assistance of counsel. The lower court treated the letter as a motion for correction of sentence under F.R.Crim.P. 35(a) and denied it.

Appellant continued his efforts to prove that the government withheld documents discrediting Gary Trudo, the key witness for the prosecution. Robertson filed a motion to vacate sentence under 28 U.S.C. § 2255 alleging (a) that the government had withheld exculpatory evidence and used perjured testimony at trial and (b) that appellant had received ineffective assistance of counsel at trial. Magistrate Weinberg issued a Report and Recommendation denying the motion which the district court adopted. The instant appeal followed.

DISCUSSION

This court reviews de novo the district court's denial of a 28 U.S.C. § 2255 motion to vacate, amend or set aside a sentence. United States v. Freeny, 841 F.2d 1000, 1001 (9th Cir. 1988).

II. Use of Perjured Testimony/Withholding of Exculpatory Evidence

A Sec. 2255 proceeding may not be used to relitigate questions which have already been raised on direct appeal. Battaglia v. United States, 428 F.2d 957, 860 (9th Cir. 1970), cert. denied, 400 U.S. 919 (1970). Therefore, finding that these issues were raised on direct appeal, the magistrate held that he could not reach the merits of appellant's claims that the government used perjured testimony and withheld exculpatory evidence.

It is clear that the exculpatory evidence argument was raised on direct appeal. The panel expressly rejected the claim finding there to be no evidence "other than [appellant's] bald assertion that ... exculpatory documentary evidence had been seized ... but not made available to Robertson." Endicott, 803 F.2d at 514. However, it is unclear from Endicott whether Robertson argued that the government knowingly used false testimony at trial.²  In light of this uncertainty, the lower court asked the government to supplement the record with a copy of Robertson's appellate brief.

In his appellate brief, Robertson argued that the Government knew or should have known that Trudo's testimony was in fact, not credible at least as to the representation by Trudo that he has purchased a Polish ... bolt action rifle from Robertson at the December Puyallup gun show because ATF had seized documentary evidence ... clearly establishing that Robertson was in Houston, Texas at the time Trudo claimed Robertson sold him one of the Polish rifles.

From this statement, the magistrate correctly concluded that appellant had argued on direct appeal that the government offered percipient testimony which it knew to be false. Thus, because this issue has been previously addressed, it is improperly raised at this time on a Sec. 2255 motion unless appellant can show that the "ends of justice" would be served by permitting redetermination. United States v. Sanders, 373 U.S. 1, 16 (1963).

Appellant alleges, to this end, that he possesses new factual information not presented on direct appeal which merits relitigation. This would be true only if this additional information indicates that the previous hearing was not "full and fair." Id. at 16-17.

This is not the case here. With respect to the government's use of perjured testimony, Robertson submitted an affidavit recounting conversations he had had with Trudo which contradict some of the latter's statements at trial. This is hardly a plausible ground for relitigation as it does not constitute "new" evidence unavailable at the time of trial or on direct appeal. Trudo's testimony was, in addition, corroborated by another witness, William Martyn, who testified that he went to the Puyallup gun show with appellant, that appellant met Bernard Warner there, and that Martyn saw them with at least one Polish rifle.

Robertson also alleges that the government withheld exulpatory travel receipts which indicate that he was in Houston on the day in question. He submitted affidavits from Warner and his wife in which they allege facts relating to the alleged disappearance of these receipts from their home after the residence was raided by the Bureau of Alcohol, Tobacco and Firearms in February 1985. This "evidence", however, is not new at all. Robertson argued on direct appeal that Warner had provided this information to him after the trial had concluded. The court refused, however, to grant a new trial on the basis of "Robertson's bare assertion that this evidence exists." Endicott, 803 F.2d at 514. The Warners' affidavits do not help Robertson in this regard as they do not provide concrete evidence that the government seized anything which was later withheld from appellant. The government maintains, moreover, that it has made all seized evidence available for appellant's review. Thus, relitigating this issue is unnecessary to serve the ends of justice in this case.

Robertson alleges ineffective assistance of counsel based on two purported "deficiencies:" (1) his attorney's failure to demonstrate that Gary Trudo, the government's key witness, was lying; and (2) the failure to "establish an overwhelming alibi for Appellant with regard to certain critical dates." As this claim was not raised on direct appeal, it is properly the subject of Sec. 2255 relief provided appellant can establish that his attorney's performance fell below an objective standard of reasonableness and was such that there was a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).

Appellant has not succeeded in overcoming the strong presumption in favor of his counsel's competence. Robertson's claim that Kellogg did not attempt to contact individuals who could provide information with respect to the Puyallup Gun Show is misleading. Kellogg reports that he did try to contact "Dennis Cook or any other representative of the sponsors of the Puyallup Gun Show," but his efforts proved unsuccessful.

Robertson also claims that Kellogg should have endeavored to introduce hotel receipts indicating that the former was outside the State of Washington on the date of the Puyallup Gun Show. Kellogg reports that rather than calling upon appellant to testify for that purpose, they decided to rely on the testimony of Bernard Warner that Warner alone had sold all such rifles brought into the United States. The alternative of putting Robertson on the stand was deemed inadvisable in light of (1) Trudo's uncertainty as to the date of the sale of the Polish rifle, and (2) Trudo's testimony as to other involvement by Robertson with automatic weapons.

Kellogg was also legitimately concerned about Robertson's vulnerability on cross-examination since the government had obtained during discovery a sign for bolt-action rifles written in Robertson's hand. That, together with Robertson's necessary acknowledgement of substantial dealings with Warner and others with fully automatic weapons, convinced Kellogg that allowing Robertson to testify would result in a greater probability of conviction than if appellant remained silent.

Robertson complains that his attorney, at any rate, should have requested a delay in the proceedings to allow for further investigation into the events uncovered by Trudo's testimony. Kellogg claims that it would have been fruitless to have filed such a motion and that he took the more prudent course of action of obtaining an immediate transcript of Trudo's testimony and ensuring that the witness remain subject to call. In addition, Kellogg did move to strike some of the damaging testimony.

In short, there is no evidence that counsel failed to protect his client's interests. Appellant's assertions, as the district court noted, "are based on hindsight, presumptions, and speculation about other courses of action that might have had different results [and] ... are not sufficient to sustain a Sec. 2255 motion." Magistrate's Report and Recommendation at 10.

CONCLUSION

Because appellant's claims with respect to the government's use of perjured testimony and withholding of exculpatory evidence were raised on direct appeal, they are not properly the subject of a Sec. 2255 motion. Robertson's cause of action for ineffective assistance of counsel is likewise without merit, as appellant has failed to demonstrate that his attorney's performance fell below an objective standard of reasonableness and thereby prejudiced his defense.

AFFIRMED.