*1 plaintiff publication, be barred injury re- presenting evidence from sulting publication. The from negate appropriate to or court thinks undertaking dependency affirm weighing interests, time another picture

incorporating factual the entire giving the Rhode Is- credit to full supra. land interests outlined deliberation, does the court After due pro- there basis for not feel that claiming aggregate interests either states, Il- Rhode Island and

of the two linois, superior inferior those Looking to Woodward the other.

“tie-breaking” procedure, the finds court it in the labeled interest factor “better determined, at rule of The court law.” 6, supra, p. Illinois rule Illinois the better one. The common law, recognizes the tort of inva- litiga- govern privacy,

sion tion, will plaintiff be allowed will resulting present injury evidence publication defendant's its ad- vertising material Rhode Island. Defendant’s motion to dismiss here- by denied. JACKSON, Petitioner,

Artis America, UNITED STATES Respondent. Civ. A. No. 37-70. Court, United States District Jersey. D. New Jan. 1971. Rehearing Denied Feb. 1971. Supplemental Opinion Feb.

appeared pro

Petitioner se. appearance respondent.

No MEMORANDUM and ORDER AUGELLI, Judge: Chief pauperis This is a application forma pursuant to 28 U.S.C. § judgment vacate the of conviction and imposed upon petitioner sentence on No- vember in Criminal No. Action 120-66. Petitioner other three individuals

(Eugene Boone, Harold L. Howard Loffa) charged Vincent J. in a three-count indictment with a violation 2113(a), (b) (d) U.S.C. § connection with March rob- bery Rahway Avenue Branch County Company Union Trust Elizabeth, Jersey, federally in- New sured I bank. Count of the indictment charged the defendants with the unlaw- taking $59,505.06 ful from the Branch; alleged II use of Count effecting force and intimidation charged taking; and Count unlawful III putting lives defendants dangerous weap- painstaking has made a examination jeopardy the use of complete finds in this commission of the case ons justify, absolutely pleaded to each no basis fact remotely, charges levelled His codefend- even of the indictment. count against Judge Wortendyke. I Boone Counts Considera- ant grounds given II, and codefendants Howard tion will now be *3 petitioner I. for under to Count asserted relief Loffa 28 U.S.C. 2255. § trial, Judge Petitioner’s first before Coolahan, to a commenced on June claims to be entitled disagreement. hearing jury application, in a The and on his 2255 but ended trial, by Judge presided requests over that coun- second connection therewith jury Wortendyke, assigned resulted in a verdict to him and witnesses sel be testify subpoenaed all of in Pe- three counts to his behalf. Judge following alleges hearing dictment, Worten such a will titioner dyke petitioner the term he sentenced establish a violation of constitutional serving. appeal, rights grant is On convic new now and result a custody. The tion affirmed. from was trial or his release 1968). (3 particulars petitioner’s 401 F.2d 659 Cir. consti- in which Judge Thereafter, applied violated, rights are tutional have been Wortendyke following: for a sen vacation said be the applica for The tence and other relief. petitioner’s arrest effected 1. was denied, except tion for correction cause; probable a or without warrant imposed the sentence prosecution knowingly used 2. merger reflect offenses al petitioner’s perjured to obtain leged in Counts I and II indict conviction; aggravated ment with the offense more photographic identifi- 3. out-of-court charged opinion in Count III. See cation of the absence September 18, 1969, order in Art right counsel, un- to counsel violated his America, is Jackson United States of Amendment; der the Sixth Action This was Civil No. 785-69. given sen- present harsher application, followed tence than his codefendants because by petitioner’s accompanied which was not his Fifth Amendment charging Judge Wortendyke would waive affidavit right jury trial. “personal prejudice”, or bias requesting Judge disqualify is that he Petitioner’s claim hearing himself from matter. There relief arrested entitled to because he was Judge upon, Wortendyke voluntarily cause, probable or without a warrant disqualified himself, entire more than merit. There was without in this file case was transferred showing probable cause sufficient writer this memorandum re justify without a warrant. the arrest view and determination of the issues basis arrested Petitioner was by petitioner. raised supplied his codefend information arresting charges personal They of informed the ants. alleges prejudice, petitioner petitioner participated in the bias or ficers that Moreover, Judge Wortendyke “deep showed such with them. illegal, against prejudice” petitioner during assuming even that the arrest was deprive appear from course of trial as to him it does not way trial; Judge permitted fair affected the of a fair that the the arrest against subsequent to be evidence used ness by petitioner prose- known to false conviction. No confession cution; Judge emanating and that other denied evidence justice during any alleged period de equal of unlawful tioner a fair trial and be- negro”. way The “poor into trial. he was a This its cause tention found Court illegal arrest was not trial, Bergamo related to an search at the second said was longer such duration, seizure the case of wit, Kauf minutes. 1% States, Bergamo man thoroughly v. United extensively 394 U.S. 22 L.Ed.2d S.Ct. There cross-examined counsel allegation illegal concerning the bare of an this and other minor differ- more, arrest, arrest. an without Such ences between his at the first weight does not void a conviction and and second trials. to be grounds given Bergamo’s for a collateral attack under 28 jury By U.S.C. 2255. Moreland v. United to decide. § no stretch of the States, 1965); imagination 347 F.2d 376 Cir. can it be said that Hayes States, Berga- v. United 419 F.2d 1364 appear did inconsistencies remotely mo’s even perjury, or, fortiori, dicative ground, Petitioner’s second *4 prosecution knowing use of by that his conviction was obtained “perjured” testimony. Chapman v. See perjured testimony, of use is likewise States, United F.2d 11 Cir. charge that merit. The here is without Bergamo, employee, Loffa, the bank Gabriel As to impli- Howard who codefendants, petitioner’s Howard crime, cated in broad they perjury allegation Loffa, they committed when perjured made that trial; this testified at promise in themselves return for a of prosecution; leniency by to and that prosecution. was known Indicative deliberately testimony perjured this, petitioner, of claims is the fact that obtaining petitioner’s in permitted guilty used con to aid both men were to tender prevail pleas only indictment, viction. to order to Count I ground, pleas accepted by Court, the burden is on were was, subsequently show that the witnesses’ and that III Counts II and fact, perjured perjured; tes in were dismissed of on motion the Gov- conviction; timony material to the ernment as to each codefendant. prosecution partici and that either Howard, In the much case stress is pated knowledge perjury. had July 29, 1966, laid on a letter dated sent Spadafora, F.2d States by Baime, Mr. the Assistant United Dansby 1952); v. United Attorney who conducted the first States, F.Supp. (S.D.N.Y.1968). against petitioner, Judge trial Coola- proposi quarrel There can be no han, presided copy who at that trial. A knowing perjured tion that use by of that letter was mailed to Howard prosecution due violates Mr. Baime. letter calls attention Holohan, process Mooney of law. the fact one the de- Howard was U.S. 55 S.Ct. 79 L.Ed. 791 originally agreed who had fendants testify petition- for the at Government reading A careful trial, “reneged the record er’s first but that he later nothing discloses goes more than minor and promise.” his on to The letter inconsequential say testi variations to al- Government intended mony given by Bergamo in the witness plea low Howard to his former retract the first guilty and second trials of to Count I the indictment alleged Bergamo perjured It is try him At Howard on all three counts. self at the trial, Judge second trial when he testified before second as to the Wortendyke, manner which the which was conducted an- ability Attorney, was carried out and to view other Assistant United States testify robbers. The variations dealt with did for the Howard Government minutiae and implicated petitioner not substance. Petitioner trial, argues stresses the fact that at the first that How- Bergamo peti trial, testified that his view of when ard’s at the second iy2 whereas, only seconds, July tioner light lasted viewed in letter

H prior rec- criminal es Loffa’s extensive to an admission is tantamount confusion, cross- ord, when and also “sell his he Howard that had exchange to whether he examined prosecution” to the or more counts to one whereby escape the conse- deal he would pointed out It charged against also indictment. quences of the offenses only gave one the first Loffa at the indict- III of him II and Counts reason, inability and that was ment. against testifying bail, make vigorous Despite efforts made trial, tioner, whereas, he at the second existence to show the defense counsel so, doing an reason for added additional vigorously just “deal”, of a Howard get his he did not because him, any promises made to denied money. full share of stolen bank plea of he such that if entered Howard, Loffa he received Like testi I indictment Count only $15,- instead the loot $7500.00 against petitioner, other counts fied any deal denied that 000.00. Loffa Moreover, Howard would be dismissed. to in- offered to the Government testify for denied that his decision against testify duce him to way related Government get although hoped “to did admit he July or that letter guilty. by pleading a break” up after his mind to do so pressed on cross-examination When *5 copy A of letter. he received a said why changed plea from not tell he testimony perusal makes of Howard’s guilty, to Loffa said : testify for the clear that he refused to say “Well, sir, you if let me will at first trial be Government changed my plea, I reason I or when deal” that since cause “wanted a and change my plea I decided to because prosecution promise not did [petitioner]. Artis talked to Jackson testify anything, “re and he refused of this I asked him about the rest eventually neged What on the stand.” money no and he told me there was against pe testify motivated Howard to money. different, more I found out only received titioner is the fact that he $60,000 that there was involved money as his sto share $7500.00 got $7,500, I I and bank $15,000.00. bank, len from the instead of got says $7,500. for I to him beat As stated Howard: money. my I of He that the rest want [petitioner] been “Had Mr. Jackson getting I am There- said that not it. enough give man the balance me get —to fore, just anything out I didn’t —I my my money my of mother just pleaded guilty to the of it. I my children, I for common law wife case.” today. definitely here would not be by petitioner Reference is also being my here. This reason for testimony of defense witnesses Government, There is no deal with the Hobson, Arlington Joseph Christinizio, promises, the Govern- no deal with Eugene and Boone. ment. This one bad hand is where was an inmate Christinizio washes the other.” County during pe- Mercer Loffa’s Jail Loffa, As testified of incarceration therein. Christi- who riod alleged trials, and Loffa had a at it is nizio testified that he Government both damaging general testimony rob- that all was conversation about a bank robbery testimony bery (name perjurious, bank and that such was date discussed), promise by prosecution induced not and that the course against petition- if mentioned the that testified their conversation Loffa Loffa er, accept plea of Howard and Boone but not names Government This indictment also to Count I name witness a “third dismiss In said that Loffa made mention of other two counts. naming him; charge, man”, petitioner that stress- without of this $25,000.00 belonging had individual and also to avoid arrest threatened Loffa; girl testimony giv- never the authorities would that friend. In his apprehend person; trial, Loffa en at the second Boone admitted regardless robbers; turn him in would never he was one the bank robbery consequences. points to the automobile used in the by Loffa; petitioner bolster his claim that driven was not crime; Loffa lied when he testified had all at involved in and that petitioner conversation about the three men who entered the bank robbery money, himself, Howard, “Ricky”. division of one also to show Loffa used Boone, addition to Hobson guy” the “fall unnamed “third Christinizio, other witnesses testified man” mentioned Loffa Christinizio. including behalf of his two Hobson, member Po- of the Elizabeth testimony, that of sisters. Their like Department, lice patrol duty testified that he was attempted witnesses, other defense on March the date petitioner or to establish an alibi for robbery, peti- the bank and that sawhe cast doubt that he one of the bank tioner some between 9:35 and 9:50 time robbers. Much of morning day. of that Hobson conflicting. Loffa and Howard said he had no conversation with was one of the bank rob tioner, being the latter in an automobile saying bers. first the same after when the Peti- observation was made. thing, later testified tioner, erroneously stating that Hobson involved in the It uncon testified he saw 9:30 “about participated tradicted that four men A.M.”, invites the Court’s attention to robbery, that Loffa drove employee, Ber- getaway car, while three men entered gamo, who said took bank. and that of Boone’s place between 9:00 and 9:15 A.M. on attempted Christinizio one show that *6 argues March and that a consideration “Ricky”, petitioner, the and not entered bank, of the it took to rob the time bank with Howard and Boone and com getaway, apartment, make a the reach robbery. mitted the himself Petitioner money, and to the the divide leads to testify. Loffa, Boone, Howard, did not petitioner conclusion that was not Christinizio, prior and all had criminal crime, volved in the and that “Howard records. The of these cross-examination covering and Loffa were the tracks thorough. vigorous witnesses and was associate, hopes they the real in Loffa, Boone, and accom Howard were get get a short sentence” and then Wortendyke, charge plices. Judge in his missing $25,000.00 out and in share the jury, point out was careful to by referred to Loffa in his conversation credibility testi the witnesses who with Christinizio. jury fied matter case was a for the Boone, recalled, it jury will be accomplices, was co- As to decide. testimony defendant in this case. a statement was instructed of ac that the given to complices the Federal Bureau of Investi- caution was be received with gation, Boone, Loffa, weighed great care, like Howard and implicated petitioner rob- a defendant was be not to convicted bery. petitioner’s At testimony first unsupported accom an Howard, testify. like plice testimony refused At the believed unless was second trial jury “beyond Boone testified for de- all reasonable repudiated fense. He the statement doubt.” than Here there was much more previously given F.B.I., unsupported testimony and the an ac signed only claimed said complice. statement was The fur record as whole leniency promised after he had been if ample than for the nishes more cooperate he would with the jury Government The verdict this case. implicate petitioner crime, establishing proofs fall far short of photo- may album, the 12 loose it as well as perjury. While claim tioner’s separately hoped graphs, to each exhibited and Loffa true that Howard be they did, employee, them leniency and not shown to testifying there bank group. presence as a absolutely proof of each other the Govern- promises, a deal or made ment trial, employees testi- At the bank exchange otherwise, in for their testi- they concerning opportunities fied mony. preposterous, And on it is With had to observe respect bank robbers. suggest prosecu- record, to even knowing “perjured” use tion made testimony might witnesses, expected, these be in order to obtain height varied somewhat as petitioner character- conviction. What agree- weight, there substantial but was nothing “perjured” izes as on of identification. ment Bergamo other indicia implicated more than particularly noted jury in the It was for the him crime. eyes. Link testified she Miss nose credibility much to determine how petitioner to observe “most was able given to testified. be the witnesses who there”, and that he was the time he was proper from the Under instructions negro “heavyset “broad male” with a Judge, jury petitioner concluded was nose”, than which to her seemed “broader robbers, already one of the bank and as Mooney most of them.” Miss stated, amply supports this the record away she four three or feet conclusion. petitioner at sev- and “looked urged ground also said eral times.” She next for relief The fighter, muscular, “very photographic built like a relates to the nose.” Paren- and he had a broad flat thetically, out-of-court made of him identification may custody, that there was noted he was in in the while ab- was, case sence counsel. identification was “good fact, All of employees boxer.” on March made positive employees bank, iden- namely, in-eourt of the robbed Gabriel Bergamo, manager, of the tifications of as one Do- and tellers major point Mooney Margaret robbers. The lores Link. aspect petitioner, however, on arrested March present case, is that his counsel was not day On that photographic at the of his identifi- time day, following robbery, F.B.I. same Agent Hart, cation March charge who was in *7 investigation crime, right the to exhibited to in line counsel employees cases, up by the bank a “bank v. mandated United States containing, according Hart, Wade, 1926, 218, album” to 80 18 S.Ct. 388 U.S. 87 pictures (1967) or 90 who of individuals had Cal L.Ed.2d 1149 and Gilbert v. previously 1951, ifornia, 263, been convicted of bank rob- 87 S.Ct. 18 388 U.S. bery well, (1967), or armed Petitioner’s in L.Ed.2d 1178 extends as picture among Circuit, photographic in was not those to identifica album, employees custody. suspect and hence the bank tion of after he is day. Zeiler, made no identification on that v. 427 F.2d 1305 Thereafter, Agent 18, March Hart de Wade were Gilbert brought to the bank and exhibited to cided the constitu on June but employees, photo- the same additional deci 12 tional rule those established graphs, Negroes. application only all of Petition- in male sions to has cases photograph group, volving er’s this petitioner’s pic- purposes confrontations identification employees said selected conducted in the absence him ture and identified as one of the Den counsel after that date. Stovall Contrary no, 1967, robbers. to what al- L.Ed. 87 S.Ct. U.S. leged by petitioner possibility, to photographic be a 2d Since pictures is clear identification this case long prior occurred June used the F.B.I. On direct examina- Wade, Gilbert, and Zeiler are not cases tion this witness testified that she was applicable. However, individually it incum- is still taken to the desk on which pictures bent this Court to determine wheth- spread; were that she conducting only er the the out-of- them; manner selected one of photographic pe- court identification of one photograph she selected was a petitioner. titioner so absence of counsel was On cross-examination Miss unnecessarily suggestive Mooney and conducive was asked: investi- “[D]id the * * * irreparable gating suggest mistaken you identification as officers deprive process of due group of law. photographs that you recognized ground This is a attack were shown on March the defend- conviction, independent right any pictures ant Artis Jackson and Denno, claim. counsel Stovall su- they other two men were the ones pra. thought In this connection you the Court were involved and could obliged “totality identify you examine them or see if could iden- surrounding tify circumstances” the out-of- question, them?” To this the wit- procedure. gave court identification ness an affirmative answer. Con- trary petitioner’s positive assertion, it respect photographic With to the iden- entirely question is not clear from this procedure tification followed on. March petitioner was, fact, and answer that Agent Special Hart testified that the suggested Mooney Miss as one of pictures he exhibited to bank robbers. employees day on that shown to individually, they each of them and that they pick totality were asked if could out of that of the circum any photograph batch the stances case, individual disclosed the record in this during who had positive been in the bank the rob- cannot said that the bery on petition March 9. Hart said then in-court identifications away any walked way from er the desk on were in influ tainted or spread pictures had prior enced graphic photo and allowed out-of-court employeeplenty each over, of time them to look identifications suggestion employees. and that no was made Even if it be assumed that employees Mooney’s as to which of Miss affirmative answer photographs might question put be those of the to her on cross-examination men or one of the improper men who robbed indicative of identification bank. procedure, This necessarily witness further it does not follow Mooney that Miss Link and Miss peti both that her in-court identification of positively photograph thereby. identified tioner ness, was tainted This wit being one of the bank rob- as stated earlier in this memoran bers, Bergamo, dum, and that as to testified that she three “pretty dividual away sure” of iden- or four feet at the tification of robbery, time of she “looked at him times.” several She thus had an Bergamo suggestions testified that no *8 “independent upon source” which to base

were to him when made he was shown her in-court identification of pictures the 12 on March and Miss Wade, United States v. 87 388 U.S. testimony Link’s was to the same effect. any S.Ct. 18 L.Ed.2d She, Mooney, as well as Miss confirmed event, very most, and at the Miss Moon concerning Hart’s the individ- ey’s ual pictures of petitioner, exhibited in-court identification of examination on March 18. in view of other identification case,, amount more could to no upon Mooney’s Petitioner seizes Miss Chapman than harmless error. v. Cali question answer to a on cross-examina- fornia, tion improper establish 386 U.S. 87 S.Ct. 17 L.Ed. that an suggestive procedure identification was 2d 705

15 years in-court received of 20 tioner a sentence It is also evident by upon petitioner his all three conviction under counts identification of Bergamo employees, of criminal His Mr. indictment No. 120-66. other bank by their not codefendants Howard and Loffa were Link were tainted Miss years, photo- respectively, sentenced to 8 and 7 earlier selection of pleas Both graph robbers. on their of to Court I of as of the bank one pe- following indictment, opportunity to observe which Counts had sufficient against participants II and III dismissed them. titioner as one guil- Bergamo, previ- pleas Codefendant on his of indictment, ty ously mentioned, II a view I and testified to to Counts prison was iy2 minutes, Link she a term of 12 and Miss said was sentenced to by years, for most followed dismissal Count to observe a able against disparate These III These sen- the time was the bank. he him. coupled by sup- viewing opportunities, are tences stressed employees port he discriminated concern- his claim that clearly features, against given ing petitioner’s physical a sentence than heavier independent he refused a codefendants because furnished sufficient jury plead guilty identifica- demanded a trial. in-court source to argument re- wit- A these similar was made tions States, this, jected and most from all v. United But aside Green nesses. Court, 1964), identity importantly, petitioner as F.2d 733 Cir. where page at one robbers established 736 said: given in court remaining is that “The contention codefendants, Loffa. Howard and two against discriminated be- Green was infirmity Thus, did exist even if given longer a after cause photographic iden- connection with the sentence a who than co-defendant the admission tification pleaded guilty count one any testimony relating thereto would understanding dictment on the error when measured harmless mere to him counts would be other two against petitioner’s one identification as and who thereafter dismissed men of the bank two of the robbers prosecution. is for the It too frivolous robbing bank, and who who admitted to merit discussion.” partici- named as one Petitioner’s reliance on United States States, pants. Clemons v. United (S.D.N.Y.1963), Tateo, F.Supp. (1968); U.S.App.D.C. 27, 408 F.2d 1230 judge misplaced, since that case Satterfield, 410 F.2d United States v. threatening guilty by plea a coerced impose the maximum sentence if Here, ground for final defendant at trial. Petitioner’s was convicted relief, alleging discriminated there coercion. was no such against given trial. a harsher sentence and went not simply than basis his codefendants he would There factual because right arguably support peti- waive his Fifth Amendment even given lacking jury trial, that he frivolous and tioner’s contention im- It that a court sentence than the sentences substance. is well settled harsher law, simply may, upon prescribed posed be- the limits his codefendants within right jury imposing sen exercise its discretion in cause he asserted trial, conviction, tence United States trial. Petitioner’s defendant. Rundle, Thompson F.Supp. ex not at all related to rel. are sentence *9 (E.D.Pa.1968). guilty pleas meted out 933 There is no con and the sentences Although requirement identical his codefendants. stitutional punishment crimes. were all be meted out like and his three codefendants they robbery, 576, Oklahoma, 79 for the same bank Williams v. 358 U.S. dicted identical Peti- under sec- L.Ed.2d were not sentenced S.Ct. 3 516 16 of 18 U.S.C. 2113. Petitioner’s tions on in § Criminal November exposure 120-66,

maximum under 18 U.S.C. Action A notice § No. was denied. 2113(d) years. appeal 25 His codefend from this determination was to other sections ants filed with Clerk of the Court Jan- carrying prison uary 21, statute maximum 1971. periods. in terms of lesser But even February 9, 1971, petitioner On plural con cases where defendants are rehearing with the Clerk a motion for offense, is the same a court victed of justified, respect “point with one” of his considering mitigat all after original application, and in connection ing aggravating circumstances requested therewith in the record sentencing process, are relevant Ap- his case not sent to be the Court of disparate imposing in sentences. United peals pending decision on said motion. Russell, Huntt F. States ex rel. 285 “point by petition- one” referred to (E.D.Pa.1968), Supp. F.2d aff’d 406 765 er was based on the claim that ar- Vita, 1969); 774 Cir. United States rest was effected without a warrant (E.D.N.Y.1962); Bays F.Supp. 172 probable February 17, peti- On cause. States, F.Supp. den v. United motion, supplement- tioner filed another (E.D.N.C.1963), aff’d F.2d ing amending his first motion for a rehearing. expands This second motion petitioner’s argument a A consideration of this record as that his arrest was illegal. changes whole to the conclusion that what also, leads He in ver- petitioner really biage is retrial of substance, seeks that do not affect asks case. asks this to summon as He Court for a reconsideration of several individuals, grounds witnesses ten all of whom urged that were in for relief already testified, original have four on behalf application. Government, petition- and six for prior Just to the time sec- er. Petitioner would hearing, entitled to be attention, ond motion came to the Court’s and relief the form of new already a Memorandum and Order had custody, only trial or release from prepared, denying been relief on the event record discloses a violation illegal copy arrest issue. A of that Mem- rights. constitutional But orandum and Order annexed hereto Applying here. stand- case part and made hereof. The Court has ard laid down in 28 U.S.C. § again patiently reviewed the record Court finds that the file records light this motions. case “conclusively peti- this case show” that There is no basis in fact or in law that tioner, for the reasons this stated justify change any of the con- memorandum, is entitled to no relief on any clusions reached as to the Court grounds peti- asserted in his grounds urged by petitioner circumstances, peti- tion. Under the relief. application tioner’s for relief under 28 For the reasons in the Memo- stated re- U.S.C. 2255 will be denied all § randum and filed in action on Order this spects, and it is so January supplemented Ordered, January, day this 7th memorandum, petitioner’s motions for And the Court further certifies rehearing denied, so should and it is probable appeal that no cause for exists Ordered, February, day 24th in this case. 1971. And the Court certifies there probable appeal. cause for an

ON MOTION FOR REHEARING By Memorandum and filed in Order ON SECOND MOTION FOR RE- January 7, 1971, this action HEARING application, pursuant tioner’s judgment U.S.C. vacate the By § Memorandum and filed in Order imposed upon conviction and sentence January 7, 1971, petition- this action on

17 pursuant consideration, application, 28 Court’s er’s made two affidavits judgment 2255, the to vacate fellow inmates. These affida- U.S.C. § imposed vits, says as of conviction and sentence are submitted 10, proof prejudicial “of him on November Criminal further the effects illegal 120-66, prelim- A notice arrest of a Action No. was denied. denial inary appeal determination was had trial and this examination” on his Court on Jan- conviction. filed with Clerk of the uary 21, 1971. affidavit, by The first C. one James 9, 1971, Chester, February filed refers to a conversation over- On rehearing (one heard with Clerk motion between Harold Howard for original application, petition- “point one” of bank robbers indicted with er) coupled request and woman that the record who visited him in pen detention Court of Howard is al- his case not be sent Newark. leged Appeals pending to have told the that had said motion. woman decision on been “crossed” At- United States by peti- “point The one” referred torney in that he did not receive the tioner was based on the claim that year promised had sentence that been or arrest a warrant was effected without individual, that re- but instead probable petitioner’s cause. Attached year an 8 ceived sentence. The affidavit copies papers of the com- motion are goes say then on to that after Howard’s plaint filed with United States Com- left, visitor Howard affiant asked 9, 1966, on March and the war- missioner alleged happened. what had is Howard petitioner’s issued and rant arrest promise to have told the affiant about a executed on the same date. to him the United At- States robbery on March was indicted for Howard, torney he, testify if 23, stated 1966. For the reasons implicate peti- Government and on Jan- Memorandum filed in action robbery, tioner in the bank the United rehearing uary the motion for Attorney States would recommend to the if will be denied. Even assumed Judge sentence, year illegal, arrest Attorney States failed to do so. United standing fact, alone, suffi- would not be alleged matter of deal This an cient to void his In addi- whole conviction. and the between Howard Government cited tion the federal cases thoroughly Memorandum, explored at trial of also aforementioned see case, sur- Pennsylvania as were the circumstances Commonwealth of ex rel. rounding implication Craig Maroney, 22, Howard’s 348 F.2d America, tioner in the commission of 1965) Cir. robbery Bishop Rundle, reasons therefor. See ex F.2d 204 rel. 5, pp. filed of Memorandum and Order it must be Once more January 7, The action on stressed a careful examination nothing conclusively Chester affidavit adds new the trial this case legal significance. alleged illegal the case and of no shows that arrest and way detention of in no affect- affidavit, by one second ed the fairness of Edwards, Robert Paul is likewise of deprived him safe- constitutional The bank value to guards. place on March in this case took rehearing hereby The motion for A.M. The 9:00 9:15 between denied. gist Edwards affidavit greeted petitioner at about affiant SUPPLEMENTAL OPINION he was about A.M. on March 8:55 room, housing building pool In furtherance of his motions for a enter a again rehearing case, spoke to in this denied Memo- and that he building February at about the latter left randum Order when affidavit, if filed, for the This has now 9:15 to 9:20 A.M. *11 believed, represents tiny bit of but a phase cumulative fully developed at the trial. case that was testimony of a number of witnesses including by petitioner, his two

called sisters, attempted an alibi to establish doubt that he was for him or create references one of bank robbers. See Hobson and and Or- Christinizio Memorandum January der in this action on 1971. herein, the reasons stated

For Court finds that affidavits James Edwards, Paul C. Chester Robert by petitioner submitted legally rehearing, are motions change sufficient to warrant mo- heretofore decision reached rehearing denied. tions be therefore, day is, 26th It on this February, Ordered, order of this Court’s February denying petitioner’s rehearing case, for a in this motions hereby is, same affirmed. al., Plaintiffs, Jesse DOUGLAS et al., Robert E. HAMPTON et Defendants. Civ. A. No. 313-71. Court, District District Columbia.

Feb.