385 F2d 62 United States v. Lester

385 F.2d 62

UNITED STATES of America
v.
Lawrence LESTER, Appellant.

No. 16352.

United States Court of Appeals Third Circuit.

Argued June 22, 1967.
Decided Oct. 18, 1967.

Jay Meyers, Philadelphia, Pa., for appellant.

Joseph R. Ritchie, Jr., Asst. U.S. Atty., Philadelphia, Pa., Derw J. T. O'Keefe, U.S. Atty., Philadelphia, Pa., for appellee.

Before BIGGS and KALODNER, Circuit Judges, and VAN DUSEN, District judge.

OPINION OF THE COURT

PER CURIAM.

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1

The defendant, Lester, was convicted of perjury. 18 U.S.C. 1621. The testimony found to have been perjured occurred at a habeas corpus hearing in the United States District Court for the Eastern District of Pennsylvania. The basis for seeking the writ was Lester's assertion that a guilty plea on his behalf had been entered against his will at a state court prosecution, the nature of which need not be described. In support of his contention Lester testified under oath at the habeas corpus proceeding as follows:

2

'Q. When the Judge concluded that remark1 or remarks to you (Lester), what, if anything, did you say to either the Judge or to your attorney?

3

'A. I told the defense attorney that I didn't plead guilty.

4

'Q. Were you still at the Bar of the Court when this happened?

5

'A. Yes.

6

'Q. And what, if anything, was said to you by defense counsel?

7

'A. Counsel stated the same thing he said when I walked into court; for me to keep quiet and he knew what he was doing.

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8

'Q. Did you at that time complain to Judge Hagan that you had not in fact pled guilty?

9

'A. I complained loudly, but complained directly to him, no, I didn't. I complained loudly to counsel and those who were in the courtroom could hear me.'

10

The United States proved to the jury's satisfaction in the court below that Lester made the statements quoted knowing that he did not make any complaint at his trial.

11

We find no vital error in the indictment, that the evidence was sufficient to support the verdict, and that there was no substantial error in the trial court's charge. After careful consideration of the record we find Lester's contentions to be without merit. The judgment of the court below will be affirmed.

1

The remark referred to follows: 'I am sentencing first Lawrence Lester. Of course, Mr. Lester, you have quite a record of crime which I must take into consideration in the sentence. However, I am taking into consideration your plea of guilty in making the sentence much less than it would otherwise would have been. I want you to thoroughly understand that. Your sentence would have been much greater had you not pleaded guilty.'