MEMORANDUM OPINION AND ORDER
ASPEN, District Judge:
Petitioner John Gabriel was convicted by a jury of conspiring to counterfeit Federal Reserve Notes in violation of 18 U.S.C. § 371, and with counterfeiting Federal Reserve Notes in violation of 18 U.S.C. § 471. On May 16, 1978, Gabriel was sentenced to seven years imprisonment on the substantive count and a consecutive term of five years probation on the conspiracy count. Gabriel's conviction was upheld by the Court of Appeals for the Seventh Circuit in United States v. Gabriel, 597 F.2d 95 (7th Cir. 1979), cert. denied, 444 U.S. 858, 100 S.Ct. 120, 62 L.Ed.2d 78. On November 13, 1979, Gabriel moved to reduce his sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. Judge Bua denied this motion and thereafter also denied Gabriel's motion to vacate his sentence and reverse his conviction. After Gabriel filed a notice of appeal from the denial of the motion to vacate, and after Judge Bua recused himself from all further proceedings in the case, the Seventh Circuit entered an order remanding the case to the Executive Committee, which in turn assigned the case to this Court. This Court directed Gabriel to file all his claims for relief from his sentence at one time, and in response Gabriel filed a petition pursuant to 28 U.S.C. § 2255 that gives rise to this Memorandum Opinion and Order.
Gabriel first argues that the trial court punished him for his persistence in maintaining his innocence and that such an action constitutes a denial of due process of law. It is undisputed that a defendant may not be punished for maintaining his innocence and asserting his constitutional right to a jury trial. United States v. Wiley, 278 F.2d 500 (7th Cir. 1960). Gabriel points to the following colloquy at the hearing held on Gabriel's motion for reduction of sentence as evidence that Judge Bua did penalize him for asserting his innocence:
Gabriel responded with a lengthy plea for sentence reduction touching upon, among other things, evidentiary rulings made at trial, the credibility of certain witnesses, the conduct of the prosecution, and the competence of his counsel. After listening to Gabriel's argument, Judge Bua stated:
Gabriel highlights the underscored portions of Judge Bua's comments, arguing that these statements indicate that the judge's sentencing decision and his decisions on Gabriel's motions to reduce and vacate his sentence were tainted by an impermissible intent to penalize him for having gone to trial. Judge Bua's statements, however, must be taken in context. In opposing Gabriel's motion for sentence reduction, the government argued that Gabriel had failed to take even the first step toward rehabilitation in that he had shown no remorse for his actions. Gabriel effectively strengthened the government's argument by using his response as a forum for attempting to relitigate his case. Judge Bua's comments came as a result of Gabriel's persistent attempts to relitigate every point of his trial and expressed the judge's concern that Gabriel had not yet come to face the reality of the jury's verdict.
A fair review of Judge Bua's remarks taken in full context reveals a lack of any improper sentencing motive on the part of the judge. The judge made it clear, both at the original sentencing and at subsequent hearings, that he was considering the circumstances of the crime and the character of the defendant — considerations which are proper and necessary in reaching a sentencing decision. United States v. Allen, 596 F.2d 227, 231 (7th Cir. 1979), cert. denied, 444 U.S. 871, 100 S.Ct. 149, 62 L.Ed.2d 97.
Gabriel also moves this Court to vacate his sentence on the grounds that in sentencing, the trial court impermissibly considered certain information allegedly received by the trial court in camera during the course of Gabriel's trial. It is clear, however, that the judge neither reviewed nor considered the document in question when reaching his sentencing decision. Indeed, on December 20, 1979, Judge Bua stated for the record that he never looked at the document as part of his sentencing consideration. In light of both Judge Bua's explicit disclaimer of reliance upon the document at issue, and the paucity of any evidence in the record to suggest that the judge did so rely, this Court finds that the sentence imposed was not based upon any impermissible consideration. See Lawary v. United States, 599 F.2d 218, 226-27 (7th Cir. 1979).
Gabriel argues that two of the supplemental instructions given to the jury were improper. The first instruction challenged by Gabriel is the supplemental Allen charge as modified in United States v. Silvern, 484 F.2d 879, 883 (7th Cir. 1973). The propriety of this instruction was reviewed at length by the Seventh Circuit in considering Gabriel's direct appeal, United States v. Gabriel, supra, 597 F.2d at 100, and was found to be proper.
Gabriel also complains of the trial court's response to a note from the jury requesting to see a printing plate.
Alleged Errors At Trial
Gabriel raises a variety of other alleged trial court errors, but fails to focus on constitutional or jurisdictional issues and, accordingly, these claims are not cognizable for review under § 2255.
In United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979), the Supreme Court explained the perspective that a trial court must bring to a § 2255 action:
In so holding, the Court paid heed to an unblemished line of precedent dating back to 1942. Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); Davis v. United States, 417 U.S. 333, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974); Hill v. United States, 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); Sunal v. Large, 332 U.S. 174, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); Adams v. United States ex rel. McCann, 317 U.S. 269,
Where, as here, the petitioner took a direct appeal from his judgment of conviction, but chose not to raise the issues now presented in his collateral attack, it becomes especially important to ensure that § 2255 not be used as merely another avenue for appeal. Grimes v. United States, 607 F.2d 6, 10 (2d Cir. 1979).
The following of petitioner's allegations raise issues which are neither constitutional nor jurisdictional in scope and are followed when appropriate by citations to decisions which so hold:
(a) Failure to sequester the jury was improper.
(b) Judicial misconduct and bias. Vandergrift v. United States, 313 F.2d 93 (9th Cir. 1963).
(c) Prosecutorial misconduct. Holt v. United States, 303 F.2d 791 (8th Cir. 1962), cert. denied, 372 U.S. 970, 83 S.Ct. 1095, 10 L.Ed.2d 132 (1963).
(d) The government presented a case outside the scope of the indictment.
(e) Double jeopardy. Armstrong v. United States, 367 F.2d 821 (7th Cir. 1966).
(g) Insufficient evidence to support the verdict. United States v. Norton, 539 F.2d 1194 (8th Cir. 1976).
Of course, some of these allegations, if true, and if of a sufficiently egregious nature, could constitute substantive due process violations. Due to this possibility, and due to the Court's mindfulness of its responsibility to vigilantly ferret out any potential constitutional violations that may have arisen, the Court has thoroughly examined the entire record in this proceeding. After careful and painstaking analysis, however, the Court finds that petitioner's allegations have no basis in fact.
Gabriel's allegation of judicial bias is based wholly upon wild speculation. He provides not a scintilla of evidence to support his accusation that the judge participated in improper pretrial discussions with the prosecution regarding the case. Indeed, it is abundantly clear from the record that Judge Bua, an experienced and able trial judge, conducted an eminently fair trial.
Similarly, Gabriel's allegation of prosecutorial misconduct is created out of whole cloth. Indeed, although Gabriel devotes nearly 50 pages of his brief to this allegation, most of his verbiage is actually an attempt to relitigate the trial by raising questions of relevancy, materiality, competence, and hearsay. These evidentiary issues
Gabriel's claim that the government argued a case outside the indictment also is without substance. Count Two of the indictment charged Gabriel with counterfeiting "in excess of" 4500 $20 Federal Reserve Notes. The government's introduction of evidence of counterfeit notes that were recovered at O'Hare Airport clearly supported the charge in the indictment.
On the issue of sequestering the jury, Gabriel fails to show that any prejudice resulted from allowing the jury to return home for one evening after a long day of deliberations. Instead, Gabriel again resorts to speculation and flights of imagination. Nowhere in the record or in Gabriel's brief is there a hint of evidence that Gabriel suffered any prejudice due to the trial court's decision to allow the jury to return home. Nonetheless, Gabriel states as follows:
This claim well illustrates the lengths to which Gabriel will go to conjure up the appearance of a claim. Gabriel also argues that the imposition of consecutive sentences under the two counts of the indictment violated the double jeopardy clause because of an overlap of proof. In order to avoid double jeopardy, the proof required for conviction must meet the test promulgated by the Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). United States v. Greschner, 647 F.2d 740 (7th Cir. 1981). The Blockburger test is as follows:
It is well settled that the commission of a substantive offense and a conspiracy to commit it are separate and distinct crimes, and only if the substantive offense and the conspiracy are identical does a conviction for both constitute double jeopardy. Pereira v. United States, 347 U.S. 1, 11, 74 S.Ct. 358, 364, 98 L.Ed. 435 (1954). The substantive counterfeiting charge under which Gabriel was convicted, 18 U.S.C. § 471,
Gabriel's charge regarding the validity of his indictment has no basis in fact or law. Indeed, Gabriel admits in his brief that he has no knowledge of whether his indictment was valid or not, but he challenges it nonetheless. Gabriel's claim that the evidence adduced at trial was insufficient to support his conviction is similarly without merit. After carefully reviewing the record in this matter in the light most favorable to the government, as we must do in such a case, Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, reh. denied, 444 U.S. 890, 100 S.Ct. 195, 62 L.Ed.2d 126 (1979), the Court concludes that the evidence produced at trial was sufficient to support the conviction.
Having found that Gabriel's above-detailed claims raise neither constitutional nor jurisdictional issues and that the claims are substantively without merit, it is somewhat superfluous for the Court to address the question of whether the alleged errors constitute fundamental defects which inherently result in a complete miscarriage of justice. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 2240, 60 L.Ed.2d 805 (1979). It is obvious that where, as in this case, the petitioner's claims are wholly without substantive merit, petitioner has not been subjected to fundamental defects resulting in a miscarriage of justice.
Lastly, Gabriel contends that he had unearthed new evidence which shows that the government withheld certain information from him in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Gabriel claims that the government "was aware" that the Chicago Police Department had issued a bulletin dated October 7, 1976, stating Joe Donato was wanted for investigation of a homicide.
As a preliminary matter, it is evident that the document at issue was in existence over 1½ years prior to Gabriel's trial. In a § 2255 action, as in a proceeding for a writ of error coram nobis based on newly-discovered evidence, the petitioner must show that due diligence could not have revealed the evidence prior to trial. United States v. Hedman, 655 F.2d 813 at 815 (7th Cir. 1981); United States v. Robinson, 585 F.2d 274, 279 (7th Cir. 1978). It is fair to conclude that Gabriel had ample opportunity to discover the information regarding Donato and that he could have discovered the information had he exhibited due diligence. Gabriel provides no explanation
There are, however, additional substantive grounds for refusing his claim. Gabriel contends that "the government was aware that Donato was wanted in that investigation," yet he fails to show any support for this contention. There is no evidence showing that the prosecutors were aware of the police bulletin. In contrast to Gabriel's speculative assertion, the government attorneys who prosecuted him have presented the Court with affidavits in which they swear that they first saw the police bulletin regarding Donato in February 1981, well after the conclusion of the trial.
Lastly, even if Gabriel's assertions were true and the prosecutors had knowingly withheld the police bulletin taken in the context of the entire record, this additional information would not have created a reasonable doubt that did not otherwise exist, and hence there would be no constitutional error. United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 2401, 49 L.Ed.2d 342 (1976); United States v. Robinson, 585 F.2d 274, 281 (7th Cir. 1978). The fact that Donato was wanted for questioning could serve no purpose other than to be used for impeaching Donato's testimony. The impeachment value of this testimony, however, would have been minimal considering the fact that it was admitted at trial that Donato was a convicted felon who had entered into a plea agreement with the government. The information presented to the jury about Donato was significantly more damaging to Donato's credibility than the information contained in the police bulletin. The Court accordingly concludes upon review of the entire record that the requisite reasonable doubt has not been created.
For the foregoing reasons, the Court concludes that petitioner's motion for relief from sentence pursuant to 28 U.S.C. § 2255 must be denied. Additionally, the Court finds that there exists no reason to conduct an evidentiary hearing on any of the matters raised by Gabriel's motion.
In Lehman, 468 F.2d at 109-10 n.17, the trial court stated in pertinent part: