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Tenth Circuit troubled by possible perjury

By Randall Hodgkinson

In U.S. v. Rangel, the Tenth Circuit took the unusual step of abating an appeal from a New Mexico drug prosecution so that Mr. Rangel could proceed on a 2255 petition dealing with allegations of perjured testimony. The Court acknowledged that such a procedure is "extraordinary."

It appears, however, that this may be that highly unusual case in which a motion under 28 U.S.C. § 2255 is appropriate while an appeal from the conviction is pending. This court has recognized that ?there is no jurisdictional barrier to a district court entertaining a § 2255 motion while a direct appeal is pending.? United States v. Prows, 448 F.3d 1223, 1228 (10th Cir. 2006). But ?it should only do so in extraordinary circumstances given the potential for conflict with the direct appeal.?

. . . .

Proceeding with the § 2255 motion is also proper, however, when the motion raises a substantial question about the integrity of the government?s prosecution. That integrity is a concern of the highest order, and questions regarding it can take precedence over matters pending on appeal.

The Tenth Circuit determined the facts presented were troubling and justified a hearing under 2255:

Both Padilla and Palacios had testified at an earlier trial of Mr. Rangel, but the district court had declared a mistrial because the government had not disclosed Mr. Palacios?s observations to defense counsel. The testimony of the two witnesses at the first trial was essentially the same as at the second trial. If their testimony was true, then either the source of information (who, it turns out, was the bus-station manager in El Paso) concocted a story about what had been observed in El Paso (although parts of the story?in particular, Mr. Rangel?s removal of the small bag from the larger bag?uncannily conformed to events several hours later), or Perry concocted a story about what the station manager had told him.

The government agreed to allow Mr. Rangel to proceed on his 2255 motion, so the Tenth Circuit abated the appeal.

Full post as published by Kansas Defenders on March 27, 2008 (boomark / email).