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ST. LAWRENCE v. UNITED STATES

February 24, 1977

JOHN GEORGE ST. LAWRENCE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent



The opinion of the court was delivered by: SIRICA

 The petitioner in this case, John G. St. Lawrence, seeks a judgment of acquittal or a new trial. A jury convicted him in this Court in 1970 of aiding and abetting extortion. All of the arguments St. Lawrence now makes have been made previously and have been found by this Court and by the Court of Appeals to be without merit. But he now claims to have recently obtained evidence that shows that the government withheld from him at trial certain notes or the name of a possible witness, either of which would have allowed him to demonstrate his innocence. It is to this contention that the Court can limit its attention.

 I

 St. Lawrence, of necessity, has brought this petition for relief under the All Writs Act, 28 U.S.C. § 1651 (1970): the time for filing a motion under Rule 33 of the Federal Rules of Criminal Procedure has long ago expired; and the petitioner is no longer in custody and therefore can no longer file under 28 U.S.C. § 2255 (1970).

 Writs under § 1651 are issued only in extraordinary circumstances. In cases such as this, where a petitioner seeks relief from a criminal conviction, he must give the Court evidence which shows that the previous decision that he was guilty is clearly wrong. See, e.g., Moon v. United States, 106 U.S. App. D.C. 301, 272 F.2d 530 (1959).

 Put in this context, St. Lawrence's argument is as follows:

 What was said during a July 24, 1970, telephone conversation between St. Lawrence and the complainant was crucial to the government's case against the petitioner. The only evidence submitted to the jury on this point was the testimony of the complaining witness. Yet the call was monitored by an Officer Grove of the D.C. Police Department, and he took notes on what he heard. The trial prosecutor knew that the call was monitored and that notes of it were made, but he did not disclose these facts to the defendant -- even when the defendant asked for copies of all notes or questioned whether the call had been monitored. Nor did he call Officer Grove as a witness. Indeed, when asked, the prosecutor denied that the telephone conversation was ever monitored. This leads inevitably to the conclusion that the notes or the testimony of Officer Grove would have shown St. Lawrence to be innocent.

  A

 The petitioner focuses first on the notes. The evidence on which he relies to establish that Officer Grove monitored and took notes of the conversation, and that the prosecutor knew that these notes existed, is the testimony of an FBI agent at St. Lawrence's preliminary hearing. The testimony was given in response to questions from a government attorney, though not the one who later participated in the trial. *fn1"

 The pertinent part of this testimony is as follows:

 
* * *
 
Q. Directing your attention, then, to a call that was on the 20 --
 
A. 24th of July.
 
Q. The 24th of July, and Officer Grove of the Metropolitan ...

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