United States v. McGann, 23017.

• Decision Date: 01 July 1958
• Docket Number: No. 23017.,23017.
• Citation: 163 F. Supp. 417
• Parties: UNITED STATES of America v. Clarence Duke McGANN, Henry John Foster, Earl Kill Smith, also known as Earl James Smith, Jr.
• Court: U.S. District Court — District of Maryland

163 F. Supp. 417

UNITED STATES of America v. Clarence Duke McGANN, Henry John Foster, Earl Kill Smith, also known as Earl James Smith, Jr.

No. 23017.

United States District Court D. Maryland, Criminal Division.

July 1, 1958.

No appearance for plaintiff and defendant.

CHESNUT, District Judge.

Earl Kill Smith, one of the three defendants in the above case, has filed a second petition to modify or strike out the sentence imposed upon him in this court on February 7, 1955, when represented by competent counsel theretofore appointed by the Court. After considering the petition in the light of the whole record in the case, I have concluded that the petition must be denied. To understand the reasons for this conclusion it is important to make at least a summary review of the record in the case.

On August 13, 1954, a branch of the First National Bank of Southern Maryland located in Prince George's County, Maryland, was robbed of $124,000 by three armed robbers. One of the men, McGann, was arrested almost immediately in the vicinity but the other two escaped at the time. An indictment against the three defendants was filed in this court on August 18, 1954 charging them in four counts with the robbery or theft under section 2113 of title 18 U.S. C.A. the fourth count being the one that charged them with armed bank robbery. After the appointment of counsel by the Court, McGann, after pleading guilty, was sentenced to twenty years in prison. Smith and Foster were arrested separately some months later, the arrest of Smith being in Texas. After hearing by the United States Commissioner there he was ordered removed to the District of Maryland, and after the appointment by the Court of competent and experienced counsel for Smith and Foster their case was called in court on February 7, 1955. After each pleaded guilty by and in the presence of counsel, each was sentenced to a term of twenty-five years imprisonment and to pay a fine of $10,000. At the same time each also pleaded guilty by counsel in case No. 23023 charging them with the interstate transportation of a known stolen automobile, the latter having been used in connection with the bank robbery, and each was sentenced to an additional consecutive term of two years and a fine of $1,000. The sentences were not imposed until after the Court had heard a full and substantial account of the facts and incidents of the bank robbery, and the particular relation of each of the defendants thereto and until after each of the defendants had been given an opportunity to and did make a full statement in court of their respective participation in the robbery and an explanation and statement with regard to the disposition made by them of that portion of the money stolen which they had received and used or otherwise disposed of over and above the comparatively small portion of the whole amount which had been recovered from them respectively.

The whole of the hearing in open court was stenographically reported by the court reporter and has been transcribed and filed in this proceeding. At the time I had the opportunity to hear and consider the whole of the individual statements of the two defendants respectively and to note at the time their apparent intelligence and manner and freedom of speaking.

Smith, the present petitioner, has been confined at Alcatraz, California. On April 8, 1957, more than two years after the robbery and more than two years after the sentence, Smith filed a petition in this court for reduction of sentence imposed on him in case No. 23017. His contention was that the sentence should not have exceeded twenty years because the fourth count of the indictment, which was the only one charging armed bank robbery, was not technically sufficient. Nothing was said with respect to his present contention that his plea of guilty was not in accordance with due process. That petition for the reduction of sentence was said to be based on Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. The Court denied the petition with an opinion dealing specifically with the petitioner's contention respecting the sufficiency of the indictment, and the consequent correctness of the sentence of twenty-five years. United States v. McGann, D.C., 150 F.Supp. 463. Smith appealed from the order to the United States Court of Appeals for the Fourth Circuit where the order of this court was affirmed, 250 F.2d 37, certiorari denied 355 U.S. 965, 78 S.Ct. 555, 2 L.Ed.2d 540.

The gist of the present petition is that the plea of guilty in this court was not really free and voluntary because he was still under the influence of threats, violence and other duress occurring and affecting him at the time of his arrest in Texas, at the instance of one Graham, a representative of the Federal Bureau of Investigation, and other unnamed officers who secured from him by threats, duress and other unlawful treatment and intimidation, a written confession of guilt. He now complains that this illegal treatment in Texas, more than seven weeks before his arraignment in this court, was still the inducing cause for his plea of guilty entered here after conference with his counsel whom he also charges with apparent indifference and hasty action in advising him to plead guilty because his co-defendant Foster, represented by the same counsel, also intended to plead guilty.

His present petition expressly states that he filed it in accordance with section 1651(a) of title 28 U.S.C.A., sometimes called the "all writs section", which was held by the Supreme Court in United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248, to include the common law writ in the nature of an appeal "coram nobis".

After reading the present petition but before refreshing my recollection as to the particular circumstances accompanying the petitioner's plea of guilty in this court more than three years ago, I made an order that the United States Attorney show cause why the relief should not be granted. Such cause has been shown in much detail and with reference to the record of removal proceeding against the defendant, Smith, before the United States Commissioner in Laredo, Texas, from which it appears that the defendant was arrested by Border Patrol Officers in Texas on December 22, 1954, and apparently held because lacking sufficient identification. It was not until later that day that his real identity was learned. The next day he was taken before the United States Commissioner on a complaint by one Graham, an Agent of the Federal Bureau of Investigation. He was not then represented by counsel but the Commissioner advised him of his rights...