Twining v. United States, 20031.

• Decision Date: 12 September 1963
• Docket Number: No. 20031.,20031.
• Citation: 321 F.2d 432
• Parties: Jack Wright TWINING, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 432 (1963)

Jack Wright TWINING, Appellant, v. UNITED STATES of America, Appellee.

No. 20031.

United States Court of Appeals Fifth Circuit.

August 5, 1963.

Rehearing Denied September 12, 1963.

Thomas C. Wicker, Jr., Frederick Burkart, New Orleans, La., for appellant.

Louis R. Lucas, Asst. U. S. Atty., New Orleans, La., Louis C. La Cour, U. S. Atty., for appellee.

Before RIVES and GEWIN, Circuit Judges, and SHEEHY, District Judge.

GEWIN, Circuit Judge.

This is an appeal from an adverse ruling of the District Court for the Eastern District of Louisiana in a proceeding instituted by appellant pursuant to 28 U.S. C.A. § 2255, filed approximately 5 years after sentence was imposed.

Briefly summarized, the defendant makes the following contentions: (1) he did not intelligently and understandably waive the right to counsel because he was not sufficiently informed of the nature of the charges against him, the range of allowable punishment, possible defenses or circumstances which would tend to mitigate; (2) he did not intelligently and understandably waive indictment and was not furnished with a copy of the charges against him in advance of arraignment; (3) he was advised only in a perfunctory manner of the nature of the charges and of his rights, and the trial court did not ascertain or determine that his plea of guilty was made understandably and intelligently; and (4) the trial court consulted with the prosecuting attorney and the F.B.I. Agent who investigated the case out of the hearing of the petitioner.

Defendant was convicted and sentenced after entering guilty pleas on December 5, 1956, to a two count information charging him with a violation of the Bank Robbery Act, Title 18, § 2113(a) & (d). He was given a sentence of 20 years under Count Two subsection (d); and 10 years under Count One subsection (a). The sentences were to run consecutively. Thereafter, the Supreme Court in Prince v. United States, 352 U.S. 322, 77 S.Ct. 403, 1 L.Ed.2d 370 (1957), held in similar circumstances that the statute embraced only one offense and therefore, only one sentence could be imposed. The trial court thereupon vacated the 10 year sentence originally imposed pursuant to § 2113(a).

The landmark cases dealing with the contentions of the appellant require a careful examination into the particular facts and circumstances involved, including the background, experience and conduct of the accused. On November 28, 1956, at approximately 2:00 P.M., the Bank of St. John located in Reserve, Louisiana, was robbed by the defendant. The defendant entered the bank and conferred with the Vice-President about opening an account. He had $50.00 in his hand, which he stated he wished to deposit. He was given a deposit card to complete; but before doing so, he jumped over the counter to the left of the Vice-President's cage into the area where the tellers operate, displayed an automatic pistol, informed the occupants that "This is a hold up", and directed everybody to lie down on the floor. He locked 3 women tellers, the Vice-President and a customer in the inner vault. Another customer entered the bank and he tried to place this customer in the vault where the other people were, but the door could not be opened. He placed this customer in the second room in the vault and closed the grill after an unsuccessful attempt to close the main door. He then went back into the banking area, rifled the cages of the 4 tellers, left the bank through the front door, entered his car and left. He took $11,790.00 with him. Luckily, there was a phone in the vault for use in cases of emergency. One of the tellers had closely observed the car in which Twining was traveling and was able to describe it. The Vice-President was able to give the alarm by telephone within 10 minutes after the occurrence. Fortuitously, the Sheriff, who was on the Airline Highway, spotted the car immediately and radioed the Highway Patrol. A Highway Patrol officer and a deputy sheriff were also in the vicinity where the car was located. The Highway Patrol officer and the deputy sheriff approached Twining's car and stopped him immediately. Twining forthwith stated that he was the individual who had robbed the bank and pointed to the money in the rear of the car. Twining had a .25 caliber automatic pistol in his pocket, which he stated was the one he had used in the bank. Lodged between the seat and the back of the front seat was a second gun, a Colt automatic. He was taken to the bank immediately and confronted by his recent victims, who positively identified him on the spot. Twining readily, voluntarily, and quickly outlined the series of events which led to the robbery and his arrest. Two weeks prior to the robbery he was in the custody of the Florida State Penitentiary. In accordance with plans there made, he escaped on November 11, 1956. Another convict had given him the "layout" of the bank in Reserve, a plan was drawn, and the location of the bank determined. Merchandise, sales tickets, and other papers indicated he had traveled as far north as Buffalo, New York, and had returned to New Orleans on or about November 25, 1956. He used an alias. He decided to rob the bank on the night of November 27th. He left the hotel in New Orleans on the morning of the 28th, and proceeded a few blocks to a point where he found a 1952 Chevrolet with the keys in the ignition. He stole that car, proceeded to Reserve, Louisiana, drove by the bank a time or two, parked in front of it, committed the robbery, and drove off in the stolen automobile. In short, it appears that the robbery was well planned, and skillfully and successfully executed. A telephone in the vault, fortuitous circumstances, and alert police officers made quick work of his apprehension and capture. The defendant was caught red handed with the goods in his possession, that is, $11,790.00, the weapon he used in the robbery plus one other, and the stolen automobile. His identity was established in such circumstances that no doubt whatever existed as to his being the robber. This series of unusual events took place in a short period of time on the afternoon of November 28, 1956.

In our consideration of the contentions of the defendant in his collateral attack, brought 5 years after his apprehension, identity, plea of guilty, conviction and sentence, we have carefully examined the leading cases on the questions presented. We start with the case of Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), wherein the Supreme Court laid down the following fundamental principle:

"The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused."

We have also considered the cases strongly relied upon by the appellant, Von Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948); and our case of Smith v. United States, 238 F.2d 925 (1956).

We have carefully analyzed the Von Moltke case. There the defendant was a German woman residing in the United States, charged with the serious offense of conspiracy to commit espionage while this country was at war with Germany. She was arrested during the early morning hours while still in bed, placed in solitary confinement, questioned by F.B.I. Agents from 10:00 A.M. to 9:00 P.M. for several days, was held incommunicado, and was denied access to counsel on the ground that she was an enemy alien. After 8 days of such treatment, she was taken before an Enemy Alien Hearing Board where she was denied the right of counsel. After another month of similar detention she was taken to the courthouse for arraignment. When the trial court found she had no lawyer, a young attorney present in the courtroom was asked to aid the defendant. The attorney objected, but finally agreed to assist only during arraignment. His assistance consisted of a whispered conversation with the defendant lasting from 2 to 5 minutes, after which a plea of not guilty was entered. She was informed that an attorney would be appointed to represent her at trial, and thereafter she was held incommunicado during which time she was visited daily, except on Sundays, by F.B.I. Agents, some of whom were lawyers. The record shows a complete ignorance on her part of the laws of the United States, but she continued to inquire as to her rights. The implications of the indictment were explained to her by F.B.I. Agents; she was apprehensive as to whether her husband would be involved; as to the presumption of her guilt by association with people who were guilty; the meaning of conspiracy and the advisability of pleading guilty or innocent, during all of which time she was unaided by counsel. Finally, on the day of trial she entered a plea of guilty without the aid of counsel, although she had been promised counsel. The charge against her authorized a maximum penalty of death, but she was not informed of this fact. The court found that the undisputed testimony showed that when the petitioner entered her plea of guilty, she did not have "* * * that full understanding and comprehension of her legal rights...