Dillon v. United States

• Decision Date: 06 March 1963
• Docket Number: Civ. No. 61-349.
• Citation: 218 F. Supp. 948
• Parties: Edward J. DILLON, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Oregon

218 F. Supp. 948

Edward J. DILLON, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. No. 61-349.

United States District Court D. Oregon.

March 6, 1963.

Manley B. Strayer, Hart, Rockwood, Davies, Biggs & Strayer, Portland, Or., for plaintiff.

Sidney I. Lezak, Acting U. S. Atty., Portland, Or., for defendant.

EAST, District Judge.

In these civil proceedings, pursuant to Title 28 U.S.C.A. § 2255, in forma pauperis, the petitioner Dillon seeks to set aside and vacate "the plea of guilty and sentence" received and entered in the criminal case entitled United States of America v. Edward Joseph Dillon (Dillon) and Robert Newell Lovelace, No. C-18405, lately pending in this court.

Dillon contends in his pro per § 2255 petition that his conviction was obtained in violation of his United States Constitutional rights in that "(1) his plea of guilty was obtained solely on the basis of Mr. Carney's promise that he would not receive a sentence in the excess of ten (10) years; (2) Mr. Carney had no intention of either recommending a sentence not exceeding (10) ten years or seeing that the court carried out the terms of his promise; and (3) Mr. Carney's demand that the petitioner request a presentence investigation report was merely an artifice to put before the court information which he knew would enhance the punishment."

We have just completed a complete hearing de nova on Dillon's petition, as directed by the Court of Appeals in Dillon v. United States of America, 307 F.2d 445 (9th Cir.1962). This court having heretofore, as directed by the Court of Appeals, appointed and requested Mr. Manley B. Strayer, of Portland, a member of the bar of this court, to act as counsel for Dillon in the matter of his petition before this court. Dillon was brought to the custody of the Marshal at Portland from the United States Penitentiary at McNeil Island, Washington, and has been available for consultation with Mr. Strayer for more than 10 days prior to the commencement of the hearing herein, throughout which Dillon and his counsel have been personally present. A more conscientious, intellectually honest, thorough and able legal representation of a petitioner's cause than afforded by Mr. Strayer has not been heretofore had in this court.

I find from the records and files of criminal case No. C-18504 and the evidence adduced at this hearing that:

On and for some time prior to January 3, 1958, the Federal Bureau of Investigation had been endeavoring to apprehend persons responsible for the armed robbery of three Portland-area member banks of the Federal Reserve System, one of which was the Foster-Powell Branch of the First National Bank of Portland;

On that date Dillon was in the custody of the Oregon State Police at Toledo, Oregon, in connection with purported charges of statutory rape against him. That at the request of either himself or the state police, he was contacted by an agent of the F.B.I. Dillon then stated to that agent and the state prosecuting attorney, in effect—I want to make a deal —he could probably clear up a couple of pretty important federal cases—he would admit guilt in the federal cases, as he did not want to go to a state penitentiary on a rape charge, as he would be ostracized. He later, that day and after advising with his attorney, voluntarily gave a written statement to the F.B.I. agent, admitting and incriminating himself in the armed robbery of the Foster-Powell Branch;

On February 13, 1958, Dillon and Lovelace were jointly indicted and charged with the armed robbery of the Branch on December 13, 1957, in violation of Title 18 U.S.C. § 2113(a);

On March 21, 1958, Dillon and Lovelace were arraigned on the charges in open court and each entered a plea of guilty as charged, and on request of the government's counsel, with the consent of each of the defendants, a presentence report was ordered to be prepared for the court by the probation department of this District;

On May 8, 1958, defendants appeared with their respective counsel for sentencing. Dillon was sentenced to 18 years and Lovelace to 8 years imprisonment;

Since before the taking of Dillon's written statement at Toledo on January 3, 1958, and continuously throughout the entire disposition of criminal case No. 18504, Dillon was represented by his own retained, competent and able counsel, Mr. Jesse F. Webb;

Following the return of the indictment, Mr. Robert R. Carney, then first Assistant United States Attorney, represented the government throughout the criminal matter, and there followed a series of conferences with Mr. Webb and Mr. Eugene Pfeiffer, counsel for Lovelace, in the way of bargaining for assurances of recommendations by the United States Attorney's office as to lengths of sentences in return for Dillon's and Lovelace's pleas of guilty. Mr. Webb and Dillon, in their testimony here, refer to these sought-for assurances as a "package deal," which phrase I use advisedly because the government needed the testimony of either Dillon or Lovelace to implicate the other;

Following the prior hearing herein, this court found, inter alia, that:

"8. The Assistant United States Attorney in charge of the criminal proceedings advised counsel for petitioner that in the event he was asked by the Court for a recommendation at the time of sentencing he would recommend a ten year term. No assurance or representation was made by the Assistant United States Attorney that a recommendation would be requested by the Court. There is no evidence that the Assistant United States Attorney or any representative of the United States Government at any time failed to make any recommendation as contended, and I further find that petitioner was advised by his attorney on three different occasions prior to his arraignment that there was no assurance that the Court would request the United States Attorney's recommendation or in any event that the Court was bound by any such recommendation." —;

During the immediate months of December, 1957, and January through March, 1958, the three resident judges of this District were alternating in the dealing with criminal arraignments and pleas as their respective time permitted, Chief Judge McColloch hearing relatively few, Judge Solomon considerably more, and Judge East probably the bulk;

It was the policy of the Chief Judge to occasionally ask for the United States Attorney's office and probation officer's recommendations as to sentences, and the practice of Judge Solomon was to also occasionally ask for the United States Attorney's office's recommendation, and almost always to discuss sentences with the probation officer, and that Judge East did not, as an announced policy, ask for recommendations from either the United States Attorney's office or the probation officers. There is no evidence in the record that Judge East ever refused to hear out or that he discouraged a proferred recommendation or suggestion as to sentences from any counsel or probation officers.

The personnel of both the United States Attorney's office and the probation office was at all pertinent times well cognizant of the practices and policies of the three judges in that regard—indeed, it would be a naive court which would hazard that the United States Attorney's office did not well know their judges;

At all critical times, Mr. Webb and Dillon and Mr. Pfeiffer well knew and were cognizant, through inquiry from fellow practitioners of this court bar, and particularly a former assistant United States Attorney, that it would be very unusual if any federal judge would ask for a recommendation by the United States Attorney as to sentencing,...