Egan v. United States, 16160.

• Citation: 268 F.2d 820
• Decision Date: 08 July 1959
• Docket Number: No. 16160.,16160.
• Parties: Earl EGAN, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

268 F.2d 820 (1959)

Earl EGAN, Appellant, v. UNITED STATES of America, Appellee.

No. 16160.

United States Court of Appeals Eighth Circuit.

July 8, 1959.

Earl Egan, pro se.

F. E. Van Alstine, U. S. Atty., and William R. Crary, Asst. U. S. Atty., Sioux City, Iowa, for appellee.

Before SANBORN, VAN OOSTERHOUT and MATTHES, Circuit Judges.

SANBORN, Circuit Judge.

This is an appeal in forma pauperis from an order of November 7, 1958, denying a motion of Earl Egan under 28 U.S.C. § 2255 to vacate a sentence of life imprisonment imposed on June 4, 1935, when he entered a plea of guilty to an indictment charging him and three others with the kidnapping and interstate transportation of Ernest Newman from Sioux City, Iowa, to a point in Minnesota near Fort Snelling, in violation of 18 U.S.C. § 408a, 48 Stat. 781.^* That statute, in pertinent part, provided:

"Whoever shall knowingly transport or cause to be transported, or aid or abet in transporting, in interstate or foreign commerce, any person who shall have been unlawfully seized, confined, inveigled, decoyed, kidnapped, abducted, or carried away by any means whatsoever and held for ransom or reward or otherwise, * * * shall, upon conviction, be punished (1) by death if the verdict of the jury shall so recommend, provided that the sentence of death shall not be imposed by the court if, prior to its imposition, the kidnapped person has been liberated unharmed, or (2) if the death penalty shall not apply nor be imposed the convicted person shall be punished by imprisonment in the penitentiary for such term of years as the court in its discretion shall determine * * *."

The interstate kidnapping charged in the indictment took place on February 4, 1935, after Newman, one of the guards of an armored car, had been robbed at gunpoint by the defendants while carrying a bag of currency to or from the Live Stock National Bank, in the Live Stock Exchange Building in Sioux City, Iowa, and transported by automobile from Iowa to Minnesota, as charged in the indictment. Newman was released unharmed.

Egan and two of his codefendants, Knight and Jensen, were arraigned on June 1, 1935, before United States District Judge Charles E. Dewey, who was sitting by assignment in the Northern District of Iowa. The defendants Egan and Knight were represented by the same counsel. Egan entered a plea of not guilty. Knight and Jensen entered pleas of guilty. On June 4, 1935, Egan, with his attorney, appeared before Judge Dewey, and withdrew his plea of not guilty and entered a plea of guilty. Egan was given a life sentence. On the same day, Knight was sentenced to 25 years imprisonment, and Jensen to 20 years. Hanley, the fourth defendant named in the indictment, was a fugitive, but was later apprehended and sentenced to 15 years imprisonment by Judge Scott, United States District Judge for the Northern District of Iowa. Egan entered upon the execution of his sentence immediately after being sentenced, and has since been, and now is, in executive custody.

In his motion for vacation of his sentence, he asserted that the sentence is void because: (1) he was not properly arraigned before a United States Commissioner; (2) his plea of guilty was coerced because he was informed that his codefendants had signed confessions implicating him, and was advised that if he stood trial he would be given the limit, and, through fear of what that might be, he changed his plea of not guilty to guilty; (3) his sentence violated the equal protection clause of the Fourteenth Amendment to the Federal Constitution, since he was given a more severe sentence than his codefendants for the same offense.

Judge Graven, United States District Judge for the Northern District of Iowa, extended to Egan all possible consideration and assistance to enable him properly to present his motion. The Judge permitted him to file and docket the motion without payment of fee, and ordered the United States Attorney to make an investigation for the purpose of ascertaining the existence and whereabouts of persons who might have knowledge of the facts surrounding the imposition of sentence upon Egan in 1935, and to file a report giving the names and addresses of such persons. The United States Attorney complied, and on September 30, 1958, filed his report showing that virtually all those who had knowledge of the facts in regard to the sentencing of Egan, including Judge Dewey as well as counsel for the Government who handled the case against Egan on its behalf, and his counsel, were dead. On October 1, 1958, the United States Attorney filed a motion to dismiss the motion of Egan to vacate the judgment and sentence, on the ground that the files and records in his case conclusively showed that as a matter of law he was entitled to no relief and that the judgment was invulnerable to attack. This motion was not ruled upon.

On October 2, 1958, Judge Graven appointed Mr. Jesse E. Marshall, of the Sioux City, Iowa, Bar, to represent Egan in connection with his motion; set the motion for hearing at Sioux City, Iowa, on November 5, 1958; and ordered that Egan be produced at the hearing, and that he be made available at Sioux City for consultation with his attorney at least seven days in advance of the hearing.

The hearing on the motion took place on November 6, 1958. Egan was present in person and was represented by his attorney, Mr. Marshall. The testimony on behalf of the Government substantiated the facts...