Jarrett v. United States

• Decision Date: 16 March 1970
• Docket Number: No. 19686.,19686.
• Parties: Billy Junior JARRETT, Appellant. v. UNITED STATES of America, Appellee,
• Court: U.S. Court of Appeals — Eighth Circuit

423 F.2d 966 (1970)

Billy Junior JARRETT, Appellant. v. UNITED STATES of America, Appellee,

No. 19686.

United States Court of Appeals, Eighth Circuit.

March 16, 1970.

Billy Junior Jarrett, pro se.

Allen L. Donielson, U. S. Atty., Des Moines, Iowa, and Claude H. Freeman and Richard J. Barry, Asst. U. S. Attys., for appellee.

Before MATTHES, BLACKMUN and BRIGHT, Circuit Judges.

BLACKMUN, Circuit Judge.

Once again we are confronted with a post-conviction application for relief from a federal sentence imposed after a plea of guilty entered more than a decade ago.

Billy Junior Jarrett, an inmate of Leavenworth, appeals in forma pauperis from the district court's denial of his motion filed pursuant to 28 U.S.C. § 2255. He seeks to vacate and set aside his 1956 sentence pronounced upon his plea of guilty. Judge Hanson appointed counsel to represent Jarrett. A full hearing was held. Jarrett testified and briefs were submitted.

The chronology as revealed by the files and the evidence at the hearing on the motion is pertinent:

1. On December 31, 1955, a federally insured bank at Salem, Iowa, was robbed.

2. On June 5, 1956, Jarrett was arrested in Iowa by a local sheriff and charged with the state crime of forgery. At the time of his arrest Jarrett had in his possession an automobile and a gun. At that time Jarrett, as his brief recites, "knew the car in his possession was stolen from another state and the gun had been taken in a burglary in which several checks had been taken and cashed in different states."

3. On the afternoon of June 7 FBI Special Agents Bugas and Foster, both of whom were experienced, interviewed Jarrett in the County Court House at Glenwood, Iowa. At that time Jarrett was still in state custody. As to the preliminary aspect of this interview, Agent Bugas testified as set forth in the margin.¹ Agent Foster testified to the same effect. The interview went on for about four hours while four written statements were taken from Jarrett. These concerned, respectively, four separate crimes, namely, the Salem bank robbery, two Dyer Act offenses, and the possession of the gun. As to all this, Agent Bugas further testified as is set forth in the margin.² Agent Foster, too, testified to the same effect. Neither Bugas nor Foster interviewed Jarrett after June 7.

4. On June 8 Agent Bugas signed a complaint charging Jarrett with the robbery of the Salem bank in violation of 18 U.S.C. § 2113.

5. On June 12 Jarrett was released from state custody to the custody of the United States Marshal. He was taken that day before a United States Commissioner. Bond was fixed at $25,000. Jarrett was unable to post this.

6. On June 20 Jarrett was interviewed by FBI Special Agent Meadows. The record, however, does not disclose what took place at this interview.

7. On July 2 Jarrett appeared without a lawyer before Judge Graven. The United States was represented by United States Attorney Roy L. Stephenson (now Chief Judge of the United States District Court for the Southern District of Iowa). Jarrett waived indictment and consented in writing in open court to prosecution by information. Rule 7(b), Fed.R.Crim.P. The information signed and then filed by the United States Attorney charged that Jarrett robbed the Salem bank on December 31, 1955, and placed the lives of named persons in jeopardy with the use of a .38 caliber revolver, in violation of 18 U.S.C. § 2113. Jarrett had already consented to a Rule 20 transfer of a charge pending upon indictment in the Northern District of Indiana for a violation of 18 U.S.C. § 2314 (knowing transportation in interstate commerce of a falsely made and forged security). The defendant entered a plea of guilty to each charge. We set forth in the margin the comments which passed between Jarrett, the United States Attorney, and the court at this hearing on July 2, 1956.³

8. On July 3 Judge Graven adjudged Jarrett guilty on both charges. He imposed a sentence of 15 years on the bank robbery charge and one of 3 years on the transportation charge; the latter sentence was to run concurrently with the former. We set forth in the margin excerpts from the transcript of July 3.⁴

Judge Hanson's unreported memorandum-order denying Jarrett's § 2255 motion recites that the judgment of conviction carried with it the presumption of regularity; that Jarrett's testimony at the hearing "regarding the circumstances under which the confession was made differs very little from the testimony of two F.B.I. agents to whom it was given"; that the court cannot agree with Jarrett that the agent's informing him "of possible sentences constituted a threat which in any way tended to make his confession involuntary"; that Jarrett testified that he was ill at the time of the arrest and thereafter through the time of sentencing and that this prevented him from making a voluntary confession and induced him to enter an involuntary plea of guilty; that the evidence, however, shows that he was examined in a hospital and the examination disclosed that he was suffering "from a mild respiratory disorder"; that the only evidence that his physical condition affected his ability to protect himself was his own testimony; that the standards for in-custody interrogation in 1956 were less restrictive than those established by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), which is prospective in application; that the failure to advise Jarrett of any right to have counsel present at the interrogation is not a sufficient ground by itself to regard the confession as involuntary and no other circumstances are shown which tend to make it so; that there is nothing in the record to substantiate Jarrett's allegations that threats and promises were made by the United States Attorney; that the United States Attorney testified that he took care to explain the charges against Jarrett and made no threats or promises of any kind; and that

"* * * Considering the record as a whole, the Court believes that the confession was voluntarily made during a short interrogation involving no threats or coercion.

* * * * * *

"The entire record of this case indicates that the conviction is based on a voluntary plea of guilty entered after a voluntary confession and waiver of counsel. The sentencing Court committed no error in relying on the confession at the time of sentencing."

Jarrett, in a substantial, well-written, and purportedly pro se brief now asserts (1) that his confession was involuntary because he did not have the assistance of counsel prior to the confession; (2) that the district court's determination that the petitioner waived appointment of counsel was in violation of Rule 44, Fed. R.Crim.P.; and (3) that his guilty plea should be set aside because it was accepted in violation of Rule 11, Fed.R.Crim. P.

1. The voluntary or involuntary character of the confession. Jarrett's involuntariness argument is based on the established facts that at the time of his arrest in 1956 he was in possession of an automobile and of a gun, both admittedly stolen, and upon his personal testimony to the effect that at the Bugas-Foster interview he requested counsel but was told he would have to get his own lawyer; that he was in ill health at the time; that the agents promised that if he would plead guilty to the federal charge, "the court would be lenient"; that unless he cooperated all charges would be prosecuted and he would be subject to a total of 500 years imprisonment; that his confession was signed "after a short period of questioning"; that he had not been informed "of the benefits or purposes of counsel" and did not understand "what an attorney's function was or what an attorney could do for him"; that the United States Commissioner did not give him a preliminary hearing or advise him of his right to counsel; and that he was interviewed by United States Attorney Stephenson in the county jail.

The initial aspect of Jarrett's point about the involuntariness of his confession seems to center, as is not uncommon in these cases, upon Rule 5(a), Fed.R.Crim.P., and upon the holdings in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), and the allegation that, because at the time of his arrest by the sheriff he possessed an automobile stolen in another state and a gun taken in a burglary in still another state resulting in the cashing of stolen checks in different states, he could have been arrested without a warrant for federal violations. Thus we have the rather unusual situation of a federal prisoner complaining because he was not promptly arrested for federal offenses other than the one with which he was eventually charged. We are not persuaded that a defendant is possessed of a right to designate which of several possible federal charges is to occasion his arrest.

In any event, the McNabb-Mallory argument is unavailing. Rule 5(a) "may be invoked only when an officer makes an arrest under federal law" or, perhaps, when there is evidence indicating that the arrest and detention by the state official were at the request of federal authorities or for the purpose of assisting them. "The rule has no application where, as here, it is clear that at the time the statement was made the person has been arrested by local authorities and is in their sole custody." Tucker v. United States, 375 F.2d 363, 370 (8 Cir. 1967), cert. denied, 389 U.S. 888, 88 S.Ct. 128, 19 L.Ed.2d 189; Young v. United States, 344 F.2d 1006 (8 Cir. 1965), cert. denied, 382 U.S. 867, 86 S.Ct. 138, 15 L.Ed.2d 105; Chapman v. United States, 397 F.2d 24, 26 (10 Cir. 1968). "A bare suspicion of a `working arrangement'" is insufficient. Young v. United States, supra, 344 F.2d at 1010; Tucker v. United States, supra, 375 F.2d at 370.

We turn to the main aspect of the voluntariness issue. This, as we see it, is solely one of credibility. The record amply...