McFarland v. United States, Civ. No. 18054.

• Decision Date: 07 June 1968
• Docket Number: Civ. No. 18054.
• Parties: Richard L. McFARLAND v. UNITED STATES of America.
• Court: U.S. District Court — District of Maryland

284 F. Supp. 969

Richard L. McFARLAND v. UNITED STATES of America.

Civ. No. 18054.

United States District Court D. Maryland.

June 7, 1968.

William J. Evans, court-appointed, Baltimore, Md., for petitioner.

Stephen H. Sachs, U. S. Atty., and Donald E. Sharpe, Asst. U. S. Atty., Baltimore, Md., for respondent.

THOMSEN, Chief Judge.

In this petition under 28 U.S.C. § 2255 McFarland attacks four convictions and sentences imposed in 1964 after he had entered pleas of guilty to four separate indictments charging bank robberies in Silver Spring, Maryland, Baltimore, Maryland, San Diego, California, and Las Vegas, Nevada, respectively.

On January 29, 1964, McFarland, Sullivan and Fritts robbed the West Baltimore office of the Maryland National Bank. As they were leaving the bank, Fritts shot and killed a policeman.

McFarland went west as far as San Francisco. On February 9, he left San Francisco, and arrived at Las Vegas on February 10 about 7:00 p. m. He gambled and drank during the evening, and about midnight registered at the Desert Inn, went to his room and slept. Around 9:15 a. m. on February 11, he came to the lobby of the Desert Inn and made a telephone call to his wife, who told him that the F.B.I. was looking for him. As he left the phone booth about 9:25 a. m., he was arrested by F.B.I. agents, who identified themselves, told him that he was under arrest for robbing a bank in Maryland, and told him that he did not have to say anything if he did not want to. They asked his name and McFarland told them that his name was Larry Farrell, which the agents knew to be an alias used by McFarland. The agents took him outside, searched him for weapons and took his wallet, which contained various cards, one or two in the name of Farrell but most in the name of McFarland. He was placed in a car with two agents, one of whom drove, and taken to the F.B.I. office, some five miles away, arriving about 9:45 a. m. Immediately after they entered the car, one of the agents advised McFarland more fully of his rights, specifically that he need not say anything, that anything he said might be used against him in court and that he had a right to consult a lawyer before he said anything. The agents then asked him if he was not in fact McFarland. He replied that he was and volunteered the statement: "I am one of the three men you are looking for". At the F.B.I. office two agents took McFarland into a conference room, while one agent reported to the agent-incharge, started someone looking for the United States Commissioner and sent for the fingerprint expert and the photographer. That agent returned to the conference room and one of the other agents left.

McFarland was reminded of his rights, as previously told him. He did not ask for a lawyer. He did not ask to make a telephone call, but gave the agents an oral statement about the Baltimore robbery and his two accomplices, for whom the F.B.I. agents were still looking. Shortly after noon, the agents were told that the commissioner was either at the jail or on his way to the jail, some six blocks away from the F.B.I. office. They promptly took McFarland to the jail, entered and booked him, and took him before the commissioner. A short hearing was held. McFarland was advised of his rights, as appears not only from the testimony of the witnesses, but from the typed commissioner's report filed in the District Court the next day, and waived his right to counsel, indicating that he would engage counsel when he reached Baltimore. McFarland still had some money when arrested, and his family employed counsel to represent him when he reached Baltimore. Since the warrant from Maryland had not yet reached Nevada, McFarland was held in the Nevada jail. On February 13, McFarland was placed in a line-up in connection with a robbery of a Las Vegas savings and loan association, federally insured. He did not protest to the F.B.I. either before or after the line-up and he did not seriously protest, if at all, to the jailer. After the line-up he asked an F.B.I. agent if anyone had identified him. Since one witness had identified him positively and one tentatively, the agent answered "yes". McFarland was again advised of his rights, including his right to counsel, and he thereafter admitted the Las Vegas robbery. The F.B.I. agents then asked him if he had participated in other robberies and if he wanted to tell about any of them. McFarland then told the F.B.I. about his participation in a robbery of a federally insured savings and loan association in San Diego, California, which the Nevada agents knew something about, and also volunteered that he had participated in the robbery of a savings and loan association at Four Corners, Silver Spring, Maryland, about which the Nevada agents knew nothing. McFarland said that he would like to have all of the cases, including the Baltimore case, disposed of in Nevada and asked if that could be done. The agents explained to him the provisions of Rule 20, F.R. Crim.P.

After McFarland was charged with the Nevada robbery, the commissioner appointed an attorney to represent him in that case, and McFarland had a conference with the attorney. By that time it was clear that the United States Attorney for the District of Maryland would not agree to a transfer of the Maryland case to Nevada, and McFarland told his attorney that he would wait until he got to Baltimore to employ a lawyer to represent him in the Maryland case. On February 18, McFarland appeared before the commissioner and signed a waiver of hearing on his transfer to Maryland. On February 20, the District Judge signed an order directing his transfer to Maryland.

He was brought to Maryland on March 15 or 16. Meanwhile, the indictment in this Court against Fritts, Sullivan and McFarland for the Maryland National Bank robbery had been returned on February 25, 1964. On March 30, 1964, an indictment against Fritts, Sullivan and McFarland for the murder of the policeman in connection with that robbery was filed in the Criminal Court of Baltimore. On April 21, McFarland and Sullivan were indicted in this District Court for the Silver Spring robbery, which had occurred on January 6, 1964.

Meanwhile, McFarland's family had retained Marshall A. Levin, Esq., a capable Baltimore lawyer experienced in criminal cases, who conferred with McFarland six or seven times at least. Counsel had been appointed for Fritts, and Sullivan's family had retained counsel for him. McFarland and Levin were aware that McFarland had been indicted on April 10, 1964, in the District of Nevada for the robbery of the Las Vegas savings and loan association, and on April 15, in the Southern District of California for the robbery of the San Diego savings and loan association. The principal interests of McFarland and his counsel (Levin) were to avoid a possible death penalty in connection with the Maryland National Bank robbery indictment, to avoid conviction and a more probable death sentence in the murder case in the Criminal Court of Baltimore and, to that end, to prevent, if possible, a trial of the case in the Criminal Court. Other objectives were to obtain concurrent sentences in the Silver Spring case and in the cases then pending in the District of Nevada and the Southern District of California, in order to minimize parole problems. Levin wisely, and in the event correctly, advised McFarland that if he entered a plea of guilty in the Maryland National Bank case in this Court, and received a life sentence therein, he believed the State of Maryland would not insist on trying the murder case.¹ Counsel for the other two defendants reached the same conclusion and all defendants decided to enter pleas of guilty to all four counts of the Maryland National Bank indictment in this Court, including the count which carried the possible death penalty.

Sullivan and McFarland also decided to plead guilty to the three counts of the Silver Spring indictment, and McFarland decided to make arrangements to plead guilty later under Rule 20 to the California and Nevada indictments.

McFarland and Sullivan were arraigned first on the Silver Spring indictment. Each indicated, after appropriate questioning, that the pleas were voluntarily made, with full knowledge of the possible consequences. McFarland admitted that he participated in the Silver Spring robbery, stated that he was not armed in that robbery, but agreed that someone who participated in the robbery was armed. Both McFarland and Sullivan stated specifically that no promises of any sort had been made to them to induce their pleas.

Fritts, Sullivan and McFarland were then arraigned on the Maryland National Bank indictment and all three entered pleas of guilty to all four counts of that indictment, including the count alleging the killing of the policeman. When the pleas were entered, the writer of this opinion, who presided at the arraignment, followed the procedure approved in Seadlund v. United States, 97 F.2d 742, 748 (7 Cir. 1938). See also Robinson v. United States, 264 F.Supp. 146, 153 (W.D.Ky.1967). He not only made sure that the several defendants were entering the pleas voluntarily and with knowledge of the possible consequences, but advised the defendants of the following provision applicable to the fourth count:

"Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement from such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct."

The following proceedings then took place with respect to the defendant McFarland:

"THE COURT: You understand the nature of the various charges set out in the counts?

"THE DEFENDANT McFARLAND: Yes, sir.

"THE COURT: Particularly

...