McGann v. United States

• Decision Date: 01 September 1964
• Docket Number: Civ. No. 15245,15626.
• Citation: 233 F. Supp. 419
• Parties: Clarence Duke McGANN v. UNITED STATES of America. Clarence Duke McGANN v. UNITED STATES MARSHAL, DISTRICT OF MARYLAND.
• Court: U.S. District Court — District of Maryland

233 F. Supp. 419

Clarence Duke McGANN v. UNITED STATES of America.

Clarence Duke McGANN v. UNITED STATES MARSHAL, DISTRICT OF MARYLAND.

Civ. Nos. 15245, 15626.

United States District Court District of Maryland.

September 1, 1964.

Lowell R. Bowen, court-appointed, Baltimore, Md., for petitioner.

Thomas J. Kenney, U. S. Atty., and Ronald T. Osborn, Asst. U. S. Atty., Baltimore, Md., for respondents.

THOMSEN, Chief Judge.

The § 2255 Petition

This is the ninth petition for relief under 28 U.S.C.A. § 2255 filed in this Court by petitioner Clarence Duke McGann.

In August 1954 the Grand Jury for the District of Maryland filed three indictments against McGann and two co-defendants, Foster and Smith: No. 23017, a four count indictment, charging robbery of a national bank, located at the Andrews Air Force Base, in violation of 18 U.S.C.A. § 2113; No. 23024, a one count indictment, based on the same incident, charging robbery on lands within the territorial jurisdiction of the United States in violation of 18 U.S. C.A. § 2111; and No. 23023, a three count indictment, of which two counts charged violations of the Dyer Act, 18 U.S.C.A. § 2312, and the third, receiving and concealing a stolen automobile in violation of 18 U.S.C.A. § 662.

Represented by two lawyers whose competency has never been questioned, McGann pleaded guilty to all of the charges against him, and after a prolonged hearing, in which McGann participated, Judge Chesnut sentenced him to a term of twenty years in the bank robbery case, No. 23017, and to concurrent terms of five years in each of the other cases.

Shortly thereafter, in the Southern District of New York, McGann entered a plea of guilty to a charge of robbing a bank in New York City and was sentenced by that Court to a term of twenty years to run concurrently with the Maryland sentence.

His first three petitions for relief filed in the District of Maryland were discussed in McGann v. United States, 4 Cir., 249 F.2d 431 (1957), McGann v. United States, 4 Cir., 261 F.2d 956 (1958), and United States v. McGann, D.Md., 161 F.Supp. 629 (1958). Later petitions reiterated the double jeopardy arguments made in the early petitions and added additional grounds, including failure of the Court to order a presentence report (which the evidence shows was deliberately not requested by McGann and his counsel) and failure of the Court to afford a right of allocution (which was simply untrue). McGann is an assiduous student of the Federal reports. It is too bad that his respect for the truth does not match his diligence.

The present petition alleges: "1. The Petitioner did not knowingly and voluntarily enter a plea of guilty to the indictment. 2. The Government made statements prior to the sentencing which they knew, or by the exercise of reasonable care should have known, were false, misleading and prejudicial to the Petitioner. 3. The Court failed to require a presentence investigation."

A competent attorney was appointed to represent McGann in connection with the present petition, and this Court ordered that he be brought to Maryland from the United States Penitentiary at Marion, Illinois, where he is now confined, for the hearing on his petition.

(1) The evidence satisfies this Court that when McGann authorized his counsel to enter the pleas on his behalf he did so voluntarily and with a full understanding of the nature of the charges and of the possible penalties which might be imposed. The testimony of McGann to the contrary is not worthy of belief. The evidence shows an unusually thorough examination and investigation of all possible defenses by his Court-appointed counsel, one of whom, John Martin Jones, Jr., had just completed a year's service as Judge Chesnut's law clerk, and the other, James B. Murphy, had had wide experience in criminal cases in this Court and in the State Courts. The attorneys discussed the case on several occasions with McGann, and particularly discussed the refusal of the government to dismiss any of the charges, the multiple offender and other problems arising out of the several indictments, the maximum penalties, the probable sentences which Judge Chesnut would impose, and the best strategy to secure as short a sentence as possible. McGann, who is quite intelligent, understood and acquiesced in the strategy adopted. Its wisdom is attested by the fact that McGann received a shorter sentence than his codefendants.

It is true that Judge Chesnut did not himself inquire whether the pleas were voluntarily entered with knowledge of the charges and possible penalties. At that time, 1954, it was his practice to rely on competent counsel to see that pleas were made voluntarily and understandingly where such counsel had been in the case for more than a short time, otherwise to ask the questions himself. Since that time the Fourth Circuit and other Courts have emphasized the importance of the judge asking the questions himself. See e. g., Gundlach v. United States, 4 Cir., 262 F.2d 72 (1958); Aiken v. United States, 4 Cir., 296 F. 2d 604 (1961). In both of those cases, however, the Fourth Circuit found that the failure of the judge to ask the questions himself did not automatically render the proceedings unconstitutional; but, as Chief Judge Sobeloff said in Aiken, "where such a hearing establishes beyond doubt the understanding and the voluntariness of the plea and waiver of counsel, the judgment of the court will not be set aside". 296 F.2d at 608. "The defendant who seeks relief under § 2255 must still bear the burden of showing that he did not understand his constitutional rights." Starks v. United States, 4 Cir., 264 F.2d 797, 799 (1959), quoted with approval in Aiken, 296 F.2d 604. See also United States v. Davis, 7 Cir., 212 F.2d 264, 267 (1954), United States v. Swaggerty, 7 Cir., 218 F.2d 875 (1955), both cited by the Fourth Circuit in Gundlach, and Tibbett v. Hand, 10 Cir., 294 F.2d 68, 73 (1961).

(2) and (3). The hearing in connection with the sentencing lasted for several hours. Dr. Philip F. Lerner, a psychiatrist called on behalf of McGann, testified that in his opinion McGann would not do physical harm to anyone. United States Attorney Doub then read to Dr. Lerner from an FBI report which stated:

"The FBI Newark has obtained information from Captain Charles McGinnis, Chief of Detectives, Belleville, New Jersey, that his department records reflect that officers answered a complaint of a disturbance at 124 Cortlandt Street, subject McGANN, ELESE RAMKINS McGANN, his alleged wife, and EDNA, her sister. McGANN reportedly had pointed a .32 caliber automatic at EDNA, claiming she was interfering with his family life. The officers took the gun, a black handled automatic, make unknown, Serial #1235, with a loaded clip, plus one cartridge from subject McGANN, who claimed he obtained this gun in a crap game in New York City. This gun is currently in the possession of the FBI in New York.

"When FBI New York interviewed ELESE RAMKINS on August 14, 1954, she said CLARENCE McGANN had two small caliber pistols in March, 1954, which she had

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