Nairn v. United States

• Decision Date: 19 August 1968
• Docket Number: Civ. No. 68-510.
• Citation: 290 F. Supp. 157
• Parties: Alvin H. NAIRN, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Central District of California

290 F. Supp. 157

Alvin H. NAIRN, Petitioner, v. UNITED STATES of America, Respondent.

Civ. No. 68-510.

United States District Court C. D. California.

August 19, 1968.

Alvin H. Nairn, in pro. per.

Wm. Matthew Byrne, Jr., U. S. Atty., Robert L. Brosio, Asst. U. S. Atty., Chief of Criminal Division, and Ronald S. Morrow, Asst. U. S. Atty., Los Angeles, Cal., for respondent.

HAUK, District Judge.

Petitioner, Alvin H. Nairn, a prisoner at the Federal Correctional Institution in Lompoc, California, is here upon motion to vacate his judgment of conviction for bank robbery, pursuant to Section 2255 of Title 28, United States Code.¹

Allowed to proceed in forma pauperis, petitioner seeks to vacate his judgment of conviction upon his plea of guilty on the following grounds: (1) that he was not taken before a United States Commissioner without "unnecessary delay", as required by Rule 5(a) of the Federal Rules of Criminal Procedure; (2) that he confessed without being advised of his rights; and (3) that his plea of guilty was the result of psychological coercion, intimidation and fear induced by law enforcement officials.

FACTS AND PROCEEDINGS CONCLUSIVELY SHOWN BY FILES AND RECORDS

A complaint filed with the United States Commissioner on November 21, 1966 by the Federal Bureau of Investigation charged petitioner Nairn with robbery of a national bank. On the day the complaint was filed, the Commissioner issued a warrant of arrest, which was executed by Nairn's arrest the following day, November 22, 1966. Nairn was immediately, on the same afternoon as his arrest, brought before the Commissioner and committed to the Los Angeles County Jail.

On December 21, 1966, the Federal Grand Jury returned a three count Indictment² charging Nairn, along with co-defendants Tommie Louis Lee Brown and Ernest Manfred Davenport, with robbery of a savings and loan association, robbery of a national bank and attempted robbery of a national bank, by use of a dangerous weapon, in violation of 18 U.S.C. § 2113(a) and (d).³

Petitioner was arraigned before the Honorable Jesse W. Curtis, United States District Judge, on December 27, 1966, and, after conferring with his appointed counsel, Mario P. Gonzalez, he entered a plea of not guilty to the Indictment. Subsequently, on January 23, 1967, petitioner appeared before this Court and, through his counsel, moved for a change of plea:

"THE CLERK: No. 143-Criminal, United States of America vs. Alvin Horatio Nairn, Gerald Eugene Thompson, Samuel Alexander Poe, Jr. No. 144-Criminal, United States of America vs. Alvin Horatio Nairn, Tommie Louis Lee Brown, Ernest Manfred Davenport.

"MR. LePERA: Ralph LePera representing defendant Poe. The defendant is present in the courtroom.

"MR. BREGMAN: Joseph Paul Bregman representing defendants Brown and Thompson. Both defendants are present.

"MR. GONZALES: M. T. Gonzales representing defendant Nairn. The defendant Nairn is present.

"MR. JAFFEE: Sheldon Jaffee representing the defendant Davenport.

"MR. MORROW: Ronald Morrow appearing for the United States.

"THE COURT: Do you have a motion, counsel?

"MR. GONZALES: M. P. Gonzales on behalf of the defendant Nairn in Indictment No. 144. The defendant wishes to withdraw his former plea of not guilty and enter a plea of guilty to 144.

"THE CLERK: Defendant Alvin Horatio Nairn, do you waive reading of the Indictment?

"DEFENDANT NAIRN: Yes.

"THE CLERK: I will ask the defendant Alvin Horatio Nairn, how do you plead to Count Three of the Indictment, are you guilty or not guilty?

"DEFENDANT NAIRN: Guilty.

"THE COURT: Is that 2113(a) and (d)?

"THE CLERK: Yes, sir.

"THE COURT: Have you discussed with your attorney the nature and circumstances of the offense charged?

"DEFENDANT NAIRN: Yes, I have.

"THE COURT: Has he explained to you what the Court can impose as the maximum sentence?

"DEFENDANT NAIRN: Yes, he has.

"THE COURT: What is it?

"DEFENDANT NAIRN: $10,000, 25 years, or both.

"THE COURT: Has there been any promise of reward or special treatment, or any threat of coercion or violence made to you?

"DEFENDANT NAIRN: No, there hasn't.

"THE COURT: You understand it is an admission of the essential allegations of the charge, your plea of guilty is?

"DEFENDANT NAIRN: Yes.

"THE COURT: You are pleading guilty because you are, and for no other reason?

"DEFENDANT NAIRN: Yes.

"THE COURT: The Court will find you convicted on your plea of guilty and set the probation and sentence hearing for February 20th at 2:00 p. m." (Rep.Tr., Jan. 23, 1967. pp. 3-4, 10-11.)

In the Presentence Report the Probation Officer stated the "Official Version" and then the "Defendant's version of Offense":

"Official Version:

"On January 23, 1967, defendant entered a plea of guilty to Count 3 and not guilty to Count 1 of a 3 Count Indictment charging him in Counts 1 and 3 with violation of 18 U.S.C. 2113(a) (d), (Robbery of Savings and Loan Association; Robbery of National Bank; Use of Dangerous Weapon).

"It is charged in Count 1 that on or about September 23, 1966, in Los Angeles County, defendant and codefendant, Tommie Louis Lee Brown, by force and violence, wilfully took $3,152.38 from the University Savings and Loan Association, 8220 S. Vermont Avenue, Los Angeles, California. It is also charged that in the commission of this offense the defendants used a pistol, a dangerous weapon and device.

"Count 3 charges that on or about October 31, 1966, in Los Angeles County, defendant, by force and violence, wilfully took $9,024.00 from the Bank of America, Baldwin Hills Branch. It is further charged that in the commission of this offense defendant used a black revolver, a dangerous weapon and device.

"Investigation as to Count 3 discloses that at approximately 12:00 p. m., on October 31, 1966, defendant and a companion entered the Bank of America, Baldwin Hills Branch. Defendant stood in the lobby by the officers' platform and, while holding a gun, directed the employees to `freeze'. Meanwhile his companion, holding a paper bag, vaulted the counter and entered the tellers' work area where he took $9,024.00 in currency and coin. Defendant's companion then vaulted over the counter into the lobby and left by the rear door, followed closely by the defendant. Both entered a 1965 Mustang automobile and drove away from the bank. They abandoned the car several blocks away, and it was later determined that the car had been `hot wired' and stolen on the above date."

"Defendant's Version of Offense:

"Orally defendant states that he has known codefendant Brown for approximately one and a half years. He also mentions that he has known codefendant Davenport for approximately twelve years, indicating their families are long time friends.

"In discussing the offense, he states he was unemployed and one `Dell' Morgan promised him $300 if he `hot wired' a car. He states he stole the car and later learned that his fingerprints were found on the car and that it had been used in a bank robbery. He states when he confronted Morgan with this he was told to `forget it or else'. He related that subsequently he was intimidated by Morgan into participating in a robbery. He acknowledges that he participated in three robberies, and relates that in each instance Morgan `set up' the jobs and received one-third of the money taken.

"He claims to have a fear of guns, and states that in committing this offense he used a pellet gun that was inoperative. He observes that the money he received from the robbery `just went', indicating none was spent in a spectacular manner." (Presentence Report, Feb. 15, 1967, pp. 2-3.)

Taking into consideration the conviction on Count 3 of the Indictment and the Presentence Report, petitioner was found to be 23 years of age at the time of conviction, eligible for treatment under the Federal Youth Corrections Act, 18 U.S.C. §§ 5005-5024, as a Young Adult Offender under 18 U.S.C. § 4209,⁴ and in need of confinement. Accordingly, the Court committed petitioner to the custody of the Attorney General for treatment and supervision for a period of 20 years, pursuant to 18 U.S.C. § 5010(c),⁵ or until discharged by the Federal Youth Corrections Division of the Board of Parole, as provided by 18 U.S.C. § 5017(d).⁶ At the same time, the Court recommended that petitioner receive adequate psychiatric treatment while serving his sentence. Upon motion of the Government, the dismissal of Count 1 of the Indictment was ordered. (Judgment, Feb. 20, 1967.)

PETITIONER'S FIRST CONTENTION

That petitioner was not taken before a United States Commissioner without "unnecessary delay", as required by Rule 5(a) of the Federal Rules of Criminal Procedure.

Petitioner contends that his conviction should be set aside because he was not taken before a United States Commissioner without "unnecessary delay", as required by Rule 5(a) of the Federal Rules of Criminal Procedure.⁷ This contention is completely without merit. The files and records clearly show that on November 22, 1966 petitioner was arrested, taken into Federal custody and immediately arraigned before a Commissioner, on the same afternoon as his arrest. In addition, the affidavit of Ronald G. Perkerson, Special Agent of the Federal Bureau of Investigation, shows that there was an immediate arraignment after petitioner came into Federal custody.

Assuming arguendo that there was a prohibited delay, the appropriate remedy would be to exclude from evidence statements obtained during the period between the arrest and the arraignment. In this instance, however, no evidence was introduced by the Government because of petitioner's plea of guilty.

PETITIONER'S SECOND CONTENTION

That petitioner confessed without being advised of his rights.

The Ninth Circuit, by whose rulings we are bound, has repeatedly asserted its adherence to the general principle that convictions which follow pleas of guilty are based solely and entirely upon the pleas entered, not upon any evidence which may have been improperly acquired by the...