Sims v. United States, Civ. A. No. 15960.

• Decision Date: 19 May 1966
• Docket Number: Civ. A. No. 15960.
• Citation: 272 F. Supp. 577
• Parties: Warren Arthur SIMS, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Maryland

272 F. Supp. 577

Warren Arthur SIMS, Petitioner, v. UNITED STATES of America, Respondent.

Civ. A. No. 15960.

United States District Court D. Maryland.

May 19, 1966.

COPYRIGHT MATERIAL OMITTED

Russell R. Reno, Jr., and Luke Marbury, Baltimore, Md. (by Court appointment), for petitioner.

Thomas J. Kenney, U. S. Atty., and Robert W. Kernan, First Asst. U. S. Atty., for respondent.

WINTER, District Judge:

Petitioner is serving consecutive sentences of twenty-four years and eighteen years, respectively, imposed upon his pleas of guilty to (a) armed bank robbery (Criminal Action No. 26448), known as the "Oxon Hill case," and (b) bank robbery (Criminal Action No. 26574), known as the "second Bensonhurst case." Both sentences were imposed July 7, 1964.

By motion under 28 U.S.C.A. § 2255, petitioner seeks to vindicate an alleged denial of his constitutional rights and, alternatively, to set aside his conviction and withdraw his pleas of guilty, pursuant to the provisions of Rule 32(d) of the Federal Rules of Criminal Procedure, which permits a conviction to be set aside and a plea of guilty withdrawn when necessary to correct manifest injustice. The claim to relief is predicated upon the assertion that the pleas of guilty were not voluntary because (a) by reason of incorrect advice of his Court-appointed counsel, petitioner was under a misapprehension as to the maximum penalty which could be imposed on him for conspiracy charged in the Oxon Hill indictment so that he failed to understand a comparison between the penalties which could be imposed on his pleas of guilty and the penalties to which he would be exposed if he went to trial; (b) his Court-appointed counsel was incompetent in representing petitioner, to the end that (i) petitioner was not furnished with proper information or proper advice to be able voluntarily and understandingly to plead guilty, and (ii) petitioner's counsel failed to file and press a pretrial motion to suppress evidence illegally obtained—itself incompetent representation and having as its tainted fruit a guilty plea; and (c) the guilty plea was the fruit of an unconstitutional search and seizure. Extensive evidence supporting and opposing the motion was taken, the points involved thoroughly briefed, and argument had thereon.

History of the Proceedings:

On or about December 31, 1962, the Bensonhurst National Bank, located at 837 Flatbush Avenue, Brooklyn, New York, within the Eastern District of New York, was robbed of the approximate sum of $8,018.00. In October, 1963, petitioner, together with Erwin Roland Ghee and Andrew Chappell, was indicted in the United States District Court for the Eastern District of New York, in a single-count indictment, for a violation of 18 U.S.C.A. § 2113(a). This robbery was the first Bensonhurst case and plays little part in these proceedings. After petitioner was sentenced on his pleas of guilty in the Oxon Hill case and the second Bensonhurst case, this indictment was dismissed in the Eastern District of New York, in accordance with the representation made to the Court at the time petitioner pleaded guilty in the second Bensonhurst and Oxon Hill cases.

On February 26, 1963, the Bensonhurst National Bank was robbed a second time, of the approximate sum of $30,690.00, and, in October, 1963, petitioner, together with Robert John Ugaro, Joseph Clinton Carlisle, Harry Goody, Jr., Erwin Roland Hayes Ghee, Bertha Jeanne Watts, and Charles Wilkerson, was indicted, in the United States District Court for the Eastern District of New York, in a three-count indictment, charging, as to count 1, bank robbery by force and violence or by intimidation, in violation of 18 U.S.C.A. § 2113(a), as to count 2, armed bank robbery, in violation of 18 U.S.C.A. § 2113(d), and, as to count 3, conspiracy to commit bank robbery and armed bank robbery, in violation of 18 U.S.C.A. § 371.

On July 8, 1963, the Citizens Bank of Maryland, Eastover Branch, Oxon Hill, Maryland, was robbed of the approximate sum of $142,000.00, and petitioner, together with Ugaro, Ghee, Goody, and Watts, to whom reference has previously been made, and James C. Ross, James Donald Davis, Frances E. Davis, John Kent Smith, and Rosemary Spoone, was indicted, in Criminal Action No. 26334, in a two-count indictment charging, as to count 1, bank robbery by force and violence or by intimidation, in violation of 18 U.S.C.A. § 2113(a), and, as to count 2, armed bank robbery, in violation of 18 U.S.C.A. § 2113(d). This indictment was returned July 30, 1963 and was dismissed on May 8, 1964, after a superseding indictment, in Criminal Action No. 26448, had been returned on December 5, 1963. The superseding indictment was returned against the same defendants named in Criminal Action No. 26334, and an additional defendant, Andrew Chappell, Jr., who had been named a defendant in the first Bensonhurst case. The superseding indictment contained six counts, charging, as to count 1, conspiracy to violate 18 U.S.C.A. § 2113 in violation of 18 U.S.C.A. § 371; as to count 2, bank robbery by force and violence or intimidation in violation of 18 U.S.C.A. § 2113(a); as to count 3, bank entry with intent to steal and purloin deposits, in violation of 18 U.S.C.A. § 2113(b); as to count four, armed bank robbery, in violation of 18 U.S.C.A. § 2113(d), and, as to count six, interstate transportation of a stolen motor vehicle in violation of 18 U.S.C.A. § 2312 and 18 U.S.C.A. § 2. Petitioner was not named a defendant in the fifth count. This count was returned only against Rosemary Spoone, and charged knowing possession of funds which had been stolen from the Oxon Hill Bank, in violation of 18 U.S.C.A. § 2113(c). Not all of the defendants were named with petitioner in count six.

Petitioner was apprehended, on September 23, 1963, by agents of the Federal Bureau of Investigation, in Philadelphia, Pennsylvania. He was taken before a United States Commissioner immediately after his arrest. He lacked counsel, but was visited by a representative of the legal aid society in Philadelphia, who gave him no advice. He was brought to Baltimore, Maryland, and lodged in the Baltimore City Jail, in October, 1963. In accordance with the then practice, the United States Attorney for the District of Maryland sent petitioner a copy of the indictment returned against him in Maryland and, because he was incarcerated, the United States Attorney inquired if petitioner was unable to employ counsel and, if so, whether he desired the Court to appoint counsel. Petitioner replied in the affirmative as to both inquiries, and the Court appointed Fenton L. Martin, Esq., a former law clerk to Chief Judge Thomsen, and an attorney known by the Court to exhibit a high degree of competence in the performance of court appointments, as well as private litigation, to represent him. After his first interview with petitioner, Mr. Martin reported to the Court a reluctance on the part of petitioner to accept Mr. Martin as his counsel, and petitioner was brought before the Court on November 1, 1963 for interrogation regarding his representation. On that occasion, petitioner stated that he felt, and had the impression that Mr. Martin felt, that Mr. Martin was not competent enough to handle petitioner's case, a conclusion, if true, at variance with the Court's appraisal of Mr. Martin's competence and performance in other matters; but in recognition that petitioner should be allowed reasonable latitude in being satisfied with appointed counsel in such a serious case, the Court undertook to obtain an expression of petitioner's desires. Petitioner was asked if there was any particular person he wished to have represent him and, although petitioner knew no members of the Baltimore Bar, he was quite articulate in specifying the qualities that counsel to represent him should possess. He stated a desire for an attorney who "* * * had experience in bank robbery cases," but, when asked if he would be happier with somebody representing him who practiced exclusively in the criminal field, he replied, "* * * I wouldn't put exclusiveness, your Honor, as a prerequisite," but "* * * I do want him definitely to have had some experience in major crimes."

The Court thereafter appointed George L. Russell, Jr., Esq., an attorney having wide experience in criminal matters, and one who, in the estimation of the Court, had demonstrated a high degree of competence therein.¹ Mr. Russell filed an order for his appearance on December 20, 1963. On that date petitioner, Ugaro, Ghee, Goody, Smith, and Ross were arraigned on the Oxon Hill indictment and each pleaded not guilty to the counts in which they were named, except Ross, who did plead guilty to count 4, armed bank robbery. On the same date, Rosemary Spoone was arraigned and pleaded guilty as to count 5.

On December 30, 1963, Watts was arraigned and pleaded not guilty to the counts in which she was named. On January 15, 1964, several defendants, other than petitioner, filed pretrial motions and, on January 16, 1964, petitioner filed motions for a bill of particulars, discovery and inspection and severance. Similar motions were later filed on behalf of still other defendants and, on January 27 and 28, 1964, the Court heard a number of motions filed by defendants, other than petitioner, and, on March 9, 1964, heard the motions filed on behalf of petitioner, Ugaro, Smith, and Watts. Rulings on petitioner's motions were made March 20, 1964. The motion for severance was denied without prejudice; the motion for a bill of particulars was granted in part; and the motion for discovery and inspection was granted in part. Before the rulings, and on March 13, 1964, Chappell pleaded guilty to the conspiracy count. On March 20, 1964, before the rulings on petitioner's motions, Ghee pleaded guilty to the armed bank robbery count. On April 16, 1964, Watts pleaded guilty to the bank robbery by force and violence or by intimidation count, and, on April 17,...