United States v. McGann, Cr. A. No. 23017
| Decision Date | 09 March 1962 |
| Docket Number | Cr. A. No. 23017,23023. |
| Citation | 202 F. Supp. 945 |
| Parties | UNITED STATES of America v. Clarence Duke McGANN, Henry John Foster and Earl Kill Smith, also known as Earl James Smith. |
| Court | U.S. District Court — District of Maryland |
Jos. D. Tydings, U. S. Atty., Stephen H. Sachs, Asst. U. S. Atty., Baltimore, Md., for plaintiff.
No court hearing, opinion on written petition.
On August 18, 1954 the Grand Jury for this District filed an indictment against the three defendants above named charging them with the armed robbery of a branch of the First National Bank of Southern Maryland at Andrews Air Force Base, whereby, on August 14, 1954 the bank was robbed of over $124,000 in money. The three defendants attempted to escape in a stolen automobile which they had driven from outside of Maryland to the bank. Almost immediately after leaving the bank a police officer stopped the automobile and arrested the driver, McGann, on a traffic charge. While he was being detained and "booked" in the police station the other defendants, Smith and Foster, escaped in the automobile taking all the stolen money with them. They were not arrested until several months thereafter. In the meantime McGann, after the appointment of counsel and a hearing in court, had been sentenced to twenty years in prison. He has filed from time to time thereafter at least five separate motions or petitions for vacation of the sentence which petitions were severally overruled by this court and from two of which he appealed to the Court of Appeals for the Fourth Circuit, where the orders of this court were affirmed, and on at least two of the several occasions application for certiorari was denied by the Supreme Court of the United States. 249 F.2d 431, cert. den. 356 U.S. 923, 78 S.Ct. 708, 2 L.Ed.2d 718; D.C., 161 F.Supp. 629 (no appeal taken); 261 F.2d 956, cert. den. 359 U.S. 974, 79 S.Ct. 891, 3 L.Ed.2d 841.
Smith and Foster having been arrested and by due proceedings transferred to Baltimore, appeared in this court on February 7, 1955 for arraignment. Counsel for them had been previously appointed by the court, Mr. Paul C. Wolman, Jr., an experienced trial attorney familiar with federal criminal procedure because some time theretofore he had been acting for some years as an Assistant United States Attorney for this district. The defendants separately pleaded guilty and a very extended hearing of the whole case against them was had in court before each was sentenced to imprisonment for twenty-five years on the charge of armed robbery, and cumulatively for two years on their plea of guilty to a second indictment for interstate transportation of a known stolen automobile. The typewritten transcript of the hearing contains 71 pages, as reported by the then court reporter, Mr. Harry M. Levine. This transcript has heretofore been filed with the Clerk of this court on June 26, 1958 in connection with a subsequent proceeding for vacation of sentence filed by Earl Kill Smith.1
Earl Kill Smith was first sent by the Marshal of this Court to the federal penitentiary at Atlanta, Georgia, along with his co-defendant Foster. No direct appeal was taken from the sentence; but on April 8, 1957, Smith filed a petition for vacation of sentence or a reduction of the amount thereof from 25 years to 20 years, contending that the fourth count of the armed robbery indictment against him was legally insufficient and that it was the only one which authorized a sentence of 25 years. For reasons stated in a written opinion filed with the clerk (D.C., 150 F.Supp. 463) his petition based on F.R.Cr.P. Rule 35, 18 U.S. C.A., was overruled and on appeal the order of this court was affirmed. Smith v. United States, 4 Cir., 250 F.2d 37, cert. den. 355 U.S. 965, 78 S.Ct. 555, 2 L.Ed.2d 540.
On May 12, 1958 Smith filed a second petition (Nominally under the All Writs Section, 28 U.S.C.A. § 1651 (a), but more properly under 28 U.S.C.A. § 2255). His contention was that his plea of guilty more than two years previously had been the result of coercion and duress by officials of the F.B.I. upon his arrest in Texas in December 1954. On this petition I directed Mr. Pierson, the then United States Attorney for Maryland, to show cause why the relief prayed for should not be granted and in response a long and detailed cause was shown containing records of various court proceedings in and connected with the arrest of Smith and his subsequent transfer by the United States Commissioner to this district. After an extensive review of all the prior proceedings in this court in the case of Smith, I wrote a long and detailed opinion giving a complete history of the case up to that time, and concluded for the reasons stated that the petition should be and was then dismissed. D.C., 163 F.Supp. 417. Smith took an appeal to the Fourth Circuit where the dismissal of this second petition was affirmed, Smith v. United States, 262 F.2d 590. It appears from the Clerk's file here that an attempt was made by Smith to apply to the Supreme Court of the United States for certiorari, but apparently it was not perfected.
On January 16, 1962 Smith has now filed a third petition for vacation of sentence imposed on February 5, 1955. The principal ground stated in this third petition is that he was not mentally competent at the time of his hearing. Again I directed the present United States Attorney for this District to show cause why the relief prayed for should not be granted. He has filed his answer to this show cause order and the petitioner has now filed a so-called "traverse" to this reply. After receiving the respondent's answer to show cause, I inquired from the United States Attorney whether he had any report from the federal prison authorities as to the mental condition of Smith. In reply I have now received a detailed report of the medical and mental examinations of the prisoner during his confinement and up to the present time. It, now filed in the case, shows in substance the following: Smith was first sent to the federal penitentiary at Atlanta, Georgia, but shortly thereafter, to separate him from Foster who was also in confinement there, was transferred to Leavenworth. At Leavenworth he was given periodic semi-annual or annual physical and mental examinations and the respective reports chronologically arranged show as follows: At Leavenworth the periodic reports show no indication of any mental disorder while there; but in the latter part of 1956 he made a serious and planned attempt to escape jointly with some other prisoners, and he was then transferred for more secure confinement at Alcatraz. The medical and mental report of May 23, 1958 from Alcatraz contains the following:
The first indication from any of these periodic examinations of Smith as to any mental unbalance was at Alcatraz under date of August 14, 1958 where, after he had had a fight with another prisoner, the report said: "Impression: Anxiety reaction in an individual with an underlying paranoid personality."
From then on the mental or psychiatric examinations indicated progressive lack of mental balance until in April 1959 he was transferred for mental treatment to the Government Hospital at Springfield, Missouri.
In the covering letter sent by R. O. Settle, M.D., Warden at Springfield, to the United States Attorney here dated February 23, 1962, and enclosing the reports above mentioned, it now appears that the psychiatric opinion of the Springfield doctors is that Smith is not now mentally competent to understand the legal features of a court proceeding. For this reason I consider it unnecessary, and indeed quite undesirable, to have Smith present at a hearing on his third petition. 28 U.S.C.A. § 2255 in part provides: "A court may entertain and determine such motion without requiring the production of the prisoner at the hearing."
The judicial question thus presented is whether, if a prisoner while mentally competent at the hearing of his case and represented by...
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