Before HASTINGS, Chief Judge, and KNOCH and CASTLE, Circuit Judges.
On July 7, 1954, defendant was sentenced to imprisonment for a total period of 30 years, and was fined $50,000 on his pleas of guilty to six informations which charged violations of the Federal Bank Robbery Statute, Title 18 U.S.C.A. § 2113, in Hamlet, Bourbon and Evansville, Indiana; Springfield, Massachusetts; Dunkirk, Ohio; and Kensington, Connecticut. All but one of these informations included counts for assault or putting in jeopardy the life of a person by the use of a dangerous weapon. Thus defendant was subject to possible penalties of $80,000 in fines and sentences of 20 years each on six of the counts and 25 years each on five of the counts in the various informations.
On August 24, 1959, defendant moved to vacate the sentence under Title 28 U.S.C.A. § 2255,*fn1 on the ground that his pleas were obtained through coercion, that prejudicial newspaper and magazine articles deprived him of a fair and impartial sentence, and that he was inadequately and incompetently represented by legal counsel.
TAugust 26, 1959, the District Judge notified the United States Attorney and directed him to file a responsive pleading to defendant's motion. Such pleading was filed on September 21, 1959, and copy thereof was received by defendant on September 27, 1959. On September 29, 1959, the District Judge, without oral hearing, denied defendant's motion on the ground that the files and records conclusively showed defendant to be entitled to no relief. The District Judge also filed a short memorandum which contains comments on the competence of defendant's counsel, both chosen by him and not appointed by the Court, a statement that the record shows defendant's pleas to have been voluntarily made, and that the record answers defendant's charges.
Defendant's reply to the United States Attorney's responsive pleading was filed on October 10, 1959. It was treated as a motion for rehearing, and was denied on October 20, 1959.
It is defendant's position that the District Court erred in summarily denying his motion without a hearing because the specific factual allegations are based on facts largely outside of the record and cannot therefore be answered by the record. For example, defendant asserts that he was threatened with arrest of various members of his family if he failed to cooperate with the representatives of the Federal Bureau of Investigation and the local police, and that he agreed to say and sign anything requested of him only after he saw his sister in police custody. He states that he was not arraigned until 36 hours after arrest when a United States Commissioner came to the police headquarters at 2:30 A.M. instead of permitting him to be brought to the Commissioner during regular court time; that he was held in virtual solitary confinement in a small, hot cell, without running water and without a bed, while subjected to constant interrogation by Federal Bureau of Investigation agents. He states that his attorneys did nothing to improve his conditions of confinement, and never interviewed him prior to appearance in court, but did permit reporters to visit him and to publish prejudicial articles about him; that he was improperly advised to plead guilty in spite of the fact that evidence against him had been illegally obtained and could not be used to sustain a conviction. Thus, defendant contends that the files and records of this case cannot refute his allegations that his pleas were coerced, that he was incompetently represented by counsel, or that he was prejudiced by unfavorable publicity.
This Court has closely scrutinized the record.
Defendant waived indictment, consented individually to disposition of each of the six informations in the District Court for the Northern District of Indiana, pursuant to statute, in two separate sessions on May 26 and July 7, 1954, before District Judge Swygert, who also ruled on defendant's instant motion. The two counsel of defendant's choice were both present on each occasion. A presentence investigation was ordered after the first session.
There were repeated interchanges between the Court and defendant on both occasions, with reference to such matters as defendant's right to grand jury investigation and indictment, defendant's right to trial in Massachusetts, etc., defendant's understanding of the charges and the possible penalties, the voluntary nature of his pleas and the absence of coercion.
Defendant argues that having been coerced into pleading guilty, it follows that his answers to questions concerning his pleas would be made under the same coercion. However, defendant did not merely answer the Court's questions. He spoke at length to the Court, even volunteering statements concerning newspaper and magazine articles about which the Court had not asked, and, uninvited, commenting on another man involved in one of the robberies, but not tried with defendant. The inescapable impression gained from reading the transcript is that defendant was not only free from any restraint or coercion, but wholly at ease in the courtroom.
Defendant is critical of his counsel's judgment in advising him to plead guilty to the numerous charges, rather than to stand trial, on pleas of not guilty, in the various jurisdictions. Some support for his counsel's advice may be found in defendant's own statements made in open court. At one point, he told Judge Swygert:
"I actually walked in several banks, sat down in a chair, ordered the cashier out of the chair, giving him my bag, by way of filling it up, and he did, without even my saying it was a hold-up. I have done that in Evansville and several other places. Just by knowing of my gun being in my arms, lying there, they took it for granted, and immediately gave me all of the cash." Transcript, Vol. 1, p. 39.
Again, in answer to inquiry from the Court about a purported statement that after the first bank robbery, defendant found the ...