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Parker v. United States

December 3, 1965


Duffy, Castle, and Swygert, Circuit Judges.

Author: Swygert

SWYGERT, Circuit Judge.

Petitioner Darl D. Parker was convicted of bank robbery and an escape incidental thereto, 18 U.S.C. ยง 2113, upon guilty pleas entered on May 25, 1959. The questions before us have arisen through a belated, provisionally-docketed direct appeal from these convictions, and by an appeal from the denial without a hearing of a "Motion in the Nature of a Writ of Error Coram Nobis" addressed to the sentencing court.

Petitioner was originally confined in a Fort Wayne, Indiana, county jail under an indictment relating to the robbery of a Fort Wayne bank. Petitioner escaped this confinement but was recaptured in a gun battle on the same day. An indictment alleging the escape was subsequently returned.

With some intermittent difficulty occasioned by changes in retained and court-appointed counsel, petitioner entered a plea of not guilty to the bank robbery indictment, pleaded not guilty by reason of insanity to the escape indictment,*fn1 moved for dismissal of both indictments by reason of insanity and requested a judicial determination of his sanity. The district court appointed two psychiatrists who conducted an examination at petitioner's place of confinement. Based upon the psychiatric reports, the court found that he was competent to stand trial.

On the trial date, May 25, 1959, petitioner pleaded guilty to the charges in both indictments. He was sentenced to twenty and twenty-five years on the two counts contained in the bank robbery indictment, the sentences to be served concurrently, and to twenty-five years on the escape indictment, the latter sentence to be served consecutively.*fn2

Since the date of his imprisonment, petitioner has proceeded unsuccessfully through: (1) a motion to vacate the sentences and an appeal from the denial thereof (1959-60) (see footnote 2), (2) a motion designed to provide him with a trial transcript wthout cost (1961), (3) a "Motion in the Nature of a Writ of Error Coram Nobis" (1962-63), (4) a motion for a reduction of sentence (1964), and finally, (5) a direct appeal from his convictions, provisionally docketed by this court when it appeared that petitioner may have been misinformed by counsel as to his right of appeal from a plea of guilty.*fn3

Two of these efforts, (3) and (5), are now before us, in which petitioner presents two basic allegations of error. Initially, in his provisionally-docketed direct appeal, petitioner alleges that an electronic listening device was present in the room at the county jail in which he conferred with counsel prior to his convictions and in which the psychiatric examinations were held. This "fact" itself, he contends, commands not only his release from custody but also dismissal of the indictments. Secondly, in his appeal from the denial of his error coram nobis motion, petitioner avers that his guilty plea to the bank robbery indictment was entered upon the representation by the prosecuting attorney that the sentencing judge would grant probation to his brother in a related matter. He then alleges a "doublecross," in that his brother was subsequently given a five year sentence. Petitioner contends that such event renders his guilty plea involuntary, requiring a reversal of the conviction, but that in any event the district court should have conducted a hearing on his charges.


We have determined to dispose of the merits of the principal contention advanced in petitioner's direct appeal without questioning further the propriety of the appeal itself. As we have stated, this contention relates to the alleged presence of an eavesdropping device during certain of petitioner's pretrial conferences with counsel. To show that such consultations were intentionally overheard, petitioner directs attention to the following colloquy which occurred at his arraignment on the escape charge:

Mr. Moorehead (Parker's court-appointed counsel): Counsel for the defendant has advised that the examination conducted by the psychiatrists appointed by the Court were oral examinations, approximately 15 to 20 minutes in length, consisting merely of conversation with the defendant which conversation possibly was not a private conversation inasmuch as in the particular room in which the examination was conducted, and which also happens to be the particular room in which conferences between the defendant and his counsel have been held, contains an electrical device readily visible in the ceiling thereof, which no doubt is possible of recording or registering or receiving the conversations between the parties.

The Court: Mr. Moorehead, permit the Court to interrupt to say at this point: I do not have words sufficient to condemn that practice insofar as it might be an interference with the right of the defendant and the right of counsel to confer with his client, and I shall promise you one thing, that arrangements will be made for private conferences with your client entirely apart from any microphone, whether it is turned on or turned off; that is assured you.

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