328 F.Supp. 1034 (M.D.Pa. 1971), Crim. 14770, United States v. Farries
| Citation | 328 F.Supp. 1034 |
| Party Name | United States v. Farries |
| Case Date | June 24, 1971 |
| Court | United States District Courts, 3rd Circuit, U.S. District Court — Middle District of Pennsylvania |
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Keith Quigley, Lemoyne, Pa., for defendant Keith Farries.
James Rowland, Jr., Harrisburg, Pa., for defendant Billy H. Boulware.
Carl B. Stoner, Jr., Harrisburg, Pa., for defendant Alexander Tisdale.
William H. Nast, Jr., Harrisburg, Pa., for defendant Stephen W. Ferguson.
Gilbert E. Petrina, Harrisburg, Pa., for defendant Kenneth Swanson.
Alfred Hantman, Gregory Jones, Crim. Div., U.S. Dept. of Justice, Washington, D.C., for United States.
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OPINION
MUIR, District Judge.
Following a six-week jury trial, Keith Farries, Billy H. Boulware, Alexander Tisdale, Stephen W. Ferguson, and Kenneth Swanson were convicted of mutiny and riot at the United States Penitentiary, Lewisburg, Pennsylvania, in violation of 18 U.S.C. § 1792. The defendants were also convicted on individual counts of assault on federal officers with and without dangerous weapons in violation of 18 U.S.C. § 111. Before the Court are motions for a new trial. The twenty issues presented in these motions will be discussed seriatim.
1. WERE THE DEFENDANTS ENTITLED TO A PRELIMINARY HEARING?
It is defendants' position they by electing to proceed by indictment rather than by information, the government circumvented the requirements of due process of law and Rule 5 of the Federal Rules of Criminal Procedure.
United States v. Conway, 415 F.2d 158 (3d Cir. 1969) is controlling. There the Court ruled that the purpose of a preliminary hearing is to afford an arrested person a prompt determination of whether or not there is probable cause to hold him for grand jury action. The Court specifically held that an intervening indictment renders such a hearing unnecessary. Accordingly, it is my view that defendants' rights were in no way violated by the government's choice of procedure.
2. WERE THE DEFENDANTS ENTITLED TO A CHANGE OF VENUE OR REMOVAL OF THE TRIAL FROM LEWISBURG TO ANOTHER PLACE IN THE DISTRICT?
Rule 21, Fed.R.Crim.P., provides for a change of venue if the defendant can show that he cannot obtain a fair trial at any place fixed by law for holding court in the district. Rule 18 impliedly allows for a transfer within the district. It is settled that motions under the Rules are addressed to the sound discretion of the trial judge.
Defendants are Black Muslims. They argued that their religious beliefs precluded their obtaining a fair trial in Lewisburg. Thus, it was argued that since there were no adherents of the Black Muslim faith in this area, the particular problems and views of this group could not be objectively evaluated. Additionally, it was argued that since the United States Penitentiary was a key economic factor in the area, an impartial jury could not be impanelled.
The ultimate question is whether it was possible in Lewisburg to select a fair and impartial jury. Blumenfield v. United States, 284 F.2d 46, 51 (8th Cir. 1960). The time for determination of this question is upon the voir dire examination. The record in this case will reflect that (1) an extensive and comprehensive examination was made of each individual member of the panel by the Court; (2) few of the prospective jurors had any prior knowledge of the case; (3) the Court allowed the defense great latitude with respect to its challenges for cause when a prospective juror was in any way connected with the United States Penitentiary, and (4) the Court permitted the defense a number of peremptory challenges unparalleled in this district. While counsel at argument talked in terms of a 'feeling of prejudice', the records clearly indicate that no actual prejudice existed.
3. WERE THE DEFENDANTS ENTITLED TO INSPECT AND COPY THE GRAND JURY MINUTES?
The defendants' request prior to trial for the minutes of all testimony presented to the Grand Jury was denied. However, government counsel delivered to each defense attorney the grand jury testimony of every witness who testified during the trial, in compliance with 18 U.S.C. § 3500, as amended on October 15, 1970. We perceive the law to require no more. Dennis v. United States, 384 U.S. 855, 868-875, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966).
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4. WERE THE DEFENDANTS ENTITLED TO A LIST OF THE GOVERNMENT'S EXPERT AND LAY WITNESSES?
18 U.S.C. § 3432 provides that in cases where a defendant is charged with treason or other capital offense, the government shall provide the defense with a list of the witnesses it intends to call. Such a list need not be produced in noncapital cases. United States v. Margeson, 261 F.Supp. 628 (E.D.Pa.1966). See United States v. Persico, 425 F.2d 1375 (2d Cir. 1970) and the cases cited therein.
5. DID THE COURT ERR IN DENYING DEFENDANTS' MOTIONS FOR A BILL OF PARTICULARS?
A defendant is entitled to a bill of particulars only if it appears that the indictment does not inform him with sufficient particularity of the charges against which he will have to defend at trial. Rule 7(f), Fed.R.Crim.P. As I see it, an indictment must be so worded as to allow a defendant to ascertain the time and place of commission of the acts complained of and, when relevant, the identity of the person, or persons against whom such acts were committed. 8 Moore's Federal Practice P7.06(2). An examination of the indictment in the instant case reveals that it met these requirements. Defendants therefore did not need any further information respecting the charges in order to prepare a defense.
6. WERE THE DEFENDANTS ENTITLED TO BE PLACED IN GENERAL PRISON POPULATION PRIOR TO AND DURING THE TRIAL TO AID IN THEIR DEFENSE?
This problem was one of the thorniest raised during the course of the litigation. The defendants have been housed in the segregation unit of the penitentiary since the date of the riot. They argued that in order to assist their attorneys to prepare for trial, it was necessary for defendants to be returned to the general population. Their reasons were forceful. They contended that many of the witnesses they believed could give favorable testimony were known to them only by nicknames and a list of real names of prisoners was of little value. The defendants further argued that their attorneys would not be able effectively to interview those inmates whose identities were known since there is a general distrust among the prison population towards outsiders.
On the other hand, the government urged that prison discipline and morale could not have been maintained if these defendants were released to the population. The riot of February 1, 1970 was the first riot in the 38 year history of the institution. Eight correctional officers were injured, three critically, one of whom has been recovered and will never recover.
Taking all factors into consideration the court devised a plan which, in my view, accommodated all concerned. On successive days, the defendants in groups of three were permitted to observe all of the inmates as they stood in the chow line. At these sessions, the defendants were permitted to point to those individuals whom they believed would or could help them. The guards then took the individuals' names, and subsequently, the defendants and their attorneys were given the opportunity to interview these persons. Additionally, announcements were made periodically over the prison public address system to the effect that any prisoners wishing to communicate with defense counsel should write directly to defense counsel, seal the envelope and mail it in a larger envelope addressed to the Court, or write directly to the Court. The latter transmitted all correspondence thus received to defense counsel. Since mail directed to the Court is not censored, the objection that official reprisals would be taken against those aiding the defense was eliminated.
I believe that these two measures eliminated any prejudice flowing to the
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defendants from their incarceration in segregation. Accordingly, there is no merit to this contention.
7. WERE THE DEFENDANTS ENTITLED TO A CONTINUANCE?
By his order dated December 10, 1970, the Honorable R. Dixon Herman granted defense requests for a list of all inmates residing at the federal penitentiary on February 1, 1970, and a list of the names of those inmates who had been residing at the Lewisburg institution on that date who were subsequently transferred to other institutions. The former list was turned over in December of 1970. However, the latter was not received by defense counsel until January 13, 1971, five days before trial. In urging the Court to grant a continuance, defense counsel argued that they had not had ample time to confer with their clients in order to determine the names of the transferees who should be interviewed as potential witnesses.
The trial of this case began on January 18, 1971. The government's case in chief terminated on February 10, 1971. During this period, the Court authorized the production by the United States Marshal of thirty-eight witnesses for the defense. Many of these were inmates at other federal penal institutions.
It is worth noting that in denying the motion for a continuance, the Court was also motivated in part by concern for the welfare of the defendants. As was pointed out earlier, the defendants have been housed in the segregation unit of the penitentiary from February 1, 1970. The correspondence received from the defendants indicated that these men wished to obtain as expeditious a determination of the charges against them as was possible. Under the circumstances, the motion denying the continuance was justified.
8. WAS DEFENDANT SWANSON ENTITLED TO WAIVE A JURY TRIAL?
Prior to the trial of this case, defendant Swanson moved under Rule 23(a) Fed.R.Crim.P. to be tried without a jury. The government opposed this motion. Counsel were...
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