459 F.2d 1057 (3rd Cir. 1972), 71-1608, United States v. Farries

Docket Nº:71-1608, 71-1695, 71-1836, 71-1837, 71-1910.
Citation:459 F.2d 1057
Party Name:UNITED STATES of America v. Keith FARRIES et al., Appellant in No. 71-1608. Appeal of Stephen FERGUSON, in No. 71-1695. Appeal of Kenneth SWANSON, in No. 71-1836. Appeal of Billy H. BOULWARE, in No. 71-1837. Appeal of Alexander X. TISDALE, in No. 71-1910.
Case Date:April 07, 1972
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 1057

459 F.2d 1057 (3rd Cir. 1972)

UNITED STATES of America

v.

Keith FARRIES et al., Appellant in

No. 71-1608.

Appeal of Stephen FERGUSON,

in No. 71-1695.

Appeal of Kenneth SWANSON,

in No. 71-1836.

Appeal of Billy H. BOULWARE,

in No. 71-1837.

Appeal of Alexander X. TISDALE,

in No. 71-1910.

Nos. 71-1608, 71-1695, 71-1836, 71-1837, 71-1910.

United States Court of Appeals, Third Circuit.

April 7, 1972

Argued Feb. 14, 1972.

As Amended April 12, 1972.

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[Copyrighted Material Omitted]

Page 1059

Myron M. Moskowitz, Shamokin, Pa., for Keith Farries.

William H. Nast, Jr., Harrisburg, Pa., for Stephen Ferguson.

Gilbert E. Petrina, Harrisburg, Pa., for Kenneth Swanson.

James H. Rowland, Jr., Rowland & Rowland, Harrisburg, Pa., for Billy H. Boulware.

Carl B. Stoner, Harrisburg, Pa., for Alexander X. Tisdale.

Alfred L. Hantman, Gregory C. Jones, Criminal Division, Dept. of Justice, Washington, D. C., for appellee.

Before ADAMS, GIBBONS and ROSEN, Circuit Judges.

OPINION

GIBBONS, Circuit Judge.

The appellants Farries, Boulware, Tisdale, Ferguson and Swanson appeal from sentences imposed following guilty verdicts in a jury trial on an indictment charging various offenses which took place during a mutiny and riot at the United States Penitentiary, Lewisburg, Pennsylvania on February 1, 1970. On April 20, 1970, a 22 count indictment was returned in the Middle District of Pennsylvania against the appellants and two other defendants, Day and McGee. The indictment charged the defendants separately with twenty substantive violations of 18 U.S.C. § 111. 1 Count 1 charged that Farries and Boulware "did instigate, connive, willfully attempt to cause, and assist a mutiny and riot" in violation of 18 U.S.C. § 2 2 and 18 U.S.C. § 1792 3. Count 2 charged that Tisdale, McGee, Ferguson, Swanson and Day "did willfully attempt to cause, and assist a mutiny and riot" in violation of

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the same statutes. A separate attorney was appointed for each appellant in the district court pursuant to the Criminal Justice Act of 1964. 4 The attorneys made numerous pretrial motions directed to, among other things, the indictment, the venue, the sufficiency of pretrial discovery permitted by the court, and their ability to prepare adequately when their clients were in administrative segregation in the penitentiary. Each of the contentions advanced on behalf of the appellants was fully and carefully considered in the district court. Some were ruled on in advance of trial and others, in particular those directed to venue, were deferred to the trial. That trial took place between January 18, 1971 and February 25, 1971. On the first day one defendant, McGee, pleaded guilty to two counts of the indictment. The jury's verdict found one defendant, Day, not guilty. It found all of the other defendants guilty on at least two counts of the indictment. Farries was found guilty on Count 1 of instigating the riot and mutiny and on four counts of assaulting four correctional officers. He was acquitted on one assault count. Boulware was found guilty on Count 1 of instigating the riot and mutiny and on six counts of assaulting six correctional officers. Tisdale was found guilty on Count 2 of willfully attempting to cause and assist a mutiny and riot and on one count of assaulting a correctional officer. Ferguson was found guilty on Count 2 of willfully attempting to cause and assist a mutiny and riot and of two counts of assaulting two correctional officers. Swanson was found guilty on Count 2 of willfully attempting to cause and assist a mutiny and riot and on two counts of assaulting a single correctional officer with two different dangerous weapons.

At the trial the defendants were vigorously and ably represented, and they were afforded every reasonable latitude by the court in presenting their defense. After the verdicts the defendants made timely motions for a new trial, advancing twenty separate grounds. These were carefully considered by the district court and rejected in a reported opinion. United States v. Farries, 328 F.Supp. 1034 (M.D.Pa.1971). On appeal these twenty grounds have been compressed to thirteen, which for present purposes we have further compressed.

I. Objections to the Jury Panel

Appellants made a pretrial motion pursuant to Fed.R.Crim.P. 21 for a change of venue either to a different place of holding court within the Middle District of Pennsylvania or to a different district. They contended that it was impossible to obtain a fair and impartial jury in the Lewisburg vicinage (1) because of local pretrial publicity, (2) because of the dominant position in the local economy of the Lewisburg Penitentiary, and (3) because Lewisburg jurors would be antipathetic to them as Black Muslims. The district court denied this motion without prejudice to its renewal at the voir dire. It was renewed at that time, and the court conducted a thorough examination of the prospective jurors. It granted defendants' challenges for cause with extreme liberality, and it permitted each defendant four peremptory challenges. The motion for a change of venue was denied.

There is no reason to suspect that the jury was anything but fair and impartial. In the first place the nature of the pre-trial publicity to which the court's attention was directed was not at all like that involved in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), or Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966). It consisted of news reports of the riot and of the injuries suffered by the guards, made at the time of the events, and of a brief report that the

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trial was about to commence and that the United States Marshal had undertaken the problem of courtroom security. We have made an independent evaluation of the circumstances. Sheppard v. Maxwell, 384 U.S. at 362, 86 S.Ct. 1507. We conclude that there was no...

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