466 F.Supp. 1068 (N.D.Cal. 1978), CR-74-364, United States v. Hearst

Docket Nº:CR-74-364 WHO.
Citation:466 F.Supp. 1068
Party Name:UNITED STATES of America, Plaintiff, v. Patricia Campbell HEARST, Defendant.
Case Date:November 07, 1978
Court:United States District Courts, 9th Circuit
 
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Page 1068

466 F.Supp. 1068 (N.D.Cal. 1978)

UNITED STATES of America, Plaintiff,

v.

Patricia Campbell HEARST, Defendant.

No. CR-74-364 WHO.

United States District Court, D. California.

Nov. 7, 1978

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G. William Hunter, U. S. Atty., Edward P. Davis, Jr., Asst. U. S. Atty., San Francisco, Cal., for plaintiff.

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George C. Martinez, San Francisco, Cal., for defendant.

OPINION

ORRICK, District Judge.

Patricia Campbell Hearst (herein "petitioner" or "defendant"), who is currently serving the remainder of a seven-year sentence for armed bank robbery, moves this Court, pursuant to 28 U.S.C. s 2255, 1 for an order vacating, setting aside, or correcting her sentence or, in the alternative, for an order reducing her sentence pursuant to Rule 35 of the Federal Rules of Criminal Procedure. For the reasons hereinafter set forth, the motions, and each of them, are denied. In considering petitioner's application, it is appropriate to review briefly the background of these proceedings.

I.

During the night of February 4, 1974, petitioner was kidnapped at gunpoint from her Berkeley, California apartment. Two months later, following the repeated efforts of her parents to ransom her, she announced in a taped message that she had repudiated her former lifestyle, and was determined to "stay and fight" beside her captors, the Symbionese Liberation Army ("SLA"). Shortly thereafter, on April 15, 1974, petitioner, wielding a sawed-off carbine, took part in an armed robbery of the Hibernia Bank in San Francisco, in which three bystanders were wounded. This dramatic event was followed by a shoplifting incident in Los Angeles, at which petitioner, covering the escape of her SLA companions, riddled a sporting goods store with numerous rounds from an automatic weapon. In May, the State of California filed nineteen criminal charges against the defendant, including assault with intent to commit murder, assault with a deadly weapon, robbery, and kidnapping.

On June 6, 1974, Ms. Hearst was indicted by a federal grand jury for armed bank robbery, 18 U.S.C. s 2113(a)(d), and for using a firearm to commit a felony, 18 U.S.C. s 924(c). She remained a fugitive for fourteen months until she was apprehended in San Francisco on September 18, 1975, in an apartment which she shared with one Wendy Yoshimura. Evidence recovered from the apartment included ammunition, and so-called "bait bills" from the robbery of a bank in Carmichael, California, in which one person was killed. In addition, officers seized various SLA documents, including one called "Tania Interview," written partly in petitioner's own hand, describing her reasons for having joined the SLA, including her severe dislike for her parents and a hatred of her lifestyle. When booked upon her arrest, she stated her occupation as "urban guerrilla."

In the several months which followed, petitioner underwent extensive physical and psychiatric examination, and was declared competent to stand trial. Jury selection, which included individual, In camera voir dire of nearly sixty potential jurors, commenced on January 27, 1976, and was completed on February 4, 1976. The jury was then sequestered, and remained so during the entire eight weeks of the trial.

Petitioner's defense was straightforward: She alleged that she did not intend to participate in the bank robbery but did so only under the threat of bodily harm. Therefore, the question of whether or not she had the requisite intent to commit the crime became the sole issue of fact to be tried. To prove her defense, Ms. Hearst took the witness stand and told in exhaustive detail of the grueling, distasteful ordeal that she underwent with the SLA after her kidnapping, including her atrocious and outrageous mistreatment in the closet where she was kept blindfolded for days without relief. Three psychiatrists testified on her behalf that she had been coerced by the SLA, particularly the Harrises, into robbing the bank. Petitioner told of her journey across the country with Jack Scott to New York, including the time she spent in a Pennsylvania farmhouse, and of her return

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west to Las Vegas. She then refused to answer, forty-two times, when queried about her activities during the period from her return to Las Vegas in the fall of 1974 until her arrest in San Francisco a year later.

In rebuttal, the government presented the testimony of two psychiatrists that she in fact knew what she was doing when she participated in the bank robbery, and that she was not coerced but performed her acts voluntarily. This testimony was supplemented with other evidence, including the testimony of Tom Matthews, one of the men whom Ms. Hearst and the Harrises had kidnapped in Los Angeles, who testified that Ms. Hearst told him of her voluntary role in the bank robbery.

In all, the jury listened to testimony from seventy-five witnesses and considered one hundred eighty-six exhibits. Within forty-eight hours after being charged, the jury returned a verdict of guilty. Simply stated, the jury apparently believed that Ms. Hearst had participated freely in the robbery and did not believe the coercion theory presented by her defense.

On September 24, 1976, this Court 2 sentenced petitioner to seven years on Count I, for armed bank robbery, and to two years on Count II, for use of a weapon to commit a felony, the sentences to be served concurrently. 3 Following two unsuccessful motions for a new trial, 4 defendant took an appeal. 5 In attacking the fairness of her trial, she objected to some six major rulings by the trial court on contested items of evidence, including: the admission of evidence relating to crimes committed after the robbery of the Hibernia Bank; the admission into evidence of the so-called "Tobin tape"; the exclusion of psycholinguistic testimony and certain taped interviews, offered on behalf of the defendant; the Court's decision requiring the defendant to plead the Fifth Amendment, if at all, in the presence of the jury; and the Court's decision to permit government experts to testify as to ultimate issues of fact. Each of these contentions was carefully considered, and rejected, by the United States Court of Appeals for the Ninth Circuit, which affirmed the conviction. United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977). The Supreme Court of the United States subsequently denied defendant's petition for a writ of Certiorari, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978).

With new counsel, petitioner now moves this Court under 28 U.S.C. s 2255 for an order vacating her sentence or, alternatively, for an order reducing her sentence, pursuant to Rule 35 of the Federal Rules of Criminal Procedure. 6 She states three reasons

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why the criminal justice system failed to provide her with a fair trial. First, petitioner claims that massive pretrial publicity made it impossible to select an impartial jury in San Francisco, where the case was tried. Second, she contends that admission into evidence of a tape recording made while she was being held in pretrial detention (the Tobin tape) constituted a denial of due process. Third, she alleges that trial counsel, Mr. F. Lee Bailey, failed to render effective assistance of counsel in her defense.

In adjudicating motions pursuant to 28 U.S.C. s 2255, the Court is directed to "grant a prompt hearing thereon," unless "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief * * *." See Fontaine v. United States, 411 U.S. 213, 215, 93 S.Ct. 1461, 1462, 36 L.Ed.2d 169 (1973); Battaglia v. United States, 469 F.2d 686 (9th Cir. 1972), Cert. denied, 411 U.S. 949, 93 S.Ct. 1932, 36 L.Ed.2d 411 (1973). To explicate somewhat this bald standard, Judge Mansfield has stated:

"(A) judge is well within his discretion in denying a petition when the supporting affidavit is insufficient on its face to warrant a hearing. (citations omitted) * * * In making that threshold determination the court looks primarily to the affidavit or other evidence proffered in support of the application in order to determine whether, if the evidence should be offered at a hearing, it would be admissible proof entitling the petitioner to relief." Dalli v. United States, 491 F.2d 758, 760 (2d Cir. 1974).

Accordingly, this Court has reviewed in detail not only the voluminous exhibits submitted by petitioner in support of her motion, 7 but also the prior record in the case, including the five reported decisions, the reporter's trial transcript, and the countless papers and briefs submitted at all stages of the proceedings. On the basis of these materials, the Court finds with respect to each of petitioner's contentions, that none of the evidence offered in her behalf, even if clearly established at an evidentiary hearing, would entitle her to relief. The Court now turns to a consideration of each of petitioner's claims Seriatim.

II.

Petitioner's claim that pretrial publicity rendered her trial inherently unfair is grounded in the contention, made now for the first time, that pervasive media coverage of her case made it impossible to obtain an impartial jury in the Northern District of California, where her trial was held. There can be no doubt that Patricia Hearst and her captors were the subjects of the most extensive news coverage in recent history. The media fully exploited the public's fascination with the deeds of the SLA, a small band of self-avowed terrorists. For fourteen months, the group eluded a team of more than one hundred Federal Bureau of Investigation ("FBI") agents, which in the course of their pursuit interviewed over twenty-five thousand citizens, following leads from nearly every state in the nation. News articles from as far away as Thailand, Australia, Belgium and France attest to the fact that interest in these events was international in scope....

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