519 F.2d 765 (9th Cir. 1975), 74-2700, United States v. Hobson

Docket Nº:74-2700, 74-2866.
Citation:519 F.2d 765
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Bruce Warren HOBSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Morton NEWMAN, Defendant-Appellant.
Case Date:June 26, 1975
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 765

519 F.2d 765 (9th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bruce Warren HOBSON, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee,

v.

Morton NEWMAN, Defendant-Appellant.

Nos. 74-2700, 74-2866.

United States Court of Appeals, Ninth Circuit

June 26, 1975

Rehearing and Rehearing En Banc Denied Sept. 10, 1975.

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[Copyrighted Material Omitted]

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Gordon D. Lapides (argued), San Francisco, Cal., for defendants-appellants.

David P. Bancroft, Asst. U. S. Atty. (argued), James L. Browning, Jr., U. S. Atty., John D. O'Connor, Asst. U. S. Atty., San Francisco, Cal., for plaintiff-appellee.

OPINION

Before CHAMBERS and CARTER, Circuit Judges, and SCHWARTZ, [*] District Judge.

JAMES M. CARTER, Circuit Judge.

Defendants Bruce Hobson and Morton Newman appeal from the judgments of conviction, following a jury trial, of harboring a prison escapee and fugitive from justice, being accessories after the fact, and conspiracy, in violation of 18 U.S.C. §§ 1072, 3, and 371 respectively. They allege numerous errors in their joint, six-week trial errors pertaining to each individually and errors common to both. We affirm.

FACTS

The facts of this case concern the six-week period subsequent to the highly publicized October 6, 1972, "liberation" of Ronald W. Beaty from the California Institute for Men at Chino. Beaty had been serving federal time at the State facility pursuant to an Arizona federal district court twenty-year sentence for interstate transportation of kidnapped

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persons. While serving this sentence, Beaty joined a revoluntionary group called Venceremos and an escape plan was devised by Beaty and defendant Hobson's mother (Jean Hobson), a member of the Venceremos Central Committee. Pursuant to this plan, Beaty was freed at gun point from a California State vehicle while enroute to San Bernardino County Superior Court for pretrial proceedings concerning his escape from Chino on another occasion.

After the escape, during which a guard was killed, Beaty fled to Northern California, to Arizona, and back to Northern California again before being apprehended while crossing the Oakland-San Francisco Bay Bridge. This case involves the efforts of Bruce Hobson and Morton Newman to aid and harbor Beaty during the month following his escape, all other defendants having been severed from the case before trial.

At trial, Beaty testified that immediately following his escape Hobson's mother drove him to a house in Northern California (Los Altos). Shortly before daybreak the next morning, Hobson himself arrived at the house, helped load weapons into a car, and drove Beaty to a remote mountain cabin owned by Hobson's friends. There, Hobson and his mother guarded Beaty for about a month, furnishing him with a Colt .45 semi-automatic handgun, ammunition, civilian clothes, and false identification papers. During that period, Hobson and Beaty discussed where Beaty could be hidden in the future, problems concerning several other co-conspirators, whether or not to publicize Beaty's membership in Venceremos, the role of Venceremos in the escape and flight efforts, and future plans for acts of violence.

At the end of the month, Hobson and his mother returned Beaty to a Palo Alto residence where, in answer to a phone call, defendant Newman arrived carrying a Colt .45 in a shoulder holster which he later gave to Beaty. Beaty and Newman (also a member of Venceremos) discussed plans for a "shoot out" with police in the event that the residence was taken. An arsenal of weapons was deployed at the various entrances and windows of the residence for this purpose. According to Beaty, Newman took a major part in these proceedings and stood guard over him (along with other co-conspirators) during the next four nights.

During this time, Newman and Beaty discussed the publicity generated by Beaty's escape, the roles played by two other co-conspirators, Beaty's prison experiences, their proposed future association as part of a direct action faction of Venceremos, recommendations by Newman of books on explosives, and the fact that the Colt .45 given to Beaty by Hobson had belonged to Newman and was a "good piece."

Hobson testified at trial that he had understood Beaty to be a Vietnam veteran who had a narcotics problem and wanted to get away for a while, and that he (Hobson) took a gun to the cabin just to have it there. Newman chose not to testify.

DISCUSSION

On appeal, Hobson and Newman jointly contend that: 18 U.S.C. § 371 (conspiracy) and 18 U.S.C. § 3 (accessory after the fact) require the defendants' scienter as to the distinctly federal nature of the offense committed by the person comforted and assisted; Beaty did not escape from "the custody of the Attorney General" as required by 18 U.S.C. § 1072 since Chino is a State correctional facility; and certain Venceremos Central Committee notes were improperly admitted into evidence against Hobson and even if properly admitted as to Hobson, necessitated Newman's severance from the case or the giving of his proposed jury instruction.

In addition to their joint contentions, the defendants allege a number of prejudicial errors applicable only to one or the other. Hobson contends that: the admission into evidence of an entry from a suppressed diary for purposes of impeachment constituted prejudicial error; and the court's supplemental jury

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instruction amended the grand jury indictment in violation of the Fifth Amendment. Newman contends that: the district court failed to adopt measures to protect him from the risk of transference of guilt, particularly in failing to instruct the jury as to the possibility that multiple conspiracies had been committed instead of the single large conspiracy charged in the indictment; and evidence seized from his house pursuant to an arrest warrant should have been suppressed. We treat these various contentions seriatim.

I.

JOINT CONTENTIONS

(a)

Scienter as to the Federal Nature of the Offense Not

Required Under 18 U.S.C.ss 371 and 3

Both Hobson and Newman were convicted of being accessories after the fact, in violation of 18 U.S.C. § 3 which provides in part:

"Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact. . . ."

They contend that in order for them to have violated the statute they must be shown to have known that Beaty's escape (and shooting of the guard) constituted an offense against the United States. The district court rejected Hobson's proposed instruction to this effect and refused to grant a judgment of acquittal. The district court was correct in both rulings.

Beaty was clearly guilty of escape. He has been convicted and sentenced to life imprisonment for that escape. There is no requirement that he had to have known that he was committing a federal offense in escaping. See United States v. Fernandez, 497 F.2d 730, 736-739 (9 Cir. 1974). It borders on the ridiculous to suggest that Hobson and Newman could be acquitted, despite knowledge that they were aiding Beaty in hiding from the authorities, because they thought he had only committed murder and escape from a State prison. In fact, the Supreme Court has recently rejected just such a contention with respect to a conspiracy prosecution. See United States v. Feola, --- U.S. ---, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The Court stated:

"The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency (here, the prison) affected. . . . The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum." Id. 95 S.Ct. at 1264.

In United States v. Howey, 427 F.2d 1017 (9 Cir. 1970), this court held that the language of 18 U.S.C. § 641, "Whoever . . . without authority, sells, conveys or disposes of any . . . thing of value of the United States", does not require knowledge that the property taken belongs to the United States. "The reason for including the requirement that the property, in fact, belongs to the Government was to state the foundation for federal jurisdiction. A defendant's knowledge of the jurisdictional fact is irrelevant . . .." 427 F.2d at 1018.

Hobson contends, however, that Howey is inapposite because it involved a principal rather than an accessory. This is essentially his same argument with respect to the conspiracy conviction under 18 U.S.C. § 371. But it is an argument rejected by the Supreme Court in Feola, supra: "The general conspiracy statute, 18 U.S.C. § 371, offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law." 95 S.Ct. at 1265.

In the present case, the defendants intended to aid Beaty escape from the authorities. The fact that they may

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not have known the jurisdictional (federal) nature of his pursuers and his...

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