557 F.2d 741 (10th Cir. 1977), 76-1255, United States v. Walker
|Citation:||557 F.2d 741|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. William A. WALKER, Defendant-Appellant.|
|Case Date:||June 24, 1977|
|Court:||United States Courts of Appeals, Court of Appeals for the Tenth Circuit|
Argued and Submitted Jan. 27, 1977.
Michael S. Axt, Asst. Federal Public Defender, Denver, Colo. (Daniel J. Sears, Federal Public Defender, Denver, Colo., on brief), for defendant-appellant.
Jerre W. Dixon, Asst. U. S. Atty., Denver, Colo. (James L. Treece, U. S. Atty., Denver, Colo., on brief), for plaintiff-appellee.
Before LEWIS, Chief Judge, and BREITENSTEIN and SETH, Circuit Judges.
LEWIS, Chief Judge.
Defendant Walker appeals a judgment of conviction and sentence entered upon a jury verdict of guilty to one count of knowingly obtaining and exercising control over $1786 of government funds in the possession of the Lowry Air Force Base Officer's Club in Denver, Colorado, in violation of the Assimilative Crimes Act, 18 U.S.C. §§ 7, 13, and the Colorado theft statute, § 18-4-401, Colo.Rev.Stats.Ann. (1973). 1 The questions presented on appeal are whether the retrial from which this conviction and sentence arose was barred by principles of former jeopardy, whether the trial court erred in refusing to provide additional instructions requested by the jury during its deliberations, and whether Walker was improperly indicted under the Assimilative Crimes Act.
On August 15, 1975, one Joyce Wright, a cashier at the Lowry Air Force Base Officer's Club, reported a robbery of $1786. Wright and defendant Walker, with whom she was living at the time of the reported robbery, were subsequently indicted under the Assimilative Crimes Act, 18 U.S.C. §§ 7, 13, for knowingly obtaining and exercising control over the personal property of another in violation of the Colorado theft statute, § 18-4-401, Colo.Rev.Stats.Ann. (1973), the government alleging the robbery was "staged." Wright was convicted and sentenced upon her plea of guilty. Walker was brought to a jury trial on December 9, 1975.
During the first day of Walker's trial a key government witness, Joanna London,
refused to testify after having taken the stand. Acting upon the representations of counsel for the government that Ms. London had been threatened and warned against testifying by Walker's friends and relatives, the trial court called a recess and appointed counsel for Ms. London. After Ms. London had been afforded an opportunity to confer with counsel, court was reconvened outside the presence of the jury. Ms. London was again placed on the stand, testified she knew and could identify Walker, but refused to answer further questions despite a direct order of the court to do so. When the preliminary attempts by the government to lay a foundation for the admission of her prior statement to an FBI agent proved unsuccessful, the witness was excused and placed in protective custody. As the witness attempted to leave the courtroom she was accosted by Walker's friends and relatives in the hallway and the assistance of the marshals was required to effect her departure. The jury was then recalled and after the government had presented the remainder of its case, court was again recessed. The following morning court was reconvened outside the presence of the jury. After being informed by Ms. London's court-appointed counsel that in his opinion his client was prepared to testify, the jury was brought in and Ms. London recalled. The witness again testified that she knew and could identify Walker, but refused to respond to additional questions in defiance of further orders from the court to do so. The witness then attempted to leave the courtroom, but was restrained from doing so by the marshals. The court thereupon declared a mistrial stating, "I do not see how any jury could overlook what this jury has seen." The court found that the events that had transpired had produced an "aura of intimidation" precluding a fair trial either for Walker or for the government. Walker advised the court he did not consider a mistrial necessary and was willing to advise the witness she had his permission to testify. The court denied this request and proceeded to make an extensive record of the grounds on which the mistrial was granted. 2
Walker was retried on January 5, 1976, before a different trial judge, the original trial judge having recused himself at Walker's request. Walker's motion to dismiss based on former jeopardy was denied and testimony essentially the same as that presented during the first trial was adduced. Ms. London was again called as a government witness and testified Walker had admitted to her that he and Joyce Wright had planned the "staged" robbery and that he had gone to Lowry Air Force Base to "pick up" the monies previously taken by Joyce Wright. At the conclusion of the government's case the trial court entered a judgment of acquittal on a second count of the indictment alleging a similar staged robbery at a later date. Walker then called as his sole witness Joyce Wright, who testified she was responsible for the taking of...
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