596 F.2d 759 (8th Cir. 1979), 78-1033, United States v. Larson

Docket Nº:78-1033, 78-1051.
Citation:596 F.2d 759
Party Name:UNITED STATES of America, Appellee, v. Donald F. LARSON, Appellant. UNITED STATES of America, Appellee, v. Kenneth James CALLAHAN, Appellant.
Case Date:January 26, 1979
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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596 F.2d 759 (8th Cir. 1979)

UNITED STATES of America, Appellee,

v.

Donald F. LARSON, Appellant.

UNITED STATES of America, Appellee,

v.

Kenneth James CALLAHAN, Appellant.

Nos. 78-1033, 78-1051.

United States Court of Appeals, Eighth Circuit

January 26, 1979

Remanded July 7, 1978.

Submitted June 12, 1978.

Rehearing and Rehearing En Banc Denied May 21, 1979.

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[Copyrighted Material Omitted]

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Ronald I. Meshbesher, Meshbesher, Singer & Spence, Ltd., Minneapolis, Minn., and Bruce Hartigan, Minneapolis, Minn., for appellants; Carol M. Grant and Bruce Hartigan, Minneapolis, Minn., on brief.

Thorwald Anderson, Jr., Asst. U. S. Atty., Minneapolis, Minn., for appellee; Andrew W. Danielson, U. S. Atty., Minneapolis, Minn., on brief.

Before BRIGHT, Circuit Judge, INGRAHAM, Senior Circuit Judge, [*] and STEPHENSON, Circuit Judge.

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BRIGHT, Circuit Judge.

Appellants Kenneth Callahan and Donald Larson appeal from convictions following a jury trial for having unlawfully seized, confined, and kidnapped Virginia L. Piper for one million dollars ransom, and for having willfully transported her in interstate commerce, from the State of Minnesota to the State of Wisconsin and thence back to Minnesota, in violation of 18 U.S.C. § 1201 (1976). The district court sentenced each appellant to a term of life imprisonment.

Callahan and Larson present the following contentions on appeal:

1) the evidence of appellants' involvement in the kidnapping and the evidence of interstate transportation, supporting federal jurisdiction, are insufficient as a matter of law to justify the conviction;

2) the district court abused its discretion in denying appellants' motion to reopen the case to hear the testimony of Lynda Lee Billstrom; 1

3) the district court erred in refusing to admit, as a statement against penal interest made by an unavailable witness, a thirty-six page statement made to the FBI by Ms. Billstrom, which purportedly aids in establishing appellants' innocence;

4) by excluding evidence that the Government offered leniency to various convicts for cooperation in testifying for the prosecution, the district court prevented appellants from supporting their theory that the Government framed them. In addition, the court abused its discretion by failing to instruct the jury on a defense theory that the Government fabricated evidence against them;

5) the district court erred in failing to order a physical and psychiatric examination and in refusing to admit into evidence an impeaching medical evaluation of John Dineen, a narcotics user who testified as a witness for the Government;

6) the Government, by failing to disclose evidence that Callahan passed a spelling test containing some of the words misspelled in the ransom notes, and the court, in not ordering a new trial on the basis of this information, denied appellants due process of law;

7) unauthorized experiments conducted by certain jurors during deliberations deprived appellants of their right to confront and cross-examine adverse witnesses;

8) the district court's alleged communication with the jury, without notice to appellants or their counsel, violated appellants' right to be present at every stage of their trial; and

9) the district court's refusal to conduct an evidentiary hearing to explore allegations of the Government's nondisclosure of a spelling test, unauthorized jury experiments, improper jury communications, and the prejudicial impact resulting from the jury being trapped in an inoperable elevator for one and one-half hours on the last day of deliberations, deprived appellants of a fair trial.

Upon examination of the entire record in this case, including the supplementary material developed on remand, we reject appellants' claims numbered 1, 3, 4, and 5, and we find it unnecessary to decide issues 6 through 9. We conclude that the denial of the motion to reopen the trial for the purpose of presenting the testimony of Ms. Billstrom (appellants' claim no. 2) seriously prejudiced appellants' defense and requires a retrial of Callahan and Larson.

I. Factual Background.

Two masked, hooded men dressed in black invaded the home of Virginia L. Piper and her husband, Harry Piper, in Orono, Minnesota, a suburb of Minneapolis, at approximately one o'clock on Thursday afternoon, July 27, 1972, and abducted Mrs. Piper. A ransom note left in the house demanded $1,000,000 in $20 bills for the return of Mrs. Piper. Handcuffed and forced

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to lie on the backseat of a green 1972 Chevrolet Monte Carlo, Mrs. Piper became the unwilling companion of the kidnappers on their several-hour journey to a heavily wooded area of Jay Cooke State Park, a site in northeastern Minnesota near Duluth, Minnesota, and 140 miles north of Minneapolis. During the automobile trip, Mrs. Piper could feel the movements of the car and hear, but she could see nothing because the men had placed a pillowcase over her head. As they travelled, the kidnappers directed Mrs. Piper to tape record preliminary ransom delivery instructions.

Upon arrival at their destination, one of the kidnappers remained with Mrs. Piper in the park from Thursday afternoon, July 27, until Friday night, July 28. During that period, Mrs. Piper sat handcuffed with her back to the abductor and, although not blindfolded, was admonished to avoid looking at him. On one occasion, however, Mrs. Piper inadvertently turned and, for an instant, saw her abductor's features through the sheer nylon stocking he wore over his head. Mrs. Piper particularly noticed a red streak through his left eye and a white ring encircling his left eyeball. Mrs. Piper also observed that the kidnapper often rubbed his legs. From conversations with her abductor during the thirty-forty hours Mrs. Piper remained in his custody, she learned that he called himself "Alabama" and worked in construction. In addition, he commented upon the poor rehabilitative program at the St. Cloud Reformatory. The man offered Mrs. Piper some cheese, bread, and 7-Up, occasionally provided her with what she describes as menthol cigarettes, and gave her a pair of olive-brown wool pants and a sweater bearing a St. Olaf insignia to wear.

Meanwhile, Harry Piper arranged for the delivery of the one million dollar ransom in $20 bills. About 9:30 p. m. on Friday, July 28, Mr. Piper received a telephone call communicating his wife's tape recorded message. Pursuant to the recorded instructions, Mr. Piper drove with the ransom money in his automobile to a signpost at the intersection of Louisiana and Laurel Avenues in St. Louis Park, Minnesota. There he found a radio transmitter, which he placed on the dash of his car, and the first of a series of notes which directed him on an intricate ransom run. During the course of the ransom delivery, in conformance with the kidnappers' directions, Mr. Piper transferred the ransom money from his car to a green 1972 Chevrolet Monte Carlo 2 and drove the Monte Carlo to the Sportsman's Bar in north Minneapolis. Still following instructions, Piper made two calls from inside the bar, during which time someone removed the money from the trunk of the Monte Carlo. 3 Ultimately, Mr. Piper abandoned the car at a Holiday Village Store in a suburb south of Minneapolis, where the FBI recovered the vehicle.

Sometime Friday night, July 28, the kidnapper chained Mrs. Piper to a tree in Jay Cooke State Park and left. Mrs. Piper thought that hours had passed when finally she heard someone in the woods. A man wearing a white shirt, whose face she could not discern, approached her and asked, "Is everything all right * * * (w)here is Tom?" Mrs. Piper responded, "He is gone. He has been gone a long time(.)" That man left for a time, but he returned and conversed a bit longer, promising Mrs. Piper she would be rescued. 4 When he then departed, Mrs. Piper saw headlights and heard two short horn honks and a strange voice saying as a car drove away, "Grandma, grandma, we are going now."

The FBI rescued Mrs. Piper around noon on Saturday, July 29, following a telephone call made at 9:00 a. m. that day to Reverend Kenneth Hendrickson, a Lutheran minister

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in Golden Valley, Minnesota. An unknown male informed the Reverend that his number had been picked at random, and the caller relayed directions regarding Mrs. Piper's location. At about 2:15 p. m. on Saturday, after Mrs. Piper had been rescued, Alice Codden, an employee at the House of Charity in Minneapolis, also received a call from an unidentified man asking for a Brother DePaul. When informed of Brother DePaul's absence, the caller gave Ms. Codden a description of Mrs. Piper's location.

In the aftermath of the kidnapping, the FBI mounted an extensive investigation of the crime, employing as many as 250 agents to explore leads. The FBI concentrated primarily on interviewing persons in Minnesota with prior criminal records. FBI agents combed the recovery site at Jay Cooke State Park on several occasions and thoroughly searched the Monte Carlo employed in the crime for evidence.

Over the five years of the investigation, the FBI discovered numerous witnesses who made various identifications of suspects. Kenneth Callahan and Donald Larson were among the persons investigated, but the FBI apparently discounted them as suspects early in their search.

Eventually, however, all investigative efforts pertaining to the Piper kidnapping concentrated on Callahan and Larson. About March 1977, the FBI issued the following instruction to its agents:

No specific leads are being set forth at this time. All investigation is being directed toward development of evidence * * * with a goal to indict Callahan and Larson in the latter part of June, 1977 or early July '77(.)

The federal statute of limitations for the Piper kidnapping expired July 27, 1977. See 18 U.S.C. § 3282 (1976).

II. Procedural History.

On July 11, 1977, the...

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