U.S. v. Hack

• Decision Date: 23 January 1986
• Docket Number: Nos. 85-1068,85-1079,s. 85-1068
• Citation: 782 F.2d 862
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William Harry HACK, Jr., Lucas Clinton Owens, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 862

782 F.2d 862

UNITED STATES of America, Plaintiff-Appellee, v. William Harry HACK, Jr., Lucas Clinton Owens, Defendants-Appellants.

Nos. 85-1068, 85-1079.

United States Court of Appeals, Tenth Circuit.

Jan. 23, 1986.

Roger C. Elletson, Cheyenne, Wyo., for defendant-appellant Lucas Clinton Owens.

Bert Ahlstrom, Jr., Cheyenne, Wyo., for defendant-appellant William Harry Hack, Jr.

Richard A. Stacy, U.S. Atty., and Francis Leland Pico, Asst. U.S. Atty., Cheyenne, Wyo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, LOGAN, Circuit Judge, and WESLEY E. BROWN, Senior District Judge. ^*

WESLEY E. BROWN, Senior District Judge.

After examining the briefs and the appellate record, this three-judge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Cir.R. 10(e). The cause is therefore ordered submitted without oral argument.

These are appeals from judgments of conviction entered in the United States District Court for the District of Wyoming following a jury trial. Defendants Lucas Clinton Owens and William Harry Hack were convicted of conspiring to commit air piracy in violation of 18 U.S.C. Sec. 371. ¹ The jury also found Hack guilty of attempted air piracy in violation of 49 U.S.C. Sec. 1472(i). ² The court sentenced Hack to a fifty-year prison term for attempted air piracy. This sentence is to run concurrently with a five-year prison sentence each of the defendants received for the conspiracy conviction. The defendants appeals their convictions and sentences on a number of grounds. Their claims are: (1) the court erred in admitting each of their confession statements into evidence upon a finding that each of these statements was a product of a valid waiver of his Miranda rights; (2) they were deprived of a fair trial because they were required to wear shackles and handcuffs throughout the jury trial; (3) the court erred in denying Hack's motion for judgment of acquittal at the close of the Government's case-in-chief on the basis of insufficiency of the evidence to sustain a conviction on attempted air piracy; (4) the court abused its discretion in sentencing Hack to the "maximum allowable terms of confinement for the crimes charged" as violative of the Eighth Amendment against cruel and unusual punishment; and (5) the court erred in denying Owens' motion for severance of his case from that of his co-defendant Hack. Following a careful review of the record, we conclude that the defendants' contentions to be without merit. We sustain each of their convictions and sentences on all counts.

Both Owens and Hack were inmates who were serving their sentences in the Nevada State Prison. On February 18, 1984, they were aboard a prisoner-transport plane on a flight from Visalia, California to Rock Springs, Wyoming, where Owens and Hack had been scheduled to appear separately in state courts on criminal matters then pending against each of them. There were six other inmates in this plane, in addition to the pilot, Gary Harrington, and the co-pilot who also served as the armed guard, Diane Witt. All of these inmates were fettered by physical restraints. Each of them wore a leg iron and was handcuffed to a belly chain that threaded through the inmate's clothing. When the plane departed from California, Owens selected the seat directly behind the co-pilot. He was very inquisitive of the technical aspects of the plane and its performance capabilities. His questions to Harrington and Witt were about the plane's fuel reserve, how far and high it could fly and the numbers and locations of the scheduled stops they intended to take for services.

The plane made an intermediary stop at Elko, Nevada in the afternoon for flight services. Witt allowed the inmates to deplane for the use of the restroom facility in the airport terminal. When they resumed their journey in the evening to Evanston, Wyoming, Owens had switched seats with Hack, whose seat butted against and was directly behind the co-pilot's seat. Owens' explanation for changing seats with Hack was that he wanted to have a better scenic view, although it was dark outside and a film of frost had overlaid on all of the exterior window panes in the passenger cabin. The plane landed at Evanston at about 7:15 p.m. It was a very cold evening. The inmates were directed to go inside the terminal building while the plane was being serviced. Hack pretended that he needed to use the restroom facility. It appeared that during this unobserved opportunity Hack managed to slip out of his belly chain by stepping over it. To disguise that he had unfettered himself, Hack tucked the chain back into his pants. His ruse passed the scrutiny of the pilot and the guard when he re-entered the plane.

At approximately 8:00 p.m., the flight service station at Rock Springs gave its clearance for the plane to begin its descent course on final approach into Rock Springs, Wyoming, which was the final destination for Hack and Owens. Hack decided that this was the last moment which they would have to implement their escape plan. Hack stook up from his seat, turned around swiftly and threw his loose chain around the neck of the co-pilot, Witt. Witt tried to extricate herself from the tightening noose by holding the chain off her throat with her left hand while fighting with the other one to prevent Hack from taking hold of her service revolver. During the struggle, Witt, with the assistance from the pilot, was able to retrieve a gun she had stowed in her flight bag and fired-off a shot which struck Hack. After Hack released the strangle hold around her neck, Witt soon restored control of the inmates. The pilot, who was also wounded by the bullet that had passed through Hack's mouth, landed the plane at Rock Springs a short time later.

Agent Russell Nielsen from the F.B.I. interviewed Owens and Hack on February 20 and 21, while they were in the custody of the state police. Prior to questioning, Nielsen advised each of them of his Miranda rights. Each of the defendants acknowledged his understanding by signing a standard Waiver of Rights Form commonly used by the F.B.I. Owens told Nielsen that he had some training in flying an aircraft and that he recalled his questions to the pilot and co-pilot about the plane's performance capabilities. He admitted that he had spoken with Hack, whom he met in the Nevada State Prison, about their escape plan to Fort Collins, Colorado by hijacking the plane while it was enroute to Rock Springs. He further stated that he knew Hack had gotten his belly chain loose at Evanston and that they discussed that Hack was to seize control of the plane before it landed at Rock Springs. Hack's recanted statement to Nielsen essentially corroborated that of Owens, although in his first statement he refused to implicate Owens for his role in planning their escape to Fort Collins. Hack admitted that he intended to obtain the co-pilot's revolver by strangling her with his belly chain. Each of their oral statements was redacted by Nielsen, who advised the defendants of their Miranda rights again before asking them to ratify the substances of their extra-judicial admissions. By signing another Waiver of Rights Form, each of the defendants manifested his concurrence in the contents of the written statements. After hearing Nielsen's testimony concerning the defendants' challenge on the voluntariness of their confessions, ³ the court found the Government had met its burden in establishing that the statements given by the defendants without the presence of their counsel were voluntarily made. Both defendants chose to testify at trial. Upon the specific instructions to the jury that each of the inculpatory statements should only be considered against the declarant, the court admitted these confessions into evidence.

On appeal, the defendants challenge the district court's finding that their waivers and subsequent confessions were voluntarily, knowingly, and intelligently made. The defendants, however, neither dispute that they were properly informed of their Miranda rights, nor do they deny that each of them had signed a form waiving those rights, before the interrogations began. Hack claims that he acceded to Nielsen's request because he was in pain from the gunshot wound in his mouth. Owens asserts that he signed the waiver because he was "tired of the whole mess" and upon the impression by Nielsen that counsel's service would be unnecessary.

In a custodial interrogation, a suspect who has been advised of his rights can "waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 706-707 (1966). An express written or oral statement or waiver by a defendant of his right to remain silent or of the right to legal assistance of counsel, though not conclusive, is "usually strong proof of validity of that waiver." North Carolina v. Butler, 441 U.S. 369, 373, 99 S.Ct. 1755, 1757, 60 L.Ed.2d 286, 292 (1979). Each of the defendants had been informed of his Miranda rights twice prior to questioning of and obtaining a waiver from each of them. During the interviews that took place two days following the incident, Nielsen observed that both defendants remained mentally alert and were conversant with the details of the hijacking. While Hack's treating physician did not dispute that Hack was feeling uncomfortable from his mouth wound, Dr. Happel did not consider Hack's injury was so serious that it would require a prescription of analgesic medication other than Novocain. Cf. Greenwald v. Wisconsin, 390 U.S. 519, 520, 88 S.Ct. 1152, 1153, 20 L.Ed.2d 77, 79 (1968) (per curiam). There is nothing in the record to suggest that either one of them was mistreated, coerced, or lacked the capacity to understand his rights which he could have exercised any time during the...