Bayless v. United States

Decision Date19 July 1967
Docket NumberNo. 21059.,21059.
Citation381 F.2d 67
PartiesJohn Richard BAYLESS, Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

COPYRIGHT MATERIAL OMITTED

John R. Bayless, in pro. per.

Eugene G. Cushing, U. S. Atty., Tacoma, Wash., for appellee.

Before MADDEN, Judge of the United States Court of Claims, and HAMLEY and BROWNING, Circuit Judges.

MADDEN, Judge:

The appellant was convicted in the United States District Court on two counts of an indictment, the details of which will be recited hereinafter. He has appealed, asserting that in the proceedings leading to his conviction many errors were committed.

On April 28, 1952, the appellant was convicted in the United States District Court for the Southern District of California of armed bank robbery, and of interstate transportation of stolen property. He was sentenced to an aggregate term of 35 years in prison. He was committed to the custody of the Attorney General and on May 6, 1952, was delivered by the United States Marshal to the federal penitentiary at McNeil Island, in the State of Washington. On July 10, 1952, the Federal Bureau of Prisons, acting for the Attorney General, transferred the appellant to the federal penitentiary at Alcatraz, California. On January 11, 1963, the same agency transferred him back to the McNeil Island penitentiary.

All of McNeil Island is owned by the federal government, which makes no use of it except as the site of the prison. Only the area where the main prison institution stands, and which is enclosed by a fence, is guarded. Three buildings in the main institution are connected by a tunnel in which there are three gates operated by a prison guard. On November 8, 1965, in the evening, the appellant and one Dennis Hubbard, who in the instant case was tried and convicted jointly with the appellant in the district court, and who also appealed but later dismissed his appeal, gained access to the tunnel gate complex, overpowered the guard, taped his hands through the bars, gagged him, took his keys, and escaped through the tunnel to a minimum security building. From there they apparently climbed over the fence to the unguarded part of the island where they were able to hide for several days.

The government maintains homes on the island for some of the prison officials. On November 10 a prison doctor who occupied one of these homes left his home, with his son, for a hunting trip, intending to be away for several days. That night the appellant and Hubbard entered the doctor's house through a kitchen window. They remained in the house until the morning of November 13, 1965, at which time the doctor and his son returned, discovered the presence of the intruders and notified the prison. Prison officials then recaptured the prisoners and returned them to confinement.

On March 9, 1966, the appellant and Hubbard were jointly indicted on three counts. Count one charged them with the crime of "escape," in violation of § 751 of Title 18 of the United States Code. Count two charged them with assault, committed during their escape, in violation of §§ 111 and 1114 of Title 18 of the Code. Count three charged them with burglary of the doctor's home, in violation of § 9.19.020 of the Revised Code of Washington, which provision had been assimilated into federal law by § 13 of Title 18 of the United States Code. The appellant and Hubbard were tried before a jury, were convicted of escape, charged in count one, were acquitted of assault, charged in count two, and were convicted of burglary, charged in count three. Each was sentenced to five years' imprisonment on each conviction, the sentences to be consecutive to each other and consecutive to any terms of imprisonment which the prisoner were then serving.

Both appellant and Hubbard appealed their convictions. As stated above, Hubbard has dismissed his appeal. The appellant has prosecuted his appeal in pro. per. The district court offered to appoint counsel for him for his appeal, but he declined the offer, and has written and submitted his own brief.

Appellant, after his recapture on November 13, 1965, was not taken before a United States Commissioner "without unnecessary delay," or, indeed, at all. He was indicted on March 9, 1966, nearly four months after his recapture. In the meantime he was interrogated by officials of the prison. He urges that failure of his custodians to take him before a Commissioner was a violation of Rule 5(a) of the Federal Rules of Criminal Procedure, and we will assume that it was, even under the unusual circumstances of the appellant's situation. He urges that the doctrine laid down by the Supreme Court in McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L. Ed. 819 (1943) and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L. Ed.2d 1479 (1957), is applicable in his case. He does not make clear what advantage he thinks he should have because of the violation of Rule 5(a). All that McNabb, and Mallory, decided was that confessions or admissions obtained from a prisoner during a period of unnecessary delay could not be used as evidence against him at his trial. In the instant case no such evidence was obtained by the government. The McNabb-Mallory doctrine has no application. Nor, for the same reason, can the appellant obtain any advantage from the Supreme Court's decisions in Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), upon which he relies. There having been no evidence which could have been excluded, on motion, on these grounds, the appellant's motion was to dismiss the indictment. That motion was correctly denied.

The appellant urges as error that he was denied the right to a preliminary hearing. We have pointed out that the defendant was not prejudiced by the government's violation, which we have assumed, of Rule 5(a) of the Federal Rules of Criminal Procedure. After he was indicted, he had no right to a preliminary hearing. Probable cause for holding him for trial had been found by the grand jury. United States v. Salliey, 360 F.2d 699 (CA 4, 1966); Byrnes v. United States, 327 F.2d 825, 834 (CA 9, 1964), cert. den. 377 U.S. 970, 84 S.Ct. 1652, 12 L.Ed.2d 739.

The appellant contends that he was denied his statutory right, under § 1654 of Title 28, United States Code, to conduct his own case. A defendant has such a right and it is not only a statutory right but a constitutional right. United States v. Plattner, 330 F.2d 271 (CA 2, 1964). But the appellant was not denied this right. In the pretrial stage of the case appellant represented himself but retained counsel to advise him on procedure for filing motions, of which he filed many. The court insisted that the counsel be in court during these motion proceedings, but only to give advice if the appellant requested it. Appellant dismissed that counsel prior to the trial. The court gave appellant the opportunity to obtain other counsel for the trial, but appellant did not do so. The court then appointed counsel but made it clear that this counsel would participate in the trial only to the extent that appellant desired. Appellant said that he wanted counsel to fully represent him, except that he himself was to have the right, after his counsel had cross-examined witnesses, to himself further cross-examine them. The court permitted this unusual arrangement, the appellant expressed his complete agreement with it, it was followed throughout the trial, and the appellant made no complaint about its operation. He was thus allowed to represent himself to the extent that he desired to do so. He has no valid ground for complaint in this regard.

The appellant contends that the joinder of the escape count and the burglary count infected the trial with unfairness. Federal Rules of Criminal Procedure, 8(a), 8(b) and 14 are relevant. Rule 8(b) relates to joinder of defendants. As we have seen, appellant and Hubbard were tried jointly. This was correct, since Rule 8(b) provides that defendants may be joined if it is alleged that they participated in "the same series of acts or transactions constituting an offense * * *."

From the appellant's motions in the trial court and his brief in this court it is apparent that he is claiming prejudicial joinder, as to which Rule 14 is the pertinent rule, and that the joinder which he claims was prejudicial was the joinder of the offenses of escape and burglary. The asserted prejudice is based upon the fact that the government's evidence, on the escape count, included evidence of his 1952 conviction for robbery, which was the reason for his being in the prison from which he escaped. We consider whether these offenses were properly joined, under Rule 8(a). That rule says that joinder may be made if the offenses are "two or more acts connected together * * *"

From our recital of the facts it appears that the act of escape and the act charged as burglary were "connected together" within the meaning of Rule 8(a). The escape made it necessary that appellant and Hubbard, in order to ultimately get off McNeil Island and disappear into the outside world, should lie low until the immediate excitement caused by their break out of close confinement should die down. They apparently hid in the woods for two nights and a day, then discovered that the doctor's house was likely to be available for a few days for use as a comfortable and fairly safe hideout. The event that gave them their reason, their motive, for entering the house was the escape and the fact that unless they could succeed in hiding out until they could get off the island the purpose of their escape from the prison buildings would be frustrated. Their entry into the doctor's house was not remote in time from their escape, was in the sequence of events connected with their escape, and was motivated by the fact that they were still engaged in trying to...

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