U.S. v. Bailey, s. 77-1404

• Citation: 219 U.S.App.D.C. 67,675 F.2d 1292
• Decision Date: 23 April 1982
• Docket Number: Nos. 77-1404,77-1413 and 77-1502,s. 77-1404
• Parties: , 10 Fed. R. Evid. Serv. 1163 UNITED STATES of America v. Clifford BAILEY, Appellant. UNITED STATES of America v. Ronald Clifton COOLEY, Appellant. UNITED STATES of America v. Ralph WALKER, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 1292

675 F.2d 1292

219 U.S.App.D.C. 67, 10 Fed. R. Evid. Serv. 1163

UNITED STATES of America v. Clifford BAILEY, Appellant.

UNITED STATES of America v. Ronald Clifton COOLEY, Appellant.

UNITED STATES of America v. Ralph WALKER, Appellant.

Nos. 77-1404, 77-1413 and 77-1502.

United States Court of Appeals District of Columbia Circuit.

April 23, 1982.

Opinion on Remand.

Richard S. Kohn, Washington, D. C. (appointed by this court), for appellant in No. 77-1404.

Robert A. Robbins, Jr., Washington, D. C. (appointed by this court), for appellant in No. 77-1413.

John Townsend Rich, Washington, D. C. (appointed by this court) for appellant in No. 77-1502.

David G. Hetzel, Asst. U. S. Atty., Washington, D. C., with whom Earl J. Silbert, U. S. Atty., and John A. Terry and Steven R. Schaars, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellee. William D. Pease and James F. Hibey, Asst. U. S. Attys., Washington, D. C., also entered appearances, for appellee.

Before WRIGHT and WILKEY, Circuit Judges and McGOWAN, Senior Circuit Judge.

Opinion for the Court filed by Senior Circuit Judge McGOWAN.

McGOWAN, Senior Circuit Judge:

In United States v. Bailey, 585 F.2d 1087, 1091 (D.C.Cir.1978), Judge Wilkey dissenting, this court reversed the convictions of appellants Bailey, Cooley, and Walker for violations of the Federal Escape Act, 18 U.S.C. § 751(a) (1976), on the grounds that the District Court "did not properly instruct the jury as to what constitutes an 'escape' and excluded relevant evidence regarding duress from the jury's consideration." The Supreme Court in turn reversed that decision, United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). The matter is now before the court on remand from the Supreme Court for consideration of certain claims of error which had been briefed and orally argued but which we did not find it necessary to resolve in view of the result reached. For the reasons set forth below, we now affirm the convictions of Bailey, Cooley, and Walker.

I

We turn first to three points common to all three appellants. They assert in the first instance that joinder of their cases in the indictment was incorrect under Rule 8(b), Fed.R.Crim.P., which provides for joinder only when defendants "are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." Claiming an absence of any joint activity, they would have us hold that the indictment should have been dismissed. At no time in the District Court, however, was this point ever raised, and it is not available for the first time on appeal.

Rule 12, Fed.R.Crim.P., provides that "failure by a party to raise defenses or objections which must be made prior to trial ... shall constitute waiver thereof," and it contains only a narrow exception: "the courts for cause shown may grant relief from waiver." To overcome the Rule 12 bar, appellants rely on the fact that they did move at trial to sever their cases under Rule 14, Fed.R.Crim.P. They argue that this action either serves to preserve a Rule 8(b) objection for appeal, or else supplies the "cause" for its failure to be raised in the District Court.

We find neither of these arguments persuasive. In Cupo v. United States, 359 F.2d 990, 993 (D.C.Cir.1969), this court was confronted with a similar situation. Judge Edgerton reasoned, and we agree, that while a pretrial motion need not state explicitly the grounds upon which a motion is made, it must contain facts and arguments that make clear the basis of defendant's objections. For instance, in Cupo two defendants objected on the grounds of misjoinder, although they failed to mention Rule 8 by name; the Cupo panel held that defendants had preserved their right to argue misjoinder on appeal, and in fact defendants' convictions were overturned on this ground. Id. at 992. On the other hand, at trial one defendant had objected to his joinder only on the grounds of prejudice, and Judge Edgerton held that this defendant had not preserved his right to argue misjoinder on appeal. Id. at 993.

This reasoning comports with the purpose of Rule 12, which is to require that the District Court have ruled on the merits of an objection before that issue is placed before the Court of Appeals. Unless the motion clearly indicates the basis for objection, the District Court cannot consider that particular argument; if the issue is then sought to be raised on appeal, there is no ruling which the appellate court can review.

Applying the learning of Cupo to the instant case, we are convinced that appellants waived their misjoinder objections by not raising them at trial. Appellants' pretrial motions were lodged purely on the grounds of prejudice; they made no claim that they were not involved in the "same act or transactions," which would be the essence of a Rule 8 misjoinder claim. Nor do appellants show any "cause" for their failure to lodge a timely objection.

Second, appellants renew their argument, raised in timely fashion before trial, that their joinder was prejudicial. They would have us find that the District Court's denial of their motion to sever was an abuse of discretion. But appellants can point to no episodes during trial indicating that appellants suffered prejudice or that severance would have altered the outcome of their cases. Absent any such evidence, we cannot say that the District Court abused its discretion in failing to sever appellants' cases at the outset of this litigation.

Finally, appellants argue that they were prejudiced by certain of the jury instructions regarding the Attorney General's custody over federal prisoners. This problem stemmed from the unique facts of the case, and some explanation is necessary.

At the time of their escapes, Bailey and Walker had recently been brought to the District of Columbia Jail from the federal prison in Leavenworth, Kansas, pursuant to writs of habeas corpus ad testificandum, which are issued when it is necessary to bring a federal prisoner into a different jurisdiction to testify in a pending criminal case. Cooley was serving a sentence for a federal crime in the District of Columbia Jail.

In their initial appeal, appellants argued that the Government failed to present sufficient evidence that any of the appellants were in the custody of the Attorney General at the time of their escapes. Since such custody is an element of the escape offense, they argued, the Government failed to prove its case. We settled this ambiguity of law, noting that prisoners transferred pursuant to writs of habeas corpus ad testificandum are presumed to be in the custody of the Attorney General indefinitely. United States v. Bailey, 585 F.2d at 1101-04. We also noted that the Government had presented sufficient evidence to create a jury question as to whether, at the time of their escape, Bailey, Walker, and Cooley had been committed to the Attorney General's custody through one means or another.

In deciding these issues, though, we may have created another, by mentioning in dictum that "(a)lthough the trial judge's instructions matched the general sense of our holding ... some portions of the instructions were confusing and might have invaded the province of the jury." Id. at 1104. Bailey and Walker now argue this very point, claiming that the jury instructions directed a verdict on the issue of whether appellants were in the custody of the Attorney General at the time of their escapes. Cooley, of course, concedes that the instructions in question dealt with Bailey and Walker specifically, and addressed the situation in which a prisoner has been transferred pursuant to an extraordinary writ. Nevertheless, he feels that "the sense of both paragraphs, when read together just as they were heard by the jury," is that all three defendants were in the custody of the Attorney General at the time of their escapes. ¹

Faced squarely with this issue on appeal, we must examine the offending instructions in light of the standard set out by the Supreme Court most recently in Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). In Cupp, the Court held that a conviction will not be reversed on this ground unless "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400. The Court further directed that "a single instruction to a jury may not be judged in artificial isolation but must be viewed in the context of the overall charge." Id. at 146-47, 94 S.Ct. at 400.

The instruction at issue provides as follows, with the allegedly misleading passage emphasized:

Now, with respect to each of the defendants who is on trial in this case the Court instructs you that defendants convicted either in this federal court or in the Superior Court of felonies, or in federal courts throughout the country are committed to the custody of the Attorney General of the United States. This is a general practice and the Court will take judicial notice of it and instruct you accordingly.

Prisoners, such as two of the prisoners in this case, defendants in this case who are convicted in another jurisdiction and who were in the custody of the Attorney General, were brought to this jurisdiction as the documentary evidence shows, because they were summoned as witnesses by another defendant in a proceeding then pending in the District of Columbia court. They are still under the custody today of the Attorney General regardless of how they happened to be brought into the District of Columbia Jail. (Tr. 800-801) (emphasis added).

We think that, in the context of the jury instructions as a whole, this particular passage was intended only to instruct the jury as to the law, and to show that prisoners remain within the custody of the Attorney General continuously when they are transferred pursuant to writs of habeas corpus ad...