U.S. v. Bailey

• Decision Date: 27 August 1976
• Docket Number: No. 75--3189,75--3189
• Citation: 537 F.2d 845
• Parties: 1 Fed. R. Evid. Serv. 1186 UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne BAILEY, Michael David Harstrom, Michael Eugene Harp and Tommy JoeHolt, Defendants-appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 845

537 F.2d 845

1 Fed. R. Evid. Serv. 1186

UNITED STATES of America, Plaintiff-Appellee, v. Jerry Wayne BAILEY, Michael David Harstrom, Michael Eugene Harp and Tommy JoeHolt, Defendants-appellants.

No. 75--3189.

United States Court of Appeals Fifth Circuit.

Aug. 27, 1976.

James H. Billingsley, Dallas, Tex. (Court-appointed), for Bailey.

Thomas A. Blakeley, Jr., Dallas, Tex. (Court-appointed), for Hartstrom.

Carlisle Blalock, Dallas, Tex. (Court-appointed), for Harp.

Ira E. Tobolowsky and Garland Paul Andrews, Dallas, Tex. (Court-appointed), for Holt.

Frank D. McCown, U.S. Atty., Ft. Worth, Tex., Judith A. Shepherd, Asst. U.S. Atty., Dallas, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Northern District of Texas.

Before RIVES, GOLDBERG and GEE, Circuit Judges.

RIVES, Circuit Judge:

Jerry Wayne Bailey, Michael David Harstrom, Michael Eugene Harp, and Tommy Joe Holt were charged with assaulting a federal witness in violation of 18 U.S.C. § 1503. ¹ On July 14, 1975, in the absence of the jury, but in the presence of the presiding judge, the prosecutor announced that he had filed a 'dangerous special offender' notice against Bailey, Harp, and Holt, seeking increased punishment against those defendants pursuant to 18 U.S.C. § 3575. ² The allegations contained in this notice were not disclosed to the judge. The jury on July 16, 1975 found all defendants guilty. Pursuant to the dangerous special offender statute, appellants Holt and Harp were each sentenced to a prison term of 15 years--a 10-year enhancement for each; and appellant Bailey was sentenced to a prison term of 10 years--a 5-year enhancement. Appellant Harstrom, whose sentence was not sought to be enhanced, was sentenced to imprisonment for the maximum term for the offense, 5 years.

On this appeal the defendants question first the validity of their convictions, and, secondly, raise statutory and constitutional issues concerning the application of the dangerous special offender statute. We affirm the conviction of each of the defendants for violation of 18 U.S.C. § 1503, but as to the enhanced sentences imposed on Bailey, Harp, and Holt, we hold that the procedure prescribed by 18 U.S.C. § 3575 was not followed and remand their cases for resentencing.

Defendants and another prisoner, Gene William Hackett, who had recently testified in a federal criminal proceeding, were among thirty prisoners confined on March 8, 1975 in a 'tank' in the Dallas (Texas) County Jail when there was an assault made upon Hackett. Shortly after the beating, a prison guard took polaroid snapshots to document the nature and extent of Hackett's injuries. Three days later, an FBI photographer took additional pictures of the victim and a picture of appellant Holt's hands. The photographs of the victim were admitted in evidence over the objection of appellant Harstrom and the photograph of appellant Holt's hands was admitted over the objection of appellant Holt.

The pictures in question were clearly relevant. While none of the defendants disputed the fact that injuries had occurred to Hackett, his injuries nonetheless remained an issue in the case. United States v. Hearod, 5 Cir. 1974, 499 F.2d 1003, 1004; United States v. Moton, 5 Cir. 1974, 493 F.2d 30, 32. The Federal Rules of Evidence provide that relevant evidence may be excluded if the district court judge determines that its probative value is substantially outweighed by the danger of prejudice. Fed.R.E. 403. In such cases evidentiary decisions as to admissibility of evidence should not be disturbed except for abuse of discretion. ³ United States v. Campbell, 9 Cir., 466 F.2d 529, cert. denied, 409 U.S. 1062, 93 S.Ct. 571, 34 L.Ed.2d 516 (1972). In the present case, we hold that the district court judge did not commit an abuse of discretion. While the photographs may be stark, they are not so gruesome or sensational as to be unduly prejudicial. No other substantial question is presented as to the validity of the judgments of conviction. We pass to consideration of the sentences imposed upon the defendants.

Although aimed primarily at professional gangsters of the criminal underworld, Title X of the Organized Crime Control Act of 1970 includes a general federal recidivist statute. ⁴ Under that statute, a defendant who has committed a federal felony and has previously been convicted in the state, territorial, or federal courts of two or more felonies committed on different occasions is termed a 'special offender' and an enhanced prison sentence is authorized if he or she is adjudged as 'dangerous.' 18 U.S.C. § 3575. A defendant is 'dangerous' within the meaning of that statute 'if a period of confinement longer than that provided for such felony is required for the protection of the public from further criminal conduct by the defendant.' 18 U.S.C. § 3575(f). The determination that a defendant is a 'dangerous special offender' is made by the court sitting without a jury. The defendant or his or her counsel is permitted prior to hearing to inspect the presentence report. At the hearing, the defendant is allowed the assistance of counsel, compulsory process, and the cross-examination of such witnesses as appear. In making his determination, the judge may consider evidence submitted during the trial of the triggering offense, information submitted at the sentencing hearing, and the presentence report. The standard of proof is that of a preponderance of the evidence. In setting the sentence, the judge is to fix 'an appropriate term' of imprisonment which cannot exceed 25 years. 18 U.S.C. § 3575(b). Should the prosecution be dissatisfied with the judge's sentence, a co-ordinate section, § 3576, permits the United States to seek review by a federal court of appeals where a higher sentence may be imposed if the appellate court determines that the pertinent findings are clearly erroneous or that the judge abused his discretion.

A troublesome aspect of Title X arises in its prescribed procedure. Title X provides that, when an enhancement is sought, the prosecuting attorney must file notice with the court a reasonable time prior to trial or acceptance by the court of a plea of guilty or nolo contendere. Such notice must set forth with particularity the reasons why the prosecutor feels that the defendant is a dangerous special offender. The statute then includes the following proviso:

'In no case shall the fact that the defendant is alleged to be a dangerous special offender be an issue upon the trial of such felony, be disclosed to the jury, or be disclosed before any plea of guilty or nolo contendere or verdict or finding of guilty to the presiding judge without the consent of the parties.' 18 U.S.C. § 3575(a).

It is undisputed in this case that the prosecuting attorney, in open court in the absence of the jury but in the presence of the judge, announced that a 'dangerous special offender' notice had been filed against three of the defendants. The substance of the allegations contained in the notice, however, was not disclosed. Motions to strike the notice were filed by the defendants, alleging that the express provisions of 18 U.S.C. § 3575 had been violated. The propriety of the denial of these motions is now before this Court.

The Organized Crime Control Act of 1970 first appeared as S. 30, 91st Cong., 1st Sess. (1969). The proposed bill provided only for nondisclosure to the jury of the 'dangerous special offender' notice. One of the commentators on the proposed bill was Lawrence Speiser, Director of the Washington Office of the American Liberties Union (ACLU), who made this criticism:

'. . . it is questionable whether the information required in the notice by the U.S. Attorney should be available to the judge prior to conviction, particularly where the defendant is being tried by the court. Rule 32(c) of the Federal Rules of Criminal Procedure, pertaining to presentence reports, which usually contain information relating to prior convictions and pertinent to a determination of 'dangerousness' provides that 'the (presentence) report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or been found guilty.' This rule recognizes that disclosure of information of this kind prior to a determination of guilt, to a judge, as well as to a jury, may be prejudicial to an accused. In fairness to those subject to sentencing as habitual offenders the court as well as the jury should be kept from having this information. At the same time, however, provisions must be made for apprising the accused before he enters a guilty plea that he may face increased sentencing.'

Hearings on S. 30 before the Subcomm. on Criminal Laws and Procedures of The Senate Comm. of the Judiciary, 91st Cong., 1st Sess. at 468--469 (1969). The Senate, however, passed S. 30 without amending it to proscribe disclosure to the presiding judge. In the report accompanying the bill, the Committee on the Judiciary stated:

'No disclosure to the jury should be made of the allegation. See Spencer v. Texas, 385 U.S. 554 (87 S.Ct. 648, 17 L.Ed.2d 606) (1967). There is, however, no objection to the judge in a jury or non-jury case reading the allegation, since it is not among the sources of information upon which any judgment may be reached; it is for this purpose the equivalent of an indictment, not evidence. Compare Fed.R.Crim.P. 32(c).'

S.Rep. 91--617, 91st Cong., 1st Sess. 162--163 (1969).

When hearings were held in the House Judiciary Committee on S. 30, more criticism was encountered as to the procedural features of the recidivist provision. The Committee on Federal Legislation of the Association of the Bar of the City of New York predicted that, prior to trial, disclosure to the defendant of such adverse information regarding the defendant would force the judge to request a jury trial in almost all instances. Furthermore, the Association took issue...