U.S. v. Bari

• Decision Date: 19 December 1984
• Docket Number: 1503,1607 and 1673,Nos. 1441,1539,D,s. 1441
• Citation: 750 F.2d 1169
• Parties: 17 Fed. R. Evid. Serv. 200 UNITED STATES of America, Appellee, v. Anthony BARI, Tyrone Faines, Robert Benfield, Arthur Harriatt, and Craig Daniel, Defendants-Appellants. ockets 84-1056, 84-1057, 84-1058, 84- 1062 and 84-1063.
• Court: U.S. Court of Appeals — Second Circuit

Page 1169

750 F.2d 1169

17 Fed. R. Evid. Serv. 200

UNITED STATES of America, Appellee, v. Anthony BARI, Tyrone Faines, Robert Benfield, Arthur Harriatt, and Craig Daniel, Defendants-Appellants.

Nos. 1441, 1503, 1539, 1607 and 1673, Dockets 84-1056,

84-1057, 84-1058, 84- 1062 and 84-1063.

United States Court of Appeals Second Circuit.

Argued Aug. 6, 1984.

Decided Dec. 19, 1984.

Bertrand C. Sellier, New York City (Richard F. Ziegler, Cleary, Gottlieb, Steen & Hamilton, New York City, of counsel), for defendant-appellant Anthony Bari.

Frank H. Wohl, New York City (Grace Goodman, Rosenman Colin Freund Lewis & Cohen, New York City, of counsel), for defendant-appellant Tyrone Faines.

Thomas L. Gazianis, New York City, for defendant-appellant Robert Benfield.

Philip R. Edelbaum, New York City, for defendant-appellant Arthur Harriatt.

Peter Shelley Zeiler, New York City, for defendant-appellant Craig Daniel.

Michael R. Bromwich, Asst. U.S. Atty., S.D.N.Y., New York City (Rudolph W. Giuliani, U.S. Atty., Marc J. Gottridge, Asst. U.S. Atty., New York City, of counsel), for appellee United States of America.

Before VAN GRAAFEILAND and WINTER, Circuit Judges and BARTELS, District Judge. ^*

WINTER, Circuit Judge:

Anthony Bari, Arthur Harriatt, Tyrone Faines, Craig Daniel and Robert Benfield appeal from their convictions after a twelve day jury trial before Judge Edelstein. The five defendants were each convicted of conspiracy, 18 U.S.C. Sec. 371 (1982), and attempt to escape from prison, 18 U.S.C. Sec. 751(a) (1982). The jury acquitted an additional defendant, Marc Manns. Appellants raise numerous claims of error involving, among other things, the conduct of the prosecutor before the grand jury, evidentiary and other rulings at trial, improper joinder, and ineffective assistance of counsel.

We affirm.

BACKGROUND

The evidence against appellants consisted largely of testimony by fellow inmates and a number of physical exhibits. Viewing the evidence in the light most favorable to the government, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed.2d 680 (1942), the pertinent facts may be summarized as follows. During late July and early August, 1982, appellants were incarcerated in J Dorm on the eleventh floor of the Metropolitan Correctional Center ("MCC"), a federal prison in lower Manhattan. In mid-July Benfield began recruiting residents of the various eleventh floor dormitories for an attempted jailbreak. The plan was to break through a window near the floor next to Benfield's bunk bed and then to climb down from the eleventh floor to the street using bed sheets fashioned into a rope. The window was comprised of several alternating layers of glass and Lexan (a hard plastic material) and was protected by two bars.

Benfield quickly assembled a team and divided up assignments. Benfield and Bari moved their bunk bed and a locker so as to block the window from general view. Faines and Harriatt began collecting bed sheets from prisoners as they were transferred out of J Dorm for use as a rope, while Benfield collected pieces of metal that could be used to chip away at the window. Harriatt and Daniel collected chains from exercise equipment. These items were concealed in the J Dorm bathroom when not in use. To carry them from the bathroom to the window, Bari, Benfield, Harriatt and Faines concealed the escape materials in their jumpsuits. Daniel guarded the bathroom while such activities were under way and prevented other inmates from entering it. Throughout this period Bari and Faines were chipping at the window glass and sawing at the bars protecting the window with a hacksaw blade. They had also obtained an iron, which they connected to a light fixture and used to melt the glass.

In late July, Harriatt asked David Tobias to join the attempt. Tobias refused. On August 1, Tobias sent an unsigned note to the warden of the MCC in which he stated that Bari, Harriatt, Benfield, Daniel, Faines, and inmate Lindsay (who moved to another dorm the next day) were planning an escape. The note failed to provoke a response. Meanwhile, appellants made post-escape plans, which included robbing a bank after attacking a corrections officer on the street to get his gun.

The following day at approximately 6:00 p.m., Bari completed cutting through one of the bars in front of the window. At approximately 3:00 a.m. on August 3, as Bari was using a blowtorch and newspapers to burn the window, one of the inmates spotted a guard approaching the dorm. Bari stated that he was going to kill the guard with a homemade knife. Fortunately, the guard merely looked into the dorm and then returned to his post. The work on the window then resumed.

At approximately 4:00 a.m., the guard returned and entered the dorm to get Harriatt Later that morning, during a routine inspection of the windows and bars, a guard discovered the escape attempt. The prisoners were immediately removed from the dorm, and Bari was found to have numerous cuts on his hands. While the inmates from J Dorm were being held in another room, Faines threatened violence against anyone who implicated Daniel.

for his shift in the prison cafeteria. Bari continued his efforts on the window, with Faines acting as a lookout. At 6:00 a.m., with dawn breaking, Bari gave up, stored the escape paraphernalia in the dorm bathroom, and agreed with Faines to continue their efforts that evening. By this time the window was shattered, a hole was burned in it, and a bar was pulled away.

The following day, a plumbing foreman at the MCC searched the vents and plumbing of J Dorm. In a panel in the bathroom he discovered, inter alia, ninety-three feet of bed sheets braided into a rope, parts of broken chairs and a broken pool cue, chains, hacksaw blades, a penknife, a homemade knife, electrical wire, welding gloves, a newspaper with Harriatt's name on it, pieces of metal, and broken pieces of glass. The glass was later found to have type O blood dried on it, which matched Bari's blood type.

The jury convicted each appellant of conspiracy and attempt to escape. On the conspiracy count, Benfield and Bari received five year sentences; Faines, Harriatt, and Daniel received four years. On the attempt count, Benfield received four years, Bari received four years, Faines received three years, Harriatt received four years, and Daniel received three years. All terms were consecutive with each other and with any other term the appellants were then serving. Daniel was sentenced to an additional six months for criminal contempt for a savage outburst at the district judge during the sentencing hearing.

DISCUSSION

Appellants raise a host of claims of error, some of which are so without merit as not to warrant discussion. The others we treat seriatim.

1. The Grand Jury Proceedings

Appellants claim the prosecutor obtained the indictments through misconduct relating to the grand jury testimony of Tobias. That misconduct is said to be found in the prosecutor's allowing Tobias to lie about his prior relationship with the government, reading a transcript of Tobias' testimony rather than presenting him as a live witness, and allowing him to give inflammatory and prejudicial testimony relating to appellants' escape plans.

Tobias, who has a lengthy criminal record, had earlier pled guilty to grand theft by deception in an Ohio state court and had been sentenced in April, 1982 to one to five years in prison. Almost immediately upon his incarceration, Tobias contacted the New York office of the Federal Bureau of Investigation with an offer to assist an investigation into "corruption in boxing." He was transferred to the MCC in June of 1982, approximately two months before the escape attempt. Upon Tobias's arrival at the MCC, he asked Assistant United States Attorney ("AUSA") Roanne Mann to help him obtain probation from the sentencing judge in Ohio. However, based on a recorded telephone call and polygraph examination, she had concluded that Tobias had been untruthful in the boxing investigation and so informed the Ohio court by letter. The letter did note that Tobias had been regarded as helpful in an unrelated investigation into an escape attempt from the MCC.

Tobias remained at the MCC until the end of April, 1983. During that month, he told a grand jury investigating the attempted escape from the MCC that he was serving a prison term for grand theft, that he was in the MCC to help the government in an investigation into corruption in boxing, but that he was no longer "working on that investigation." However, the AUSA present at the grand jury did not disclose that the government did not believe Tobias's testimony regarding that investigation. After the grand jury directed the AUSA to ask Tobias about his motivation for testifying, Tobias stated that he had absolutely no agreement with the government, was expecting no help in an upcoming parole hearing in Ohio, and was testifying simply because "[i]t's time I stand up and be a man."

The April grand jury apparently expired before it voted on the indictment. Shortly thereafter, Tobias was transferred back to Ohio. On May 1, 1983, Tobias wrote to the AUSA who presented his testimony to the April grand jury and asked for help, noting that he was soon to appear before the Ohio parole board. On June 29, Tobias sent a second letter to one of the marshals who investigated the escape attempt, again asking for help and mentioning the Ohio parole board. Neither letter elicited any help from the addressees.

In July, 1983, a different AUSA read the transcript of Tobias's testimony before the April grand jury to a new grand jury, including the explanation Tobias gave of his motive for testifying, but without any reference to the two letters Tobias had written in the intervening period. The AUSA later stated that he was unaware of those letters until well after the second grand jury indicted the appellants.

Appellants contend that the government's...