U.S. v. Benfield

Decision Date08 March 1979
Docket NumberNo. 78-1665,78-1665
Citation593 F.2d 815
Parties4 Fed. R. Evid. Serv. 24 UNITED STATES of America, Appellee, v. Russell Wayne BENFIELD, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

John C. Pleban, London, Greenberg & Fleming, St. Louis, Mo., argued and on brief, for appellant.

David M. Rosen, Asst. U. S. Atty., St. Louis, Mo., (argued), and Robert D. Kingsland, U. S. Atty., St. Louis, Mo., on brief, for appellee.

Before GIBSON, Chief Judge, and BRIGHT and HENLEY, Circuit Judges.

GIBSON, Chief Judge.

A jury found Russell Wayne Benfield guilty of misprision of a felony in violation of 18 U.S.C. § 4 1 and acquitted him of being an accessory after the fact to kidnapping in violation of 18 U.S.C. § 3. 2 After being sentenced to prison for two years on the misprision charge, Benfield brings this appeal. We reverse and remand.

The events leading to the conviction of Benfield took place during February 1977. Prior to February 24, 1977, John Bates was an inmate at the Arizona State Penitentiary pursuant to his conviction for assault with a deadly weapon. On that date Bates broke out of the Arizona penitentiary with the assistance of his wife, Charlotte. The following day John and Charlotte Bates forcibly took Patricia Cady and her automobile from a hospital parking lot in Tucson, Arizon. The Bateses then drove the automobile, with Cady as a prisoner, to St. Louis, Missouri, where they arrived on February 27, 1977.

Prior to his arrival in St. Louis, John Bates telephoned Russell Benfield several times, both before and after kidnapping Cady. The substance of those conversations was disputed at trial. The Government's version came in through the testimony of Charlotte Bates and Patricia Cady as to what John Bates told them had been said. According to this version Bates told Benfield about the kidnapping during a phone call from Las Cruces, New Mexico, and Benfield told Bates to bring Cady to St. Louis. Benfield testified that he did not learn of the jailbreak or kidnapping until Bates arrived in Missouri.

In any event, Benfield did meet with Bates in St. Louis. Benfield rented a motel room for Bates in which Patricia Cady was held. Cady was blindfolded and only saw parts of Benfield's face and body. As in the case of the telephone conversations, the Government's version of the discussions between Benfield and John Bates was presented through Charlotte Bates's and Patricia Cady's recollections of what Bates recalled after Benfield had left. The Government presented evidence that Benfield gave John Bates sixty-six dollars, and promised to bring additional funds to him in Kennett, Missouri.

According to Benfield, once he learned of the kidnapping his efforts were directed at securing Cady's release unharmed and causing Bates to leave St. Louis. Benfield claims he told Bates he would supply money if Cady were released. Bates then agreed to release Cady in Memphis, Tennessee, and return to St. Louis for money received by Benfield from Bates's account in a Marine Corps credit union.

From St. Louis, John and Charlotte Bates took Patricia Cady to Kennett, Missouri where John Bates met with Roger Benfield, Russell's brother, but failed to receive any aid from him. While the group was in Kennett, law enforcement officers apprehended Charlotte Bates and released Patricia Cady. John Bates took his own life. Patricia Cady then participated in a news conference and granted interviews with journalists and the broadcast media. Patricia Cady has commenced civil actions against the State of Arizona stemming from the abduction and Charlotte Bates has been convicted of aiding and abetting the kidnapping of Patricia Cady.

In a four-count indictment filed September 29, 1977, Benfield was charged with being an accessory after the fact to the kidnapping of Patricia Cady and to the interstate transportation of her stolen car and with misprision of those felonies. Trial was set for January 3, 1978, but was continued to February 27, 1978, due to the hospitalization of a Government witness, Patricia Cady. On February 23, 1978, the Government obtained a further continuance of the case to April 24, 1978, due to Cady's unavailability. In a letter dated January 30, 1978, Cady's psychiatrist, Dr. David B. Gurland, indicated that Cady should not be subpoenaed to appear for two or three months. Prior to April 24, 1978, Dr. Gurland again wrote the trial court, stating that Ms. Cady should not be required to endure a trial situation or face Benfield.

The Government then filed a request to take a videotape deposition of Patricia Cady in Arizona. On April 24, 1978, a hearing was held on this request and Dr. Gurland was called to testify. He stated that in his opinion Ms. Cady's psychiatric problems were directly related to her abduction. 3 He recommended that she not be required to testify or that circumstances less stressful than a trial courtroom be arranged. The trial court granted the request for a deposition and ordered that Benfield could be "present at the deposition but not within the vision of Mrs. Patricia Cady."

The deposition was held on May 11, 1978, in Tucson, Arizona. Benfield was excluded from the room in which the deposition took place. He was able to observe the proceedings on a monitor and halt the questioning by sounding a buzzer, at which time the deposition would be interrupted and Benfield's counsel would leave the room to confer with Benfield. The counsel was permitted to cross-examine Cady. However, Cady was apparently kept unaware of Benfield's presence in the building.

Thereafter, trial commenced in St. Louis on July 10, 1978. The videotaped deposition of Cady was admitted in evidence and played to the jury. 4 At the conclusion of the case, the trial court granted Benfield's motions for acquittal regarding the counts arising from interstate transportation of a stolen automobile. The remaining two counts were submitted to the jury and, as we have said, Benfield was convicted of misprision of felony but was acquitted of the charge of being an accessory after the fact.

Following the denial of various post-trial motions, Benfield brings this appeal. He raises several points. Because of the view we take of the case, we shall consider only two of the issues presented. First, were Benfield's constitutional rights as guaranteed by the sixth amendment violated by the procedures employed during the deposition of Patricia Cady? Second, under the facts of this case, is a second trial precluded by the acquittal of Benfield on the accessory after the fact charge?

The sixth amendment provides, in part: "In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *." These words express the commitment of our law to certain values in the determination of the guilt or innocence of those accused of crime. At first glance, the command that is embodied in that phrase seems so simple and unambiguous as to defy expression through any other words. It was adopted in response to supposed deficiencies in the original Constitution. 5 However, since the sixth amendment was ratified on December 15, 1791, it has been camouflaged by case law and nibbled by necessity. Today the Government urges that "face-to-face meetings" are not part of the rights guaranteed by the sixth amendment.

The courts have always been committed to giving obedience to constitutional commands. In Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892), the Court interpreted the common-law and constitutional right of the accused to confront and challenge prospective jurors face to face. The Court seems to have been of the view that this and other sixth amendment rights were so important to the accused And to the public that they could not be waived. Twenty years later, the Court decided Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912). Diaz held that an accused who was not in custody could waive his right to be present at all times during the trial. Diaz distinguished and narrowly construed the holding of Lewis. 223 U.S. at 458, 13 S.Ct. 136.

The Supreme Court construed the sixth amendment's confrontation clause in at least three cases decided between 1895 and 1911. In Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895), Mattox had been convicted at a trial in which the transcribed testimony of two witnesses given at a prior trial was admitted. At the time of the second trial, the witnesses were deceased. The Court recognized that the admission of this testimony was in conflict with the letter of the sixth amendment. However, the conviction was affirmed and the court stated:

We are bound to interpret the Constitution in the light of the law as it existed at the time it was adopted, not as reaching out for new guaranties of the rights of the citizen, but as securing to every individual such as he already possessed as a British subject such as his ancestors had inherited and defended since the days of Magna Charta. Many of its provisions in the nature of a Bill of Rights are subject to exceptions, recognized long before the adoption of the Constitution, and not interfering at all with its spirit. Such exceptions were obviously intended to be respected. A technical adherence to the letter of a constitutional provision may occasionally be carried farther than is necessary to the just protection of the accused, and farther than the safety of the public will warrant. * * * The substance of the constitutional protection is preserved to the prisoner in the advantage he has once had of seeing the witness face to face, and of subjecting him to the ordeal of a cross-examination. This, the law says, he shall under no circumstances be deprived of, and many of the very cases which hold testimony such as this to be admissible also hold that not the substance of his testimony only, but the very words of the...

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