U.S. v. Bey
| Decision Date | 01 February 1982 |
| Docket Number | No. 80-7608,80-7608 |
| Citation | 667 F.2d 7 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Lawrence BEY and Willie Cruso Free, Defendants-Appellants. . Unit B * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Steven R. Wisebram, Julie E. Carnes, Asst. U. S. Attys., Atlanta, Ga., for plaintiff-appellee.
Appeals from the United States District Court for the Northern District of Georgia.
Before HILL, Circuit Judge, SMITH **, Judge, and HENDERSON, Circuit Judge.
Lawrence Bey and Willie Cruso Free were each convicted of one count of mutiny and two counts of assault on a federal officer, in violation of 18 U.S.C. § 1792 (1976) and 18 U.S.C. § 111 (1976), respectively, arising out of an altercation between the defendants and corrections officers during their confinement in the United States Penitentiary at Atlanta, Georgia. Defendants claim that their conduct did not, as a matter of law, constitute mutiny, and that the trial judge erred in refusing to adopt two of defendants' requests to charge, in using the form he used for the jury's verdict, and in permitting the jury to consider the lesser included offense of simple assault when the indictment charged assault with a dangerous weapon. We find defendants' contentions to be without merit and accordingly we sustain the convictions.
Briefly, the facts are these. At about 9:30 a. m. on October 24, 1979, officers of the Atlanta penitentiary were called to investigate a report of water being dumped from a mop bucket onto the floor of cell 11, in which three men were confined. 1 Defendants, who had been scrubbing the cell, refused to surrender the mop and bucket when ordered to do so by a corrections officer. The officer then left the scene at least once to give defendants a chance to cool down and cooperate, in an attempt to avoid the kind of disturbance which in fact occurred. When it became clear that defendants would not cooperate, other officers were summoned to the scene. Defendants continued their refusal and added threats of bodily harm to the officers and of a prison uprising.
This altercation was accompanied by much shouting and, while the evidence is sketchy, it seems clear that other inmates Upon further demand for the mop and bucket, defendants barricaded the door of their cell with the beds in the cell, broke the mop handle, and armed themselves with the broken pieces. One officer, Bernard Loomis, forced his way past the beds into the cell, but slipped on the wet floor. Defendants struck him with the mop handles and took his riot stick and can of mace. Loomis retreated. Finally, the guards succeeded, by using tear gas, in forcing defendants to abandon the cell; however, one officer, Nelson Negron, was struck on the arm while introducing tear gas into the cell.
joined in the general commotion, though all of them were confined to their cells throughout the events of the morning. At the height of the fracas several corrections officers were on hand to control any general uprising.
1. Defendants contend that mutiny involves the participation and incitement of other inmates and that since this was not present the Government has failed to charge or prove facts sufficient to constitute a violation of 18 U.S.C. § 1792. The Government stresses the dangerous situation presented by a prison disturbance.
There is very little direct authority on the meaning of "mutiny" in section 1792. Indeed, the parties' and our researches have yielded only one case directly on point. 2 United States v. Bryson, 423 F.2d 724 (4th Cir. 1970), approved an instruction which gave a very broad definition of mutiny: " ' * * * the inmates resisting the warden or his subordinate officers in the free and lawful exercise of their legal authority.' " Id., 423 F.2d at 724-25. This formulation was the basis of the district court's charge to the jury in the present case.
The Bryson case, however, is not the strongest authority. First, it did not adopt the definition as its own but only found it acceptable. Second, it applied that definition on the basis of a case totally inapposite to the situation in Bryson or in the instant case. The case relied upon, Hamilton v. United States, 268 F. 15 (4th Cir.), cert. denied, 254 U.S. 645, 41 S.Ct. 15, 65 L.Ed. 454 (1920), involved a different statute, which prohibited mutiny on a ship, and applied it to concerted resistance by the ship's entire crew.
We are also reluctant to follow the Bryson formulation because, as defendants point out, its definition could be extended to any number of minor infractions of prison discipline, regardless of the circumstances. In this connection it is useful to note that section 1792 has not been applied to a situation as limited in scope as this one. 3 Furthermore, some courts have used mutiny and riot interchangeably (a not inconceivable construction of section 1792), and riot is conventionally defined as involving three or more persons. See Goff v. United States, 446 F.2d 623, 627 (10th Cir. 1971); United States v. Evans, 542 F.2d 805, 818 (10th Cir. 1976), cert. denied, 429 U.S. 1101, 97 S.Ct. 1124, 51 L.Ed.2d 550 (1977). Yet it is also clear that mutiny, and certainly incitement to mutiny, can occur without tumult, which would seem to be a necessary ingredient of a riot.
Notwithstanding our hesitation about Bryson, we affirm the defendants' conviction for mutiny. Resistance to lawful authority is the heart of a charge of mutiny, and that was amply proven here. This does not mean that every disciplinary violation is a federal felony. We emphasize the aggravating factors in this case: the barricading of the door, the collaboration of the In short, section 1792 would not properly have been applied in this case had the defendants merely made verbal threats and refused for a time to turn over the cleaning implements; nor, for example, would the third cellmate who simply refused to leave the cell be, by himself, guilty of mutiny. It is the substantial, determined, and in this case violent rebellion against the lawful orders of the officers which constitutes the gravamen of mutiny, and that was alleged and proved by the Government and found by the jury.
two inmates, the assaults on prison officials, the fashioning of weapons, the taking of a weapon and a can of mace from an officer, the amount of force required to quell the disturbance, and especially their attempts (albeit quite futile) to arouse other inmates to action, and the potential for more serious troubles found in disturbances of this magnitude.
2. Defendant Bey (but not Free) assigns as error the trial judge's refusal to give two of defendant's proposed instructions. Request to Charge No. 3 cautioned the jury not to convict the defendant on the basis of any conduct not alleged in the indictment. Number 11 emphasized that the Government must meet its heavy burden of proof on the basis only of the evidence presented in this case. The purposes of these instructions were to overcome the prejudice inherent in defendant's being a prisoner and to be sure that the jury did not convict him on the basis of prior crimes.
These purposes, while arguably significant, were not mentioned by defendant when he objected to the instructions. He merely objected to "the Court's not giving defendant's request of charge number one, two, three, 11 and 17." The Federal Rules of Criminal Procedure require that a party's objections to the charge must "stat(e) distinctly the matter to which he objects and the grounds of his objection." Fed.R.Crim.P. 30. This circuit has long required a precise statement of the grounds of the objection, and none such is found here. Tomley v. United States, 250 F.2d 549, 550-51 (5th Cir. 1957), cert. denied, 356 U.S. 928, 78 S.Ct. 716, 2 L.Ed. 759 (1958). A general objection to the trial judge's refusal to adopt defendant's requests will not satisfy Rule 30. Maxfield v. United States, 360 F.2d 97, 99 (10th Cir.), cert. denied, 385 U.S. 830, 87 S.Ct. 67, 17 L.Ed.2d 66 (1966).
The objection not having been properly presented under Rule 30, the court will still consider the objection under Rule 52(b) if it constitutes plain error. United States v. McCracken, 488 F.2d 406, 413 (5th Cir. 1974). We have examined the charge and the requests and note that the substance of the requests were in the charge. It is not plain error to refuse to adopt defendant's specific wording, id. at 421; the charge was fair, accurate, and impartial. We therefore hold that the trial judge's refusals to adopt Requests to Charge Nos. 3 and 11 did not constitute "(p)lain errors or defects affecting substantial rights," if indeed they constituted errors at all. Fed.R.Crim.P. 52(b).
3. Both defendants object to the form of the verdict. They argue that the form the jury was to fill out was suggestive of a guilty verdict. Timely and specific...
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