U.S. v. Campbell
| Decision Date | 16 April 1982 |
| Docket Number | Nos. 79-5412,s. 79-5412 |
| Citation | 675 F.2d 815 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. John Stanley CAMPBELL, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Riley Ray FULTZ, Defendant-Appellant. to 79-5414. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John Stanley Campbell, pro se.
Frances Lee Ansley, Dean Hill Rivkin, Knoxville, Tenn. (court appointed), argued, for defendant-appellant Campbell.
Riley Ray Fultz, pro se.
David E. Melcher, Cynthiana, Ky. (court appointed), argued, for defendant-appellant Fultz.
W. J. Michael Cody, U.S. Atty., Robert M. Williams, Jr., Asst. U.S. Atty., Memphis, Tenn., argued, for plaintiff-appellee.
Before EDWARDS, Chief Judge, MARTIN, Circuit Judge, and ENSLEN, District Judge. *
Appellants Campbell and Fultz appeal after convictions in separate trials wherein each was found guilty and sentenced for two offenses of armed bank robbery. The first indictment had charged them with armed robbery of the City National Bank of Memphis, Tennessee, on December 1, 1978, in violation of 18 U.S.C. § 2113(d) (1976). Subsequently another indictment charged them with armed robbery of the same bank on January 12, 1979.
Both defendants rely upon the same two issues. As to the first, concerning right to counsel, we find no error. Appellants individually and together repeatedly demanded the right to try the case themselves. In addition, they sought to have counsel furnished to them as an advisor. The trial judge granted this motion, and an Assistant Federal Defender, Stephen B. Shankman, was appointed in that role. When it became apparent that Campbell's defense might conflict with Fultz's, the trials were severed, and the trial judge offered to appoint someone else to represent Fultz. This offer was not accepted. Ultimately both defendants filed a motion asking that Shankman be relieved as their legal advisor, and Shankman in turn filed a motion to withdraw. Thereupon the court relieved Shankman but declined to appoint another advisor, in view of the difficulties which Shankman had experienced in advising defendants.
We have read the record in relation to the representation issue (and appellants' argument that they were not allowed sufficient access to legal materials) and find from this record no merit to these claims.
The second issue we shall term the Wolverine defense. These trials were unusual in several respects. At no point did either defendant contest his participation in the bank robberies concerned. Each sought in a variety of ways to present what he termed the Wolverine defense. As repeatedly described in sworn statements by both defendants, this defense consists of their allegations that they were members of an organization called the Wolverines, organized in the federal prison system by prisoners. It is their assertion that the organization had a president and various officers and that the president, while himself incarcerated, ordered Campbell and Fultz to escape from prison and to commit the two bank robberies with which they are charged, under pain of death if they failed to do so. Originally defendants phrased their defense as that of "duress" or "necessity." In an affidavit filed July 13, 1979, before District Judge Robert M. McRae, Jr., Campbell and Fultz said as follows:
Defendants state that their defense will be unique in that there are no precedent cases for guidelines to follow and their defense consists of a cross between "necessity" and "duress." The only way Defendants can intelligently and properly support their defense will be their witnesses (witnesses physical evidence in their possession). Further, Defendants are indigent and cannot pay the costs for transportation and lodging of said witnesses.
The testimony of the below listed witnesses are material to the defense of this action for the reason that we believe that said witnesses will testify, as briefly shown below:
Glen Alan West will testify, as to being the President of a prison originated organization operating under the name of the Wolverines. The function of the Wolverines-the fact that West issued an order for Defendants to rob the complainants on two different occasions-what and where to deliver the proceeds from the bank robberies;
Thomas Edward Silverstein will testify as to being the mid-west War Capt. of the Wolverines-he received the orders from West and issued the orders, through Kathy Francis to the Defendants;
Ronald Wayne Shepard will testify to the Rules governing the Wolverines and the consequences in disobeying an order from the President of the Wolverines;
Terry Gallagher will testify that after receiving an order from West, that he escaped from Leavenworth Prison, under the fear of death, and further robbed several banks in which the proceeds were deposited in the Wolverine War Chest;
James Kenny Johnson will testify to the attempt escape in Marion Prison last year wherein his wife commandeered a helicopter and was killed while trying to free Johnson. Said attempt escape was ordered and directed by the Wolverines, under the fear of death;
Debra Gail (Adkins) Fultz will testify as to Defendants receiving orders (how and when) from the Wolverines to rob the complainants-that Defendants deposited the proceeds from the robberies into the Wolverine War Chest (where and when)-Mrs. Fultz will verify that the Wolverines do exist and that Defendants acted under fear of death.
Statements made to us by the above listed witnesses, constitute the support of our defense and the sources of our belief as to the nature of our own testimony.
Judge McRae, after considering the motion for production of the witnesses concerned, entered an order on August 3 saying in part as follows:
Motion for Production of Incarcerated Witnesses and Motion for Production of Witnesses. The first of these motions seeks the production of six witnesses incarcerated in four different federal institutions. The second motion seeks the production of one witness, the wife of defendant Campbell, who is presently not incarcerated. She has been convicted of a crime, but her case is on appeal. Subpoenas are sought for all of these witnesses at government expense solely for the purpose of corroborating the "defense" sought to be relied upon by the defendants at trial. That defense is referred to in the motions, affidavits, and memos in support of the motion. The Court also required and obtained further information about this from the defendants in an ex parte hearing at the bench ... (This defense) is a cross between "necessity and duress". Defendants further explained the defense by stating that they are convicted criminals who have been incarcerated and therefore they look upon law violations differently. They state that they belong to a prison "originated" organization operating under the name of the Wolverines. They wish to subpoena Glen Alan West, a prisoner at Leavenworth because he is the president of the Wolverines, and he is the one who ordered them to rob the banks. They further contend that their membership in the Wolverines gave them no choice but to rob the bank and that if either of the two of them had refused to do so the other one would have shot him.
The defendants argue that they anticipate that the government will deny the existence of the Wolverines because the Justice Department officials do not want the public to know of the existence of gangs or control organizations in the prisons. Therefore, the defendants have sought to have some witnesses subpoenaed to prove the existence of the Wolverines by testifying to other things that the Wolverines allegedly have caused to be done. These other things bear no relationship to those defendants and these crimes other than the alleged Wolverine affiliation.
This Court has concluded that the alleged Wolverine defense is not a defense recognized in the law as a justification for the two bank robberies referred to in the indictments. Because the subpoenas of the seven witnesses are sought solely for the Wolverine defense, the motion to allow the subpoenas at government expense is denied. The defendants will be allowed to make a tender of proof by stating out of the presence of the jury what the testimony of the witnesses would be expected to be if the witnesses had been produced by subpoenas.
The rejection of the duress defense by District Judge McRae did not, however, terminate appellants' efforts to present it. On the contrary, on August 9, 1979, (the same day the Judge entered the preceding order) appellants filed what they termed "notice to raise defense of 'mental defect' for subpoena of lay witnesses." This notice recited in part: "The defense will prove that Defendants were given certain orders under certain pressures which together caused them to 'mentally defect.' " In a subsequent motion, filed on August 23, 1979, defendants pro se certified to the court "that at the time of the commission of the offenses charged against them, they were suffering from a mental defect that caused them to defect to the other side of the law which they found that they could not conform their conduct to the requirements of enough not to have had that defected conduct result in the charges against them, but they further certify, also under the penalties of perjury, that they are not presently suffering from any mental disease that would impair them from adequately defending themselves at the trial herein."
During all this defendants were insisting upon defending themselves. The case was ultimately assigned for trial to a different District Judge. By then the prosecution had taken the position that if defendants were to rely on a defense of mental disease or defect under Rule 12.2 of the Federal Rules of Criminal Procedure, they would be required to allow psychiatric examination by an expert witness proposed by the government. On refusal, the government...
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