U.S. v. Clardy, s. 75-3409 and 75-3410

• Decision Date: 22 July 1976
• Docket Number: Nos. 75-3409 and 75-3410,s. 75-3409 and 75-3410
• Citation: 540 F.2d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Harry CLARDY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Phillip Alfonso TUCKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 439

540 F.2d 439

UNITED STATES of America, Plaintiff-Appellee, v. Harry CLARDY, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Phillip Alfonso TUCKER, Defendant-Appellant.

Nos. 75-3409 and 75-3410.

United States Court of Appeals, Ninth Circuit.

July 22, 1976.

Carl D. Teitge (argued), Paul Sinnitt, Inc., P. S., Tacoma, Wash., for defendant-appellant in 75-3409.

Robert H. Westinghouse (argued), Asst. U. S. Atty., Seattle, Wash., for plaintiff-appellee.

Kenneth E. Kanev (argued), Asst. Federal Public Defender, Seattle, Wash., for defendant-appellant in 75-3410.

OPINION

Before CHAMBERS, Chief Judge, and DUNIWAY and MOORE, ^* Circuit Judges.

MOORE, Circuit Judge:

Phillip Alfonso Tucker ("Tucker") and Harry Clardy ("Clardy") appeal from a judgment of the United States District Court for the Western District of Washington, entered on a jury verdict convicting them of assault with intent to murder in violation of 18 U.S.C. § 113(a). Each appellant argues that several allegedly prejudicial trial and pretrial incidents require a new trial.

We disagree and accordingly affirm.

On October 27, 1974, inside the United States Penitentiary at McNeil Island, Clardy and Tucker stabbed fellow inmate Leonard Walker in the mouth and arm. Walker had refused to pay interest on a loan which he had obtained from Clardy, and the stabbing was apparently appellants' notion of retribution. Neither appellant challenges the sufficiency of evidence which proved these facts.

Later in the day, Tucker was confined in segregation where he was joined by Clardy three days later. An indictment charging the two with the crime was handed up on April 1, 1975, their arraignment followed on April 18, 1975, and the trial commenced on July 28, 1975.

Both appellants contend that the failure to commence trial sooner deprived them of their speedy trial rights under the Sixth Amendment. That right assertedly attached when appellants were de facto arrested by being placed in segregated confinement after the attack. However, such discipline is not an "arrest" for speedy trial purposes. Cf. United States v. Smith, 464 F.2d 194 (10th Cir.), cert. denied, 409 U.S. 1066, 93 S.Ct. 566, 34 L.Ed.2d 519 (1972). The identifying indicia of a de facto arrest sketched in United States v. Marion, 404 U.S. 307, at 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971), are for the most part absent here. The prison discipline did not focus public obloquy upon appellants, did not disrupt their "employment" or drain appellants' financial resources. In short, it was not a public act with public ramifications, but a private act. Actual physical restraint may have increased and free association diminished, but unless we were to say that imprisonment ipso facto is a continuing arrest, these criteria bear little weight in the peculiar context of a penal institution where the curtailment of liberty is the general rule not the exception. Thus, speedy trial rights did not come into play until April 1, 1975, when appellants were indicted, and therefore, for purposes of such rights, the delay was only two months and 28 days. During this period, appellants' rights were not infringed. The delay was relatively brief and was not employed by the Government to harass. During that period, several motions had to be considered and decided. We do not say that appellants' status as prisoners automatically precluded assertion of the claim presently sub judice, see Strunk v. United States, 412 U.S. 434, at 439, 93 S.Ct. 2260, 37 L.Ed.2d 56 (1973); Smith v. Hooey, 393 U.S. 374, at 379, 89 S.Ct. 575, 21 L.Ed.2d 607 (1969), but that based upon all the facts and circumstances, their speedy trial claims are unpersuasive.

Appellants alternatively contend that the five month pre-indictment delay deprived them of due process under United States v. Marion, supra. Tucker claims that the investigation of the crime was completed long before the indictment, that the prison measures inhibited the preparation of his defense and that the passage of time partially dulled the memory of his alibi witnesses. Clardy goes further and claims that the Government intentionally delayed the indictment for tactical advantage. We disagree.

Relative to other cases which have presented this issue, see, e. g., United States v. Erickson, 472 F.2d 505 (9th Cir. 1973), it is questionable whether five months could even be characterized as legally cognizable delay. But that question aside, neither appellant has sufficiently demonstrated actual prejudice. The cases are legion which indicate that partial forgetfulness will not suffice. And whatever prejudice resulted from their segregated confinement flowed from the administrative decision to place the men in such facilities and had nothing to do with delay in processing the indictment. Moreover, there were good reasons for much of the delay. Until it became known whether the victim would live or die, the exact nature of the crime could not be ascertained. And until the victim had recuperated, he was incapable of rendering full assistance to the investigative effort. That he may have spoken to Government agents or have withstood transferral to a different hospital within a week of the crime does not mean that he could have endured the extended questioning inevitably associated with thorough case investigation. The case involved numerous witnesses and the investigation most certainly was handicapped by the fact that most of them were prison inmates. There was neither actual prejudice nor intentional delay.

Appellant Clardy next urges that the lower court abused its discretion in refusing to require the Government to disclose the names and addresses of all its prospective witnesses. This claim is meritless. In United States v. Richter, 488 F.2d 170 (9th Cir. 1973), this Court held that although the district court is not statutorily compelled to grant such discovery, its inherent power to do justice might allow it to do so in the exercise of its discretion. For guidance, the court looked to F.R. Crim.P. 16, which was then the subject of proposed amendments to allow discovery of prosecution witness lists, and held that as a prerequisite to the exercise of discretion, the defendant must prove that the request is material and reasonable. Since the Richter decision was rendered, the proposed amendments to Rule 16 that would have authorized discovery of a prosecution's witness list have been rejected. In view of this development and the clear possibility that disclosure of the names and exact whereabouts of inmates who planned to testify against the defendants might have endangered those witnesses, we conclude that the lower court's denial of Clardy's discovery motion was not an abuse of the lower court's broad discretion on this issue.

Both appellants also contend that security measures deprived them of due process. Before the commencement of the afternoon session of the first day of trial, appellants' counsel objected to the presence of armed plainclothes Deputy United States Marshals within the courtroom, and uniformed Postal guards outside the courtroom. During the colloquy which ensued, the court indicated the reasons for the security, stating that the case involved a large number of prison inmates which the courthouse was not equipped to accommodate safely and that an outside group had expressed an "interest" in the trial. The court refused to allow defense counsel to question the Marshal about the precise details for fear that such information might work its way into the hands of the defendants, who in turn might use it to attempt to escape. The following morning, outside the presence of the jurors, defense counsel stated that he had seen five armed deputy marshals assisting the unloading of individuals (apparently inmate witnesses) from a van. The judge reiterated his previous remarks and identified the group, which he had stated was interested in the trial as the "SLA".

Often a trial court finds itself obligated to simultaneously discharge clashing duties. The trial which engendered this appeal is a good example. On the one hand, it was incumbent upon the court to strive to preserveimpartiality and to avoid allowing anything to undermine the defendant's presumption of innocence. On the other hand, the trial court was charged with the duty to preserve the safety of counsel, jury, witnesses, spectators in short, everyone inside the courtroom. Leyvas v. United States, 264 F.2d 272, at 277 (9th Cir. 1958), cert. denied, 359 U.S. 936, 79 S.Ct. 651, 3 L.Ed.2d 637 (1959). Our concern is whether in attempting to reconcile the two duties, the lower court abused its discretion and deprived the defendants of a fair trial. Such inquiry depends upon the peculiar facts to which each appeal is wed. In this case, the facts reveal no error.

The need for security was clear. The court was apprised by reliable sources that a terrorist group might attempt to upset the trial or worse, and there is no dispute that the courtroom and building were ill-equipped to handle the influx of convicted criminals, some of whom had previously been convicted of escape.

The court was cognizant of the defendants' rights and the precautions employed were much less drastic than other measures, the utilization of which has been approved before. The defendants were not shackled. Compare, Loux v. United States, 389 F.2d 911 (9th Cir.), cert. denied, 393 U.S. 867, 89 S.Ct. 151, 21 L.Ed.2d 135 (1968). Nor were they handcuffed. Compare, United States v. Kress, 451 F.2d 576 (9th Cir. 1971), cert. denied, 406 U.S. 923, 92 S.Ct. 1789, 32 L.Ed.2d 123 (1972). They were present throughout the course of the trial. Compare, Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). Nobody was searched by an electronic magnetometer. Compare, United States v. Heck, 499 F.2d 778 (9th Cir.), cert. denied, 419 U.S. 1088, 95 S.Ct. 677, 42 L.Ed.2d 680 (1974).

Moreover, the court cushioned the...