U.S. v. Evans, Nos. 75-1483

• Decision Date: 04 October 1976
• Docket Number: Nos. 75-1483
• Citation: 542 F.2d 805
• Parties: UNITED STATES of America, Appellee, v. Jesse Lee EVANS et al., Appellants. to 75-1486.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 805

542 F.2d 805

UNITED STATES of America, Appellee, v. Jesse Lee EVANS et al., Appellants.

Nos. 75-1483 to 75-1486.

United States Court of Appeals,

Tenth Circuit.

Argued and Submitted March 23, 1976.

Decided Oct. 4, 1976.

Chester I. Lewis, Wichita, Kan. (Lennox S. Hinds, New York City, with him on the brief), for appellants.

Bruce E. Miller, Asst. U. S. Atty., Topeka, Kan. (E. Edward Johnson, U. S. Atty., and Monti L. Belot, Asst. U. S. Atty., Topeka, Kan., with him on the brief), for appellee.

Before LEWIS, Chief Judge, SETH, Circuit Judge, and MORRIS, Chief Judge ^*.

SETH, Circuit Judge.

The appellants were prisoners at the United States Penitentiary at Leavenworth, Kansas, at the time a serious riot occurred in the prison. A guard was killed, and other guards were injured. The disturbance started in the dining area, and there were outbreaks in other areas. It finally centered near cell house A where all the appellants were housed except Alf Hill, Jr.

The case went to trial on July 29th and the jury returned its verdict on September 26th. The defense put about seventy witnesses on the stand.

The appellants were all charged under 18 U.S.C. § 1792, and 18 U.S.C. § 2 with causing a riot at the penitentiary. The appellants other than Bennett were charged also with assault with intent to murder certain guards. The jury found all the appellants guilty on the riot charge. Also, it found Evans guilty of three counts of assault with intent to murder, Hill guilty of two counts of assault with intent to murder, and Jasper one count of assault with a dangerous weapon.

The trial court overruled motions for a new trial and sentenced the appellants.

The record is rather long, consisting of some 6,400 pages, consequently record references are included in the opinion.

There is clearly sufficient evidence in the record to support the verdict of the jury as to each appellant and as to each count. The brief for appellants is very complete, and it presents the issues as follows:

Asserted Error Relative to Pretrial Motions:

Appellants claim the trial court erred by denying the following pretrial motions:

1. Motion to sever appellants' trials.

2. Motion for discovery and inspection.

3. Motion for bill of particulars.

4. Motion to inspect the grand jury transcript.

5. Motion by appellant Bennett to conduct his own defense.

6. Motion by appellant Bennett to have full use of library facilities.

7. Motion to dismiss Count II as unconstitutional.

We find no error in the trial court's rejection of these motions.

1. Appellants cite no cases to support their contention that " the interests of justice would have been more properly served" had severance been granted. It is well settled that the trial court has wide discretion in passing on a motion for severance. United States v. Beathune, 527 F.2d 696 (10th Cir.); United States v. Eaton, 485 F.2d 102 (10th Cir.). Here, appellants have not shown prejudice from denial of the motion to warrant a finding of abuse. See United States v. Earley, 482 F.2d 53 (10th Cir.).

2. Appellants filed an extremely broad discovery motion pursuant to Rule 16, Fed.R.Crim.Proc. (ROA, Vol. 1 at 56-58). Discovery to the extent asked for was denied by the trial court, but all basic material was disclosed. (ROA, Vol. 2 at 344-419). We find no error in the court's supervision of the discovery stage. The scope of discovery under Rule 16 is within the discretion of the trial judge and is not reviewable absent abuse. United States v. Smaldone, 484 F.2d 311 (10th Cir.). There was no abuse here.

3. The same is true in regard to the motion for a bill of particulars filed by appellants under Rule 7(f), Fed.R.Crim.P. The grant or denial of the bill is within the trial court's discretion. The court's decision will not be disturbed absent a showing that the accused was denied information which would have more specifically defined the offense charged. United States v. Hedges, 458 F.2d 188 (10th Cir.); United States v. Gleeson, 411 F.2d 1091 (10th Cir.). Here, appellants' motions (ROA, Vol. 1 at 37-39, 75-78) seek discovery of facts supporting the charges and do not profess confusion in determining the charges themselves. Denial of the motions was not an abuse of discretion.

4. Appellants asked for production of the grand jury testimony, but there was no record made of the proceedings. There is no requirement in this Circuit that grand jury proceedings be recorded, United States v. Beathune,supra; United States v. Skolek, 474 F.2d 582 (10th Cir.).

5. Appellant Bennett argues that he was denied the right to act as his own counsel and was forced to accept appointed counsel. In United States v. Montgomery, 529 F.2d 1404 (10th Cir.), this court noted that a criminal defendant in federal court has always had a right to self-representation under the provisions of 28 U.S.C. § 1654. But the right of self-representation, like any other right, may be waived by the defendant. It is clear from the record that Bennett waived his right.

At his arraignment, Bennett was represented by Mr. Gary Eldredge. Before arraignment could be completed, Mr. Eldredge withdrew as counsel, and the court appointed Federal Public Defender Munker to represent appellant. (ROA, Vol. 9 at 1-2). During the arraignment proceedings, the following exchange occurred:

"Mr. Bennett: When this Court appointed an attorney that is unacceptable to me. Last week, or whenever I was in here, my affirmative nods that I was able to obtain counsel was disregarded by you. And you appointed counsel to represent me.

"The Court: You now have retained counsel?

"Mr. Bennett: I am able to obtain counsel.

"The Court: You'll have that opportunity to obtain counsel if you choose. But for the mean time, the Public Defender . . .

"Mr. Bennett: Well, for the meantime nobody is going to defend me. I will proceed. You cannot force an attorney on me . . .

"The Court: . . . Now, what I was going to say and will say is that Mr. Munker will continue to serve as standby counsel. You may appeal to him for anything that you want, ask him any questions you want, if you choose to do it. You need not do it.

"Mr. Bennett: You mean, your honor, that you are forcing a counsel on me? When I have informed you that I have . . .

"The Court: No, I have told you what I mean . . . If you want to ask Mr. Munker any questions, he is here for it. I will grant you two weeks after the arraignment here within which counsel, you may retain them or as your co-defendants have said, the committee retain them, will have two weeks within which to file any motions or do anything of that sort . . . ." (ROA, Vol. 9 at 4-6) (Emphasis added.)

This conversation took place on March 13, 1974. Approximately two months later, at the pretrial conference, Bennett had not retained counsel and the issue was again addressed:

"Mr. Bennett: If I have to go to trial, I would like to proceed pro se . . .

"The Court: Well, I don't intend to have you go to trial without counsel. You will have counsel, whether you like it or not.

"Mr. Bennett: Well, I can't stop the Court from appointing whoever you want to.

"The Court: What I'm getting at here: There's been some conversation about each of you having an attorney from the National Conference of Black Lawyers. Are you trying to get an attorney from that source?

"Mr. Bennett: I'm not trying to do anything, until I get out of Leavenworth, your Honor.

"Mr. Bennett: I will defend myself. I will proceed pro se at my trial.

"The Court: And, at that time you're going to have a lawyer. I don't mind you appearing partially, but we would have chaos if we permitted everybody to appear pro se." (ROA, Vol. 11 at 30-31).

The court was still disturbed by appellant Bennett's vacillation on the counsel issue and took the matter under advisement at the close of the pretrial conference. (ROA, Vol. 11 at 60-61).

At the hearing on pretrial motions on July 15, 1974, Bennett was represented by Mr. Munker of the Federal Public Defenders Office and Mr. Lewis. (ROA, Vol. 12 at 3). Mr. Lewis conducted the legal argument for Bennett without any objection from him. (ROA, Vol. 12 at 7 et seq.). During the motions argument, the following exchange occurred:

"Mr. Lewis: . . . (Mr. Bennett) does have a desire to act as co-counsel in this case . . . and we, therefore have asked the court for a written order permitting him to act as co-counsel in this case.

"The Court: . . . I have no objection, as I think I've voiced to you before, of Mr. Bennett participating in the trial, if he observes the amenities that go with the judicial process, and if he refrains from wild and irresponsible statements. If he were allowed to make an opening statement . . . He also, perhaps, might be able to question a few witnesses, but he does have competent counsel, and I would expect him to listen to his counsel as to what the areas are. But, I have no objection to him assisting in the defense of his case. And participating in it, as long as he understands the legal ground rules.

"Mr. Lewis: He does." (ROA, Vol. 12 at 185-186) (Emphasis added).

Thereupon, appellant Bennett began to participate in the legal argument before the court. (ROA, Vol. 12 at 186 et seq.). However, he became disenchanted with certain rulings of the court, and, with the other defendants, disrupted the proceedings. Id. at 243-245. As he was escorted from the court room, Bennett stated: "Don't call me back in your courtroom no more." (ROA, Vol. 12 at 245). On July 29, 1974, at the continuation of the motions hearing, Bennett again was present and represented by Mr. Lewis and Mr. Munker. (ROA, Vol. 15 at 2). Bennett immediately asked to be removed from the court room:

"Mr. Bennett: I would request at this time that you allow me to be removed from the courtroom. I do not want to be here . . . I do not wish to dignify what I consider to be a railroad proceeding by sitting here with my presence.

"The Court: If that is where you want to go, Mr. Bennett, you...