U.S. v. Gorham

• Decision Date: 28 November 1975
• Docket Number: Nos. 74-1611 and 74-1613,s. 74-1611 and 74-1613
• Citation: 173 U.S.App.D.C. 139,523 F.2d 1088
• Parties: UNITED STATES of America v. Frank GORHAM, Jr., Appellant. UNITED STATES of America v. Otis D. WILKERSON, a/k/a Robert N. Jones, a/k/a James Burgess, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1088

523 F.2d 1088

173 U.S.App.D.C. 139

UNITED STATES of America v. Frank GORHAM, Jr., Appellant.

UNITED STATES of America v. Otis D. WILKERSON, a/k/a Robert N. Jones, a/k/a James

Burgess, Appellant.

Nos. 74-1611 and 74-1613.

United States Court of Appeals District of Columbia Circuit.

Argued March 12, 1975.

Decided Nov. 28, 1975.

Jack L. Lipson, Washington, D. C. (appointed by this court), for appellants.

Paul N. Murphy, Asst. U. S. Atty., with whom Earl J. Silbert, U. S. Atty., John A. Terry, John O'B. Clarke, Jr., and Lester B. Seidel, Asst. U. S. Attys., were on the brief, for appellee.

Before BAZELON, Chief Judge, and MacKINNON and ROBB, Circuit Judges.

Opinion for the court filed by Circuit Judge MacKINNON.

Concurring opinion filed by Chief Judge BAZELON.

MacKINNON, Circuit Judge:

Appellants Frank Gorham, Jr., and Otis D. Wilkerson (a/k/a Robert N. Jones) were indicted, along with co-defendants Meltonia Fields and Linda Ewing, on counts of conspiracy, introducing contraband into a penal institution, armed kidnapping, and armed robbery, and both appellants were indicted individually on counts of attempted escape and escape from custody. The charges grew out of appellants' abortive attempt to escape from the D.C. jail on October 11, 1972, and their successful escape two weeks later. At a trial before Judge Gasch appellants were convicted on a majority of the counts against them, as was a fifth co-defendant, Terry Burgin; Fields and Ewing were acquitted of all charges.

Because certain testimony which may have contributed to appellants' convictions was adduced to demonstrate the women's innocence, appellants now urge reversal of their convictions, citing the District Court's allegedly erroneous and prejudicial refusal to sever the trials of these various defendants. They also contend that the October 11 escape attempt and the October 25 escape were disparate offenses which warranted separate trials and which were improperly joined in the indictment. Thus they allege that the trial court's refusal to sever the trial into offenses relating to the separate dates was erroneous. Finally, appellants protest the trial judge's decision to exclude an agreement not to take retributive action extracted from D.C. Corrections Director Kenneth Hardy after severe beating and under threat of death. We find no merit to these contentions and no error in the trial, and thus affirm all convictions on all counts.

(1) Background

For some time prior to October 11, 1972, while appellants Gorham and Wilkerson, a/k/a Robert Jones (hereinafter Jones), were confined as inmates at the District of Columbia jail, they conspired to escape from that facility and, in furtherance of the plan, obtained a loaded .38 caliber pistol. In the early morning hours of October 11, 1972, Jones feigned sickness, and when two correction officers entered his cell to assist him, Gorham assaulted them with the pistol and took them as hostages. Gorham and Jones proceeded to take control of the entire cellblock and to release other prisoners to assist them in obtaining additional hostages, eventually including Kenneth L. Hardy, District of Columbia Corrections Director. In furtherance of their demand that they be released, appellants made numerous threats of violence against their hostages, used some of them as shields and with the inmates who had joined them employed other strategems in pursuit of their freedom. All their efforts were thwarted, and the jail authorities eventually reacquired control of the cellblock and the entire jail complex.

In the aftermath of this episode Gorham and Jones were transferred to the maximum security "Penthouse" area of the jail. While they were confined there appellants obtained several hacksaw blades, sawed through two iron bars in a window, and on October 25, 1972, effected their escape by means of "a makeshift Jacob's ladder, fashioned from bedsheets in the classical manner." ¹

(2) The Charges

These events led to a twenty-count indictment against Gorham, Jones and two co-defendants, Meltonia M. Fields and Linda F. Ewing. Ewing claimed to be a sister of Jones and Fields was a friend of Gorham. Neither woman was an inmate of the jail but both were charged in the indictment with conspiracy and with having assisted Gorham and Jones in their attempted escape and in their actual escape. Ewing visited Jones on the day before the attempted escape and a woman of the same size and with the same features as Fields visited Gorham one day before Gorham and Jones succeeded in escaping (Tr. 1224-5, 1240-1).

The first count of the indictment charged Gorham, Jones, Fields, and Ewing with participation in an unlawful conspiracy prohibited by 18 U.S.C. § 371 to escape and cause the escape of persons from the custody of the Attorney General in violation of 18 U.S.C. § 751(a); to introduce contraband into a District of Columbia penal institution in violation of D.C. Code § 22-2603; to kidnap correctional officers in violation of D.C. Code § 22-2101; and to harbor and conceal an escaped prisoner in violation of 18 U.S.C. § 1072. The overt acts alleged, Inter alia, related to both the attempted escape on October 11, 1972, and to the actual escape on October 25, 1972.

The second count charged that the same four defendants on or before October 10, 1972, introduced the .38 caliber pistol and bullets into the jail in violation of D.C. Code § 22-2603.

Counts three through fourteen charged the same four defendants, while armed, with conspiracy to kidnap and with the actual kidnapping of 12 hostages (Correction Department personnel) with the intent to hold them for the purpose of effecting the escape of Gorham and Jones from the jail in violation of D.C. Code §§ 22-2101, 3202. The fifteenth count charged the four with armed robbery in stealing certain clothes and keys in violation of D.C. Code §§ 22-2901, 3202.

Counts 16 and 17 charged Gorham and Jones respectively with attempted escape from the jail on October 11, 1972, in violation of 18 U.S.C. § 751(a). The eighteenth count charged that on or about October 24, 1972, the four defendants introduced contraband hacksaw blades into the jail in violation of D.C.Code § 22-2603. The nineteenth and twentieth counts charged Gorham and Jones respectively with escape from the jail on October 25, 1972, in violation of 18 U.S.C. § 751(a). ²

(3) The Trial

At the trial Fields and Ewing were acquitted of all charges and appellants Gorham and Jones were convicted on almost every count. Gorham was found not guilty of the kidnapping of Kenneth Hardy (count 14) and not guilty of introducing contraband into the jail (counts 2 and 18). Jones was acquitted of the same offenses but was found guilty of the robbery, a lesser included offense of the armed robbery alleged in the fifteenth count.

(4) The Appeal

The appeal by Gorham and Jones asserts that three questions are at issue:

First: Whether it was error for the trial court to refuse to grant separate trials to appellants when the evidence presented by their co-defendants at a multi-defendant trial was antagonistic and prejudicial to appellants.

Second: Whether it was error for the trial court to refuse to grant separate trials as to disparate offenses where the effect of a joint trial of the offenses was prejudicial.

Third: Whether it was error for the trial court to exclude evidence that the government was bound not to take action against appellants in connection with the events for which they were indicted.

Appellants' Brief at 1-2. These issues will be considered in order.

(5) The Refusal to Grant Separate Trials

Appellants argue that they were prejudiced by the trial court's refusal to sever their trials from those of Fields and Ewing, since the women's "lines of defense . . . diverged from that of appellants, and as a result, the principal witness (Seegers) who testified for the women was antagonistic to Gorham and Jones." Appellants' Brief at 10. To understand the basis of this claim it is necessary to review some of the evidence.

As part of its case in chief the Government called one James Bridgeman, a prisoner at the jail at the time of the October 11 uprising and an appellant in a related case stemming from that event. ³ Bridgeman testified (Tr. 446 Et seq.) that in September and October he, Jones, and Gorham talked over a plan for escaping from the jail. They "decided to have arms brought into the jail. The original idea was to have three pistols smuggled in" (Tr. 448). These conversations took place "around the last of September or the first of October" (Tr. 448). The plan was to have pistols "brought into the rotunda of the jail on some kind of special visit" (Tr. 449, 450) by someone "named Linda or somebody named Meltonia" (Tr. 451). The scheme was to have the chaplain arrange a "special visit" (Tr. 451). In a special visit "the person that is visiting is allowed to make contact" (Tr. 457). On October 10, Jones had a visitor and immediately thereafter Bridgeman saw in Jones' possession a gun, which he identified as similar to the gun later used by Gorham and Jones (Tr. 453, 454, 450). Bridgeman testified that Jones had the pistol when he came back from the visit (Tr. 479, 480).

In his defense Gorham called as a witness one Kenneth May. May testified on direct examination, contrary to Bridgeman's testimony, that Bridgeman had told him that the gun "came over the wall of CB-2 rec. yard" (Tr. 1678). May stated that Bridgeman had told him that he was going to "shift all the weight" of the offense to Frank Gorham when he testified at trial (Tr. 1678). Later, Linda Ewing called in her defense one Robert Seegers, who testified on direct examination that on October 2, 1972, he had been present in the recreation yard when Frank Gorham picked up a paper bag containing a gun similar to the one used on October 11 (Tr. 1740-44). Cross examination by the Government, although lengthy, added little to the substance of this testimony.

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