U.S. v. Lampley, s. 96-7074

• Citation: 127 F.3d 1231
• Decision Date: 20 October 1997
• Docket Number: Nos. 96-7074,97-7010 and 97-7016,96-7077,96-7075,s. 96-7074
• Parties: 48 Fed. R. Evid. Serv. 221, 97 CJ C.A.R. 2601 UNITED STATES of America, Plaintiff-Appellee, v. Willie Ray LAMPLEY, a/k/a Ray Lampley, Defendant-Appellant, and Cecilia Lampley; Larry Wayne Crow; and John Dare Baird, a/k/a J.D. Baird, Defendants. UNITED STATES of America, Plaintiff-Appellee, v. Cecilia LAMPLEY, Defendant-Appellant, and Willie Ray Lampley, a/k/a Ray Lampley; Larry Wayne Crow; and John Dare Baird, a/k/a J.D. Baird, Defendants. UNITED STATES of America, Plaintiff-Appellee, v. John Dare BAIRD, a/k/a J.D. Baird, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1231

127 F.3d 1231

48 Fed. R. Evid. Serv. 221, 97 CJ C.A.R. 2601

UNITED STATES of America, Plaintiff-Appellee, v. Willie Ray LAMPLEY, a/k/a Ray Lampley, Defendant-Appellant, and Cecilia Lampley; Larry Wayne Crow; and John Dare Baird, a/k/a J.D. Baird, Defendants.

UNITED STATES of America, Plaintiff-Appellee, v. Cecilia LAMPLEY, Defendant-Appellant, and Willie Ray Lampley, a/k/a Ray Lampley; Larry Wayne Crow; and John Dare Baird, a/k/a J.D. Baird, Defendants.

UNITED STATES of America, Plaintiff-Appellee, v. John Dare BAIRD, a/k/a J.D. Baird, Defendant-Appellant.

Nos. 96-7074, 96-7075, 96-7077, 97-7010 and 97-7016.

United States Court of Appeals, Tenth Circuit.

Oct. 20, 1997.

John C. "Jay" Williams III, Muskogee, OK, for Defendant-Appellant Willie Ray Lampley in No. 96-7074.

Willie Ray Lampley, pro se, submitted on the brief in No. 97-7016.

Mark Green, Muskogee, OK, for Defendant-Appellant Cecilia Lampley in No. 96-7075.

Cecilia Lampley, Fort Worth, TX, pro se, submitted on the brief in No. 97-7010.

Gene V. Primomo (James G. Wilcoxen, Wilcoxen & Primomo with him on the brief), Muskogee, OK, for Defendant-Appellant John Dare Baird in No. 96-7077.

Douglas Adam Horn, Assistant United States Attorney (John Raley, United States Attorney, and D. Michael Littlefield, Assistant United States Attorney, with him on the briefs), Eastern District of Oklahoma, Muskogee, OK, for Plaintiff-Appellee United States of America.

Before SEYMOUR, Chief Judge, McKAY, and MURPHY, Circuit Judges.

McKAY, Circuit Judge.

This opinion consolidates for the purpose of disposition the appeals of three related cases. ¹ Defendants Mr. Willie Ray Lampley; his wife, Mrs. Cecilia Lampley; and Mr. John Dare Baird were convicted of conspiring to knowingly make and possess a destructive device and maliciously damage and destroy, by means of fire or explosives material, a building and other real and personal property used in interstate commerce and used in an activity affecting interstate commerce in violation of 18 U.S.C. §§ 2, 371, and 844(i), and 26 U.S.C. §§ 5822, 5841, 5845, 5861(d) & (f), and 5871. Mr. Lampley and Mr. Baird also were convicted of the use or carrying of a firearm during and in relation to the commission of a crime of violence, the predicate offense of conspiracy, pursuant to 18 U.S.C. § 924(c)(1). Mr. Lampley also was convicted of solicitation of a government informant to commit a crime of violence against the United States, in violation of 18 U.S.C. §§ 2, 373, and 844(i). These convictions stemmed from Defendants' endeavors to build and possess an explosive device to damage or destroy the Anti-Defamation League building in Houston, Texas, and the Southern Poverty Law Center in Montgomery, Alabama. These activities took place between August and November 1995. On appeal, each defendant alleges numerous grounds for reversal. We address each allegation in turn, but consolidate those arguments common to the defendants. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I.

Defendants Mr. Lampley, Mrs. Lampley, and Mr. Baird submit that their Sixth Amendment right to a fair trial by an impartial jury was unduly prejudiced by the influence of the April 19, 1995 bombing of the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma. The details of their claim are: The trial coincided with the one-year anniversary of the Oklahoma City bombing; the corresponding presence of security forces was excessive and media publicity pervasive; a memorial wreath was placed on the courthouse door, and a memorial sign was in the window of a Federal Protective Service vehicle parked in front of the courthouse; and statements relating to the Oklahoma City bombing were admitted into evidence.

A. There is no dispute that Defendants were tried during the general anniversary period of the Oklahoma City bombing. ² However, Defendants failed to make any objection to the timing of the trial on the basis that it would coincide with the one-year anniversary of the Oklahoma City bombing. ³ There is no evidence in the record that Defendants made any request for a change of venue or any request for a delay due to this circumstance. We, therefore, apply a plain error analysis. Fed.R.Crim.P. 52(b); United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555 (1936). The plain error rule requires there be "an 'error,' that is 'plain,' and that 'affect[s] [the defendant's] substantial rights.' " United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 1776, 123 L.Ed.2d 508 (1993) (quoting Fed.R.Crim.P. 52(b)). In Johnson v. United States, --- U.S. ----, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), the Supreme Court clarified the analysis by confirming that a court should invoke its remedial discretion to notice a forfeited error only if that error " 'seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.' " Id. at ----, 117 S.Ct. at 1550 (citation omitted) (quoting Atkinson, 297 U.S. at 160, 56 S.Ct. at 392).

Defendants' trial began on April 1, 1996, in the Eastern District of Oklahoma. On April 12, 1996, the trial was recessed until April 22, 1996. On April 24, 1996, a jury deliberated and returned guilty verdicts on all counts for each defendant. There is no evidence in the record that the government had any control over the timing of this trial or that the district court had any intent to hold Defendants' trial during the anniversary of the Oklahoma City bombing. In fact, the record suggests the contrary. The government made a motion on February 12, 1996, for an order to set the jury trial for March 4, 1996. The district court denied this motion for the reason that it needed "additional time to implement and coordinate increased safety and security measures." R., Vol. I, Exh. 189. Additionally, on April 1, 1996, the district court told the lawyers, defendants, and potential jury that it hoped to shorten the expected duration of the trial to two weeks by working longer days and taking shorter recesses. A two-week trial would have ended around April 12, 1996. There is insufficient evidence to suggest that the trial's timing was anything other than coincidental. Defendants have not cited facts in the record sufficient to show either that their substantial rights were prejudiced or that the fairness, integrity, or reputation of the judicial proceeding was seriously affected. We conclude that their claims do not rise to the level of plain error.

However, while we have disposed of the issue of intent, the critical issue is the effect of the Oklahoma City bombing on the jury. The district court is responsible for guaranteeing that the jury is fair and impartial. See Frazier v. United States, 335 U.S. 497, 511, 69 S.Ct. 201, 209, 93 L.Ed. 187 (1948). It is a well-established principle that "one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion ... or other circumstances not adduced as proof at trial." Taylor v. Kentucky, 436 U.S. 478, 485, 98 S.Ct. 1930, 1934, 56 L.Ed.2d 468 (1978). Where Defendants raised in the district court specific objections to the effect of the Oklahoma City bombing, we will review that court's constitutional findings de novo. United States v. Al-Smadi, 15 F.3d 153, 154 (10th Cir.1994) (citing Nieto v. Sullivan, 879 F.2d 743, 749-54 (10th Cir.)), cert. denied, 493 U.S. 957, 110 S.Ct. 373, 107 L.Ed.2d 359 (1989).

B. Defendants contend that the security measures and number of officers present in the courtroom and courthouse during the trial were excessive and prejudiced their right to a fair trial in violation of Holbrook v. Flynn, 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). This specific allegation was raised in the district court, and we therefore review de novo. In Holbrook, the Supreme Court defined the standard by which security presence in the courtroom may be measured in relation to a defendant's constitutional right to a fair trial. Holbrook states:

All a ... court may do ... is look at the scene presented to jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to defendant's right to a fair trial; if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.

Id. at 572, 106 S.Ct. at 1347-48. The Court determined that "the conspicuous, or at least noticeable, deployment of security personnel in a courtroom during trial" is not an inherently prejudicial practice and does not violate the fundamental principles of the criminal justice system. Holbrook, 475 U.S. at 568, 106 S.Ct. at 1345. The Court noted that guards have become commonplace in most public places "so long as their numbers or weaponry do not suggest particular official concern or alarm." Id. at 569, 106 S.Ct. at 1346; see Hopkinson v. Shillinger, 866 F.2d 1185, 1218 (10th Cir.1989) (security measures including armed and unarmed guards and magnetometer were not so inherently prejudicial as to pose unacceptable threat to defendant's right to fair trial), cert. denied, 497 U.S. 1010, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990).

The facts of this case do not support a claim that the Holbrook standard was violated. In recognizing the presence of security measures, the trial judge specifically stated that "certain precautions ... have to be taken to protect the people who work [in the courthouse] and to protect [the lawyers]." R., Vol. XV at 542. The judge noted, to clarify the record, that there were not "that many Marshals up here in front of the rail," and that he could distinguish the marshals in the back of the courtroom from spectators or press only because he had met them. Id. Unlike the state troopers involved in Holbrook, the marshals in the back of the courtroom were in plain clothes and unarmed. The judge found that the scene...