U.S. v. Purvis, 77-2849

Decision Date25 September 1978
Docket NumberNo. 77-2849,77-2849
Citation580 F.2d 853
PartiesUNITED STATES of America, Plaintiff-Appellant, v. Thomas J. PURVIS et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

William A. Kimbrough, Jr., U. S. Atty., Mobile, Ala., Drew S. Days, III, Asst. Atty. Gen., Miriam R. Eisenstein, Frank D. Allen, Jr., Attys., U. S. Dept. of Justice, Civil Rights Div., Washington, D. C., for plaintiff-appellant.

Barry Hess, Roderick P. Stout, Mobile, Ala., for Thomas Purvis.

Thomas M. Haas, Mobile, Ala., for Charles Wimberly, Sr.

Chris Galanos, John W. Coleman, Mobile, Ala., for William Shirley, Jr.

Joseph C. Sullivan, Jr., Mobile, Ala., for John McCorvey, Sr.

Calvin Clay, Mobile, Ala., for Harold Donald.

Thomas P. Doyle, Mobile, Ala., for Harry Hutton, Jr.

Ian Gaston, Mobile, Ala., for James Manning.

Charles N. McKnight, Mobile, Ala., for Cecil Byrd.

Thomas A. Deas, Mobile, Ala., for James Stanford.

Edward B. McDermott, William J. Baxley, Atty. Gen., Montgomery, Ala., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Alabama.

Before RONEY, RUBIN and VANCE, Circuit Judges.

RONEY, Circuit Judge:

The defendants were indicted for a conspiracy to deprive the inmates of the Mobile County jail of their rights and privileges as citizens of the United States, which resulted in the shooting death of an inmate during an escape attempt. 18 U.S.C.A. § 241. The district court dismissed the indictment for its failure to allege intent in specific words. The United States appeals. We reverse. The allegations in the indictment were not fatally deficient for lack of some special formula of words to specify intent, and they fairly inform defendants of the charge against them.

The indictment charged nine defendants with conspiracy in violation of 18 U.S.C.A. § 241. 1 It is alleged that defendants, "while acting as officials of the Mobile County (Alabama) Sheriff's Department" in the summer of 1976, decided that future escape attempts from the Mobile County jail could be deterred only by the death of an escaping inmate. In furtherance of this plan and having learned of a planned escape attempt through a hole in the north wall, defendants agreed to monitor progress, conceal themselves, and ambush the escaping prisoners. As a result, the indictment alleges, a deputy sheriff shot inmate Louis Wallace to death when he attempted to escape through the hole. The indictment charges that this shooting was "part of the plan and purpose" of the conspiracy and was "without lawful authority."

The defendants moved to dismiss on the ground that the indictment was defective. The district court dismissed the indictment without prejudice. United States v. Purvis, 436 F.Supp. 770 (S.D.Ala.1977). It held that the indictment failed to allege that defendants specifically intended to deprive Wallace of rights secured by the Constitution, relying on United States v. Cruikshank, 92 U.S. (2 Otto) 542, 23 L.Ed. 588 (1876), and Wilkins v. United States, 376 F.2d 552 (5th Cir.), Cert. denied, 389 U.S. 964, 88 S.Ct. 342, 19 L.Ed.2d 379 (1967).

Because the Grand Jury which returned the indictment remained sitting even at the time this appeal was argued, the matter could have been returned to it for a rewritten indictment. The United States, however, concerned with other similarly worded indictments framed under this standard charge, argues that the language of the present indictment is satisfactory.

The requisites of a valid indictment under 18 U.S.C.A. § 241 were addressed by the Supreme Court in United States v. Cruikshank, supra, in discussing its predecessor statute. Cruikshank held an indictment to be vague and uncertain because it failed to specify the particular right conspired against and merely averred a conspiracy against "every, each, all, and singular" of the rights granted by the Constitution. The Court stated that the object of an indictment is

first, to furnish the accused with such a description of the charge against him as will enable him to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had. For this, facts are to be stated, not conclusions of law alone. A crime is made up of acts and intent; and these must be set forth in the indictment, with reasonable particularity of time, place, and circumstances.

92 U.S. (2 Otto) at 558.

In Wilkins v. United States, supra, this Court considered the essential requisites of a valid indictment under 18 U.S.C.A. § 241. In that case, citing Cruikshank, we indicated that a valid indictment

must allege that it was the intent of the defendants, by their conspiracy, to hinder or prevent the enjoyment of some right granted or secured by the Constitution, and must charge positively and not inferentially everything essential . . . .

376 F.2d at 562.

"The validity of an indictment is determined from reading the indictment as a whole and . . . must be determined by practical, not technical, considerations." United States v. Markham, 537 F.2d 187, 192 (5th Cir. 1976) (citations omitted), Cert. denied, 429 U.S. 1041, 97 S.Ct. 739, 50 L.Ed.2d 752 (1977).

The issue before us is whether the indictment, set forth in full below, 2 which tracks the statutory language of 18 U.S.C.A. § 241 in charging that defendants conspired "to injure, oppress, threaten and intimidate" citizen inmates "in the free exercise and enjoyment of the right and privilege secured to them by the Constitution and the laws of the United States not to be deprived of life without due process of law" is legally sufficient where the indictment does not expressly allege that defendants specifically intended to deprive citizens of constitutional rights.

It should be noted that the point at issue here concerns only the Form of the indictment. In its argument, the Government correctly recognizes that it must prove specific intent to deprive a citizen of constitutional rights to sustain a conviction under 18 U.S.C.A. § 241. Mere evidence of an intent to kill Wallace would not prove an offense under the federal statute; deprivation of a constitutional right must be intended. United States v. Cruikshank,supra; Wilkins v. United States, supra. See United States v. Guest, 383 U.S. 745, 760, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966). Therefore, we address only the narrow issue of the sufficiency of the instant indictment.

At the outset, it should be noted that 18 U.S.C.A. § 241 itself does not include the term "intentionally" or "willfully" or derivations thereof. Consequently, a different issue is presented here than in the cases cited to us where the statute includes terms omitted from the indictment. Pullen v. United States, 164 F.2d 756 (5th Cir. 1947) (for violation of 18 U.S.C.A. § 242); United States v. Musgrave, 444 F.2d 755 (5th Cir. 1971) (for violation of 18 U.S.C.A. §§ 371, 657, 1006), Cert. denied, 414 U.S. 1023, 94 S.Ct. 447, 38 L.Ed.2d 315 (1973).

The issue presented here can be precisely stated: when a statute which fails to stipulate that the proscribed acts be done with specific intent has been interpreted to require proof of such intent in order to sustain a conviction, must the indictment contain certain formal legal terms alleging specific intent? No case has been cited or found in which an indictment similar to the one used here has been held invalid under 18 U.S.C.A. § 241. Nor has a case been found dismissing an indictment which tracks the statutory language. While the terms with "intent to deprive" as suggested by the district court, 436 F.Supp. at 772, or "unlawfully, willfully and knowingly" as contained in the indictment in Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974) (also an 18 U.S.C.A. § 241 prosecution), quoted by the district court, 436 F.Supp. at 773, allege intent, they are by no means the exclusive formula by which it may be charged.

Rule 7(c) of the Federal Rules of Criminal Procedure requires that an indictment "be a plain, concise and definite written statement of the essential facts constituting the offense charged." This rule has put to an end "the rules of technical and formalized pleading which had characterized an earlier era." Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962) (indictment for failure to answer question pertinent to congressional inquiry invalid for failure to identify subject under inquiry, thereby making determination of pertinency speculative). In reflecting upon the impact of the rule, this Court has said that

(t)he cynically technical approach which formerly enshrouded the consideration of even the plainest and simplest indictments, and, in many instances, made a mockery of simple justice, no longer governs their consideration.

On the contrary, the trial court and this court are enjoined to, and do, examine into, and determine, the validity of attacks upon indictments, especially of this kind, from the broad and enlightened standpoint of common sense and right reason rather than from the narrow standpoint of petty preciosity, pettifogging, technicality or hair splitting fault finding.

Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951) (footnotes omitted). Although indictments must be specific and precise as to the acts and crime charged, the law does not compel a ritual of words.

Taken as a whole, the facts set forth in the indictment here sufficiently allege an intent by defendants to deprive the inmates of their constitutional right to due process.

The indictment alleges that defendants intended to demonstrate by their actions that a prisoner seeking to escape from the Mobile County jail would be shot without a trial, whether or not the escape could have been prevented by other measures. The key...

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