U.S. v. Ricketts, s. 97-3434

• Decision Date: 11 June 1998
• Docket Number: Nos. 97-3434,97-3911,s. 97-3434
• Citation: 146 F.3d 492
• Parties: 49 Fed. R. Evid. Serv. 931 UNITED STATES of America, Plaintiff-Appellee, v. Edwin Dwane RICKETTS and Arthur Lee Jones, Defendants-Appellants.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 492

146 F.3d 492

49 Fed. R. Evid. Serv. 931

UNITED STATES of America, Plaintiff-Appellee, v. Edwin Dwane RICKETTS and Arthur Lee Jones, Defendants-Appellants.

Nos. 97-3434, 97-3911.

United States Court of Appeals, Seventh Circuit.

Argued April 21, 1998.

Decided June 11, 1998.

Richard H. Lloyd (argued), W. Charles Grace, Office of the United States Attorney, Criminal Division, Fairview Heights, IL, for Plaintiff-Appellee.

Patrick W. Fitzgerald (argued), Alton, IL, for Edwin D. Ricketts.

John Dale Stobbs (argued), East Alton, IL, for Arthur L. Jones.

Before COFFEY, EASTERBROOK, and EVANS, Circuit Judges.

EVANS, Circuit Judge.

Edwin Ricketts and Arthur Jones took part in a riot at the Federal Correctional Institution in Greenville, Illinois, on October 20, 1995. The riot damaged the prison to the tune of $750,000 and displaced 250 inmates for 9 months before the part of the institution that was damaged could be repaired. The riot, which involved nonwhite prisoners, was ostensibly triggered by Congress's refusal to follow a recommendation to eliminate the crack versus powder cocaine sentencing disparity under the federal sentencing guidelines. Another reason for the riot, and perhaps, considering what was said during the fracas, a more likely one, was anger when inmates responded to an unexpected order to "lock down"-that is, go to their cells--20 minutes early. Most of the rioters wore masks. Jones and Ricketts did not.

After order was restored Ricketts and Jones were indicted for conspiracy to riot in a federal prison and for instigating and assisting in a mutiny in a federal prison, both in violation of 18 U.S.C. § 1792. Ricketts was also indicted for assault with a dangerous weapon against correctional officers David Hughes and Donnie Howard in violation of 18 U.S.C. § 111. Jones was indicted for assault with a dangerous weapon against correctional officers Francisco Rivera, Alan Mollett, Sammie Crowell, and Hughes.

A jury convicted Ricketts of conspiracy and mutiny but passed him on the assault charges. Jones was convicted on the conspiracy and mutiny charges and two of the four assault charges. Ricketts drew a 10-year sentence consecutive to the time he owed the government and Jones got the same thing plus an additional 31 months consecutive on the assault charges. Today we consider the defendants' appeals.

During the trial several guards and inmates gave damaging testimony against Ricketts and Jones. Guards testified that Ricketts yelled "We don't have to take this" and "We don't have to take this shit." He yelled out to groups of prisoners "We don't got to lock down" and "Why do we have lock down, fuck this." The jury also heard that Ricketts attempted to debate the lock-down order with one of the guard commanders, telling the officer that the guards would be getting what they deserved. Guards and prisoners testified that Ricketts took part in savage attacks on Hughes and Howard. One witness testified to seeing Ricketts swinging a table leg at Hughes. Rivera testified that during the riot Ricketts screamed "We're going to take this place, we'll take this stuff" while banging a table leg on the floor.

Ricketts testified that when the riot began he was playing chess. He claimed that one of the guards, after the lock down was ordered, refused to let him into his cell. He explained that the guard ordered a count, not a lock down. He claimed that he sat down and waited by his cell. He denied wielding a table leg and claimed that he aided, but did not attack, Rivera.

As Ricketts confronted the officer and debated the lock-down order, a group of prisoners, with Jones at the fore, charged the guards. According to the witnesses, Jones ran at the guards with a chair and yelled "Let's send them to their deaths" and "Let's get them." Jones struck Crowell in the face, causing extensive injuries. He broke a leg off a table to use as a weapon against Hughes. Both guards and a prisoner testified to Jones' attack on Hughes. A guard testified that Jones attacked Mollett. Rivera testified that Jones charged him, yelling "Let's get over with this shit, we are tired of this changes these mother fuckers, we're going to take this place." Both Rivera and another guard testified that Jones attacked Rivera with a table leg as Rivera attempted to retreat. Jones then dragged Rivera back into the unit where he and other prisoners beat Rivera with their feet, table legs, and broom handles. Jones beat Rivera about the head with a metal chair. Rivera later escaped and Jones began banging on a glass door with a table leg with an exposed bolt. Several guards testified to Jones carrying a table leg and appearing at the front of groups of inmates.

Jones admitted running toward the staff. He claimed that he picked up a chess table because he thought he "was going to be beaten." He said he picked up a table leg after almost being hit by objects thrown by other inmates. He "guessed" that he was going to hit someone with the table leg, but it slipped out of his hand and hit a corrections officer. Jones claimed that he saw Ricketts help Rivera escape.

In challenging their convictions Ricketts and Jones join hands on a pair of issues, and each raises a few additional issues that relate only to his own appeal. The first joint issue is a claim that the trial judge erred by failing to strike several prospective jurors. The second joint issue relates to some audio tapes, and we quote verbatim Ricketts' counsel's rather lengthy sentence (all 124 words) setting it forth:

The trial court erred by denying defendant's motion to dismiss, or in the alternative, to suppress testimony by government witnesses, where correctional officers had tape recorded several hours of conversations with the defendant but, when defense counsel sought to listen to the tapes, they were mysteriously blank, and where the court misconstrued defendant's motion as asking the court to suppress the tapes themselves when, in fact, defendant was asking the court to sanction the government for erasing the tapes, and said error was compounded by the court's denial of defendant's motion to obtain the services of an audio expert to determine whether the tapes were blank because they had, in fact, been affirmatively erased, or were simply an innocent malfunction of the recording equipment.

We start with the juror issue. The district judge conducted a general voir dire of the jury panel and then gave each attorney a half an hour to question the pool. During the prosecutor's voir dire the potential jurors were asked whether they had "anything against correctional officers" and whether they had "anything against inmates." Late in voir dire one defense counsel followed up on this line of questioning by asking whether jurors would give more weight to the testimony of a guard than an inmate. Several prospective jurors (Ricketts' brief names seven, but says that nine raised their hands) responded that they would listen more to guards. Two prospective jurors stated that they could not put aside the fact that one person is an inmate and someone else is a guard. As defense counsel continued to explore the subject he was told that only one minute remained on his voir dire time. Defense counsel sought to have these prospective jurors struck for cause. The court refused.

The defendants argue that the judge predicated his refusal to strike the jurors for cause on the abstractness of the questions asked. The judge said, "[Y]ou asked a question based upon an inmate versus a guard, and you don't give them anything else and will you believe an inmate versus a guard or will you believe a guard versus an inmate, that's not enough of a question.... [W]e can't make a determination based upon those two factors alone."

The defendants argue that the judge improperly limited voir dire before they could obtain sufficient information to better exercise their challenges. They cite several cases: United States v. Guy, 924 F.2d 702, 707 (7th Cir.1991), for the proposition that either the court must make or allow counsel to make sufficient inquiry to ensure an impartial jury; United States v. McAnderson, 914 F.2d 934, 942 (7th Cir.1990), for the idea that the court must allow an adequate voir dire for the defense to exercise its peremptory strikes; and United States v. Moore, 936 F.2d 1508, 1514 (7th Cir.1991), for the principle that adequate voir dire must provide the defense with enough information to raise a challenge for cause. The defendants argue that this case involved a swearing match between guards and inmates and that their ability to intelligently exercise their challenges-both for cause and peremptory--was impaired by the way the voir dire was conducted.

The government notes in response that the defense wasted a lot of time during its voir dire. The government also implies that there was insufficient inquiry into whether favoring a guard over an inmate would lead any juror to ultimately be unfair or partial. Finally, the government notes that the defendants failed to exercise three of their peremptory challenges and allowed four of the allegedly partial prospective jurors to sit on the jury.

We have reviewed the transcript of the voir dire proceedings. Our review leads us to agree with the government that a lot of time was wasted. More importantly, however the record is woefully short of establishing support for a factual finding that the questioned jurors were not going to be impartial. In the abstract, it is certainly not unreasonable for an ordinary person to say she would generally tend to believe a prison guard over a prison inmate. But that certainly doesn't mean that in a given case, after hearing sworn testimony under oath and considering all the facts and circumstances, that that same juror would automatically believe a given guard over a given inmate. Generalized questions of the sort asked here are a slim basis upon which to base a challenge for cause. That,...