U.S. v. Wagner
| Decision Date | 24 December 1987 |
| Docket Number | No. 84-5176,84-5176 |
| Citation | 834 F.2d 1474 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. James E. WAGNER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Philip Deitch, Los Angeles, Cal., for defendant-appellant.
Laurie L. Levenson, Los Angeles, Cal., for plaintiff-appellee.
Appeal from the United States District Court for the Central District of California.
Before NELSON, HALL and THOMPSON, Circuit Judges.
James E. Wagner appeals his conviction for first degree murder and for conveyance of a weapon in a federal correctional institution. Wagner raises a number of challenges to the district court's rulings before and during his jury trial. We affirm.
In 1978, Wagner was committed to the Federal Correctional Institution in Lompoc, California, to serve a fifteen-year sentence for bank robbery. In January, 1981, Wagner was placed in administrative segregation after a preliminary investigation indicated that he had stabbed to death another inmate, Thomas Sargis, on January 12, 1981. While in administrative segregation, Wagner stabbed to death a second inmate, David Austin, on August 2, 1981.
As a result of investigations into the Sargis and Austin homicides, Wagner was indicted on two counts of first degree murder, 18 U.S.C. Sec. 1111 (1982), and on two counts of conveying a weapon in a federal institution, 18 U.S.C. Sec. 1792 (1982). On August 1, 1983, the day before trial, the district court dismissed the two counts relating to the Sargis killing in light of this court's holding in United States v. Gouveia, 704 F.2d 1116 (9th Cir.1983) (en banc), rev'd, 467 U.S. 180, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984). Wagner was then tried before a jury on the two counts stemming from the Austin homicide.
The government's witnesses testified to the following account of Wagner's attack on Austin. While in administrative segregation, Wagner served as an inside orderly, cleaning floors and assisting with water and food distribution within his unit. Austin, a prison informant in protective custody, was working as an outside orderly in an adjacent unit separated from Wagner's unit by a metal grille. On August 2, 1981, at approximately 3:00 p.m., correctional officer Gary Berman instructed Austin to heat a pitcher of hot water for Wagner.
Austin placed the pitcher in a microwave oven and heated the water until it was boiling. Austin then placed the pitcher near the grille door and, at Berman's instruction, stepped back. When Berman unlocked and opened the grille door, Wagner crouched down to pick up the pitcher, then suddenly lunged forward and threw the boiling water in Austin's face. Austin screamed and tried to run away from Wagner in the direction away from the door. Wagner pursued Austin, pulling from his pants a prison-made knife.
Officer Berman apparently became caught in the door and was unable to stop Wagner. However, another correctional officer, Harold Harris, had witnessed the attack and intercepted Wagner as he chased Austin. Harris grabbed Wagner from behind and yelled at him to drop the knife, but Wagner refused to do so. As Harris and Wagner struggled, Austin apparently tried to reach safety by running around and in front of Wagner. Wagner lunged at Austin, and the three men piled into a corner wall. As Harris attempted to turn Wagner away from Austin, he heard Austin say, Wagner and Harris continued to struggle until another correctional officer arrived and assisted Harris in disarming Wagner. Austin subsequently died from massive hemorraging due to a single stab wound to the heart, caused by an underhand jab.
The government introduced additional testimony respecting Wagner's premeditation and motive. In response to Wagner's inquiry earlier in the day, correctional officer Jose Blanchard had informed Wagner that Blanchard's shift was over at 3:00 p.m. As Blanchard left the area at the end of his shift, he saw Wagner standing in the vicinity of the grille door with the hot water pitcher in his hand. Correctional officers testified that Wagner generally wore a type of slippers when working in the unit, but wore tennis shoes on this particular day. Even though it was August, Wagner had on a longsleeved fatigue jacket and admitted that he wore the jacket to conceal the knife. As noted earlier, Wagner's victim was a prison informant in protective custody.
Wagner testified on his own behalf, and his lawyer essentially led him through a version of the stabbing different from that presented by the government's witnesses. According to Wagner, Austin had reached for the hot water pitcher as if to throw it at him, but Wagner got to the pitcher first. Wagner admitted pulling the knife and running in Austin's direction, but denied that he intended to stab Austin. Officer Harris almost immediately "hog-tied" him from behind, and they struggled "for a minute or so." During the struggle, Wagner, who was extremely myopic, lost his glasses. Wagner then saw a figure, coming toward him rapidly, could not tell if the figure was armed, and held his knife-bearing arm out in self-defense. 1 Then Wagner's ankle gave, and he and Harris fell forward into Austin and continued to struggle. Wagner testified that he did not realize Austin had been stabbed in the scuffle and that he was "surprised" when later told of the stabbing.
Wagner also contended that he was insane at the time of the attack. He testified about his history of drug abuse before and during his incarceration in 1978, the climate of violence and racial hostility at Lompoc, his feelings of extreme anxiety and paranoia, and his hospitalization for psychiatric evaluation at a prison medical facility in Springfield, Missouri following the Sargis and Austin homicides.
However, Wagner presented no expert psychiatric testimony. His court-appointed psychiatrist had formed the opinion that Wagner had been sane at the time of the offense and was not called to testify. Shortly before trial, Wagner's counsel moved pursuant to Fed.R.Evid. 803(6) for a Nonetheless, the jury ultimately learned of the contents of the two reports. Wagner agreed to testify after the court ruled that Wagner's counsel could use the reports in his cross-examination of the government's psychiatrist, who testified on the basis of his observation of Wagner during the trial.
ruling respecting the admissibility of two psychiatric reports that suggested Wagner may have suffered from a possible psychosis several months after Austin's murder. The reports had been prepared in late 1981 by Dr. Daniel V. Taub, a clinical psychologist, and Dr. Robert W. Collier, a psychiatrist, during Wagner's hospitalization at the Springfield medical facility. Wagner's counsel made no arrangements to have Dr. Taub or Dr. Collier testify at Wagner's trial. The district court ruled that the reports were inadmissible because Wagner had repeatedly refused to comply with the court's order pursuant to Fed.R.Crim.P. 12.2(c) that he submit to an examination by the government's psychiatrist.
The jury convicted Wagner of both first degree murder and conveying a weapon in a federal institution. The district court sentenced him to concurrent life and ten-year sentences, with both to be served consecutively to Wagner's sentence for bank robbery. When Gouveia was reversed by the Supreme Court, the government successfully appealed the district court's dismissal of the counts relating to the Sargis homicide, but ultimately dropped the charges in light of the sentence Wagner received for the Austin murder. In addition to bringing this direct appeal, Wagner has filed a petition to vacate sentence pursuant to 28 U.S.C. Sec. 2255 (1982) alleging that he was deprived of his sixth amendment right to the effective assistance of counsel. The district court has stayed the section 2255 proceeding pending the outcome of this appeal.
Although Wagner's attack on Austin occurred on August 2, 1981, Wagner was not indicted until February 15, 1983, almost eighteen months later. Wagner contends that this preindictment delay hampered his defense preparation and thus denied him his fifth amendment right to due process of law. However, in order to block a prosecution because of preindictment delay, "the defendant must first show actual, nonspeculative prejudice resulting from the delay." United States v. Rogers, 722 F.2d 557, 561 (9th Cir.1983), cert. denied, 469 U.S. 835, 105 S.Ct. 129, 83 L.Ed.2d 70 (1984). Upon a showing of prejudice, the court must consider the length of and reasons for the delay. Id. We review the district court's denial of a motion to dismiss for pre-indictment delay for an abuse of discretion. Id.
Wagner claims that the delay prevented him from collecting evidence of (1) other inmates' perceptions of him at the time of the killing (relevant to Wagner's sanity), (2) the racial tension within the prison at the time of the killing (relevant to Wagner's claim of paranoia), and (3) a prison regulation requiring guards to have prisoners stand away from grille doors when the doors are opened (relevant to Wagner's premeditation.) The record, however, contains no support for Wagner's assertion that he and his counsel were not later able to collect this evidence effectively. Wagner has not identified any witnesses or documents that were rendered unavailable because of the delay, and he has thus failed to demonstrate the threshold requirement of actual prejudice. It is therefore unnecessary for us to consider the length of and reasons for the pre-indictment delay.
The events preceding Wagner's request for a continuance on the day of trial require a lengthy explanation. On June 6, 1983, at the request of Wagner's counsel, the district court ordered that Wagner be examined by a court-appointed psychiatrist, ...
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