U.S. v. West

• Decision Date: 29 October 1979
• Docket Number: Nos. 78-3674,78-3675,s. 78-3674
• Citation: 607 F.2d 300
• Parties: 5 Fed. R. Evid. Serv. 518 UNITED STATES of America, Plaintiff-Appellee, v. Glen Alan WEST, Defendant-Appellant. UNITED STATES of America v. Michael Eugene RUPPEL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 300

607 F.2d 300

5 Fed. R. Evid. Serv. 518

UNITED STATES of America, Plaintiff-Appellee, v. Glen Alan WEST, Defendant-Appellant.

UNITED STATES of America v. Michael Eugene RUPPEL, Defendant-Appellant.

Nos. 78-3674, 78-3675.

United States Court of Appeals, Ninth Circuit.

Oct. 29, 1979.

Glen Alan West, Victor B. Kenton, Los Angeles, Cal., for defendants-appellants.

Andrea Sheridan Ordin, U. S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before HUFSTEDLER and GOODWIN, Circuit Judges, and HOFFMAN ^*, District Judge.

PER CURIAM:

West and Ruppel appeal their convictions on several charges stemming from an abortive escape attempt from the Federal Correctional Institution at Terminal Island, California. They raise numerous issues including: (1) Whether the trial court erred in excluding evidence of an offer of amnesty; (2) Whether the indictment should have been dismissed because of pre-indictment delay; (3) Whether the trial court erred in refusing to grant a continuance prior to the closing statement; and (4) Whether the trial court should have excluded witnesses during a pre-trial hearing. We affirm.

FACTS

On February 18, 1978, the appellants attacked prison guard Samuel Alcaraz and, after a struggle, bound and gagged him and placed him in a supply area. Thereafter, the appellants, along with two other inmates, assaulted and eventually subdued the other guard assigned to the cell block, Eugene Murrell. He was tied up and placed in a cell. Having secured the cell block, the inmates contacted prison officials by telephone, informed them that they were On July 24, 1978, a thirteen count indictment was filed against appellants and two other inmates. Both West and Ruppel were charged with seven counts. ¹ After a continuance agreed to by the defendants, the matter proceeded to a jury trial before District Judge Warren J. Ferguson on October 31, 1978. The jury returned a verdict finding appellants guilty of six of the seven counts. The Court dismissed the remaining count of assault.

holding the guards, and demanded a car to effect their escape. Associate Warden John R. Johnson refused to negotiate until the hostages were released. A few hours later, the prisoners realized that escape was impossible and began to bargain for amnesty. Johnson agreed to amnesty and safe conduct for all involved if the hostages were freed unharmed. Eventually, the hostages were freed and the inmates returned to their cells.

I. AMNESTY

The appellants contend that the offer of amnesty by prison officials in exchange for the release of the hostages constituted a contractual agreement by which the Government was bound not to seek an indictment in this case. This argument is based primarily on an analogy to the plea-bargaining principles of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), that once an agreement is reached between the Government and an accused, the Government must maintain its obligation. The district court found, however, that this agreement was induced by duress and therefore was not binding on the Government. United States v. Gorham, 173 U.S.App.D.C. 139, 148, 523 F.2d 1088, 1097 (D.C.Cir.1975). As the amnesty agreement had no bearing on the case other than as a complete defense to the charges, the district court excluded all evidence relating to the amnesty issue. ²

United States v. Gorham, supra, and its companion case, United States v. Bridgeman, 173 U.S.App.D.C. 150, 523 F.2d 1099 (D.C.Cir.1975), involved an attempted escape from the D.C. jail during which a prison official was taken hostage. Through threats of violence and physical abuse, the inmates induced the official to sign an agreement promising that there would be no reprisals of any kind, nor any court action brought by him against any of the inmates involved in the escape attempt. The appellants argued that this agreement precluded the Government from prosecuting them on charges arising from the incident. The court rejected this argument finding that the agreement promised only that there would be no administrative reprisals within the prison system, not that the inmates would not be prosecuted. The court also noted:

This conclusion is further buttressed by elementary principles of contract law, principles underlying the decision in Santobello v. New York and its progeny which appellants urge us to follow. Had a promise that prosecution would not ensue been offered to appellants, it would have . . . been voidable because of inducement by duress, and, because bargains involving the forebearance of prosecution are contrary to public policy, it would have been Nudum pactum. 173 U.S.App.D.C. at 148, 523 F.2d at 1097.

The appellants seek to distinguish Gorham arguing that the trial court had before it all the necessary facts to make a In conclusion, it is apparent from the record that any agreement for amnesty or safe conduct between prison officials and the inmates was induced by duress and the Government was not prevented from prosecuting the defendants. ⁴

determination of the issue of amnesty whereas, in the instant case, Judge Ferguson excluded all evidence of the amnesty offer before the issue of duress was properly determined. They contend that it was error for the court to make a finding of duress without hearing the testimony of Warden Grossman, whom they suggest, may have testified that the offer was not made under duress. We agree with the district court that the testimony of the two hostages supplied a sufficient basis for its finding. The evidence is clear that the prisoners intended to harm the hostages if their demands were not met. ³

II. PRE-INDICTMENT DELAY

Appellant West contends that the trial court improperly denied his motion to dismiss the indictment for lack of a speedy trial. Judge Ferguson considered the motion both before trial and at the conclusion of the Government's case-in-chief and held that any delay in the prosecution of the case did not constitute a violation of either statutory or constitutional law. West asserts that his defense was prejudiced by the delay between the incident at Terminal Island and the filing of the indictment, a period of slightly more than five months. Specifically, he claims that many witnesses were not available due to the delay and that the delay caused memories to fade, deprived him of his ability to gather evidence, and hindered his efforts to contact witnesses.

In the pre-accusatory stage of criminal proceedings, defendants are protected from undue delay by the applicable statute of limitations and the general proscriptions of the Due Process Clause. United States v. Marion,404 U.S. 307, 322-24, 92 S.Ct. 455, 465, 30 L.Ed.2d 468 (1971). In Marion, Supra, the Supreme Court held that

. . . the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused.

We applied the Marion holding in United States v. Mays, 549 F.2d 670 (9th Cir. 1977), and held that three elements must be considered in testing a claim of pre-indictment delay: (1) actual prejudice to defendants, (2) length of delay, and (3) reason for delay. 549 F.2d at 677-78; see United States v. Titus, 576 F.2d 210, 211 (9th Cir. 1978). The crucial element in the due process test established by Mays is the finding of actual prejudice to the defendants. Satisfaction of this element is a prerequisite to finding a due process violation. United States v. Titus, 576 F.2d 210, 211 (9th Cir. 1978); Arnold v. McCarthy, 566 F.2d 1377, 1382 (9th Cir. 1978). If the prejudice is allegedly due to the loss of a witness, the defendant "must show not only the loss of the witness and/or evidence but also just demonstrate how that loss is prejudicial to him." United States v. Mays, supra, at 677. Such proof must be definite and not speculative and "(t)he assertion that a missing witness might have been useful does not show the 'actual prejudice' required by Marion." Id. at 677, quoting United States v. Galardi In the instant case, the appellant asserted that the delay caused him to lose the testimony of several witnesses to the incident at Terminal Island. Judge Ferguson required appellant to make offers of proof as to what the missing witnesses would testify. The offers of proof were speculative and concerned largely irrelevant testimony. The court found that this was insufficient to establish actual prejudice. We are not persuaded that this finding was clearly erroneous. United States v. Sand, 541 F.2d 1370, 1373 (9th Cir. 1976), Cert. denied 429 U.S. 1103, 97 S.Ct. 1130, 51 L.Ed.2d 553. Since the appellant did not establish the actual prejudice required by Marion and Mays, it is unnecessary to consider the length of or the reason for the delay. United States v. Titus, supra, 576 F.2d at 212. ⁵

476 F.2d 1072, 1075 (9th Cir. 1973), Cert. denied 414 U.S. 839, 94 S.Ct. 90, 38 L.Ed.2d 75 (1973).

III. CONTINUANCE

Appellant Ruppel requested a continuance prior to his closing statement to the jury which was denied by Judge Ferguson. He argues on appeal that the judge abused his discretion to grant a continuance in light of extreme circumstances which prevented Ruppel from preparing an adequate defense. Specifically, he alleges that prison officials harassed him throughout the trial, refusing his requests for a desk or a lighted area in which to work at night. Also, he claims that he was kept up all night and he was therefore unable to make a coherent final argument.

The granting or denial of a continuance is a matter wholly within the discretion of the trial court which will not be disturbed on appeal unless that discretion is clearly abused. United States v. Hoyos, 573 F.2d 1111, 1114 (...