United States v. Barber

Citation442 F.2d 517
Decision Date14 April 1971
Docket NumberNo. 18304-18307 and 18309-18311.,18304-18307 and 18309-18311.
PartiesUNITED STATES of America v. James Allen BARBER, Appellant in 18304 et al. Appeal of Warren Hilman MOWBRAY, Appellant in No. 18305. Appeal of Robert TATE, Appellant in No. 18306. Appeal of Steven Eric WHITE, Appellant in No. 18307. Appeal of Manuel Teddy BRUNSWICK, Appellant in No. 18309. Appeal of Allan STEED, Appellant in No. 18310. Appeal of William H. ROBINSON, Appellant in No. 18311.
CourtU.S. Court of Appeals — Third Circuit

COPYRIGHT MATERIAL OMITTED

William Prickett, Prickett, Ward, Burt & Sanders, Wilmington, Del., for James Allen Barber.

Wilfred J. Smith, Jr., Wilmington, Del., for Warren H. Mowbray.

Arthur J. Sullivan, Wilmington, Del., for Robert Tate.

L. Coleman Dorsey, Wilmington, Del., for Steven E. White.

Louis L. Redding, Wilmington, Del., for Manuel T. Brunswick.

Ernest S. Wilson, Jr., Wilmington, Del., for Allan Steed.

David T. Dana, III, Wilmington, Del., for William H. Robinson.

Norman Levine, Asst. U. S. Atty., Wilmington, Del., F. L. Peter Stone, U. S. Atty., for appellee.

Before McLAUGHLIN, FREEDMAN* and ALDISERT, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Before us are seven appeals from convictions resulting from an attack upon two agents of the Federal Bureau of Investigation.1 The four-count indictment charged the defendants with (1) assault, or aiding and abetting an assault, with a dangerous weapon (a shoe) upon special agent Frank W. Grant, in violation of 18 U.S.C. § 111; (2) assault, or aiding and abetting an assault, upon special agent James D. Snyder, also in violation of § 111; (3) conspiring to prevent these agents from performing their duties, in violation of 18 U.S.C. § 372; and (4) assisting their prisoner, Robert Barber, to escape, in violation of 18 U.S.C. § 752. Following a three-week trial, the jury returned the following verdicts on the charges against the present appellants.

                                    Count 1         Count 2          Count 3         Count 4
                                                                   Conspiring to
                                 Assault with a     Assault       prevent agents     Assisting
                                dangerous weapon     upon         from performing       in
                  Defendant        upon Grant       Snyder         their duties       escape
                James Allen       Guilty to         Guilty            Guilty          Guilty
                  Barber          lesser offense
                                  of assault
                Warren Hilman     Guilty as         Guilty            Guilty          Guilty
                  Mowbray         charged
                Robert Tate       Guilty to         Not guilty        Guilty          Guilty
                                  lesser offense
                                  of assault
                Steven Eric       Not guilty        Not guilty        Guilty          Guilty
                  White
                Manuel Teddy      Not guilty        Guilty            Not guilty      Guilty
                  Brunswick
                Allan Steed       Guilty as         Not guilty        Guilty          Guilty
                                  charged
                William H.        Guilty as         Guilty            Guilty          Guilty
                  Robinson        charged
                

From the multitude of arguments pressed and considered in these consolidated appeals, we have decided that the following questions deserve detailed discussion and analysis:

1. Was there sufficient evidence to sustain the various convictions?

2. Was there a proper instruction on identification?

3. Were defendants deprived of due process by being denied a fair trial by an impartial jury free from outside influence?

4. Did the district court abuse its discretion in denying the several motions for severance?

This court has previously discussed the facts giving rise to the indictment:

The record shows that during the afternoon of October 29, 1968, special agents Frank Grant and James Snyder of the Federal Bureau of Investigation engaged in a search for an Army deserter in Wilmington, Delaware. The alleged deserter was apprehended in the home of his mother at 2209 Pine Street, Wilmington, at approximately 3:30 p. m. As the agents left the house with their prisoner and turned up Pine Street toward their car on Twenty-second Street, a group of approximately fifteen men walked down Pine Street toward them and came face to face with them at or near the corner of Twenty-second and Pine. The agents walked to within five feet of the group and stopped briefly. Grant removed his credentials from his pocket, held them out before him and stated, "F.B.I. We have a man in custody. Make room for us to pass." The group was informed that the prisoner was a deserter being returned to the Army, and warned that anyone interfering would be arrested for assaulting a Federal officer. Immediately after saying this, the agents proceeded forward and were attacked by several individuals from the group.2 In the course of the affray, which lasted only a few minutes, agent Grant was knocked down and kicked severely on the side of the face and the prisoner escaped.

429 F.2d 1394, 1395 (1970). Footnote 2 states: "The testimony indicates that three or four persons assaulted each officer." To these facts we add that the record indicates that while agent Grant was knocked down and kicked, agent Snyder was seized upon, punched, and forcibly spread across the hood of an automobile.

I

We have no difficulty in concluding there was sufficient evidence to sustain the convictions of appellants Barber and Mowbray. Barber's uncle testified that Barber was fighting with agents Grant and Snyder. Grant positively identified Barber as being in front of the group approaching them. Debbie Price identified Barber and Mowbray as actually doing the fighting, and said Mowbray and Brunswick were holding the arms of one of the agents while Barber was hitting him. Howard Faulkner stated that Barber and Mowbray were in "the bunch of boys" who assaulted the agents.

Catherine Butler Wright testified that Mowbray was punching the agent who was on the ground (Grant). Dora Faulkner said Mowbray forced Snyder across the hood of a black car, "bending him back." Howard Faulkner placed Mowbray with Barber when agent Grant was kicked in the head. Mrs. Caroline Parker saw Mowbray standing over Grant. In sum, there was ample evidence to support convictions of Barber and Mowbray on all counts of the indictment involving, and arising from, the actual assaults on both agents, and the subsequent escape of their prisoner.

Similarly, we are satisfied that the conviction of appellant Robinson must be upheld. Agent Snyder testified that Robinson was standing in front of him and that he pushed Robinson up to the wall because

at that time I thought that was the guy that had me around the neck. * * * While at the time I pushed him toward the wall and told him to put his hands up and stay there, he put his hands up and stood towards the wall facing the wall, but he had his head turned toward me looking at me. And I had drawn my service revolver. And simultaneously with this I was hit from behind and picked up in the air. And the person I have identified as Robinson turned off the wall and came toward me. And I was held up in the air. And I remember I tried to hit him with my service revolver. And the next thing I remember I was on the hood of a car, spread out on the hood of a black car that was parked on the opposite side of Twenty-second Street that the bureau automobile was parked.

Debbie Price placed Robinson in the fight although she identified him by name as "Steven White." Twilly McCready identified Robinson as one of the men kicking the agent who was on the sidewalk (Grant).

Appellant Steed, also known as "Bop Daddy," was acquitted of the Snyder assault but found guilty on Counts 1, 3 and 4. Catherine Wright identified him as one of the men in the group. As a hostile witness she conceded that "Bob Daddy" had been fighting agent Grant. Debbie Price also said Steed was doing the fighting, and that he was holding Grant on the ground, "holding his legs, holding the ankles." Charles Price testified that Steed and Mowbray were beating Grant and that Steed was punching and kicking.2

Steed argues that Charles' direct testimony is completely without inculpatory force because Charles did not name him as one of the four attackers of Grant he identified in a written statement to the F.B.I. on the night of October 29. After testifying that Steed's name was not on the list given to the F.B.I., he was asked on cross-examination:

Q. Is it still your testimony, Charles, that at no time did you see more than four men beating on or fighting with the F.B.I. agent on the northwest corner of 22nd and Pine Streets?
A. Yes.
Q. Only four?
A. Yes.
Q. And the four men\'s names are listed in this statement, is that correct?
A. Yes.

In approaching this contention, we take as a starting point the settled principle that "it is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts." Tennant v. Peoria & P. U. Ry. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520 (1944); see also Renault v. L. N. Renault & Sons, 188 F.2d 317 (3 Cir. 1951). Even where the different parts of a witness' testimony are inconsistent, "it is for the jury to reconcile the conflicting statements and determine which shall prevail." Greene v. City of Philadelphia, 279 Pa. 389, 392, 124 A. 134, 135 (1924); Luckenbach v. Egan, 418 Pa. 221, 210 A.2d 264 (1965).

These are cases which hold that "when a witness says in one breath that a thing is so, and in the next breath that it is not so, his testimony is `too inconclusive, contradictory, and uncertain to be the basis of a legal conclusion.'"3 But even those cases in which the court has been permitted to invade the jury's exclusive province of determining credibility, the justification appears to be based on the determination that the...

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