United States v. Barber, Crim. A. No. 1926.

• Citation: 303 F. Supp. 807
• Decision Date: 22 August 1969
• Docket Number: Crim. A. No. 1926.
• Parties: UNITED STATES of America, Plaintiff, v. James Allen BARBER et al., Defendants.
• Court: U.S. District Court — District of Delaware

303 F. Supp. 807

UNITED STATES of America, Plaintiff, v. James Allen BARBER et al., Defendants.

Crim. A. No. 1926.

United States District Court D. Delaware.

August 22, 1969.

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F. L. Peter Stone, U. S. Atty., and Norman Levine, Asst. U. S. Atty., Wilmington, Del., for the United States.

L. Coleman Dorsey, Wilmington, Del., for defendant Steven Eric White.

Richard E. Poole, Wilmington, Del., for defendant Calvin Jerome Loper.

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

Henry A. Wise, Jr., Wilmington, Del., for defendant William H. Robinson.

OPINION

LATCHUM, District Judge.

This criminal action¹ was instituted by the United States against thirteen defendants charging them with identical violations of 18 U.S.C. §§ 111, 2, 372 and 752(a). These charges were brought as a consequence of an attack by a group of men against Special Agents of the Federal Bureau of Investigation, Frank W. Grant and James B. Snyder, after they had arrested Robert L. Barber as an Army deserter. The attack occurred at the intersection of Twenty-second and Pine Streets, Wilmington, Delaware on October 29, 1968, while the agents were taking their prisoner to their automobile.

Count 1 charged the defendants with violation of 18 U.S.C. § 111, in that they wilfully and by means of a dangerous weapon forcibly assaulted, opposed, impeded and interfered with Special Agent Grant, and also aided and abetted such acts, in violation of 18 U.S.C. § 2. Count 2 charged the defendants with similar acts against Special Agent Snyder, but did not charge the use of a dangerous weapon. Count 3 charged that the defendants conspired to prevent by force, intimidation and threats the two agents from discharging their official duties, in violation of 18 U.S.C. § 372. In the same count, it was charged that the defendants, in furtherance and as part of the conspiracy "by an overt act of force, intimidation and threats did prevent" the agents from retaining custody of Robert Lewis Barber, whom they had arrested and held in custody. Count 4 charged that the defendants "did rescue, and did instigate, aid and assist the escape of Robert Lewis Barber, who had been theretofore lawfully arrested and was being then and there held in lawful custody" by the agents, in violation of 18 U.S.C. § 752(a).

The jury returned guilty verdicts against eight of the defendants and acquitted three.² One of the thirteen defendants failed to appear for trial.³ A directed verdict of acquittal was granted by the Court to David Smoke at the close of the government's case.

The jury found defendants Steven Eric White guilty of Counts 3 and 4; Calvin Jerome Loper guilty of Counts 1, 2, 3 and 4; Manuel Brunswick guilty of Counts 2 and 4; and William H. Robinson guilty of Counts 1, 2, 3, and 4. Each of these latter four defendants has now filed motions for judgment of acquittal and for a new trial.

The standards governing motions for acquittal and for a new trial on the grounds of insufficient evidence are stated in United States v. McGonigal, 214 F. Supp. 621, 622 (D.Del.1963):

"The test applicable to a motion for judgment of acquittal is somewhat different from that applicable to a motion for a new trial. In the former, the Court scrutinizes the evidence including reasonable inferences to be drawn therefrom, from the point of view most favorable to the government and assumes the truth thereof. If there is substantial evidence justifying an inference of guilt, irrespective of the evidence adduced by the defendant, the Court must deny the motion. In the latter, where the ground is that the verdict is contrary to the weight of the evidence, the Court weighs the evidence of both sides, considers the credibility of the witnesses, and if the verdict is against the weight of the evidence a new trial must be granted."

Rule 33, Fed.R.Crim.P., provides generally that the court on motion of a defendant may grant a new trial to him if required "in the interest of justice."

Defendant Steven Eric White

Defendant White asserts there was insufficient evidence that he conspired with others to prevent the agents from discharging their official duties or that he helped Barber to escape. The testimony of three witnesses — Agent Snyder, Deborah Price and T. Willey McCreedy — implicated White in the acts of conspiracy and of aiding the prisoner to escape. A review of this cumulative evidence indicates that there was sufficient evidence for the jury to convict White on these counts.

Agent Snyder made what the Government asserts is an in-court identification of the defendant White as being in the group of males who blocked the agents' passage to their automobile. The actual words of Agent Snyder when making his purported in-court identification were that the defendant White appeared "very similar" to an individual whom he observed in the group, (Tr. 321),⁴ and that White "resembles, strongly resembles someone who I observed in the group." (Tr. 322). Snyder said that his statement that White was very similar in appearance was based on White's stature, build and facial characteristics. (Tr. 382-383).

Deborah Price stated that she remembered that Steven White was in the fight. (Tr. 781). On direct examination, she testified that she remembered seeing a picture of White and realizing from the picture that he was at the scene of the attack. (Tr. 782-783). Deborah Price's testimony as to her contact with White before the attack, however, admittedly was contradictory. On direct examination, she said that although White was a friend of her older brother (Tr. 782) and although this brother told her a lot about him, the witness said that she had not actually seen White at her house and did not know him before the fight. (Tr. 781). On cross-examination, however, the witness testified that her brother had introduced her to Steven White. (Tr. 863). Further, at trial, in pointing out a person she identified as White, she actually pointed out the defendant Robinson.

The defendant White asserts that after Deborah Price's misidentification of Robinson as White, her testimony "no longer had probative value" and therefore, should have been stricken. This in-court misidentification, as well as her conflicting statements about her knowledge of White before the fight, however, go to the weight and not the admissibility of her testimony. The value of Deborah Price's testimony with regard to White is not, as a matter of law, worthless. Her testimony was properly admitted. It was for the jury to evaluate her testimony, and give to it the weight which the jury felt appropriate. It was not error, therefore, to refuse to strike the testimony of Deborah Price because of her in-court misidentification.

Witness Twilley McCreedy testified that he saw White running from the scene and also made an in-court identification (Tr. 1048-1050). He then stated that the person he saw running by resembled White but he was not presently sure it was White. (Tr. 1103). He later said on cross-examination that he does not have a photographic memory of someone he has seen, but he thought it was White who was running by his truck. (Tr. 1111). McCreedy also had identified White at a lineup. McCreedy had stated on cross-examination that he had not picked the defendant White out of a lineup, but after refreshing his recollection, testified that he had identified White in a lineup. (Tr. 1119-1120).

White asserts that the testimony of the witnesses Price and McCreedy is insufficient to establish beyond a reasonable doubt that White conspired with others or helped Barber escape.

White argues, and the Government agrees, that more than a mere resemblance is necessary for identification testimony in order to take the question of identification to the jury and to establish guilt by reason of that identification beyond a reasonable doubt. Here, however, we have more than testimony of a mere resemblance. Twilley McCreedy testified directly that he saw White run from the scene. Although he later expressed a certain lack of certainty that it was White, he did say he thought it was White. Such a lack of positiveness in identification does not destroy the value of the identification, but goes to the weight of the testimony. Agent Snyder's testimony was not testimony of a mere resemblance. He testified that White strongly resembled a man in the group based on his stature, build and facial characteristics. Deborah Price's testimony placing White in the affray could also be considered by the jury for what it was worth.

A review of the evidence shows that the jury's verdict was not against the weight of the evidence.

White also urges that he was prejudiced by an allegedly unfair comment made by the prosecuting attorney during summation. The prosecutor stated: "Counsel questioned the manner in which the witness McCreedy made the in-court identification of White," and then read to the jury from page 1049 of the trial transcript the portion of McCreedy's testimony where he positively identified White. (Tr. 2377). White states that the prosecutor was trying to show that White's counsel was attempting to mislead the jury. This argument lacks merit. White's counsel in effect did question McCreedy's manner or way of making his in-court identification of White. He reviewed McCreedy's testimony, where he had been, what he had been doing and the circumstances under which he identified or was able to identify White. (Tr. 2232-2233). For example, counsel for White said, "So it is unlikely that he McCreedy was really paying close attention to the people who were running down the street." (Tr. 2233).

White has also moved for a new trial on the basis of newly-discovered evidence. White's motion seems to be a direct result of a similar motion made by defendant Brunswick, to be dealt with below. Brunswick has produced affidavits of James Allen Barber and Warren Mowbray, co-defendants with Brunswick and...