United States v. Escamilla, 71-1575.

• Decision Date: 17 August 1972
• Docket Number: No. 71-1575.,71-1575.
• Citation: 467 F.2d 341
• Parties: UNITED STATES of America, Appellee, v. Mario Jaime ESCAMILLA, Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

467 F.2d 341 (1972)

UNITED STATES of America, Appellee, v. Mario Jaime ESCAMILLA, Appellant.

No. 71-1575.

United States Court of Appeals, Fourth Circuit.

Argued June 7, 1972.^*

Decided August 17, 1972.

COPYRIGHT MATERIAL OMITTED

Francis X. Grossi, Jr., Washington, D. C. (William E. McDaniels and Williams, Connolly & Califano, Washington, D. C., on brief), for appellant.

Brian P. Gettings, U. S. Atty. (Justin W. Williams, Asst. U. S. Atty., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WINTER, CRAVEN, BUTZNER, RUSSELL and FIELD, Circuit Judges, sitting in banc.

WINTER, Circuit Judge:

Defendant, Mario Jaime Escamilla, was convicted of involuntary manslaughter, in violation of 18 U.S.C.A. § 1112, perpetrated on Fletcher's Ice Island T-3, an unclaimed island of ice in the Arctic Ocean, and sentenced to imprisonment for three years. In his appeal, his first contention that the district court was in error when it ruled that the special maritime and territorial jurisdiction of the United States extended to crimes committed on T-3 is one upon which the in banc court is equally divided and so we affirm the district court's exercise of jurisdiction. We agree, however, that there were errors in his trial, and so we reverse the judgment of conviction and remand the case for retrial.

I

T-3 is an island of glacial ice, composed of approximately 99% ice and less than 1% land matter, which meanders slowly about the general area of the Arctic Ocean.¹ First sighted by an American in 1947, T-3 has been occupied since 1952 under the auspices of the United States Government, particularly the Departments of the Air Force and Navy, except for part of the years 1961-1962 when the island was grounded on the coastline of Alaska near Point Barrow. T-3 is used as a research station—a platform for scientific study, and it is particularly well suited for this purpose because of its controlled environment and its unique stability. The research operations on T-3 are supported by the Naval Arctic Research Laboratory, funded by the Office of Naval Research, under contract to the United States Government. The laboratory supplies equipment and materials and designates a person to be the station manager of the group of men on the island. Personnel from several entities man the island—United States Geological Survey, Lamont Geological Laboratories, University of Washington, University of California, and the General Motors Defense Research Laboratory.

Discipline and order on the island depend upon the cooperation of all of the men and the effectiveness of the group leader, particularly in the summer months when it is virtually impossible to remove any wrongdoer from the ice. There are no medical facilities on the island, no doctor and, indeed, during the summer of 1970, no person trained in any aspect of medical science.

In May of 1970, a group of men arrived on T-3 expecting to remain there until late September or early October. Included were (a) the deceased, Bennie Lightsey, an employee of the United States Weather Bureau, who had been designated as station manager by the Arctic Research Laboratory, (b) the defendant, an employee of General Motors Defense Research Laboratory, (c) Donald Leavitt, who was an employee of the Arctic Research Laboratory, and whose nickname was "Porky," and (d) sixteen others. During the summer an acute problem arose from Porky's excessive drinking and resultant uncontrolled behavior. Prior to July 16, 1970, the date on which Lightsey was killed, Porky, at least three times, attacked various personnel at the station, including defendant, with butcher cleavers, mainly in an effort to obtain access to alcoholic beverages.

On July 16, while defendant was working at the General Motors camp, approximately one mile from the main camp where he lived in a trailer, he received a telephone call from his roommate, Charles Parodi, who told him that Porky was drunk and had taken some wine from their trailer. It should be noted that locked doors on T-3 were unknown because of potential fire hazard. Parodi pleaded with defendant to return to the trailer and defendant undertook to do so. He took with him a rifle selected from the common store to protect himself from the drunken Porky when he arrived back at the camp and later he loaded it. When defendant returned to the trailer he left his rifle and went to the next trailer to warn Porky to stay away from the raisin wine which was stored in defendant's trailer. Defendant found Porky and the station manager, Lightsey, consuming 190 proof Ethyl alcohol cut with grape juice and home made raisin wine.² Defendant then returned to his trailer and soon thereafter heard footsteps approaching. Believing that it was Porky, he raised the rifle, put the safety off, opened the bolt, and assuring himself that the rifle was loaded, returned the bolt to the firing position and pointed the gun at the door. It was not Porky, but Lightsey, who entered the trailer.

A discussion of increasing intensity then ensued between the two over whether or not Porky should be allowed some of defendant's raisin wine. Parodi was present for part of the discussion, but after he left defendant ordered Lightsey out of the trailer, waving the gun back and forth at him. The gun discharged and Lightsey was hit. Lightsey died a short time after the wound, despite the efforts of members of the camp, including defendant, to save him. There was no witness to the actual shooting, except the two participants, but there was evidence, on which the defense heavily relied, that the rifle was defective in an unforeseeable but most deadly way, i. e., it could be discharged without pulling the trigger by banging it, by dropping it, by putting the safety on and off, by ramming the bolt handle down, and by applying slight pressure to the bolt handle when holding it.

II

Aside from his jurisdictional contention which we are unable to decide, defendant contends that these reversible errors were committed: (a) the district court abused its discretion in declining to transfer the trial from the Eastern District of Virginia to the Central District of California, the district within which defendant maintained his permanent residence;³ (b) the district court failed to charge the jury correctly on the necessary elements of the crime of involuntary manslaughter and self-defense; (c) the district court improperly failed to conduct a hearing as to whether the witness Charles Parodi had given a statement to which defendant was entitled to access under the Jencks Act, 18 U.S.C.A. § 3500; and (d) the district court improperly and prejudicially limited defendant's use of character witnesses.

We see no merit in the contention that the district court abused its discretion in refusing to transfer the case. The pathologist, the ballistic experts and the government investigators, who would testify for the government, all had a regular place of business within the Eastern District; and the government agreed to produce all witnesses who had been on T-3 within the Eastern District at government expense. The only witnesses who had no connection with the Eastern District, or who would not be produced within the Eastern District at government expense, were character witnesses who might be called by defendant. We do not doubt that the testimony of a character witness may be more persuasive within the district where he resides than without, but this is only one factor to be considered in the weighing of conveniences attendant upon decision of a motion to transfer. When all of the factors are considered, including the enormous inconvenience to the government of trying the case in the Central District of California, we cannot find any abuse of discretion on the part of the district court in denying the transfer.

Similarly, we see no merit in defendant's Jencks Act contention. The witness Parodi testified, out of the presence of the jury, that he only spoke briefly to an investigating agent, that the agent took very few notes, and that the witness signed nothing. The district court offered to permit defendant to interrogate the agent, but defendant declined to avail himself of the opportunity. The district court's finding that there was no statement producible under the Act was certainly not clearly erroneous and there was no need for further hearing.

We turn therefore to defendant's remaining contentions.

III

In regard to the crimes of voluntary and involuntary manslaughter, the district court's charge is set forth in the margin.⁴ When the jury, after it had begun its deliberations, asked the district court to redefine manslaughter, the district court granted the request and gave an additional charge set forth below.⁵

We agree with defendant that nowhere in either charge did the district judge tell the jury that they must find, as a necessary element of involuntary manslaughter by the commission of a lawful act without due caution and circumspection, that defendant must be shown to have actual knowledge that his conduct was a threat to the lives of others. In United States v. Pardee, 368 F.2d 368 (4 Cir. 1966), we had occasion to discuss the crime of involuntary manslaughter.⁶ After concluding that it requires proof of gross negligence, and not simple negligence, we added:

"Gross negligence" is to be defined as exacting proof of a wanton or reckless disregard for human life. Furthermore, to convict, the slayer must be shown to have had actual knowledge that his conduct was a threat to the lives of others, or to have knowledge of such circumstances as could reasonably be said to have made foreseeable to him the peril to which his acts might subject others. The reason of the latter comment is that awareness of the tendency to danger, or the foreseeability of injury, from the act or omission is an indispensable element of negligence. Copeland v. State, 154 Tenn. 7, 285 S.W. 565, 49 A.L.R. 605 (1926); State v. Tankersley, 172 N.C.

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