United States v. Hayes, 71-1165.
| Decision Date | 14 July 1971 |
| Docket Number | No. 71-1165.,71-1165. |
| Citation | 444 F.2d 472 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Fred Loyd HAYES and Kenneth Ray McMaster, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Grady Inzer, Longview, Tex., for defendants-appellants.
Roby Hadden, U. S. Atty., Tyler, Tex., David J. W. Vanderhoof, Monica Gallagher, Attys., Crim. Section, Civil Rights Div., Dept. of Justice, Washington, D. C., Jerris Leonard, Asst. Atty. Gen., David L. Norman, Deputy Asst. Atty. Gen., Robert S. Greenspan, Atty., Civil Rights Div., U. S. Dept. of Justice, Washington, D. C., for plaintiff-appellee.
Before AINSWORTH, INGRAHAM and RONEY, Circuit Judges.
Appellants, Hayes and McMaster, have appealed their conviction on a two-count indictment in connection with dynamiting of 33 Longview School District buses on July 4, 1970. They are charged first with violation of 18 U.S.C. § 241 relative to conspiracy to injure a citizen in the free exercise of any right secured under the Constitution or laws of the United States, to-wit, the right to attend school without regard to race or color, pursuant to which defendants dynamited the School District's buses to prevent transportation of Negro students to school; and secondly, with violation of 18 U.S.C. § 1509 relative to a wilful attempt by threats or force to interfere with the exercise of rights under any decree of a court of the United States in that they interfered with the School District by dynamiting its buses and preventing the transporting of Negro students to school.
Appellants were part of a group of white residents of Longview, Texas, who allegedly feared a "revolution" of black members of the community, and were concerned with events in connection with public school integration. The group met frequently to discuss and prepare for their defense against the purported forthcoming Negro uprising. Lethal weapons, such as cannon, mortar, hand grenades, Molotov Cocktails, gun powder, and dynamite, were secured by the group for future use. The ammunition was secreted in large quantities in appellant Hayes' garage and at an outlying farm area. Several experiments were conducted by members of the group in the use of the explosives.
At the trial evidence was adduced through fellow members of the Longview group and other Longview residents about appellants' participation in the conspiracy to prepare for the counterattack. It was shown that defendant Hayes, on June 25, 1970, dynamited a house purchased by a Negro woman in a white neighborhood. There was also testimony that defendant Hayes and one of the coconspirators constructed "booby traps" by placing dynamite in flashlight cases, wiring an electric cap to a battery which was then connected to the flashlight switch. The device was designed to explode when the switch was turned on. Hayes, McMaster and two coconspirators then took the devices and drove to a Negro residential neighborhood in Nacogdoches, Texas, where Hayes and one of the other men placed two of the "booby traps." The evidence also showed that following the issuance of a federal court order by Judge Fisher on June 17, 1970, approving the busing of Negro students to all-white schools, appellants and other members of the group formulated a plan to impede the transportation of the students to the Longview schools by dynamiting the buses. The plan was carried out and on July 4, 1970, under cover of darkness, charges of dynamite were set beneath the buses and exploded, causing serious damage to the vehicles and the parking area.
Appellants contend that evidence relative to extraneous events prior to the bus bombings, which we have heretofore discussed, was inadmissible.
Evidence of bombing of the dwelling and the placing of "booby trap" flashlights was properly admitted for the purpose of proving a consistent pattern of conduct relevant to the issue of intent. United States v. Pittman, 5 Cir., 1971, 439 F.2d 906; United States v. Justice, 5 Cir., 1970, 431 F.2d 30, 32-33; United States v. Smith, 5 Cir., 1970, 433 F.2d 1266, 1270; Gilstrap v. United States, 5 Cir., 1968, 389 F.2d 6, 9. The incidents referred to were closely related in time and character to the school bus dynamiting incident. See United States v. Justice, supra; Miller v. United States, 5 Cir., 1968, 397 F.2d 272, 273; Lindsey v. United States, 5 Cir., 1955, 227 F.2d 113, 117.
Appellants also urge that error was committed by alleged prejudicial remarks of the prosecutor in his final argument to the jury. He remarked that a child had asked him, "Why did those...
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