United States v. Koenig, 14589-14591.

• Decision Date: 14 March 1962
• Docket Number: No. 14589-14591.,14589-14591.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. KOENIG and Charles Forest Waugaman, Defendants-Appellants. UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. KOENIG, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Charles Forest WAUGAMAN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

300 F.2d 377 (1962)

UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. KOENIG and Charles Forest Waugaman, Defendants-Appellants.

UNITED STATES of America, Plaintiff-Appellee, v. Daniel J. KOENIG, Defendant-Appellant.

UNITED STATES of America, Plaintiff-Appellee, v. Charles Forest WAUGAMAN, Defendant-Appellant.

Nos. 14589-14591.

United States Court of Appeals Sixth Circuit.

March 14, 1962.

Eugene L. Matan, Gareff, Matan & Janes, Columbus, Ohio, for appellants.

Edward J. Lee, Dept. of Justice, Washington, D. C. (Herbert J. Miller, Jr., Asst. Atty. Gen., Joseph P. Kinneary, U. S. Atty., Columbus, Ohio, on the brief), for appellee.

Before MARTIN and WEICK, Circuit Judges, and DARR, District Judge.

MARTIN, Circuit Judge.

Appellants in these consolidated appeals, Daniel J. Koenig and Charles Forest Waugaman, were jointly convicted by jury verdict of conspiracy in violation of Title 18, section 751, United States Code. They were charged with conspiring to escape from federal custody in the Columbus, Ohio, City Jail; and were convicted separately of attempting to escape from the custody of the federal section of the Columbus City Jail, where each was confined on a felony charge by virtue of due federal process. Each appellant was sentenced to imprisonment for a total period of ten years.

We find no merit in the contentions of appellants based on the following respective averments: (1) that the indictments did not adequately apprise appellants of the elements of the crime charged so as to protect them from being charged again with the same offenses; (2) that the trial court abused its discretion in refusing to grant bills of particulars, as requested by the defendants; (3) that the trial judge erred in denying a change of venue because of pre-trial publicity; (4) that the trial court abused its discretion in denying a motion for continuance, based upon alleged insufficiency of time for preparation of the trial because of adverse pre-trial publicity, and the alleged improper setting of the cases for trial.

That the indictments were adequate to apprise defendants of the charge against them and to protect them against double jeopardy is supported by authority. See Gibson v. United States, 244 F.2d 32 (C.A. 4); Wilson v. Hudspeth, 106 F.2d 812 (C.A. 10).

For authority that there was no abuse of discretion by the trial court in refusing to grant a bill of particulars, see Wong Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545; Cottingham v. United States, 228 F.2d 904, 905 (C.A. 6).

The trial judge committed no error in refusing to grant a change of venue. See Butzman v. United States, 205 F.2d 343, 350 (C.A. 6), certiorari denied 346 U.S. 828, 74 S.Ct. 50, 98 L.Ed. 353; Spaeth v. United States, 254 F.2d 924 (C.A. 6), certiorari denied 358 U.S. 831, 79 S.Ct. 52, 3 L.Ed.2d 69.

That the trial court did not commit an abuse of discretion in denying the motion for continuance is supported by the principles of the following cases, among others: Rogers v. United States, 128 F.2d 973, 974 (C.A. 5); Franken v. United States, 248 F.2d 789, 790 (C.A. 4), certiorari denied 355 U.S. 956, 78 S.Ct. 541, 2 L.Ed.2d 532; United States v. Moran, 194 F.2d 623, 625 (C.A. 2), certiorari denied 343 U.S. 965, 72 S.Ct. 1058, 96 L.Ed. 1362; Finnegan v. United States, 204 F.2d 105, 110 (C.A. 8), certiorari denied 346 U.S. 821, 74 S.Ct. 36, 98 L.Ed. 347.

In the trial of the case, however, the United States District Judge overstepped the bounds of judicial propriety on numerous occasions to the extent that, in our considered judgment, the appellants were denied a fair trial which is guaranteed to them by the Constitution. The flagrant instance was the action of the Court in its attitude and remarks, when appellant Charles Forest Waugaman was on the stand. The witness stated that a fellow prisoner (Massey) had approached him, asking if he would like to break out of the Columbus City Jail; that the defendant told him "No." Whereupon, Massey "went into some detail of some vague plan he had."

The Court interrupted: "You just tell what he said. You don't need to describe detailed and vague plans. Tell us what was said, if anything. We are not going to sit here for three days and listen to a long tedious story which is not material, like your co-defendant gave us, Mr. Koenig. We want the facts in this case and we want the truth."

The befuddled defendant questioned: "Just exactly what am I supposed to say, sir?"

The defendant testified that he had been approached by Massey six, seven or eight times — at least more than six. His lawyer asked if he would relate any conversations had with Massey; but the Court cut the witness off by saying: "He hasn't said he had any conversations."

In adjourning the session, the Judge stated to the jury: "The Court feels it has a duty at this time to admonish the jury that you are trying this case solely upon the evidence adduced on the witness stand and the law as given you by this Court. The Court will specifically instruct you that you are not to pay any attention whatever to any crying scenes put on in this courtroom by either of the defendants. You are not to be influenced by things of that character. You have a sworn duty to try the case on the evidence and the law alone, not on sympathy or sentiment. So I will instruct you to disregard the crying scene put on by the defendant Koenig just before the recess."

When the defendant, Waugaman, resumed the stand the trial judge cross-examined him vigorously as to his knowledge of a conspiracy for prison breach. The witness said he had heard something about it but did not believe the gossip. The judge pressed him as to whether his co-defendant Koenig's statement was truthful regarding the talk in corridors concerning prisoners. Waugaman replied that he could not testify as to Koenig's testimony, but could testify only to his own.

The Court interrupted: "You heard his testimony?" The witness repeated, "I can't testify for Mr. Koenig."

The Court again pressed him to state whether he had heard Koenig's testimony. Waugaman answered that he had. The Court then asked: "Did you hear his statement about it was common knowledge among all the prisoners * * * that they were planning an attempt to break?"

Defendant Waugaman admitted that he had heard the statement made by Koenig; and the judge asked: "Then, you did know something about it?" The defendant replied: "No, sir, I did not."

Counsel intervened to explain, when the judge shut him off with the remark: "He has admitted he knew about it."

Appellant Waugaman stated: "I did not admit I knew about it."

The judge said: "You heard it, didn't you?" To this, Waugaman answered: "I thought it was a joke, sir. I did not take it seriously."

The judge's attitude was very antagonistic toward appellant's counsel. He admonished attorney Matan to "object and otherwise keep still." In another of his frequent colloquys with the defendant, the judge pointed out that Waugaman had fired the lawyer appointed by the Court to defend him; and asked defendant if it were not a fact that he could probably have had a trial on the bank robbery charge, if he had not caused so many delays. Attorney Matan objected to "all this."

The District Judge then commented: "He can't throw smoke in the eyes of this jury and the Court on situations which are untrue. The Court has something to say about this. This man was brought into Court. He didn't have counsel and the Court offered to appoint counsel. The Court did appoint counsel for him and later on he fired his counsel and then you come in with a Texas lawyer and a Miami lawyer."

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