United States v. Lepiscopo

• Decision Date: 18 April 1972
• Docket Number: No. 71-1379.,71-1379.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ralph Michael LEPISCOPO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

458 F.2d 977 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Ralph Michael LEPISCOPO, Defendant-Appellant.

No. 71-1379.

United States Court of Appeals, Tenth Circuit.

April 18, 1972.

Ralph Michael Lepiscopo, pro se.

Robert J. Roth, U. S. Atty., and Richard L. Meyer, Asst. U. S. Atty., on brief, for plaintiff-appellee.

Before LEWIS, Chief Judge, DOYLE, Circuit Judge, and WINNER, District Judge.

PER CURIAM.

The appellant Lepiscopo was tried before a jury in the District Court for the District of Kansas and found guilty of a violation of 18 U.S.C. § 1792, conveying from place to place within a United States penitentiary a weapon designed to kill, injure or disable any officer, agent, employee or inmate. The appellant was confined in the federal penitentiary at Leavenworth, Kansas at the time of the offense. The weapon involved was a knife made from a 12-inch piece of 1/8-inch steel sharpened to a point on one end and wrapped with string and tape for a grip at the opposite end, clearly a weapon within the meaning of the statute.

Throughout the proceedings in this case the appellant conducted his own defense. He steadfastly refused the assistance of counsel even though the trial judge, over appellant's objection, had appointed "stand-by" counsel to provide assistance if appellant requested it. The appellant's defense to the charge was that he was insane at the time of the offense. The defense of insanity is not a simple one, and it is apparent from the record that the appellant needed an attorney. But as the trial judge recognized, an accused cannot be forced to accept an attorney's services even when appointed by the court. It is also apparent from the record that much of the appellant's conduct at the trial was intended to harass both court and counsel, and generally disrupt the judicial process. The trial judge is to be commended for his patience and diplomacy in handling a difficult situation.

In his appeal pro se the appellant claims that he was denied his right to compulsory process. He requested several witnesses, five of these were denied by the trial judge. Two of those denied were expert witnesses from Atlanta, Georgia, where the appellant had been imprisoned prior to transfer to Leavenworth; the remainder were inmates at other federal prisons. Rule 17(b) Fed.R.Crim.P. provides that witnesses will be subpoenaed at government expense "upon a satisfactory showing that the defendant is financially unable to pay the fees of the witness and that the presence of the witness is necessary to an adequate defense." A motion to have a witness produced at government expense is addressed to the sound discretion of the court and is not an absolute right. United States v. Mason, 10 Cir., 440 F.2d 1293; Speers v. United States, 10 Cir., 387 F.2d 698, cert. denied, 391 U.S. 956, 88 S.Ct. 1864, 20 L.Ed.2d 871. These witnesses were to testify on the insanity issue. None of them had seen or talked to the defendant for over a year prior to the offense. The court justifiably ruled that their testimony was not necessary to an adequate defense. There...