United States v. McCray, 72-1098.

• Decision Date: 25 October 1972
• Docket Number: No. 72-1098.,72-1098.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edward McCRAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

468 F.2d 446 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. Edward McCRAY, Defendant-Appellant.

No. 72-1098.

United States Court of Appeals, Tenth Circuit.

September 27, 1972.

Rehearing Denied October 25, 1972.

COPYRIGHT MATERIAL OMITTED

Glen S. Kelly, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., on the brief), for plaintiff-appellee.

Martha Goldin, of Saltzman & Goldin, Hollywood, Cal., for defendant-appellant.

Before BREITENSTEIN, BARRETT and DOYLE, Circuit Judges.

BREITENSTEIN, Circuit Judge.

Defendant-appellant McCray was indicted for an escape in violation of 18 U.S.C. § 751(a) and found guilty by a jury. He appeals from the judgment imposing sentence.

His retained counsel attack the sufficiency of the indictment. It charges that on June 14, 1969, defendant

"unlawfully escaped from the United States Penitentiary Farm, Leavenworth, Kansas, while confined in such institution by direction of the Attorney General of the United States or his authorized representative pursuant to his conviction in the United States District Court for the District of Colorado, all in violation of 18 U.S.C. 751(a)."

The elements of the offense are (1) escape (2) from the custody of an institution where he is confined by direction of the Attorney General (3) pursuant to process issued under the laws of the United States by a court. Strickland v. United States, 10 Cir., 339 F.2d 866, 867. An indictment is sufficient if it contains a plain, concise, and definite statement of the essential elements of the offense charged, clearly apprises the defendant of what he must be prepared to meet, and, when taken with the entire record after conviction, is adequate to protect against double jeopardy. Rule 7(c), F.R.Crim.P.; Russell v. United States, 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240; Clay v. United States, 10 Cir., 326 F.2d 196, 198, cert. denied 377 U.S. 1000, 84 S.Ct. 1930, 12 L.Ed.2d 1050; and United States v. Tijerina, 10 Cir., 407 F.2d 349, 353, cert. denied 396 U.S. 843, 90 S.Ct. 76, 24 L.Ed.2d 93.

The attack on the indictment here goes to its failure to allege with particularity the facts pertaining to the offense for which the defendant was in custody at the time of the escape. No decision of which we are aware requires that an indictment under § 751(a) must state the specifics of the process under which the defendant is held in federal custody. United States v. Rudinsky, 6 Cir., 439 F.2d 1074, cited by defendant does not so hold. In the case at bar the government furnished the defendant and his appointed lawyer with a copy of the commitment resulting from defendant's conviction in the United States District Court for the District of Colorado. Nothing in the case indicates any misapprehension by the defendant of the process under which he was held. The indictment states in plain language the essential elements of the offense, tells the defendant what he must meet, and is adequate when taken with the record to protect against double jeopardy.

Defendant argues that his arrest was illegal and accordingly an admission made shortly thereafter should not have been received. He was arrested in Portland, Oregon, by an agent of the Federal Bureau of Investigation on the basis of information of an outstanding warrant. A police officer may make an arrest on the basis of transmitted information of an outstanding warrant. Bandy v. Willingham, 10 Cir., 398 F.2d 333, 335, cert. denied 393 U.S. 1006, 89 S.Ct. 497, 21 L.Ed.2d 470. This rule is recognized in Whiteley v. Warden, 401 U.S. 560, 568, 91 S.Ct. 1031, 28 L.Ed.2d 306, upon which defendant relies. In Whiteley the warrant turned out to be invalid. In the case at bar no attack is made on the validity of the warrant. Instead, the argument is based on the theory that the agent did not know that the McCray arrested was the McCray named in the indictment. We know of no decision which requires an officer making an arrest to be certain of identity. The FBI notified its Portland office that the person named in the warrant was living at a specified address. The agent went there and found him. After the arrest, the agent gave defendant the usual Miranda warning. Thereafter, defendant admitted that his name was Edward McCray and that he had escaped from Leavenworth. In our opinion the arrest was lawful and the admission properly received.

Defendant urges that the certified copies of the Colorado conviction, commitment, and return of the Marshal were hearsay documents not admissible under the Federal Business Records Act, 28 U.S.C. § 1732. The documents were admissible under 28 U.S.C. § 1733(b), Rule 27, F.R.Crim.P., and Rule 44(a)(1), F.R.Civ.P. See also United States v. Merrick, 10 Cir., 464 F.2d 1087.

The sufficiency of the evidence to sustain the conviction is attacked on the ground that the proof does not show that the McCray convicted in Colorado, the McCray who escaped, and the McCray on trial were one and the same. In Gravatt v. United States, 10 Cir., 260 F.2d 498, we held that identity in name is not enough to sustain a conviction of interstate transportation of a gun by a person previously convicted of a crime of violence. In Matula v. United States, 10 Cir., 327 F.2d 337, 338, another prosecution under the Firearms Act, we held that identity of name plus defendant's extra-judicial admission was sufficient. In the case at bar we have identity of name, extra-judicial admission, the record of the Colorado conviction showing that McCray was received at Leavenworth on May 20, 1964, and assigned inmate number 81461, and the testimony of a guard identifying defendant as prisoner No. 81461 who escaped on June 14, 1969. The government was not required to prove that commitment in Leavenworth was pursuant to the authority of the Attorney General. United States v. Rosas-Garduno, 9 Cir., 427 F. 2d 352, 353, and United States v. Jones, 4 Cir., 392 F.2d 567, 569, cert. denied 393 U.S. 882, 89 S.Ct. 186, 21 L.Ed.2d 156. The evidence well sustains the conviction.

We turn to the claim that defendant was represented by ineffective counsel at the trial. In this appeal defendant is represented by retained counsel. The record shows that the conduct of defendant in the courtroom was unruly, boisterous, and provocative. At a pre-trial hearing he was removed from the courtroom. He was given ample opportunity to retain counsel and he did not do so. His right to appointed counsel was explained on various occasions. He did not execute a written waiver of counsel and his oral statements in regard thereto are confusing and inconsistent. The record contains six transcripts of hearings before trial. Three district judges listened patiently to the harangues of defendant attacking individual judges, both the trial and appellate courts, and other governmental institutions. The burden of his complaints was that he was falsely and fraudulently charged and subjected to trial in both the Colorado case and the pending case. The court had before it a psychiatric report which said that the defendant was competent to stand trial and assist in his defense. The report noted that it might be difficult for him to assist his attorney "unless he feels that the attorney is willing to represent him in the way that he wishes to be represented."

With this background, the court appointed an attorney for him. During the trial defendant was given the opportunity to address the court out of the presence of the jury. Defendant took advantage of that opportunity on several occasions. Eventually his conduct became so obstreperous that he was removed from the courtroom and placed in a cell where equipment was...