United States v. Meador, 71-1416.

• Citation: 456 F.2d 197
• Decision Date: 08 March 1972
• Docket Number: No. 71-1416.,71-1416.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Henry MEADOR, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

456 F.2d 197 (1972)

UNITED STATES of America, Plaintiff-Appellee, v. James Henry MEADOR, Jr., Defendant-Appellant.

No. 71-1416.

United States Court of Appeals, Tenth Circuit.

February 14, 1972.

Rehearing Denied March 8, 1972.

James Henry Meador, Jr., pro se, and Thomas H. Melton, Denver, Colo., for defendant-appellant.

Stephen K. Lester, Asst. U. S. Atty., for plaintiff-appellee on the brief, Glen S. Kelly, Asst. U. S. Atty., argued.

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

WINNER, District Judge.

Appearing both pro se and through appointed counsel, appellant challenges his conviction under 18 U.S.C. § 1792 which provides in material part:

"Whoever conveys . . . from place to place (within a Federal penal institution) . . . any weapon . . . or thing designed to kill, injure, or disable any officer, employee, or inmate thereof" shall be guilty of a crime.

Meador was a prisoner at Leavenworth Penitentiary. A guard came to Meador's cell and ordered him to proceed to the front of the cellhouse. He was there searched, and a knife was found concealed beneath his clothing. He now says that although he carried the knife from the cell to the front of the cellhouse, he did not voluntarily and intentionally "convey it from place to place" in the penitentiary because his movement was pursuant to the guard's orders. In answer to this contention, the government argues and we agree that all movements of a prisoner inside a penitentiary are to a lesser or greater degree subject to the orders of the prison administration, but that this fact does not immunize prisoners from conviction under the statute. Meador could have turned the knife over to the guard when he was ordered to leave his cell, but instead, he knowingly, voluntarily and intentionally retained possession of the knife and walked to the front of the cellhouse with it concealed on his person. When he did this, he conveyed the knife a distance of 100 yards from one place to another within the federal penitentiary, and we need not reach questions of the sufficiency of proof of any earlier alleged conveyance of the knife by appellant.

Appellant argues that the court's instructions were erroneous in failing to adequately advise the jury as to the requisite intent and that the court erred in refusing to add to its definition of the phrase "to convey from place to place" qualifying language saying that any such conveyance "must be made freely and without direction or command." What has been said heretofore in part answers the second contention, and the court did instruct that to convict, the jury was required to find that defendant had the specific intent to disobey the law; that his conduct had to be knowing and voluntary, and that proof of union of act and intent had to be established beyond a reasonable doubt. The court's instructions were almost verbatim from Devitt and Blackmar's Federal Jury Practice and Instructions (1970) Secs. 13.02, 13.03 and 13.06. There was no error in the instructions given; there was no error in refusing to add the requested qualifying language to the court's definition of the meaning of "conveying from place to place," and the instructions as to the required intent and the degree of proof required to establish it were full and complete.

Appellant's reliance on United States v. Byrd (1965 2 Cir.) 352 F.2d 570, is misplaced. The Byrd instructions on intent did not come close to the instructions here given, and in Byrd the court failed to...