United States v. Price, 489-70.
| Decision Date | 17 June 1971 |
| Docket Number | No. 489-70.,489-70. |
| Citation | 444 F.2d 248 |
| Parties | UNITED STATES of America, Appellee, v. Clifford David PRICE, Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
James Yates, Kansas City, Kan., for appellant.
Glen S. Kelly, Asst. U. S. Atty. (Robert J. Roth, U. S. Atty., Kansas City, Kan., was with him on the brief), for appellee.
Before LEWIS, Chief Judge, and JONES* and PICKETT, Circuit Judges.
Price, an inmate of the United States Penitentiary at Leavenworth, was convicted of a violation of 18 U.S.C. § 1111 committed against a correctional officer at that penitentiary. He appeals, asserting insufficiency of the evidence and procedural errors require reversal of the judgment. We conclude that the record is free from prejudicial error and affirm.
The evidence is uncontradicted that during the breakfast hour at the penitentiary Price was ordered taken from the mess area to the institution's control area as a disciplinary matter. The order was given by the senior officer in charge and was violently resisted by Price through conduct that required him to be physically overcome by a group of control officers. Price does not deny the altercation but insists that the order was unjust and thus unlawful. We do not pause to discuss this argument at length for it is patently untenable. Just or unjust, the preliminary order was made in the course of internal discipline by an officer authorized to make such order and the remedy to test justification of an order of this nature lies within the administrative processes at the institution and not in the prisoner's subjective choice to physically resist. The evidence is clearly sufficient to support the judgment.
Appellant next urges that the trial court abused its discretion in refusing requests for two writs of habeas corpus ad testificandum intended to produce two inmates who witnessed the circumstances surrounding the instant controversy but who, at time of trial, had been transferred to other federal penitentiaries. Such right to have a defense witness produced is of course not absolute, Speers v. United Staes, 10 Cir., 387 F.2d 698, but denial of that right, while within the trial court's discretionary zone, must be premised on a careful consideration to assure the accused his sixth amendment rights. Involved in the consideration must be the materiality of the testimony sought and necessity of it for an adequate defense. While the record before us contains only the district court's summary order denying the request and not the court's reasons therefor, a review of the two affidavits on which the requests were predicated reveals nothing that would have aided appellant in preparing his defense to the actual commission of the offense. The testimony sought would have been cumulative and directed to the question of whether Price deserved discipline and not to the fact of his physical resistance. The court did not err.
Error is also asserted in failure to give and in giving certain instructions to the jury, and in...
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