United States v. Walker

• Decision Date: 07 September 1982
• Docket Number: Cr. No. 81-00310-10.
• Citation: 546 F. Supp. 805
• Parties: UNITED STATES of America, Plaintiff, v. Buck Duane WALKER, also known as Roy A. Allen (01), and Stephanie Kay Stearns, also known as Stephanie Allen (02), Defendants.
• Court: U.S. District Court — District of Hawaii

546 F. Supp. 805

UNITED STATES of America, Plaintiff, v. Buck Duane WALKER, also known as Roy A. Allen (01), and Stephanie Kay Stearns, also known as Stephanie Allen (02), Defendants.

Cr. No. 81-00310-10.

United States District Court, D. Hawaii.

September 7, 1982.

Daniel A. Bent, U.S. Atty., D. Hawaii, Elliot Enoki, Asst. U.S. Atty., Honolulu, Hawaii, for plaintiff.

Leonard I. Weinglass, Los Angeles, Cal., Brook Hart, Peter C. Wolff, Jr., Honolulu, Hawaii, for defendant Stephanie Kay Stearns.

Earle A. Partington, Don Dzura, Honolulu, Hawaii, for defendant Buck Duane Walker.

OPINION and ORDER

JAMES M. BURNS, District Judge.^*

INTRODUCTION

Stearns and Walker were indicted in 1981 for the first degree murder of Eleanor Graham in violation of 18 U.S.C. § 1111. Mrs. Graham was allegedly killed in late August or early September of 1974 on Palmyra Island, an atoll approximately 1000 miles south of Hawaii. Mrs. Graham and her husband, on a cruise on the Pacific in their ketch the Sea Wind, disappeared while moored at Palmyra. The Sea Wind was discovered in Hawaii in October of 1974 manned by Stearns and Walker. They were charged and convicted of, inter alia, theft of the Sea Wind.

Mrs. Graham's skeletal remains were discovered on Palmyra by other sailors in February of 1981. The whereabouts of Mr. Graham remains unknown. Because the indictment under § 1111 charges that Mrs. Graham was killed "during the perpetration of or attempt to perpetrate a burglary or robbery," Stearns and Walker have moved to dismiss the indictment on the ground that their previous convictions for theft of the Sea Wind raise a double jeopardy bar to a subsequent prosecution for felony murder with robbery as the predicate felony.¹

Their line of reasoning is as follows: (1) All charges arise from the same set of circumstances. (2) Theft is a lesser included offense of robbery. (3) Robbery is a lesser included offense of felony murder with robbery as the predicate felony. Therefore, theft is a lesser included offense of felony murder with robbery as the predicate felony and the previous convictions for theft of the Sea Wind bar the present felony murder prosecution for a robbery of the Grahams that resulted in a taking of the Sea Wind.

The government contends that the circumstances of this case bring it within an exception to the bar of double jeopardy described in several Supreme Court cases:

An exception may exist where the State is unable to proceed on the more serious charge at the outset because the additional facts necessary to sustain the charge have not occurred or have not been discovered despite the exercise of due diligence.

Brown v. Ohio, 432 U.S. 161, 169 n. 7, 97 S.Ct. 2221, 2227 n. 7, 53 L.Ed.2d 187 (1977). See also, Jeffers v. United States, 432 U.S. 137, 97 S.Ct. 2207, 53 L.Ed.2d 168 (1977); Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970); Diaz v. United States, 223 U.S. 442, 32 S.Ct. 250, 56 L.Ed. 500 (1912).

Application of the Brown exception requires a careful examination of the circumstances surrounding the arrival of Stearns, Walker and the Grahams at Palmyra, the disappearance of the Grahams, and the investigative activities undertaken by law enforcement authorities leading to the original indictments and convictions. The parties rely on the records of the first trials, appeals, and the grand jury proceedings on the 1981 felony murder indictment. I received, over defense objection, evidence (testimony and exhibits) at a hearing on the motions to dismiss held March 12, 1982 at Honolulu, Hawaii. From these sources, I find the following.

II. FACTS

The court of appeals opinion affirming Stearns' convictions contains a summary of the evidence adduced at her trial concerning the events at Palmyra. I reproduce the pertinent sections here for clarity.

We must recount the voyages of two sailing vessels, the Iola and the Sea Wind, and describe their encounter at Palmyra, an uninhabited island in the Pacific, about one thousand miles south of Hawaii.

The Iola, a 30-foot vessel, arrived in Palmyra harbor from Hawaii on June 25 or 26, 1974. The channel leading into the lagoon on Palmyra is narrow and difficult to navigate. The Iola, which had a broken motor had to be towed through the channel by dinghies from two ships already anchored in the lagoon. The persons sailing on the Iola were the defendant Stephanie Stearns and one Buck Walker (alias Roy Allen), the Iola's owner.

Apparently Stearn's and Walker's voyage from Hawaii had been an arduous one. It is doubtful whether the Iola was sufficiently seaworthy either for a return voyage to Hawaii or for a trip to Fanning Island, 172 miles further south and the nearest available place to obtain equipment and supplies. Stearns and Walker apparently intended to remain at Palmyra until friends arrived on another boat. The Iola had meagre supplies, and Stearns and Walker found it hard to adjust to a diet of coconut and fish. They tried to grow vegetables, with little success. One witness testified that Stearns told him she and Walker had ten dollars and some equipment, which she offered to exchange for food.

On July 1, the Sea Wind dropped anchor in the lagoon at Palmyra, where the Iola and other boats were located. The Sea Wind, a ketch 37½ feet long, equipped with auxiliary engines, stocked with abundant food and stores, and fitted with a complete tool shop, was owned by a Mr. Graham, who, with his wife, was on a cruise of the South Pacific. The Grahams had spent over two years planning the trip and provisioning the Sea Wind.

In late August 1974, all other vessels had departed from Palmyra, and only the Iola and the Sea Wind remained at the Island. The Grahams had a prearranged pattern of radio contact with an operator in Hawaii. The operator's last radio conversation with Mr. Graham took place on August 28, 1974. All attempts to make further radio contact with the Sea Wind proved unsuccessful. The Grahams had mysteriously disappeared ....

Three sic months later, the Sea Wind was recognized in a Honolulu yacht harbor. Stearns and Walker were now its crew. The ketch had been re-registered under another name and had been partially repainted ....

Stearns contended that the Grahams disappeared while the Sea Wind remained anchored in Palmyra harbor, and that after a search she and Walker had found the Grahams' dinghy overturned on a beach of the lagoon.

United States v. Stearns, 550 F.2d 1167, 1169 (9th Cir. 1977).

Stearns was charged with theft of the Sea Wind within the special maritime and territorial jurisdiction of the United States, 18 U.S.C. § 661, theft of approximately $400 from aboard the Sea Wind, 18 U.S.C. § 661, and transportation of stolen property (goods, wares and merchandise aboard the Sea Wind) in interstate or foreign commerce, 18 U.S.C. § 2314. Her convictions on each count were affirmed on appeal. Id.²

Walker was originally charged in a 7 count indictment with Stearns. He was subsequently charged separately in a 4 count indictment. After trial on the second indictment, the first indictment was dismissed as to Walker. He was convicted of theft of the Sea Wind, 18 U.S.C. § 661, transportation of stolen property (the Sea Wind, her engines, tackles, goods, wares and merchandise) in interstate or foreign commerce, 18 U.S.C. § 2314, and making a false statement in an application for a passport, 18 U.S.C. § 1542.³ His convictions for transporting stolen property and making false statements were affirmed. The conviction for theft of the Sea Wind was reversed because of an erroneous supplemental jury instruction. United States v. Walker, 575 F.2d 209 (9th Cir. 1978). The government did not attempt to retry Walker on the theft count until the recovery of Mrs. Graham's remains brought the case back to light. I recently dismissed the theft count of the 1975 indictment on Constitutional and Speedy Trial Act grounds. That dismissal is the ground for Walker's motion to dismiss the murder indictment on res judicata grounds. Disposition of that motion will follow in a separate opinion.

THE 1974 INVESTIGATION

At the hearing on the motions to dismiss, the government called FBI Special Agent Calvin Shishido to testify to the conduct of the investigation following the discovery of the Sea Wind in Hawaii. Agent Shishido testified that on October 28, 1974 he received information from the United States Coast Guard about the sighting of the Sea Wind in Hawaii, the fact that its owners, the Grahams, had been missing since August 28, 1974, and that Stearns and Walker were the last persons known to be on Palmyra with the Grahams. A report of the resulting trip to Palmyra prepared by Coast Guard Lieutenant Commander Busick (Defendants' Exh. 1) shows that the investigative team departed by aircraft from Hawaii for Fanning Island, enroute to Palmyra, at 7:20 AM on October 31, 1974.

Upon reaching Palmyra at 4:30 PM on November 1, the investigative team was composed of Lieutenant Commander Busick plus three Coast Guard divers; Russel Apple from the Department of Interior; Jack Wheeler, a Hawaiian Telephone Company employee who had spent considerable time on Palmyra; Assistant United States Attorney (AUSA) William Eggers; FBI Special Agents Tom Bridges and Shishido and Dr. Martin Vitousek, a University of Hawaii researcher who provided transportation from Fanning to Palmyra on the research tug Tatarax, (R.T. 20-21; Defendants' Exh. 1).

Agent Shishido, who was in charge of the investigation, testified that the search of Palmyra was conducted for several reasons. First, there was the possibility that the Grahams were still alive and stranded on Palmyra. Because of this possibility, the search was in part a rescue mission. Second, there was the possibility that the Grahams were dead, having been killed, or having died while stranded. They may also have drowned in the lagoon consistent with Stearn's story. In that regard, the search was one for bodies, afloat or on...