United States v. Wolford

• Decision Date: 25 March 1971
• Docket Number: 24200.,No. 24110,24110
• Parties: UNITED STATES of America v. Lawrence B. WOLFORD, Appellant. UNITED STATES of America v. Thomas FLURRY, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

144 US App. DC 1, 444 F.2d 876 (1971)

UNITED STATES of America v. Lawrence B. WOLFORD, Appellant.

UNITED STATES of America v. Thomas FLURRY, Appellant.

Nos. 24110, 24200.

United States Court of Appeals, District of Columbia Circuit.

Argued January 25, 1971.

Decided March 25, 1971.

Mr. Sol. Z. Rosen, Washington, D. C. (appointed by this court), for appellant in No. 24,110.

Mr. Ralph N. Albright, Jr., Washington, D. C. (appointed by this court), for appellant in No. 24,200.

Mr. Jerome Wiener, Asst. U. S. Atty., with whom Messrs. Thomas A. Flannery, U. S. Atty., and John A. Terry, Asst. U. S. Atty., were on the brief, for appellee.

Before WRIGHT and MacKINNON, Circuit Judges, and GIGNOUX,^* U. S. District Judge for the District of Maine.

MacKINNON, Circuit Judge:

Appellants here were charged with several offenses arising out of the hijacking of a truckload of liquor. The specific charges against both appellants were kidnaping¹ (D.C.Code § 22-2101), armed robbery² (D.C.Code §§ 22-2901 & 3202), robbery (D.C.Code § 22-2901) and assault with a dangerous weapon (D.C.Code § 22-502). In addition, appellant Flurry was also charged with carrying a dangerous weapon (D.C.Code § 22-3204). Both appellants were convicted on all counts, except the robbery count, and each was given concurrent sentences, the maximum of which was from ten years to life on each of the kidnaping and armed robbery convictions. On this consolidated appeal they attack the legality of the kidnaping charge as not being a separate offense from robbery under the circumstances here present. They also assert that prejudicial error occurred during the trial when they learned that a copy of a radio transcript they had subpoenaed had one page missing, and when the jury misunderstood the court's instructions and was sent back to reconsider its original verdict. In addition Flurry raises an identification question and Wolford questions the sufficiency of the evidence to support his conviction, which is based principally on the theory of aiding and abetting. We affirm as to all counts.

I

Shortly after 10:30 a. m. on June 5, 1969 at the corner of Montana Avenue and Bladensburg Road, N.E. in the District of Columbia, Rufus Wilson, Jr. (a helper on the truck) and Robert L. Clark (driver) were returning to their truck after having stopped for a sandwich. They were in the process of delivering a truckload of liquor for the International Distributors Corporation and were driving a truck owned by that company.

As they approached the truck they were accosted by three men, one of whom (later identified by Wilson as Flurry) put something in Wilson's back that felt like a gun and they were both told that they were going to be taken "for a little ride." The group of three was composed of Flurry (later identified), an unidentified short man and a third short man who was wearing a blue jacket. The participants in the crime then took the keys to the truck from Clark and two of the hijackers (one later identified as Flurry) forced both Wilson (at least Wilson was a non-consenting victim) and Clark into the back seat of a brown Mustang car. The hijacker wearing the blue jacket was left with the truck and the keys thereto. Flurry then drove the Mustang to Rock Creek Park while his accomplice who accompanied him sat in the front passenger seat and held a gun on Wilson and Clark in the back seat. We take judicial notice of the geographical fact that the distance from the intersection of Montana Avenue and Bladensburg Road, N.E. to the nearest point in Rock Creek Park is 3.8 miles by direct line through built-up urban areas.³ After about forty-five minutes or an hour from the time they were abducted, Wilson and Clark were released in Rock Creek Park. About this time Wilson saw one Lindsay driving a Buick Electra 225 which passed them in the park. Wilson immediately after his release left the park, went to the 6th Precinct Police Station and reported the crime. The police immediately broadcast a lookout for the stolen truck and for the three men participating in the hijacking.

Detective Billy E. Burwell also testified that he was driving a police car (apparently unmarked) and that "I guess, between 10:30 and 11 o'clock * * * I heard a lookout broadcast over the police radio" with respect to the liquor truck. Shortly thereafter at Georgia Avenue and Princeton Place he observed the truck that had been hijacked coming out of an alley leading to a wig shop run by one Sa-An Kubeyinji (hereafter Sa-An). At that time Burwell also identified Wolford (whom he had seen on prior occasions) as the driver of the truck and also observed that he wearing a blue T-shirt or knit shirt. Burwell then started to follow the truck and as he did so, he noticed that a Buick Electra 225 was parked near the alley and that when the truck passed the Buick, the driver of the truck beckoned to the driver of the Buick. After the truck passed, trailed by Burwell, the Buick swung in behind the two vehicles and followed them. During this meeting of the truck and the Buick, Detective Burwell recognized Wolford (the truck driver) and Flurry (a passenger in the Buick) as men he had seen many times before in his assigned area.

With the truck leading and Detective Burwell and the Buick following, the three vehicles eventually reached the 500 block on Rock Creek Church Road where they stopped. At this time Wolford, wearing brown cloth gloves, got out of the truck and Detective Burwell identified himself as a police officer and attempted to stop Wolford, but he fled. Pursued by Burwell, Wolford ran across the back yards of several homes and eventually into a private home where he was arrested by Burwell. At the time Wolford was arrested he had shed the blue shirt and was wearing a black silk undershirt. A short time later one John Lindsay was arrested (by two other cruising detectives) while driving the Buick.

Two other circumstances which incriminate Flurry and Wolford separately involve one Sa-An and his wig shop which was located on Georgia Avenue. It was into the basement of the wig shop that the load of liquor was transferred during the interval between the hijacking of the truck shortly after 10:30 A.M. and the time Detective Burwell discovered the truck exiting from the alley leading to the wig shop.

The first incident involving Sa-An, which incriminates appellants, occurred on June 5, 1969, following Lindsay's arrest that day in the Buick. This Buick was owned by Flurry and when Flurry found out the circumstances of Lindsay's arrest, Flurry asked Sa-An to take the registration for Flurry's 1969 Buick to the police station

to give it to John Lindsay. I Sa-An testifying said, "Why?" He said, "He was arrested without registration." I said, "Why don\'t you go yourself?" He said, "I dont want to go to the station myself, because I will be identified."

Sa-An did not comply with Flurry's request. Later, when the hijacked liquor was discovered in the basement of Sa-An's wig shop, he was arrested and jailed on a charge of receiving stolen property. While he was in jail on June 6th, Sa-An testified that Wolford told him:

* * * I referring to Sa-An shouldn\'t worry. I wouldn\'t have any problem, because I wasn\'t there when it was put down in the basement and moreover he Wolford wouldn\'t be and that there is one person who is identified when he comes to the lineup likely to identify him, that is the older driver Wilson. The younger one Clark would not identify him, because the younger one Clark is in the same gang with him.

Q. He said the younger one was in the same gang with him?

A. Yes.

Q. What did he say about the older man, if anything?

A. The older man should attempt to identify him, they would get rid of him.

II

Appellants' principal contention on this appeal is that the seizure and detention of the victim or victims of the armed robbery, who were abducted for the purpose of effectuating the robbery, will not support a conviction of the separate offense of kidnaping under D.C.Code § 22-2101 (1967).⁴ Their argument is based upon a claim that Wilson⁵ was forced into the Mustang and carried to Rock Creek Park solely to facilitate the success of the hijacking, and this undertaking should be viewed as an integral part of the armed robbery and not as an independent act of kidnaping.

The first question such contention presents is whether the facts of the present case are comprehended within the literal wording of the District of Columbia kidnaping statute. So far as pertinent to the resolution of that question, section 22-2101 prohibits the seizure and detention of any person against his will "for ransom or reward or otherwise." For all practical purposes, the conduct prohibited by section 2101 is identical to that proscribed by the Federal Kidnaping Act, as presently worded, 18 U.S.C. § 1201 (1964),⁶ with the exception of the requirement of the federal statute that the victim be transported in interstate or foreign commerce. For this reason, and because both statutes were enacted by Congress, decisions construing the meaning and application of the Federal Kidnaping Act may be resorted to as an aid in determining the meaning of the similar language employed in the District statute.

As originally enacted, the Federal Kidnaping Act only prohibited seizure and detention "for ransom or reward," 47 Stat. 326 (1932). The language "for ransom or reward" was soon amended to read "for ransom or reward or otherwise," 48 Stat. 781 (1934) (emphasis added). Shortly after the adoption of this amendment, the Supreme Court in Gooch v. United States, 297 U.S. 124, 56 S.Ct. 395, 80 L.Ed. 522 (1936), pointed to the addition of "or otherwise" as indicating a congressional intent that the statute be given a broad application. In Gooch, the defendant was faced with the prospect of arrest by "peace officers" of the state of Texas, and to avoid this the defendant "resisted and disarmed the officers, unlawfully seized and...