UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Nos. 74-1475, 74-1476, 74-1497, 74-1514, 74-1615, 74-1646, 74-1874, 74-2034, 74-2055, 74-2127 1975.CDC.233
Appeals from the United States District Court for the District of Columbia (D.C. Criminal 852-73).
Tamm, MacKinnon and Wilkey, Circuit Judges. Opinion for the court filed by Circuit Judge MacKinnon.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MACKINNON
MacKINNON, Circuit Judge:
We review here the contentions raised by seven appellants who, among others, were charged in a joint indictment with offenses related to a conspiracy, an attempted jail break, and a riot at the District of Columbia jail. Evidence of the guilt of each appellant has been separately considered against the contentions they cumulatively raise on appeal. Finding all the arguments raised by counsel to be without substantial merit, we affirm all convictions.
Following a five-month special grand jury investigation and pursuant to a voluminous indictment, appellants in these consolidated appeals were tried in three separate jury trials before Judge Gasch in February and March of 1974 for offenses stemming from the October 11, 1972 riot at the District of Columbia jail. Appellant James A. Bridgeman, testifying under a grant of immunity as a Government witness in the third trial following his conviction in the first, recounted that he, Frank Gorham and Robert N. Jones *fn1 conceived an escape plan in late September or early October of 1972. The three were smuggled a revolver loaded with five rounds, and they initiated the plan on October 11.
Jones feigned illness in his cell; when two officers entered to assist him, Gorham accosted them with the revolver. The two inmates secured these officers in Jones' cell and proceeded to acquire more hostages - first, the third member of the night shift, then the four members of a skeletal "goon squad" alerted to the trouble in Cell Block 1. Gorham and appellant Keith Greenfield promptly assumed leadership of that contingent of prisoners who asked to be released. There followed an initial and abortive attempt at escape both by cutting bars with an acetylene torch and by climbing out a fifth-floor skylight. During this period a homosexual inmate was brutally raped over a period of six or seven hours, and several of the appellants administered damaging blows to their captives - in particular, appellant Terry L. Burgin beat Lieutenant Charles Wren, leader of the "goon squad," in the head with a hammer and ground a gun barrel into the Lieutenant's temple until the officer asked to be killed rather than tortured. Also during this time D.C. Corrections Director Kenneth Hardy entered the jail with Washington Post Reporter William Claiborne, as the inmates had requested. Prisoners lectured these men about the "revolution" they were conducting and allowed no opportunity for discussion or negotiation.
With Hardy as a hostage, the inmates redirected their escape toward the jail's central Rotunda. They intermingled with and tied themselves to the prison guards, who were to serve as shields. Inmates who did not want to participate were ordered to leave the second tier landing adjacent to the Rotunda, which served as a staging area for the attempt. Appellants Bridgeman, Henry B. Johnson, Keith C. Greenfield, William Brown, Terry L. Burgin, and Robert G. Matthews all stood poised to rush the Rotunda door. They surged forward, with Hardy at the head of the phalanx, and Matthews and Burgin, both tied to the Corrections Director, struck him to heighten the sincerity of his entreaty to officials on the other side of the Rotunda door that the group be let out. After suffering a brutal beating, Hardy persuaded his captors that his commands no longer carried any force and that the door would not be opened, whereupon the prisoners retreated to their cells on the second tier to reassess their predicament.
Together with Jones, appellants Burgin and Brown determined to make a final escape attempt. After continued brutalizing of Hardy and Wren, the inmates led the latter man to a window looking out on 19th Street, S.E., beat him to make him plead for his captors' release, and cut him with jagged shards of glass in the broken window. This time Wren had to explain to the inmates that by Department of Corrections regulations hostages lost all authority, and finally he was led back to the cell where he had been imprisoned. The escape attempt had been frustrated, and by early morning, October 12, 22 hours after the riot had begun, the last hostages were released. Officials who assessed the damage done to the jail estimated more than $76,000 in property damage, primarily through arson.
Appellants were collectively charged in an indictment filed October 5, 1973. The first count charged an unlawful conspiracy, beginning on or about October 1, 1972, and continuing up to and including October 11, 1972, to escape from the custody of the Attorney General in violation of 18 U.S.C. § 751; and to kidnap and assault correctional officers (jail guards and personnel) in violation of D.C. Code §§ 22-502 and 2101. In addition to 14 named defendants the indictment alleged the existence of other known and unknown conspirators. The named defendants included the following seven appellants: James A. Bridgeman, James R. Langley, William Brown (not William E. Brown, another co-defendant), Terry L. Burgin, Keith G. Greenfield, Robert G. Matthews and Henry B. Johnson.
The entire indictment as returned by the grand jury contained 49 counts. In addition to the conspiracy count, counts 2 through 15 charged the seven appellants here and others with attempted escape. Counts 16 through 27 charged appellants and others with kidnapping 12 hostages with intent to hold and detain them for the purpose of effecting an escape from the District of Columbia jail. Counts 28 through 38 charged appellants and others with armed robbery of money and designated property taken from 11 named individuals in violation of D.C. Code 22-2901, 3202. Count 39 charged the seven appellants and others with incitement to riot, in the course of which there was resulting property damage in excess of $5,000 and serious bodily harm to Charles Wren, Bruce A. Davis and Santionta C. Butler, in violation of D.C. Code 22-1122(d). The indictment charged that Wren was beaten about the body and head with a pistol and other weapons, causing grave bodily harm. It was further alleged that Bruce A. Davis and Santionta C. Butler were repeatedly forced to engage in both anal and oral sodomy, also causing grave bodily harm.
In the indictment's fortieth count, Matthews was charged with anal sodomy upon a male, Santionta C. Butler. The forty-first count charged Brown with anal sodomy upon Butler. In the forty-third count, Johnson was charged with oral sodomy upon Butler. The forty-fourth count charged Matthews with assaulting Kenneth L. Hardy with a dangerous weapon, a pistol. The forty-fifth and forty-sixth counts charged Brown with a similar assault upon both Charles Wren and Kenneth Hardy, respectively. In the forty-seventh count, Burgin was charged with assaulting Charles Wren with a dangerous weapon, that is, a pistol and a hammer. And the forty-eighth count charged Burgin with the same assault upon Hardy. The forty-second and forty-ninth counts were irrelevant to this proceeding.
The trial court severed the cases of these seven accused into three separate trials, the transcripts of which total 4,363 pages. The trial of Bridgeman, Langley, Greenfield, and Matthews began on February 7, 1974. Brown and Johnson were tried from February 19 to 26, 1974. Burgin was tried in late March, 1974 in a joint trial with other defendants whose appeals were not consolidated with the cases we consider here.
The first trial resulted in the conviction of Bridgeman, Langley, Matthews, and Greenfield on counts of conspiracy, attempted escape, 12 counts of armed robbery, and inciting a riot. Matthews was also convicted of assault with a dangerous weapon. In the second trial Brown and Johnson were convicted of conspiracy, attempted escape, 12 counts of armed kidnapping, inciting a riot, and robbery as a lesser included offense of armed robbery. In the third trial Burgin was tried jointly with Gorham, Jones (Wilkerson), Ewing, and Fields (see United States v. Gorham, 173 U.S.App.D.C. 139, 523 F.2d 1088 (decided Nov. 28, 1975)) and convicted of attempted escape, two counts of assault with a dangerous weapon and two counts of armed kidnapping.
On appeal, each of the seven appellants was represented by separate counsel, and each counsel made separate arguments of issues related to his particular client, though in many instances one claim involved several appellants. We have considered the cases of each individual separately and we now discuss each of these arguments separately in the name of the particular appellant in whose behalf the issue was argued.
Greenfield attacks the refusal of the trial court to grant a severance of the trial of Bridgeman from the trial in which Bridgeman, Greenfield, Langley, and Matthews were tried. His contention is that severance would have allowed Bridgeman to testify subsequently in Greenfield's behalf, concerning certain allegedly exculpatory facts - generally, that Greenfield did not participate in the conspiracy.
The proffer made during trial with respect to Greenfield's position was the most specific. At that time, counsel stated
As realted [ sic ] to Mr. Greenfield, he would testify that Mr. Greenfield did not parcipate [ sic ] in the formulation or the execution of the conspiracy, and that he had no prior knowledge prior to the opening of the first cells, and did not subseqnently [ sic ] - subsequently become a part of the conspiracy as a coconspirator.
(Tr. 1160) A similar contention was raised by Matthews, i.e., that Bridgeman would testify that Matthews did not participate in the formulation or the execution of the conspiracy nor in the attempted jail break. (Tr. 1160) And Langley made a similar proffer that Bridgeman would testify "that when the cells were opened by Gorham and Jones that Langley went to the end of the tier and remained there, and that there was absolutely no participation or no advance knowledge of any conspiracy or any of the offenses for which he stands charged today . . ."
In further support of these contentions counsel claimed that Bridgeman, if granted severance, would testify that he was a ringleader in the conspiracy, that to his knowledge neither Greenfield, Matthews nor Langley was involved in the planning of the escape attempt, that he did not see any of the three participating in the escape and riot activities within the cell block, and that he did not see appellant Matthews hold a gun to Hardy's head. Bridgeman's willingness to give testimony exculpating Greenfield, Matthews, and Langley was conditioned on the Government's acceptance of his offer to plead guilty to the conspiracy count and be tried on the remaining counts prior to the trial of those three appellants.
The general rule is that the decision to grant a severance is within the sound discretion of the trial judge, whose judgment will not be reviewed absent a clear abuse of discretion. Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 99 L. Ed. 101 (1954). Under Rule 8(b), Fed.R.Crim.P., defendants may be tried jointly when "they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense or offenses." We have interpreted this Rule to create a presumption that persons jointly indicted should be tried together. Hall v. United States, 83 U.S.App.D.C. 166, 171, 168 F.2d 161, 166, cert. denied, 334 U.S. 853, 68 S. Ct. 1509, 92 L. Ed. 1775 (1948). United States v. Echeles, 352 F.2d 892, 896 (7th Cir. 1964), is in accord, but adds the condition, to which we subscribe, that cases are to be severed if severance is necessary to insure a fair trial. United States v. Gambrill, 146 U.S.App.D.C. 72, 87, 449 F.2d 1148, 1163 (1971). Where the essential fairness of a trial is not impaired by a refusal to sever, the incremental burden of duplicating a complex trial or reproducing elusive evidence is a proper consideration in the decision to deny severance. United States v. Shuford, 454 F.2d 772, 777 (4th Cir. 1971).
The unstated premise of appellants' severance claim is that testimony showing they did not participate in the planning of the October 11 uprising would exonerate them of the charge of conspiracy. Their position demonstrates a surprising lack of understanding of the law of conspiracy. The indictment in this case charges a completed conspiracy; there was proof not only of the original unlawful agreement to commit the designated offenses, but also that certain objects of the conspiracy were carried out by numerous specific overt acts extending over a considerable period of time. The secret plan of October 1 was publicly executed on October 11 and into the early hours of October 12. Appellants were charged with participation in this continuum of events, not merely collaboration at its outset.
A defendant can join a conspiracy at any time, and can properly be convicted though he was not in the conspiracy at its inception. United States v. Cerrito, 413 F.2d 1270 (7th Cir. 1969), cert. denied, 396 U.S. 1004, 90 S. Ct. 554, 24 L. Ed. 2d 495 (1970); Cave v. United States, 390 F.2d 58 (8th Cir.), cert. denied, 392 U.S. 906, 88 S. Ct. 2059, 20 L. Ed. 2d 1365 (1968); Nassif v. United States, 370 F.2d 147 (8th Cir. 1966); United States v. Hickey, 360 F.2d 127 (7th Cir.), cert. denied, 385 U.S. 928, 87 S. Ct. 284, 17 L. Ed. 2d 210 (1966). There is no need that he participate in all acts of the conspiracy. United States v. Friedman, 445 F.2d 1076 (9th Cir.), cert. denied, 404 U.S. 958, 92 S. Ct. 326, 30 L. Ed. 2d 275 (1971); United States v. Levinson, 405 F.2d 971 (6th Cir.), cert. denied, 395 U.S. 958, 89 S. Ct. 2097, 23 L. Ed. 2d 744 (1971). An individual who joins an already formed conspiracy knowing of its unlawful purpose may be held responsible for acts done in furtherance of the conspiracy both prior to and subsequent to his joinder. United States v. McGann, 431 F.2d 1104 (5th Cir. 1970), cert. denied, 401 U.S. 919, 91 S. Ct. 904, 27 L. Ed. 2d 821 (1971); United States v. Knight, 416 F.2d 1181 (9th Cir. 1969); Nelson v. United States, 415 F.2d 483 (5th Cir. 1969), cert. denied, 396 U.S. 1060, 90 S. Ct. 751, 24 L. Ed. 2d 754 (1970); Myzel v. Fields, 386 F.2d 718 (8th Cir. 1967), cert. denied, 390 U.S. 951, 88 S. Ct. 1043, 19 L. Ed. 2d 1143 (1968) (civil conspiracy). Where the evidence shows that a defendant knew of the conspiracy, associated himself with it and knowingly contributed his efforts during its life to further its design, he may be convicted of conspiracy. Langel v. United States, 451 F.2d 957 (8th Cir. 1971); Roberts v. United States, 416 F.2d 1216 (5th Cir. 1969); United States v. Levinson, supra; Cave v. United States, supra; Nassif v. United States, supra; United States v. Hickey, supra; McManaman v. United States, 327 F.2d 21 (10th Cir.), cert. denied, 377 U.S. 945, 84 S. Ct. 1351, 12 L. Ed. 2d 307 (1964).
Appellants and their attorneys spoke in conclusory terms when they contended that Bridgeman's testimony would have been "exculpatory." Bridgeman could have testified that Langley, Matthews and Greenfield did not participate in the planning of the disturbance with other early conspirators, but under the legal principles recited above, that proffer did not suggest the conclusion that those appellants were not co-conspirators in the event. Their voluntary enlistment in the escape effort and their well-documented acts in support of its purpose lead us to the view that they joined the conspiracy prior to its completion; thus testimony that they were not present at its inception would not be exculpatory.
The strength of the evidence against these three appellants bears review, not only to reinforce our conclusion that they were active participants in the conspiracy to escape, but also to demonstrate that the decision to deny severance, were it arguendo found to be erroneous, could not conceivably be deemed prejudicial.
Matthews was identified by three hostages as the inmate who, along with Burgin, attempted to use Hardy as a human shield at the time of the Rotunda escape attempt. There was also testimony that Matthews held Hardy by the collar in the dining room at the time preparatory instructions were being given to the would-be escapees; that Matthews escorted Hardy toward the Rotunda door as the group began moving in that direction (Tr. 770, 805-806); that he held the gun to Hardy's head (Tr. 268-69, 594-95, 631, 658); and that he participated in a discussion with Hardy, Burgin, Brown, Gorham, and Jones on the second tier immediately after the unsuccessful Rotunda attempt (Tr. 295-96, 772, 820). In his defense, Matthews called two fellow inmates who denied that his hair style on the day in question suited a description given by various government witnesses, and who offered the opinion that his opportunities to have been wearing freshly laundered clothes, as government witnesses claimed, were not great (Tr. 1163-1168, 1173-1178).
Appellant Greenfield was identified as a participant in the incident even prior to the capture of the "good squad" (Tr. 360-62), as one who took an active part in the armed capture of Officers Saunders (Tr. 495, 509), Michelow (Tr. 627), and Holmes (Tr. 703), as the prisoner who pointed the gun into the cell of Lt. Wren and Officer Cruse and threatened to kill them (Tr. 480, 744), and as a member of the group which attempted to escape through the Rotunda door (Tr. 413-14, 807-08). Greenfield called a fellow inmate who testified that he had left the jail in the early afternoon hours of October 11, well after the Rotunda escape attempt (Tr. 1010). This witness was partially impeached by inconsistent grand jury testimony regarding Greenfield's role on that day (Tr. 1181-93). Greenfield also called a Deputy United States Marshall who testified that Greenfield could not have placed his hands before his face during the line-up, as claimed by a government witness, since Greenfield's hands were handcuffed behind him (Tr. 1199-1200).
Inmates also testified that Langley was present in the cell when the gun was being examined on October 2 (Tr. 184-85); that he apparently actually opened the cells and freed the inmates on October 11 (Tr. 187); and that he was the keeper of the keys for at least part of the morning. He later loaned them to his fellow inmate Bigelow, and subsequently sought their return for use in the unsuccessful attempt to flee via the skylight (Tr. 938-39, 940-46).
None of the appellants covered by this point - Greenfield, Langley and Matthews - took the stand in his own behalf, and there was no possibility that Bridgeman's proffered testimony would completely exonerate them. As a matter of fact, in another trial (that of Brown and Johnson), counsel for one of the co-appellants did call Bridgeman as a witness. We take judicial notice that Bridgeman's testimony on cross-examination in that case was allegedly prejudicial to the defense; in fact, the decision to place Bridgeman on the stand led to a claim of ineffective assistance of counsel, Coleman v. Burnett, 155 U.S.App.D.C. 302, 313, 477 F.2d 1187, 1198 (1973). See Craemer v. Washington, 168 U.S. 124, 129, 18 S. Ct. 1, 42 L. Ed. 407 (1898); Butler v. Eaton, 141 U.S. 240, 243-44, 11 S. Ct. 985, 35 L. Ed. 713 (1891); Zahn v. Transamerica Corporation, 162 F.2d 36, 48 n.20 (3rd Cir. 1947). Much the same testimony could have been produced if Bridgeman had testified for Matthews, Greenfield or Langley and had been subjected to cross-examination. We accordingly conclude that the trial court acted well within the discretion afforded it in refusing to sever Bridgeman from the trial. It also appears that Matthews, Langley and Johnson misjudged the probative effect of Bridgeman's testimony under applicable conspiracy law.
Counsel for Burgin argued that all seven appellants were granted immunity from prosecution by a note signed by Kenneth Hardy, Director of the District of Columbia Department of Corrections, Deputy Director Rogers, and Superintendent Anderson Magruder. He contended that Hardy's agreement, after long hours of extreme physical abuse, not to take "reprisals of any kind," not to personally "bring any court action against any of the inmates," and to continue the inmates "in their present location pending any court action," either immunized appellants from prosecution or warranted remand for further consideration of the immunity issue by the trial court. *fn2 This argument was based on an analogy to ...