Appeal from the United States District Court for the Eastern District of Illinois, Benton Division. Nos. 78-Cr-02026-01-B, 78-Cr-02026-03-B Harold A. Baker, Judge.
Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and SKELTON, Senior Judge .*fn*
FAIRCHILD, Chief Judge. Defendants-appellants Garrett Brock Trapnell and Martin Joseph McNally appeal from their convictions, after jury trial, on counts of conspiracy to escape from prison, in violation of 18 U.S.C. § 371 (Count 1); attempted escape from prison in violation of 18 U.S.C. §§ 2 and 751(a) (Count 2); aiding and abetting the aircraft priacy of a helicopter in violation of 49 U.S.C. § 1472(i) and 18 U.S.C. § 2 (Count 4); and aiding and abetting the kidnapping of the helicopter's pilot in violation of 18 U.S.C. §§ 2 and 1201(a) (Count 5). We reverse the convictions of both defendants on the air piracy and kidnapping charges; we reverse as to McNally because of insufficient evidence and we reverse as to Trapnell and remand for a new trial. We affirm the convictions of both men on the charges of conspiracy to escape and attempted escape.
This case arises out of an attempted prison escape at the United States Penitentiary at Marion, Illinois, in the early evening of May 24, 1978. A helicopter piloted by Alan Barklage landed near the front entrance to the prison at 6:15 p.m. that evening, with a mortally wounded passenger, Barbara Oswald. Barklage explained that Oswald had hired his helicopter ostensibly to look at oreal estate in eastern Missouri and southern Illinois but had forced him at gunpoint to take the helicopter to the prison at Marion to pick up three prisoners waiting at a specified location within the prison. According to the pilot, he had managed to take the gun away from Oswald and had shot her to death when she was reaching for other weapons. Evidence presented at trial indicated that defendants here and another prisoner James Kenneth Johnson*fn1 were in the area designated by Oswald to Barklage for his landing (an area off limits to prisoners without official permission), that one of the prisoners put on the ground a yellow jacket as Barklage testified Oswald hd said one of them would do, and that the prisoners wore or carried clothing and other items likely to be useful to them upon escaping.
SUFFICIENCY OF THE EVIDENCE
Both the defendants contend that there was insufficient evidence to support their convictions on Counts 4 (aircraft piracy) and 5 (kidnapping).*fn2 Both complain that various instances of alleged prosecutorial misconduct denied their rights to a fair trial. Each individually raises several other issues, discussed infra .
In considering appellants' sufficiency of the evidence arguments, we must view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60 (1942). The test for sufficiency of the evidence is whether, taking the view most favorable to the government, reasonable minds could conclude the evidence is sufficient to prove the guilt of the defendants beyond a reasonable doubt.
18 U.S.C. § 2(a) provides that "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal." This court has referred to the Learned Hand formulation of the definition of aiding and abetting. It requires that the defendant "in some sort associate himself with the venture, that he participate in it as in something that he wishes to bring about, that he seek by his action to make it succeed." United States v. Greer, 467 F.2d 1064, 1068-69 (7th Cir. 1972), cert. denied, 410 U.S. 929 (1973) (citing United States v. Peoni, 100 F.2d 401, 402 (2nd Cir. 1938).
The government argues that the evidence was sufficient for the jury to find McNally guilty beyond a reasonable doubt of air piracy and kidnapping. McNally was attempting escape and was in the restricted portion of the penitentiary towards which Oswald was forcing the helicopter pilot to guide his craft. Oswald had mentioned McNally's name in a conversation prior to the attempted escape. Inmate Michael Marchetto testified concerning a conversation he had with McNally in the evening of May 24, after the escape attempt failed. Correctional officer Jose Vazquez related a conversation he overheard between McNally and another prisoner two months after the escape attempt.
The evidence of McNally's guilt on Counts 1 and 2, while very convincing, help prove the plan to have the helicopter available, but falls short of proving knowledge of the details of the relationship between Oswald and the pilot. Although it has been proved that McNally was expecting to escape in the helicopter, the government was required to prove beyond a reasonable doubt that the helicopter would be brought to the prison through air piracy and kidnapping and that McNally had encouraged or assisted the commission of those crimes. That Oswald mentioned McNally's name shows that she was aware of his existence and may have been evidence confirming his guilt on Counts 1 and 2, but it has no bearing on Counts 4 and 5.
Inmate Marchetto testified that Trapnell told him the night of May 24 that he was locked up in the segregation unit because of his participation in the abortive attempt, that the escapers had intended to proceed to a nearby airport where there were guns and clothes and a car, that they had planned to take another flight from Kentucky, and that they would have carried out some robberies in New Orleans. Once again, this evidence is not probative of anything connected with the air piracy and kidnapping charges.
The final piece of evidence advanced by the government is the Vazquez testimony, regarding overheard conversations between McNally and another prisoner on July 18 and 19. Helicopter pilot Barklage had testified that Oswald, while holding him at gunpoint during the flight, had showed him handcuffs and said they would be used on him. Vazquez's testimony about handcuffs was as follows:
"Q. Do you recall hearing Mr. McNally say anything concerning handcuffs?
A. Yes, he says that this lady is supposed to have some cuff with her, to cuff people."
Assuming that Vazquez was a witness whose testimony the jury found credible, we cannot find that this single comment of McNally, made two months after the escape attemt, is sufficient evidence to prove beyond a reasonable doubt that McNally aided and abetted in the air piracy and kidnapping.
On the contrary, the evidence against Trapnell*fn3 on the air piracy and kidnapping charges is more substantial than that against McNally. Trapnell corresponded with and met with Oswald on numerous occasions, the last being the morning of the escape attempt. The government argues that the jury could infer that Trapnell and Oswald discussed all of the details of the escape attempt, including the means (air piracy and kidnapping) by which the helicopter would be brought to the prison. Had the escape been by a stolen car rather than a helicopter, we would not find credible any inference that the prisoner planning the escape inquired whether the co-conspirator would obtain the car by theft. Cars are in common use in the country, are easily obtainable legally, and are owned by most of the nation's adult population. A great majority of American adults are licensed to drive automobiles. In contrast, only a small minority of people in this country own or have access to helicopters, and few people can pilot one. Of those who have helicopters available for use and can pilot them, few would voluntarily use a helicopter to effect an escape from prison. The evidence of Trapnell's plans and conspiracy to escape is clear and uncontested; we believe a jury would have been justified in concluding that Trapnell, by meetings and correspondence, knew of and encouraged the planned air piracy and kidnapping.
The testimony of Marchetto about a conversation with Trapnell, two months after the escape attempt, provides further evidence of Trapnell's prior knowledge of Oswald's inability to pilot a helicopter and of her design to carry out the escape by means of air piracy and kidnapping. Marchetto testified as follows:
He [Trapnell] told me that there had been $5,000 sent to finance this thing, and I asked Kenny -- I mean Trap, "well, why didn't you send Barbara to Louisiana, Florida, Texas, somewhere away from this area to take helicopter lessons so that she could have flown in herself instead of having to take the chance of taking a hostage and depending on somebody else?" And he told me that it was a time element; at the time they were constructing a new tower in the front of the institution, and he was worried it would be manned before she could have completed it and gotten back.
Considering the Marchetto testimony, together with the Trapnell-Oswald meetings and correspondence and the inferences to be drawn from them, we find that the jury's verdict of guilt as to Trapnell on the air piracy and kidnapping counts was supported by sufficient evidence to establish his guilt beyond a reasonable doubt.
PREJUDICIAL TRIAL PUBLICITY
Defendant McNally argues that the district court erred in denying his motions to sequester the jury and to question jurors regarding allegedly prejudicial trial publicity.
Immediately after the district court granted Meadows' and Johnson's motions for severance on December 14, Trapnell*fn4 requested that the court ask each juror the following morning whether he or she had read the evening newspapers, presumably for the purpose of discovering whether any juror had read any news report about the guilty pleas of the severed defendants. The court denied the motion. That evening two local newspapers, the Benton Evening News and the Southern Illinoisan, printed articles about the changes of pleas, severance, and related testimony. The Evening News article mentioned the charges for which the incarcerated defendants (McNally, Trapnell, & Johnson) were currently in prison. The parties had stipulated at trial that these defendants were lawfully in custody at the prison but that the charges on which they were incarcerated would not be brought to the attention of the jury.*fn5
In a news report on Radio Station WDDD on December 14 or 15, according to the McNally brief, an attorney close to this case had stated that McNally and Trapnell were offered the same deals as Meadows and Johnson; the report allegedly indicated that, as Trapnell and McNally were just as guilty as the other two defendants, the attorney could not understand why Trapnell and McNally did not accept the deal. On December 18, McNally moved for a mistrial, requesting the trial court to "question each juror regarding the publicity in this case," and suggesting several questions to be asked. McNally's motion and the arguments in his brief concentrate on possible prejudice to him from the radio broadcast. One suggested question ...