Opinion for the court filed by Circuit 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.
The October 11 Uprising
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
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
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 codefendant), 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
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. ___, 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.
(1) Keith G. Greenfield
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
(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);
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 "goon 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
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.
(2) Terry L. Burgin
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.
We have considered the immunity claim in the companion case of United States v. Gorham, 173 U.S.App.D. C. ___, 523 F.2d 1088 (decided Nov. 28, 1975). We recite in concise form the conclusions we reached in that appeal. First, the decision in Santobello on which appellants would rely involved fundamental principles of contract
Second, appellants' claim rests on a decidedly inferior interpretation of the terms of Hardy's agreement. His note read:
Subsequent statements by Hardy recited in our Gorham opinion confirm what the language of his note suggests: that his promise was not to engage in administrative reprisals and not to personally institute lawsuits against the rebellious inmates. These representations were fulfilled. In light of the note's final assertion that inmates would not be moved "pending any court action," the claim that Hardy attempted to prevent any future indictment or prosecution by the United States Attorney is utterly implausible.
Third, we reject appellants' suggestion that Hardy actually possessed the authority to grant insurgent prisoners immunity from prosecution for their offenses. As we pointed out in Gorham, power to grant immunity exists only through specific statutory authorization, United States v. Ford, 99 U.S. 594, 606, 25 L.Ed. 399 (1879); federal statutes generally limit such authorization to grants of immunity for potential witnesses, and thus no authority is claimed for Hardy's putative promise. Moreover, Hardy served as the agent of the Attorney General for the limited and express purpose of exercising custody over certain prisoners convicted or detained under congressional enactment, and thus even if the Attorney General or the United States Attorney possessed the power appellants ascribe to them, Hardy's action could not have bound them to forbear prosecution on an agency theory.
Finally, appellants suggest that an order issued by Judge Bryant in a related case
We note that the terms of this order relate, as did the language of Hardy's agreement, to future administrative reprisals within the correctional system, not to prosecution in federal court. Moreover, Judge Bryant had no more authority to grant appellants immunity than Kenneth Hardy; the power to grant immunity resides in the executive and the legislature, McCarthy v. Arndstein, 266 U.S. 34, 42, 45 S.Ct. 16, 69 L.Ed. 158 (1924), and absent statutory authority a federal judge is without power to grant immunity from prosecution for criminal offenses, Isaacs v. United States, 256 F.2d 654, 661 (8th Cir.
(3) Robert G. Matthews
(a) The conspiracy.
Matthews attacks his conspiracy conviction, alleging that the "evidence is consistent only with his spontaneous participation in certain activities," that "nothing suggests that there was any participation on his part that was planned in conjunction with others," that he simply "happened to be in the same place at the same time . . . [and was] caught up in the events of the moment." Brief for Matthews at 8, 10. His contention is that conspiracy charges should be reserved for those who engage in deliberate plotting and preparation, and should not be leveled against those who merely participate in events planned and executed through others' conspiratorial prearrangement.
Matthews' claim suggests that only the prearrangement to smuggle the gun into D.C. jail should give rise to conspiracy charges; in that case, only Bridgeman, Frank Gorham and Robert Jones would have been properly indicted on the conspiracy count. But the events and offenses that occurred between the release of inmates from their cells and the various attempts at escape through the skylight and the Rotunda similarly constituted planning and preparation to escape from the jail. Any prisoner who perceived that an escape would be attempted
Testimony at trial established that Matthews had held Kenneth Hardy by the collar while the final plan to rush the Rotunda door was formulated, stood in the front line of inmates at that door holding Hardy as a shield, taking turns with Burgin beating Hardy to compel him to order the door opened, and participated in the general harangue against Hardy that followed the abortive Rotunda attempt (Tr. 270, 273, 296, 631, 664, 770, 802-06, 820). We find this evidence sufficient to justify a verdict that Matthews participated in the conspiracy to escape from D.C. jail.
(b) The delay in the indictment.
The offenses with which appellants were charged occurred on October 11 and 12, 1972. Following an exhaustive five-month investigation by a special grand jury, appellants' indictment was returned on October 5, 1973. Brown, Matthews and Johnson argue that this delay of slightly less than a year violated their Fifth Amendment right to due process and their Sixth Amendment guarantee of a speedy trial, as defined by United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). They point to the absence of any justification for the hiatus, and suggest it may have made identifications, conducted nine to twelve months after the event, unreliable. And they insist that to make them specify the facts they have forgotten over the course of this delay puts them in an impossible "Catch 22" situation. Because of the inevitable "erosion of the accused's capability to muster his response to the charges," United States v. Parish, 152 U.S.App.D.C. 72, 76, 468 F.2d 1129, 1133 (1972), cert. denied, 410 U.S. 957,
Marion in fact contemplates such a remedy for pre-arrest or pre-indictment as well as for pre-trial delay, but on the condition that the defendant can show at trial that the delay "caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused." 404 U.S. at 324, 92 S.Ct. at 465. Neither of those requirements is satisfied here. The obvious reason for the delay was the magnitude and complexity of the crimes. More than 150 prisoners were in the cell-block at the time of the uprising, and the interviews and investigation which necessarily ensued were lengthy and laborious. The prosecution had to search out a well-concealed conspiracy, and to follow it beyond the participants involved in this case to determine whether there was any participation or assistance by correctional officials. During the investigatory period none of the appellants were arrested or charged with offenses arising out of the disturbance. We have seen no evidence that the year delay was the result of a deliberate prosecution tactic, nor have appellants made any serious allegation to that effect.
Appellants' claim of prejudice is equally insubstantial. Matthews can allege only a general dimming of memories and loss of evidence, varieties of prejudice the Marion court specifically rejected as "not in themselves enough to demonstrate that [appellants] cannot receive a fair trial . . .." 404 U.S. at 325-26, 92 S.Ct. at 466. Memories inevitably dim with the passage of time, but the statute of limitations is the primary measuring stick to gauge whether a criminal charge is unduly stale. Marion v. United States, supra at 322, 92 S.Ct. 455; United States v. Ewell, 383 U.S. 116, 122, 86 S.Ct. 773, 15 L.Ed.2d 627 (1966).
Brown claims that he might have received a concurrent sentence for offenses growing out of the uprising, with an effective date beginning on October 11, 1972. The contention is unrealistic for two reasons. First, courts do not customarily adjudge sentences concurrent with existing prison or jail sentences when prisoners are convicted of attempted escape from confinement: to do so would undermine the deterrence of future attempts. At the time of sentencing in this case, Judge Gasch announced that he was not considering concurrent sentences, but believed that additional time — in this instance, one year — should be added to Brown's prior sentence. Sentencing Transcript, William Brown, 23-24. Second, Brown was out on bond pending his trial in this case, and was even able to flee during the middle of his trial.
(4) James A. Bridgeman
Bridgeman's counsel argues on his behalf and for his co-defendants in the first trial, Messrs. Greenfield, Matthews and Langley, that the evidence did not support their conviction on the thirty-ninth count of the indictment charging incitement to riot:
The applicable statute in the District of Columbia provides:
Appellants contend that the events of October 11 and 12 did not constitute a riot within the meaning of the statute because there was no "public disturbance." They assert that since evidence was required of "a public disturbance such as to bring about public terror [that] . . . this particular incident inside the District of Columbia jail [could not and] did not bring about public terror . . ." Their premise is that "as a matter of law a disturbance within the confines of a jail cannot be termed a `public disturbance' [because] . . . a jail is severely restrictive both in terms of access and use and by definition it cannot be considered a public place and any disturbance which occurs there is not a "public disturbance." Bridgeman's brief at 32-33. Appellants supplement this claim with an argument that the D.C. riot statute was enacted in 1967 for the express and limited purpose of controlling street disturbances, not to supplant the offense of common law riot. Thus they reason that congressional intent does not support application of the provision to the disorder at the jail.
The offense of common law riot required only three participants, 2 F. Wharton, Criminal Law and Criminal Procedure § 860 (R. Anderson ed. 1957), while the D.C. statute applies to disturbances involving five or more persons. With the exception of this discrepancy, we find that the D.C. provision was intended to subsume all aspects of the common law crime. The language and legislative history of section 22-1122 reflect an interest in preventing not only spontaneous street demonstrations but also in proscribing riot and even incitement to riot, an offense whose coverage under the common law was uncertain.
Assistant Attorney General Fred M. Vinson, Jr. of the Criminal Division, testifying on behalf of the proposed
The Senate Report on the bill discloses a similar intent to design a solitary, comprehensive statutory provision for riot and incitement to riot:
The legislative history reveals an attempt to do away with misdemeanor punishment for aggravated riot and incitement to riot and to accord all riot offenses the status of felony. In his testimony Vinson endorsed passage of the bill to allay the fear that other statutory provisions, such as those proscribing disorderly conduct and unlawful assembly, "might preempt the common law [offense of riot]."
We also find that the evidence used to convict appellants on the riot count satisfies the "public disturbance" requirement of the statute. All parties admit that a riot is a breach of the peace which causes public terror, committed by an unlawful assembly of a stated number of persons, here a minimum of five. The assembly we consider in this case was clearly unlawful, and caused the personal injury and property damage required by the statute;
The Ninth Circuit's decision in Salem Manufacturing Co. v. First American Fire Insurance Co., 111 F.2d 797, 803 (9th Cir. 1940), reaches the same conclusion.
These decisions reflect the prevailing view that the location of a disturbance is immaterial to the determination whether it fits the statutory definition of riot. A riot may take place in a penitentiary, McClelland v. State, 4 Md.App. 18, 240 A.2d 769, 776-777 (1968); Commonwealth v. Zwierzelewski, 177 Pa.Super. 141, 110 A.2d 757, 760 (1955); and soldiers in a military camp may violate an anti-riot statute, Pitchers v. Surrey County, 39 T.L.R. 7 (1924). The court in Zwierzelewski rejected the argument advanced here that a riot can occur only in a place of public access, and volunteered that a "riot may take place in a church, Com. v. Dupuy, 4 Clark 1, or in a dwelling house, Pennsylvania v. Bugher, Add[ison], 333." 110 A.2d at 760. Moreover, "[t]he ingredient of terror excited does not require that more than one person be alarmed." To this end Wharton states:
2 F. Wharton, Criminal Law and Criminal Procedure § 865 at 732 (R. Anderson ed. 1957). See also State v. Acra, 2 Ind.App. 384, 28 N.E. 570 (1891); People v. O'Laughlin, 3 Utah. 133, 1 P. 653, 659 (1882), citing Bishops, Criminal Law § 1148; State v. Powell, 70 N.C. 67 (1874); Darst v. People, 51 Ill. 286, 2
Application of the test we adopt for the public disturbance requirement — not whether a riot occurs in a public place, but whether it affects the public — yields the unequivocal conclusion that the October 11 uprising at D.C. jail in fact caused "public terror." We need not consider whether those prisoners in the cell block who declined to participate and who were obviously terrorized by the violent acts and threats they witnessed were members of the public within the meaning of the public disturbance requirement, for the testimony is clear that members of the public outside the cell block were also terrorized. Testimony at trial indicated that there was media coverage of the "revolution" (Tr. 471-472, 825-826); that several hundred members of the public congregated outside the jail (Tr. 1006); and that the police had to surround the jail and block the streets around it (Tr. 1005). The Rotunda area was a public place, and members of the general public who entered it were surely terrorized when confronted with rioting prisoners beating on the door between the Rotunda and the cell block, using correctional officers as shields and torturing their hostages to aid their escape attempt. As noted, the threats and beatings Kenneth Hardy endured following his entry into the cell block constituted public terror within the meaning of the riot statute, dramatized by his brief hospitalization following the incident.
In conclusion, we find that the uprising of October 11 and 12 did create public terror and was a "public disturbance" within the meaning of the statute. We thus reject appellants' attack on their conviction for incitement to riot, which as charged in the indictment required proof of the actual existence of a riot.
(5) James R. Langley
Counsel for Langley centered his argument on the contention that the convictions of appellants Bridgeman, Johnson, Brown, Greenfield, and Langley should be reversed for an alleged denial of fair trial due to the admission of evidence of "about thirty" homosexual assaults on Bruce Davis by various unnamed inmates of the jail during the riot. As a result of this experience it was necessary to place Davis under psychiatric care. The evidence was admitted to prove the specific allegation of the indictment that the riot caused the kind of serious bodily harm required for conviction under the riot statute. As noted, D.C. Code § 22-1122 contains the following provision:
D.C. Code § 1122(d) (emphasis added). In charging appellants with inciting to riot, count 39 of the indictment alleged:
To support this allegation that "serious bodily harm" to Davis resulted from the riot, the Government introduced evidence through Davis, a homosexual inmate confined to Cell Block One during the disturbance, that he was sexually assaulted by approximately 30 persons during the riot and as a result he was undergoing psychiatric care (Tr. 862-867, Tr. 792-797).
It is alleged that this evidence was inadmissible because its "prejudicial value . . . far outweighed any probative value." To state the relevant principle of evidence in such shorthand fashion ignores some of its vital aspects. The rule fairly stated by Wigmore is:
6 J. Wigmore, Evidence § 1865 (1940) (emphasis added). See also Scales v. United States, 367 U.S. 203, 255-56, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Chandler v. United States, 378 F.2d 906, 908 (9th Cir. 1967). The statement of the same general rule with respect to circumstantial evidence similarly excludes such evidence only when it creates undue prejudice "in excess of its legitimate probative weight." 6 J. Wigmore, Evidence § 1904 (1940) (emphasis added). The inquiry thus turns to the legitimacy of the purpose for which evidence of homosexual rapes was admitted.
The riot count of the indictment, supra, charges that the riot caused (1) "property damage" and (2) "serious bodily harm." Evidence of the homosexual rapes was indispensable in proving the "serious bodily harm" to Davis specifically alleged in the indictment. Davis was subpoenaed to offer direct evidence in support of that allegation, and no more extensive or detailed testimony was sought than was necessary to persuade the jury that the allegation was accurate. The Government acted with restraint in introducing this evidence and did not indulge in needless repetition or resort to flamboyant or inflammatory proof. There was no suggestion that appellants were to be held responsible for substantive offenses growing out of the homosexual attacks, and thus it cannot be asserted that potentially prejudicial evidence was introduced save where it was "indispensable for its legitimate purpose."
Appellants further contend that since the Government proved that the riot caused property damage in excess of $5,000, and since the statute requires property damage or serious bodily harm in the alternative, that all evidence of serious bodily harm by the rapes was unnecessary and should have been completely excluded because of its inflammatory character. We find they take too restrictive a view of permissible conduct in prosecuting a criminal indictment. Where a criminal statute proscribes conduct in the alternative, the Government is entitled to prove both features of the crime. To find prejudice and reversible error in this case would imply the existence of a rule of limitation on prosecutors, that once they have established a prima facie case of a statutory violation based on one set of statutory requirements, they may not introduce any evidence of another specific element of the offense. However, the Government bears the heavy burden of proving its allegations beyond a reasonable
Cases which appellants cite suggesting the extreme caution with which trial courts should receive evidence involving homosexuality do not involve the situation encountered here, where evidence of homosexual conduct goes to prove a specific and essential element of the offense charged.
We conclude that the prosecution was not to be limited to proving property damage where it could also establish personal injury. Where both Hardy and Wren minimized the extent of their wounds during their testimony, the Government was not required to assume the risk that the jury might not consider their injuries "serious," when in fact independent evidence of other serious bodily harm existed. Because the testimony was presented without sensationalism, and because it went to a specific and primary statutory element, its introduction served a legitimate purpose and cannot be deemed prejudicial. And Judge Gasch's instruction in each trial that the testimony went to proof of the "serious bodily harm" precludes the claim that appellants were confronted with evidence of the separate offense of sodomy.
(6) Henry B. Johnson
(a) Assistance of Counsel.
Appellate counsel for Johnson argued that his client received ineffective assistance from his trial counsel because the latter allegedly failed to assert control over the flow of witnesses. Johnson informed his trial counsel that he wanted to call nine people to testify in his behalf. The initial judgment of trial counsel was against calling all these witnesses; he recalled advising Johnson that "the more witnesses he puts on . . . the more the Government . . . opportunity to bring out inconsistencies." Trial counsel "had contemplated calling one, Mr. Wiggins, possibly another, but Mr. Johnson wanted all his witnesses called."
Counsel proceeded to call Wiggins, Bridgeman and Heinlein. After Heinlein testified, counsel decided not to call Beard, even though Johnson kept insisting that more witnesses be called.
Johnson attacks the attorney for ignorance of the rules governing such disputes over the decision to call witnesses, but the attorney admitted his indecision and sought and obtained the guidance of the trial judge on the issue. His conduct was conscientious and diligent, which is all that the ABA standards and our decision in United States v. DeCoster
(b) Sufficiency of evidence.
Johnson was found guilty by the jury of conspiracy, attempted escape, armed kidnapping, robbery, and riot. Sentences were imposed on each count to run concurrently with each other and with any sentence currently being served. At oral argument Johnson's counsel contended that "the evidence was insufficient on all counts" and that the court erred in refusing to grant the timely motions for judgment of acquittal. The claim is not that there was a complete absence of evidence but that the evidence, particularly on the conspiracy count, was "very weak." For this reason, the argument goes, the conviction on the conspiracy count should be reversed, and because the alleged impact of the conspiracy count on the trial may have influenced the jury to return guilty verdicts on the substantive counts, Johnson's conviction on those counts may not rest on the principle of Pinkerton v. United States.
In evaluating this point we must take that view of the evidence most favorable to the jury's verdict. From that perspective, we note that when a number of the guards were locked in cell 128 and held as hostages they saw Johnson several times and "he was talking about this was a revolution" (Tr. 486-87); he was "yelling revolution" (Tr. 550-51); he frequently checked the cells where the guards were confined as hostages and thus appeared to be one of several inmates performing that function (Tr. 694-95); and he talked to the guards about revolutionary tactics and stated that because he "had a whole lot of time [to serve] . . . he had nothing to lose by going out looking" (Tr. 695-96). Johnson was also identified as a member of the group that had separated from those who did not want to escape (Tr. 491, 728) immediately before the rebellious inmates clustered for the breakout attempt at the Rotunda door (Tr. 494-95, 497, 498, 518-19, 728).
Following the failure of that escape attempt those hostages who had been used as shields were returned to the cells where they had been held, and Johnson "came by the cell many, many times" armed with a short piece of steel with a sharp end" (Tr. 502).
(Tr. 502) (emphasis added). The mention of things going "right in court" was a reference to the inmate "negotiators" who, using their hostages for leverage, had been allowed to go to the United States District Court in an effort to secure immunity from reprisals for those engaged in the conspiracy, riot and other offenses. Johnson also threatened the
Johnson contradicted the foregoing testimony with the explanation that he had spent the day in a fourth-tier cell drinking coffee, eating cookies, and talking about life in general (Tr. 1058-68). Thus there was ample evidence which, if credited, would have supported guilty verdicts against Johnson on the counts he now disputes. The credibility and weight to be accorded that evidence was for the jury to determine, and it carried out its function by finding him guilty on those counts. We find no basis for interfering with the resulting judgment.
(7) William Brown, a/k/a "Bill-Bill" Brown
In support of Brown's appeal his counsel argued (1) that it was error to refuse to sever his trial from Johnson's because some testimony of Johnson's witnesses would be prejudicial to his case, and (2) that D.C. Code § 22-3202, under which appellant was sentenced to a mandatory minimum sentence because of a previous conviction for a "crime of violence," is unconstitutional.
(a) The testimony of Johnson's witnesses.
Brown claims that he was prejudiced by witnesses called by his co-defendant in the second trial, Johnson, and that denial of his Motion for Severance was therefore erroneous. The claim echoes Johnson's contention that the latter's attorney was ineffective for having allowed Bridgeman and Heinlein to testify against his better judgment. But none of the three witnesses summoned by Johnson ever mentioned Brown on the stand, despite the Government's attempt on cross-examination to get them to "name names" (Tr. 946, 965, 970). In fact Bridgeman specifically refused to name Brown as one of the leaders of the uprising (Tr. 970). Judge Gasch commented that Bridgeman's testimony had not "hurt" Brown (Tr. 1140), who had fled in the middle of the trial, and Brown's counsel indicated his client was trying to "get mileage in an energy crisis" (Tr. 1141). Finally, as the Government contends, the evidence showing Brown's pivotal and violent role in the rebellion was so strong
(b) The validity of the sentence under D.C. Code § 22-3202.
Judge Gasch sentenced Brown to the mandatory minimum term on 12 counts of armed kidnapping. Brown now challenges that sentence, arguing that the statute only applies to offenses prosecuted in the Superior Court of the District of Columbia. The statute by its language requires an additional punishment of five years' imprisonment whenever a person "is convicted more than once of having committed a crime of violence in the District of Columbia."
Following oral argument on this issue the trial court ruled that the mandatory provisions of 22 D.C. Code § 3202(a)(2) were applicable to Brown and that he was required to adjudge the maximum sentence (Brown Sent. Tr. 23). The armed kidnapping charges against Brown were properly tried by the federal court in the District of Columbia under 11 D.C. Code § 502(3), which specifically confers upon the United States District Court for the District of Columbia jurisdiction over "[a]ny offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal offense." Appellant was charged with conspiracy and attempted escape from federal custody in violation of 18 U.S.C. §§ 371 and 751(a) respectively, and the District of Columbia Code offenses were thus properly joined and tried in the U.S. District Court. We held in United States v. Thomas, 158 U.S.App.D.C. 233, 485 F.2d 1012 (1973), that D.C. Code § 22-3202 was applicable to offenses tried in U.S. District Court, and that decision disposes of Brown's contention that only convictions in D.C. Superior Court should invoke the minimum sentencing provisions of § 3202(a)(2).
Brown's counsel also contends that his client was not subject to be sentenced as a person "convicted more than once of having . . . committed a crime of violence in the District of Columbia" because the prior sentence was not adjudged by the court until October 17, 1972, some five days after the armed kidnappings charged in the instant indictment had occurred on October 11 and 12, 1972. The statute, however, does not require that the second crime occur after sentence is adjudged on the prior "crime of violence." It speaks in terms of a prior conviction existing at the time of a subsequent sentencing: a defendant who has been convicted of one violent crime at the time he is sentenced for a second crime of violence clearly comes within the purview of the statute, even though his sentence on the first conviction was not adjudged until after the second crime was committed. Because Brown's armed robbery conviction preceded his sentencing in this case, the mandatory minimum sentence was required.
Finally, Brown argues that the minimum sentence provision is unconstitutional because it divests the trial court of all discretion concerning the duration of punishment or the granting of probation. In 1916 the Supreme Court held that a United States District Court was not free to ignore a congressionally imposed minimum sentence. Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129 (1916). The Court reiterated that the statutory boundaries of criminal sentences are "peculiarly questions of legislative policy" in Gore v. United States, 357 U.S. 386, 393, 78 S.Ct. 1280, 1285, 2 L.Ed.2d 1405 (1958). These decisions effectively foreclose appellant's constitutional attack on the mandatory minimum sentence.
We have disposed of all major points raised by counsel at oral argument. Additional arguments presented in the briefs were not advanced in court even though the time for oral argument was greatly extended over that normally allowed. We have examined, considered and rejected as insubstantial these additional points, to wit: that it was error to sequester the jury in the trial of Brown and Johnson; that the Government should have been required to elect between the conspiracy count and the substantive counts in that trial; that Johnson on his motion should have been granted a mistrial when his co-defendant Brown absconded in the middle of the trial; that the Government prejudicially exceeded the bounds of proper cross-examination of appellant Bridgeman in Johnson's trial; that Bridgeman was improperly convicted of both conspiracy and the substantive counts; that the evidence
Because appellants have failed to identify any reversible error, we affirm the judgments of convictions entered against all appellants on all counts.