Rehearing and Rehearing En Banc Denied March 19, 1979.
FAY, Circuit Judge:
This case involves an outrageous episode in law enforcement. Taking the evidence in a light most favorable to the government, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942), this story unfolds as follows.
On September 14, 1975, at 10:30 p. m. Officer Donald McCall, of the Castroville, Texas Police Department was directed by appellant Frank Hayes, then Chief of Police of the Castroville Police Department, to serve misdemeanor arrest warrants on Richard A. Morales. McCall was also directed by Hayes to obtain the serial numbers from a stereo and television set at the Morales residence in order to determine whether these items had been stolen. Although Hayes suspected that these items had been stolen, they had been rented by Morales and his wife from a rental agency.
The misdemeanor arrest warrants had been obtained by Hayes several days earlier from Medina County Deputy Sheriff Alvin Santleben who had arrested Morales on the warrants a month earlier, but released him without processing. Morales had, in fact, satisfied the warrants by voluntarily appearing at a court hearing on September 12, 1975 in Medina County on charges of failure to deliver several cows he had sold.
Officer McCall proceeded to the Morales residence in his patrol car accompanied by a friend, Steven Worthy, who had been riding with him that day. McCall placed Morales under arrest, handcuffed him and searched him. He then obtained serial numbers from the television and stereo. At this time appellant Frank Hayes arrived at the Morales residence in his personal car accompanied by Dennis Dunford, his prospective son-in-law. Frank Hayes called Morales a "thieving son of a bitch," told him he was going to kill him numerous times and struck him in the stomach with his fist. All five persons then left the Morales residence; Officer McCall, Steven Worthy and Richard Morales in the patrol car, with Frank Hayes and Dennis Dunford in Hayes' personal car. The two cars proceeded several miles out of Castroville to a gravel road in a deserted area. Several stops were made along the way at which time Hayes instructed McCall to tell Morales that Hayes was going to kill Morales if Morales did not reveal the location of stolen merchandise. Hayes also told Dennis Dunford not to worry about any shots because they were just trying to scare Morales.
When the two cars reached the deserted gravel road, Hayes directed that all lights be extinguished, took possession of a double barreled 12 gauge shotgun and struck Morales in the stomach with the breach of the shotgun. Hayes then stated that he had killed one Mexican and was "fixing to kill" another one. Hayes directed McCall to remove the handcuffs from Morales, and told McCall and Worthy to leave the scene.
After McCall and Worthy left, Hayes questioned Morales further and pushed him with the butt and then the barrel of the
Defendant Frank Hayes then got back in his car and drove up the road several hundred yards to where McCall and Worthy had stopped in the patrol car. Hayes told McCall to inform the Sheriff's office that Morales had escaped. After McCall and Worthy left for the Sheriff's office, Hayes and Dunford returned to the scene of the shooting and loaded Morales' body into the rear seat floor boards of Hayes' car. Hayes asked Dunford if he knew of a place to bury the body, but Dunford said he did not. Hayes told Dunford that the shooting had been an accident, but no one would believe him.
Hayes then drove to his residence in Castroville where he dropped off Dennis Dunford and picked up his wife, Dorothy Foley Hayes. Mr. and Mrs. Hayes then departed in the car with the body in the rear seat and returned to the Hayes' residence approximately one hour later. Frank Hayes requested Dunford to accompany him and they drove to a location out of Castroville where they transferred the body from the rear seat to the trunk of the car and returned to the Hayes' residence.
Mrs. Hayes then left the Hayes' residence with her daughter Jeannie and drove the car with Morales' body in the trunk to San Antonio where she picked up her sister, defendant Alice Baldwin. They then proceeded to transport Morales' body to Panola County, Texas near the Louisiana border — a distance of approximately 400 miles — stopping en route to purchase shovels. Upon reaching Panola County, they proceeded to the property of Mrs. Hayes' brother and buried the body in a shallow grave in an isolated area. They then drove to Alice Baldwin's cottage in Llano County, Texas where Mrs. Baldwin and Mrs. Hayes were apprehended while in the process of disposing of bloody garbage bags and shovels from the trunk of the car.
After initially denying any knowledge of these events Mrs. Hayes eventually admitted to burying the body and directed law enforcement officials to its location. Similarly, appellant Alice Baldwin initially denied having been in Panola County, but subsequently confessed to taking part in the burial of the body of Richard Morales.
All three appellants testified. Defendant Frank Hayes, although displaying a detailed recollection of the events leading up to the shooting, claimed to be unable to remember the events which occurred after the shooting. He testified that the shooting was accidental. Appellant Dorothy Foley Hayes testified that she did not know Frank Hayes had committed any crime and buried the body to preserve it as evidence. Appellant Alice Baldwin denied taking part in the burial, but admitted to helping dispose of the burial implements.
In January, 1976, Frank Hayes was indicted for the offense of capital murder in Medina County, Texas. On change of venue, that case was transferred to Tom Green County, Texas, and was tried at the County Seat at San Angelo in the 51st Judicial District Court for the offense of murder. The jury found Frank Hayes guilty of the lesser included offense of aggravated assault and assessed his punishment at ten years confinement in the Texas Department of Corrections. Mrs. Hayes entered a plea of nolo contendere to the charge of concealing physical evidence, a misdemeanor in the County Court of Medina County. She was sentenced to one year probation. Appellant Baldwin was not prosecuted in state court.
On February 23, 1977 a Federal Grand Jury returned a two-count indictment. Count I charged defendant Frank Hayes with violating 18 U.S.C. § 242 by depriving Richard A. Morales of the right to liberty without due process of law, resulting in the death of Richard A. Morales. Count II charged defendants Dorothy Foley Hayes and Alice Baldwin with being accessories after the fact in violation of 18 U.S.C. § 3.
After the filing of a motion on behalf of defendant Frank Hayes for a determination of mental competency and sanity, the district court ordered a psychiatric examination. A competency hearing was held at which time the report of the examining
The indictment was returned in the San Antonio Division of the Western District of Texas. Defendants' motion for a change of venue to the Division of their choice was granted and trial was held before a jury in the Waco Division on September 26 to 29, 1977. On September 29, 1977 the jury returned verdicts of guilty against all defendants.
Prior to sentencing, the district court committed defendant Frank Hayes to the custody of the Attorney General pursuant to 18 U.S.C. § 4205(c) for three months of study and observation. After the results of this study were made available to the Court, defendant Frank Hayes was sentenced to life imprisonment. Defendant Dorothy Foley Hayes was sentenced to three years imprisonment pursuant to 18 U.S.C. § 4205(b)(2), making her eligible for parole at any time. Defendant Alice Baldwin was sentenced to eighteen months imprisonment with twelve months suspended and five years supervised probation. Appellants urge several grounds for reversal of their convictions. For reasons more fully developed below, we affirm.
I. DOUBLE JEOPARDY, PETITE POLICY, COLLATERAL ESTOPPEL, DISCRIMINATORY PROSECUTION
Appellant's first group of arguments concern the validity of the federal prosecution in light of the previous state prosecution. First, appellant urges this court to abandon the well-established rule that there is no constitutional bar to successive state and federal prosecutions for the same criminal conduct. The leading cases in this area are Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959) and Bartkus v. Illinois, 359 U.S. 121, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959). In Abbate, the defendant had first been tried and convicted in an Illinois court for conspiring to damage another's property and had been sentenced to three months imprisonment. He was subsequently prosecuted by the federal government for conspiring to destroy communications facilities operated or controlled by the United States, 18 U.S.C. § 1362 (1964). Bartkus involved a defendant who was convicted of armed robbery under Illinois law, after having been acquitted by a federal jury of robbing a federally insured savings and loan association, 18 U.S.C. § 2113 (1964). The Court reasoned that to outlaw successive prosecution would enable one sovereign to interfere with the administration of the other's criminal law. The classic formulation of this "dual sovereignty" concept states:
United States v. Lanza, 260 U.S. 377, 382, 43 S.Ct. 141, 142, 67 L.Ed. 314 (1922).
While the Court has consistently expressed concern over the possible abuses of dual prosecutions, see Bartkus v. Illinois, 359 U.S. 121, 138, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) ("the greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy"); United States v. Lanza, 260 U.S. 377, 383, 43 S.Ct. 141, 67 L.Ed. 314 (1922) ("in the benignant spirit" in which the federal system is administered, defendants should be subject to dual state-federal prosecutions only "in instances of peculiar enormity"), quoting Fox v. Ohio, 46 U.S. (5 How.) 410, 434, 12 L.Ed. 213 (1847), and while the Lanza-Abbate-Bartkus doctrine has met harsh criticism, see, e. g., Harrison, Federalism and Double Jeopardy; A Study in the Frustration of Human Rights, 17 U. Miami L.Rev. 306 (1963); Fisher, Two Sovereignties and the Intruding Constitution, 28 U.Chi.L.Rev. 591, 599 (1961); Grant, The
Appellant's next contention is that the Justice Department violated its own published policy against dual prosecutions (the Petite Policy) and has thus denied appellants the constitutional protections of Due Process and Equal Protection. The Petite Policy is an internal Department of Justice policy regulating the initiation of federal prosecutions in two instances,
In addition, while we recognize that agencies of the federal government are bound by the rules and regulations which they officially promulgate, see Accardi v. Schaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954), we are not prepared to hold that a letter, press release, or similar statement by the Attorney General, which is not promulgated as a regulation of the Justice Department and published in the Federal Register, can serve to invalidate an otherwise valid indictment returned by the Grand Jury. Sullivan v. United States, 348 U.S. 170, 173, 75 S.Ct. 182, 99 L.Ed. 210 (1954); United States v. Hutul, 416 F.2d 607, 626-27 (7th Cir. 1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970).
In order to obtain an evidentiary hearing on the defense of selective prosecution, facts sufficient to create a reasonable doubt about the constitutionality of a prosecution must be presented. United States v. Ream, 491 F.2d 1243, 1246 (5th Cir. 1974). In this case, the trial court denied appellants' motion for an evidentiary hearing to consider selective prosecution in that "no reasonable probability of actual discrimination has been demonstrated." We agree.
With respect to the first prong of the selective prosecution test, appellants again raise the Petite Policy and argue that Hayes has been singled out for prosecution contrary to the Petite Policy. Although defendants assert that "hundreds" of other similar cases were not federally prosecuted after a state prosecution had been pursued in good faith, only three such cases were presented to the trial court. The government, on the other hand, presented the trial court with forty-three examples of dual state and federal prosecution in recent years, twenty-eight of which were for civil rights violations. Indeed, the existence of civil rights cases where the federal government has not sought to prosecute after a previous state prosecution only serves to highlight the stated intent of the Department of Justice to prosecute only when the Department determines that prosecution is necessary to vindicate and protect certain constitutional liberties. As appellants have raised no reasonable doubt that the prosecutor's motives were improper, we conclude that the trial court was correct in denying appellants' motion to dismiss the indictment on grounds of selective prosecution.
Appellants further claim that the federal prosecution should be collaterally estopped due to the previous state litigation. But appellants' reliance on collateral estoppel is misplaced. Collateral estoppel does not apply to successive prosecutions by the state and federal governments because the party that the defendant seeks to estop in the second prosecution was not a party to the first trial. Turley v. Wyrick, 554 F.2d 840, 842 (8th Cir. 1977), cert. denied, 434 U.S. 1033, 98 S.Ct. 765, 54 L.Ed.2d 780 (1978); United States v. Smith, 446 F.2d 200, 202 (4th Cir. 1971); United States v. Hutul, 416 F.2d 607, 626 (7th Cir. 1969), cert. denied, 396 U.S. 1012, 90 S.Ct. 573, 24 L.Ed.2d 504 (1970).
II. § 242 INTENT
Defendant Hayes was tried and convicted of violating 18 U.S.C. § 242. That Section provides:
That portion of the statute set out in italics was added in 1968. Act of Apr. 11, 1968, Pub.L. 90-284, 82 Stat. 75. Appellant asserts that the amendment to Section 242 necessarily contemplates a willful intent to do the act which causes the resulting death, and a willful intent to cause the death of the victim. Thus, appellant asserts that the indictment is insufficient in that it fails to charge Hayes with intentionally causing the death of Morales.
In Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), the Supreme Court considered the "intent" requirement of the then unamended version of 18 U.S.C. § 242. In Screws, the Court held that § 242 was not unconstitutionally vague if it was read as requiring "an intent to deprive a person of a right which has been made specific either by the express terms of the Constitution or laws of the United States or by decisions interpreting them." 325 U.S. at 104, 65 S.Ct. at 1037. The Supreme Court noted that it was not sufficient to instruct the jury that the requirements of the statute were met if petitioners had a "generally bad purpose." 325 U.S. at 107, 65 S.Ct. 1031. Thus, Screws makes it perfectly clear that once a due process right has been defined and made specific by court decisions, the right is encompassed by § 242. Further, in order to violate § 242, one must have a specific intent to willfully violate that defined right. Defendant concedes, as he must, that there are numerous cases which support the proposition that one's right to be tried by a court, and not by ordeal, and thus to be free from unlawful assault by state law enforcement officers when lawfully in their custody, has been made a definite and specific part of the body of due process rights protected by the fourteenth amendment of the Constitution, and therefore within the purview of § 242. See, e. g., Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1954); United States v. Stokes, 506 F.2d 771 (5th Cir. 1975); United States v. Walker, 216 F.2d 683 (5th Cir. 1954), cert. denied, 348 U.S. 959, 75 S.Ct. 450, 99 L.Ed. 748 (1955); Lynch v. United States, 189 F.2d 476 (5th Cir.), cert. denied, 342 U.S. 831, 72 S.Ct. 50, 96 L.Ed. 629 (1951). The question, therefore, is whether the 1968 Amendment has altered the equation by adding a life imprisonment provision in § 242 cases where "death results." We hold that the 1968 Amendment alters the statute only insofar as requiring the additional element that death ensued as a proximate result of the accuseds' willful violation of a victim's defined rights.
The theory of proximate causation can also answer appellant's quasi-vagueness argument. Our understanding of vagueness is that statutes which are "vague" are constitutionally infirm because they fail to give notice of what specific conduct is proscribed. Thus, a prosecution under a vague statute constitutes a denial of due process. Rowan v. United States Post Office Department, 397 U.S. 728, 740, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970). In rejecting a vagueness attack on Section 242 however, the Supreme Court has ruled that "a requirement of a specific intent to deprive a person of a federal right made definite by decision or other rule of law saves the Act from any charge of unconstitutionality on the grounds of vagueness." Screws v. United States, 325 U.S. 91, 103, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945). The Court went on to say:
Id. at 105, 65 S.Ct. at 1037. The amendment to Section 242 does not alter this as the amendment did not proscribe any additional conduct which was not already punishable under the unamended version of Section 242. Rather, those cases of infringement with defined rights which result in death are a subset of the universe defined as those cases of infringement with defined rights. Activities which fall within the former naturally fall within the latter.
Nonetheless, appellant claims that the statute is vague because "the law does not provide any means to follow the causal connections between the death and the acts of violating civil rights." Appellant's brief at 24. But the logical corollary of the proposition that foreseeable events are considered within the chain of legal causation, is that those consequences deemed unforeseeable are outside the sphere of culpability. To cramp the meaning of "result" to include
The third group of appellant's assertions of error concern the competency of Frank Hayes. Counsel for appellant Hayes urges that: 1) Hayes was incompetent to stand trial because of his use of drugs administered by agents of the government, 2) Hayes was denied due process because, due to his dependence on drugs, he was unable to assist counsel in his defense, 3) the trial court erred in not ordering, on its own motion, a competency hearing during the trial, 4) Hayes was denied a fair trial because the trial court prohibited testimony concerning his dependence on drugs and therefore the jury could not properly evaluate his credibility and demeanor, 5) the trial court erred in not instructing the jury that, because of drug dependence, the jury was not observing Hayes in his "natural state and demeanor free of defect," and 6) the trial court erred in not submitting the issue of Hayes' insanity to the jury.
In March 1973, appellant Hayes was severely injured while attempting to apprehend criminals in a liquor store robbery. He was shot several times and was beaten in the head. As a result of this incident, Hayes underwent six or seven surgical procedures resulting in a colostomy and repairs of various puncture wounds. Between March 1973 and the shooting here in question, Hayes was almost continuously on medication, including various narcotics and analgesics. On the evening of the Morales shooting, appellant Hayes had taken the tranquilizer Valium.
At arraignment on March 3, 1977, the court noted that it had been informed that Hayes was suffering from "organic brain syndrome" and accordingly, ordered a competency examination of appellant Hayes. The examination was ordered for March 11, 1977. The doctor issued his report on April 28, 1977. The competency hearing was held on May 26, 1977. At the hearing, the court-appointed psychiatrist testified that in his opinion Hayes was competent to stand trial. He based his opinion on his examination of the defendant prior to the hearing and also on his consultation with Hayes on the morning of the hearing.
The test for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); 18 U.S.C. § 4244. A district court's determination of competency to stand trial may not be set aside on review unless it is clearly arbitrary or unwarranted. United States v. Fratus, 530 F.2d 644, 647 (5th Cir. 1976). Cf. United States v. Schaffer, 433 F.2d 928, 930 (5th Cir. 1970) ("clearly erroneous" standard of review); United States v. Gray, 421 F.2d 316, 317-18 (5th Cir. 1970) (same). During the competency hearing, the following colloquy between the court-appointed psychiatrist and the court took place:
In light of this testimony, we are unable to find the trial court's finding of competency clearly erroneous or arbitrary.
Nonetheless, it is argued that without large doses of Aventyl (an anti-depressant) and Mellaril (an "anti-psychotic" drug), defendant would be incompetent. Appellant Hayes argues that a finding of "incompetence but for drug maintenance" precludes a finding of competence to stand trial. But this argument is akin to declaring comatose all those diabetics who, but for periodic insulin injections, would lapse into coma. As noted by the court-appointed psychiatrist, "there are many people who are maintained on moderate to sometimes very large amounts of tranquilizers in order that they may have jobs and function in society." The court's inquiry is limited to determining whether defendant is able to assist in his defense and comprehend the nature of the proceedings against him. Once it is determined that he is competent to stand trial, the method of achieving that competence is of minor import. This is not to imply that drug maintenance is irrelevant in determining competency. Rather, all factors relating to perception and facility are to be considered. However, once it is determined that the accused has the requisite mental capacity, his method of maintaining that capacity is significant only in the area of continued competency throughout the proceedings.
Hayes urges that the trial court erred by failing to conduct, sua sponte, a competency hearing during the trial. The standard applied by this court in determining whether a competency hearing was warranted during the trial is
Tyler v. Beto, 391 F.2d 993, 997 (5th Cir. 1968), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574 (1969) (emphasis in original) (citations omitted). See Fitch v. Estelle, 587 F.2d 773, 777-78, (5th Cir. 1979).
Here, defendant was found competent at a competency hearing. After that finding, the trial judge made this request:
Appellant Hayes' counsel remained silent on this matter throughout trial. The only facts that came to the trial court's attention after the original competency determination were that Hayes' medication had been increased and that Hayes felt "kind of fuzzy, just kind of wobbly." These facts are not sufficient to suggest a substantial doubt as to Hayes' capacity. Accordingly, another determination of competency was not required.
Hayes further argues that the trial court erred by excluding evidence that without the use of drugs, Hayes would have been incompetent. This, Hayes urges, denied the jury the opportunity to properly consider Hayes' credibility and demeanor. But as we have noted, Hayes' capacity when not taking his medication is not at
At the close of trial, Hayes requested a specific jury instruction relating to his maintenance on drugs and the effect of those drugs on his demeanor. The instruction was denied and objection was timely made. We find no error in the trial court's refusal to charge the jury to consider the effect of drugs on Hayes' demeanor and memory, because the substance of the requested instruction was adequately covered in the court's general credibility charge. United States v. Green, 327 F.2d 715, 718-19 (7th Cir.), cert. denied, 377 U.S. 944, 84 S.Ct. 1350, 12 L.Ed.2d 306 (1964).
Appellant Hayes' final "competency" claim concerns the failure of the trial court to submit the issue of insanity to the jury. In this appeal, appellant submits that the issue of insanity should have been offered to the jury in view of his physical and mental condition aggravated by the use of drugs and alcohol at the time of the alleged offense, and further, that it was plain error for the court to fail to so charge the jury. Fed.R.Crim.P. 52(b).
Although appellant Hayes noticed an intention to raise the defense of insanity, and although the trial court and government counsel tried most of the case with the understanding that insanity was to be a defense used by Hayes, appellant's trial counsel explicitly withdrew this defense when it came time for the government to present evidence of Hayes' sanity. We note the following colloquy between Judge Spears, Marvin Miller (counsel for defendants) and Karen Moore (counsel for the United States):
As this Court has recently noted, counsel may refrain from requesting an instruction in order not to emphasize potentially damaging evidence or for other strategic reasons. United States v. Barnes, 586 F.2d 1052, 1059, (5th Cir. 1978). Similar motivations may cause counsel to withdraw a previously requested instruction. We will not second guess counsel's decision. Moreover, Rule 52(b) will not be used to allow counsel for the defendant to gamble first on acquittal and then, upon conviction, to raise on appeal any matters which could have been easily remedied at trial. United States v. Jacquillon, 469 F.2d 380 (5th Cir. 1972), cert. denied, 410 U.S. 938, 93 S.Ct. 1400, 35 L.Ed.2d 604 (1973). Accordingly, the trial court did not err by complying with defense counsel's request to omit an insanity charge.
IV. CONSTITUTIONALITY OF 18 U.S.C. § 3
Appellants Dorothy Hayes and Alice Baldwin urge that 18 U.S.C. § 3 is unconstitutional. The pertinent portion of that section provides:
Appellants argue that in cases where the maximum punishment of the principal is life imprisonment, inability to determine one-half of the maximum punishment causes the statute to be unconstitutionally vague and indefinite. While the statute does not provide for a specific maximum sentence in situations of life imprisonment for the principal, failure to provide a clearer maximum possible sentence does not render the statute constitutionally infirm. Earin v. Beto, 453 F.2d 376 (5th Cir.), cert. denied, 406 U.S. 909, 92 S.Ct. 1618, 31 L.Ed.2d 819 (1972). Leaving the determination of maximum sentences to the court is not uncommon. See Binkley v. Hunter, 170 F.2d 848, 849 (10th Cir. 1948), cert. denied, 336 U.S. 926, 69 S.Ct. 645, 93 L.Ed. 1087 (1949). The statute can be reasonably construed to authorize a maximum sentence. United States v. Rich, 518 F.2d 980 (8th Cir. 1975), cert. denied, 427 U.S. 907, 96 S.Ct. 3193, 49 L.Ed.2d 1200 (1976).
Appellants further argue that their inability to determine the maximum possible punishment deprived them of effective assistance of counsel by rendering intelligent plea decisions impossible. Wading into uncertainty, however, is an integral part of lawyering. This area, like many others, is not cut and dried. But the fact that it is difficult to advise clients does not endow the argument with constitutional dimensions. We are unpersuaded that the area is so uncertain as to render counsel's advice ineffective.
V. BURIAL SITE PHOTOGRAPHS
At trial, the government, over appellants' objection, introduced into evidence three photographs of the burial site. Appellants assert that the photographs here in question were the subject of a pre-trial agreement in which the government agreed not to introduce the pictures in return for the stipulation that the body found at the grave site was the same body on which the
At the pretrial conference, the following colloquy ensued:
Later, when the government sought to introduce the pictures in question, the following colloquy ensued:
As the record does not support the contention that these pictures were the subject of the pre-trial stipulation, we need not reach appellant's due process claim.
Appellants allege that the sentences imposed by the district court were unlawful because they were based on improper considerations, and because there was such a gross disparity between the severity of the crimes for which the defendants were convicted and the length of the sentences imposed so as to constitute cruel and unusual punishment.
It is well settled that a federal district judge has wide discretion in determining what sentence to impose and such a sentence will not be questioned on appeal so long as the sentence is within the statutory limits and there is no showing of arbitrary or capricious action amounting to a gross
Appellant Frank Hayes further argues that the disparity between his sentence and the sentence imposed in another factually similar civil rights case mandates a reduction in sentence and evidences that the court was using improper considerations in determining his sentence. While the district court may consider sentences imposed in similar cases in arriving at its sentencing determination, the sentence is valid unless a showing of abuse of discretion by the district court is made. A defendant cannot rely upon the sentences which other defendants receive as any yardstick for his sentence.
In accordance with the foregoing, these convictions are AFFIRMED.
Id., quoting United States v. Cox, 342 F.2d 167, 171 (5th Cir.1965).