United States v. Lamont S. Carter, United States of America v. Jerome R. Patterson, United States of America v. Jerome R. Patterson

666 id.,

prise, 303-304, 385 U.S. 87 S.Ct. of America 408.14 UNITED STATES v. respect We find no error CARTER, admis- Appellant. in evidence of Peterson’s receipt Lamont S. collaborator, Arrindell. sions to his of America STATES UNITED VII v. Finally we reach Peterson’s claim PATTERSON, Appellant. R. Jerome was error in the denial of his

that there of America UNITED STATES motion for severance. The extent of Pe throughout terson’s collaboration has al repeatedly We have

ready been noticed. Jerome R. PATTERSON. ruling by the trial court de held that 73-1922, 73-2057 and 74-1473. Nos. nying severance is not be disturbed on a clear appeal unless abuse of discretion Appeals, United States Court Hop can United be shown. District of Columbia Circuit. kins, 307, 310, U.S.App.D.C. 464 150 F.2d 22, 816, Wilson, Argued Nov. 1974. (1972); 819 United States 220, 226, 494, U.S.App.D.C. 140 434 F.2d 30, June 1975. Judgment (1970); Brown v. United 500-502 18, Opinion July 1975. 134, 139, 310, U.S.App.D.C. 375 F.2d 126 denied, 915, (1966), cert. 315 388 U.S. 87 2133, (1967). 18 L.Ed.2d 1359 No

S.Ct. showing

such has been made here.15

CONCLUSION the claims carefully considered

Having having found by Peterson

advanced af- error, may be entered order

no District judgment

firming

Court.

Affirmed. See, Ushakow, Judge generally, Robinson has taken account of United States v. Hurt, 217, 222, (CA 1973); U.S.App.D.C. States v. 155 474 F.2d 1244 9 United States v. 476 1164, Sanders, 1086, 1972); (CA F.2d Gambrill, 1169 463 F.2d States v. 72, 83-84, 1301, U.S.App.D.C. Spencer, United States v. (CA 415 F.2d 1969); Rinaldi, (1971), yet F.2d 1159-1160 other sit United States v. denied, (CA 2), uations where claims for severance have been cert. 393 U.S. long pointed (1968). We discussed. since out 89 S.Ct. 21 L.Ed.2d 198 28 U.S. C.A., Evidence, appellant might the mere fact that an Federal Rules of Rule Id., acquittal 801(d)(2)(E); 801(d)(2)(A); have had a better chance of separately if tried and see Rule Matlock, right does not establish his to a cf. United States v. 415 U.S. See, g., Dykes severance. e. v. United 94 S.Ct. 39 L.Ed.2d 242 189, 190, important An recent case where this court denied, (1962), cert. problem aspects of this has considered various 10 L.Ed.2d 1059 Caldwell, (sl. op. 43) is United States v. Part V (1974), and notes 118 and where BAZELON, DAN Judge,

Before Chief AHER, Judge, Circuit and JUST Senior ICE,** Judge District United States District of Texas. the Eastern Opinion for the Court filed District Judge JUSTICE.

Opinion filed Senior Circuit Judge DANAHER, dissenting from reversal of the conviction of Carter.

JUSTICE, Judge. District

I. INTRODUCTION Burglary A. The early morning In the hours of June 1971, security personnel at the Troop supply area of the Command Walter Army Medical Center Reed Wash C.,D. discovered that ington, arms facility forcibly room of broken, entered. A window had been removed, screen protective and locks cut. military police squad A leader noticed lot, in a nearby parking two automobiles immediately being before notified of the He described one break-in. automobile sized, dark-colored, as an intermediate automobile, late 1960’s vehicle. In this one black male.1 he observed The other automobile was smaller than the first. military officer Another testified that parking the vehicles left lot at a Nalls,* Jennings with whom Deborah speed.” He “rapid rate of described the Flegal, Washington, F. D. (ap Frank C. large, as “approximately lead automobile Court), by this and Marsha A. pointed class”; in the Pontiac the second auto appel were on brief for Papanek,* smaller, possibly mobile he saw was a lant Lamont S. Carter. Comet, Mustang, or Falcon. This wit ness, Cherry, Warrant Officer William Broderick, Peter P. with Larry whom that he noticed the Ritchie, stated silhouettes of Washington, (both D. ap- C. J. large person one automobile and Court), by this was on the pointed brief in the smaller vehicle. two appellant Jerome R. Patterson. for Barcella, Jr., fifteen Washington, E. Lawrence revealed arms C., Silbert, missing whom Earl J. from D. U. were S. rifles M-14 shotguns, Terry Clarke, ten Atty., John A. and John 0. were gone Also room. revolver, gas Jr., five M-17 Attys., were on the Asst. U. S. brief calibre .22 one Titus, magazine Jr., H. of M-14 Harold appellee. masks, quantity U. S. and M-14 and filed, equipment, cleaning the time the record was Atty. at rifle clips, appearance appellee. entered an manuals. also instruction * counsel, appellants black. appearance pur- are Entered an as student All of to the Rules of this Court. suant General ** pursuant designation to 28 Sitting U.S.C. 292(d). § cocktail”, District of as defined

The arms room located in a large is Code.2 63 of Columbia projection Building the Walter facility. projection Reed is bisected a laundry room is situated in Building hall, one which operates end of as 63B, which Building is near 63. This building. an entrance to the On one side room, “washateria”, called a gener- hall, and a storage arms room any open around the clock before the adjacent other, room are to each the burglary. An inspection of the area room abutting arms the entrance. These near the washateria turned up a large depth. two rooms are of equal bolt cutter and a crowbar. The various charges of which appel- room, as the linen known ex- large A lants stand convicted were the out- area, storage contiguous change growth of these events. in front of the passing The hall

room. storage room leads into room and arms B. Identity Appellants of the exchange area, area in the linen open Multi-count indictments were returned across this passageway serves as against the appellants, Marzell Peterson, room; hall resumes at the end Carter, Lamont S. and Jerome R. Patter At the other passageway. end son, in 1972. A superseding indictment area, exchange the linen two end of doors, charged them with a variety of offenses outside, are set opening to the under the District of Columbia and Unit the side each other in walls of opposite ed May States Codes. In all exchange The linen area room. three appellants brought trial; width of the arms the combined equals conspiracy count of the indictment again and is half storage room and room had been severed. Appellant Carter was rooms, as deep as these two measured convicted degree of second burglary passageway. None of the hall from armed,3 while theft prope with the are connected oth- these rooms arson,5 rty,4 possession of a Molotov by the hall. except ers cocktail;6 he was sentenced to serve five fifteen years prison. Appellant Pe area, exchange the linen long three terson, who was guilty tables, one other parallel appar- each count of receiving and feet, concealing ently separated by several extend government property,7 was hall sentenced to and perpendicular passage- wine full way. gasoline, A bottle of years.8 Appellant a term of ten Patter partially with a wick—a rag— only scorched was the son one of three as to top, protruding from the was the jury discovered whom could not reach a verdict. space in the between two June having tables On been re-tried, room, storage nearest the approximately Patterson was of conspiracy convicted to even with the two outside doors. The receive and government propert conceal description device fits the a y,9 “Molotov acquitted but the five substan provides, pertinent 2. D.C.Code 3215a § 6. D.C.Code 3215a. § part: 7. 18 641. § U.S.C. (1) term cocktail” [T]he “molotov means a imprisonment 8. This term of was to run con- containing breakable container flammable currently years with three to ten sentences of liquid having and or a a wick similar device years imposed and ten to life had been which capable being (2) ignited, or other for convictions on of assault counts with in- designed explode produce device un- police tent to kill while armed and assault on a upon impact; contained combustion convictions, officer while armed. These af- lawfully such term does not include a device April (No. firmed this court on commercially primarily and manufactured 73-1105), stem from an incident related to this illumination, purpose for the work, construction appeal. This incident is referred to in discus- purpose. or other lawful pursuit” sion of the “hot search and seizure of 1801(b), 3. D.C.Code 3202. §§ appellant complains, Peterson Judge opinion. which is treated in Danaher’s 4. 18 U.S.C. § 9. 18 U.S.C. § 371. 5. 22 § D.C.Code it with cau- approached that he pile, and was He the indictment. tive counts further, stated Testifying Dowd to tion. from one term of a serve sentenced corner, he that, reach the in order to from is taken appeal An years. five open, move an two- necessary to The conten found convictions. of these each process of bag; in the shopping handed are treated Peterson appellant tions down glanced he moving bag, Danaher Judge opinion by separate in a military of M-17 quantity observed Peterson, 173 in United masks, clips, and M-14 ammunition gas F.2d 661 -, writ- “military type” pouch a white was later found to (The pouch ing on it. II. APPELLANT PATTERSON kits.) Dowd cleaning gun five contain urges points four Appellant Patterson pile. The anyone behind not find did appeal, two of which we error in this likewise failed special agents other meritorious. The first issue to be find house, in the aside from anyone discover pertains to the admissi- for consideration Patterson. appellant during certain evidence seized bility of of his residence. search inventory making an After attic, special in the items and Seizure The Search A. warrant. obtained search agents based, significant part, infor for the arrest with a warrant Armed from this initial search.10 gained mation Patterson, agents of special being informed warrant After Investigation Bureau of ar- Federal issued, agents special left had been Place, E., appel- Ely at 4033 S. rived with the seized appellant’s home items. home, morning August on the lant’s Nothing during else was seized subse They 9:00 o’clock. at about premises. quent searches of this residence. no search warrant for posted Dowd Agent granted ap Thomas Special initially court below the premises; the rear of suppress outside motion to himself Patterson’s pellant through the entered special agents the war as a result of other seized the items near Patterson and arrested search, finding door the search front rantless house. While scope the front of a permissible exceeded arrest, being placed under an arrest” delineated Patterson incident “search Dowd, agent admitted special another of Chimel Californ the doctrine under door, into the kitchen back through the judge’s trial comments ia.11 was attached to ruling, of a shed in so area it clear make record inside, immediately Dowd Special Agent house. Once Dowd find that did kitchen area to through attic; authority went to enter without was rather, was the entrance doorway, which open judge trial determined attic, makeshift stairs. flight actions, of a narrow in the to once Dowd’s stairs, he came into the ascending by prescribed After Chimel. the bounds outside There, pile a he observed attic. open an of the motion to reconsideration After suppress, boxes, blan- bags, cardboard shopping judge reversed his the trial the floor of on the luggage holding and the in ruling, kets on based previous Dowd testified and the seized Wright,12 near a corner. attic United States hiding behind sniper a into evidence feared were admitted items 2034, 752, L.Ed.2d 685 10. This search warrant does not affect 89 S.Ct. the ad- U.S. 11. 395 evidence, missibility (1969). for a search cannot justified by produces. the evidence it be Unit- 126, (1971), 12. 449 F.2d 1355 Re, 581, 595, v. Di ed States 332 U.S. 68 S.Ct. denied, 947, 986, cert. U.S. 92 S.Ct. 222, (1948); 92 L.Ed. 210 cf. Johnson v. United (1972). Wright L.Ed.2d 817 discussed the so- 10, 15-17, 367, States, 333 U.S. 68 S.Ct. “challenging “plain called situation” and view” (1948). L.Ed. 436 justifications police doctrines as conduct under certain circumstances. crime and the arrest of against appellant Patterson. While we detection of troubled, . . . And so the Con judge, are as was the trial criminals magistrate pass requires of the attic a scope search and with stitution “plain police they view” the desires of the before application doctrine facts, set privacy to this we need not home. We reach violate issue, disagree, this instance, for we in the cannot be true that constitutional first finding requirement

with his and Special excuse absence of justified Agent Dowd was search without a entering showing a warrant exemption the attic without benefit seek from the valid those who of. warrant. search mandate that the exi constitutional situation made gencies The Fourth Amendment’s man imperative.14 course “probable cause, supported date of Thus, the Supreme Court has held that affirmation, Oath or and particularly de a warrantless search of per a dwelling is place scribing searched, and unreasonable, se even if the officers' . . . things to be seized” con probable it, cause to conduct templates before a search warrant exigent absence of the circumstances re issued, may be a determination be made McDonald,15 ferred to in And in each of magistrate a neutral and detached those few instances where the Court has requirements whether these have been countenanced searches without a war Supreme met.13 As the Court said rant, majority argued has that the McDonald v. United States: result is not inconsistent with pur poses and values dealing which lead are not with formalities. We adoption of the fourth of a presence search warrant amendment. In The deed, it only has been after high function. Absent some exhaustive serves analyses frequent and dissents emergency, Fourth Amend- grave has Court sanctioned certain magistrate interposed has be- warrantless ment being searches as amendment; reasonable police. the citizen and the This under the tween these include not to shield criminals nor to consent was done searches,16 searches incident a safe for illegal the home haven to an make arrest,17searches concomitant to It was done that an so ob- “hot activities. pursuit” felon,18 of a might emergency weigh the need to searches jective mind protection privacy arresting order to enforce invade officer,19and prevent searches to right privacy the im the law. minent destruction or removal of evid precious to entrust too deemed ence.20 job of those whose is the discretion States, 347, 13. The full text of the Fourth Amendment is as Katz See v. United 389 U.S. (1967); follows: Agnello S.Ct. 19 L.Ed.2d 576 269 U.S. 46 S.Ct. 70 L.Ed. right people to be secure in their (1925). houses, effects, persons, papers, against and seizures, unreasonable searches and shall Bustamonte, 16. Schneckloth v. 412 U.S. violated, issue, and no not be Warrants shall Zap 93 S.Ct. 36 L.Ed.2d 854 cf. cause, upon probable supported by Oath U.S. 66 S.Ct. affirmation, particularly describing or 90 L.Ed. 1477 searched, persons place to be California, supra. 17. Chimel v. things to be seized. Hayden, 18. Warden v. Court, S.Ct. U. United States v. S. District See 18 L.Ed.2d 782 U.S. 32 L.Ed.2d 752 Ohio, 89, 96, (1972); Beck v. 379 U.S. 85 S.Ct. g., Williams, 143, 146, 19. E. Adams 407 U.S. v. 223, (1964); L.Ed.2d 142 13 Johnson v. United 1921, (1972); 92 S.Ct. 32 L.Ed.2d 612 13-14, 367; States, supra, 333 U.S. at 68 S.Ct. Jeffers, 48, 93, v. 342 U.S. 72 S.Ct. 96 Texas, 108, 110-111, Aguilar v. U.S. 378 84 (1951). 59 L.Ed. 1509, (1964). 12 L.Ed.2d 723 S.Ct. g., California, 757, 20. E. Schmerber v. 384 U.S. 770-771, 1826, (1966); 86 S.Ct. 16 L.Ed.2d 908 191, 455-456, 193, 451, 93 69 S.Ct. 14. 335 U.S. Chapman States, v. United 365 U.S. 81 (1948). L.Ed. 153 (1961). 5 S.Ct. L.Ed.2d 828 court, attic cannot be defended search of the as probable this the case before In to an arrest. to one incident of warrant the issuance for cause might home Patterson’s appellant search however, government, argues that by a magistrate, been well have Special Agent Dowd legally justified was for been indicted had Patterson since attic, in entering the and that his subse and the property, government of theft quent seizure of legiti contraband was information that receipt in was F.B.I. mate “plain the under view” doctrine. the of one of possession obtained he considering the circumstances of this this, In the face of weapons.21 stolen the “plain seizure in context of view” and the facts allegation, no was there analysis, consequence it is of that we contention, that it support not would warning heed the Supreme the Court war a search to obtain impractical in New Coolidge Hampshire that “to appellant Patt to arrest of prior rant permit plain-view warrantless seizures Moreover, government does erson.22 without limit would be to undo much of for gave permission he contend not ”25 what was decided Chimel . . . search. The court further cautioned: important keep in mind [I]t legitimacy [also] Since cases, majority in the vast any for Patterson’s arrest warrant evidence seized police will be in question disputed, been for has not view, plain at least at the moment of is whether search was determination problem seizure. The “plain as a incident to a valid “search proper has view” doctrine identify issue, to this respect With arrest”. plain circumstances which view has an rubric must considered: Chimel legal significance rather than being arresting may search arres officer simply the normal concomitant of any discover and remove person tee’s search, legal illegal. weapons prevent to seize its search ing fication ing any room other than that in which a However, control an arrest occurs.”24 within and the weapon or his concealment or the F.B.I. was in which arrest, the area within phrase “[t]here . Patterson’s the person . he the attic was destructible evidence.”23 might gain possession . to mean the area from nois destruction, Clearly, at the time receipt has not contended immediate arrested, comparable justi routinely immediate “constru informa control, search within may ards. attic trine, Special Agent Dowd’s ingression into the Consequently, of evidence What the used.26 each of common is came ^[*] the threshold intrusion proper them had a prior inadvertently ^[*] “plain incriminating under ^[*] the police view” cases have in question the course of “plain ^[*] applicable across a justification is whether ^[*] view” doc- officer in the acc stand- piece ^[*] support tion to a conclusion that justification A dual is asserted hand, government. contraband evidence house was in sug- On one danger of destruction or removal from gests that the search was maintainable jurisdiction. follows there were warrants outstanding because Texas, Aguilar supra; Spinelli 21. See 334 U.S. 68 S.Ct. 92 L.Ed. 1663 States, States, (1948); supra. 393 U.S. Johnson v. United S.Ct. L.Ed.2d 637 23. U.S. at S.Ct. at 2040. Louisiana, 30, 35, Vale v. 22. Cf. 399 U.S. Id. (1970); S.Ct. L.Ed.2d 409 Ker v. Cali- fornia, 23, 42, 443, 482, U.S. 83 S.Ct. 2022, 2046, 25. 403 U.S. 91 S.Ct. (1963); L.Ed.2d 726 McDonald v. United L.Ed.2d 564 451, 454-455, Id. at 91 S.Ct. at 2037. Trupiano L.Ed. 153 v. United Gantt, D. both of whom had been in- against appellant those of Patterson’s in a “shootout” with police. volved Fol- co-indictees who were fugitives. “shootout”, lowing the these individuals rationale is that Dowd had a second and charged; were arrested but we have “protective” conduct a right search of to nothing in the record attic, to disclose in order to insure safety the the special the agents pos- what information agents at the the F.B.I. scene. the sessed as to whereabouts of Peterson spe As to contention that the at the time and Gantt in search seeking were agents merely cial to exe In issue here. further support of the warrants, outstanding cute arrest it is argument, government’s it was shown that this significant place search took agents that the special were that aware year a burglary. more than after the a stolen weapons number had not was also conceded been recovered and that warrants ar- special agents that who conducted outstanding suspects rest were for other had no the search factual information burglary in the investigation, who had the presence that indicated the fugi been to be in a fugitive declared status residence; tives at Patterson’s shortly the F.B.I. before the search. fact, special agent one acknowledged in addition, Special Agent testi- Dowd the F.B.I. did not that have information house, fied before his entry into the fugitives to whether the were in the he observed that the attic window would D.C., area, Washington, or even if they place good sniper be a for a position to in were the United still States. Never special himself. All of the agents admit- theless, it is this set of circumstances— ted, however, that they saw no move- find which we to be entirely deficient— ment behind window and heard no government urges as warrant voices from attic. ing a premises.27 search entire circumstances, These whether con govern singly next turn to We sidered collectively, do not was the search present justification contention sufficient for house; ment’s necessary a safety of the protect “protective” search of the entire connection, ev permitted In this involved. for a rule a officers warrantless special submitted that residence-wide search in any instance idence the search prior informed arresting were where an officer agents hypothesized in Patterson had presence armed felons and noticed military burglary vantage a in potential in for a sniper might volved stolen, an associ very were and well abolish Chime1 weapons doctrine for Joseph and one glass Peterson all plate of Marzell houses.28 ate theory government’s 27. While 2. The outside of defendant’s house resem- people, agents looking special and were fortress; bled an embattled testimony with this (a) is consistent most of up the front door was boarded due to a point Agent Dowd was proposition, at one explosion, recent and up asked, happened you got in when “What (b) there numerous bullet holes in the up got I His answer: “When the attic?” outside walls. up attic, searched for evidence there.” I large gathering There had been a 20-30 persons at defendant’s house in grounds earlier “protective” for a 28. The search here day. rejected are similar asserted to those Appeals for the Seventh Circuit Court was accused of a violent 4. The defendant Gamble, (7th States v. involving dangerous weapon. crime 1973). Precisely case, as in instant Cir. possess was known fire- 5. The defendant possessed arms, the officers Gamble arrest owning handgun, admitted warrant, but not a search The fac- particular warrant. expressed a interest in automatic exigent circum- tors advanced Gamble as weapons. stances, permit sufficient a warrantless “rustling” police heard from in- 6. The noises search, were as follows: announcing house side defendant’s after purpose. their office Id. at 1277. police upon 1. The numerous occasions had Circuit, convincing opinion, In its the Seventh responded to calls of “shots-fired” at de- declining exception establish a new “to fendant’s address. others, possi- and when it is themselves to seeking in government, However, ble so. officers of the to do Special Agent contention its uphold the duty, law likewise have before un- attic, entering in justified was Dowd search, a to dertaking heed strictures Miller, v. States upon United relies also and, and demands of Fourth Amendment. following quota particular, in To search in affirm the warrantless issue tion: here be to turn a deaf ear to the would they sought was in Although the man Coolidge admonition: was the door moment from the view requirement has been The warrant a way knowing of they no had opened, part of our valued constitutional law premises. In on the might be else who decades, and has determined the circumstances, police could those in scores and of cases result scores a search of justifiably conduct country. all over this It is courts no hos assure themselves to suite an inconvenience to be somehow dangerous persons possibly tile and “weighed” against police claims of room.29 hiding other were is, be, efficiency. or an should im aof dentist’s involved the search Miller portant working part our machinery of robbery, store following liquor a office a government, operating as matter rested explicitly court its affirm and to course check the “well-inten employed the tactics there ance mistakenly tioned but over-zealous ex of Warden pursuit” doctrine “hot ecutive officers” a part who are situation, instant In the Hayden.30 system lawof enforcement.31 abundantly it is clear that the though, summary, In it has not been shown demonstrated im has not an special agents were the F.B.I. act- the character set mediacy urgency or ing per- a reasonable belief that under particular, it has not in Miller. out sons whom arrest were warrants out- why opportu there was established standing might appellant be located in agents procure to a special nity for Patterson’s residence. Neither has it Pat for the arrest warrant been demonstrated that a search of the not to obtain warrant terson attic house necessary in this was to ef- is, they until after his home—that search the safe fectuate execution of arrest completed search. their Further, warrant. the items seized dur- ing August 10, warrantless search of unsympathetic This is not court 1972, plainly not within the area plight law enforcement offi duties, who, within which Patterson cers, course of their could have gained possession weapon of a danger often find themselves in too all evidence. It follows destructible precarious situations. It is cer ous tainly Special Agent Dowd intrusion into responsibility employ their such appellant’s was attic unreasonable under reasonably necessary are measures Amendment; Fourth items safety arrest warrants execute requirement warrant”, denied, 921, 1970), fourth amendment of a cert. U.S. 91 S.Ct. police’s “protective sweep” held L.Ed.2d unjustifiable supposed Id. intrusion. F.2d 29. 145 exigent circumstances in the case before us magnitude are of even less than those asserted Harris, See also States v. 140 U.S. Thus, repudiate pro we also Gamble. App.D.C. (1970), cert. denied exception. posed See also United States v. 402 U.S. 29 L.Ed.2d Erwin, (5th 1975); 507 F.2d 937 Cir. Enzen shortly robbery, police where after Solomon, 73-2407, sperger v. Nos. 73-2383 suspects apartment two in an and had reason (July Cir.) (unpublished), 9th cert. suspect hiding a third believe on the denied, 966, 95 S.Ct. 43 L.Ed.2d premises. upheld only The court the search Giacalone, (1975); People Mich.App. 445 492, because it determined that Chimel was not to 180 N.W.2d 289 But see United retroactively. applied Looney, (5th 1973); F.2d 31 Cir. Briddle, (8th States v. 31. 403 U.S. at Cir. 91 S.Ct. at 2046. compelling appear a defendant to before fruits of the there were the im- seized prison in his clothes unconstitu search, their admission permissible process due tionally infringes right his evidence was error. into presumed innocent until proved Prison Co-conspirator B. Garb guilty.33 Appeals The Court for the Circuit, although holding Tenth that also tri Appellant complains Patterson prison garb inherently al in not preju is during the of his course second tri- that dicial, reversed a al, Carter, nevertheless conviction appellant who had been con- trial, by because of the taint created pract brought at the first victed into It be an illogical ice.34 would not (for ex purposes courtroom identifi- apply tension of these cases to the pro cation) in “prison garb.” what is termed scription against prison garb to the situ record does not reflect precisely The are ation with which we here faced.35 In wearing, Carter was what it was light of our reversal of Patter appearance. distinctive in apparently other grounds, son’s conviction on is Carter was named a co-conspir- Since necessary not to characterize this read to occur ator indictment the jury, Nonetheless, rence as error. reversible Patterson contends that his in- concerned, insofar as actions are right process to due criminal dividual law was we condemn practice producing prejudiced presentation of Carter prisoners in court who are prison before clothes. dressed in typical jails penal clothes or institu The trial court instructed the tions, may when this circumstance argu prior that “a proceeding in this ably injury cause to a defendant’s case. appellants involved matter” Lamont Car Peterson, and Marzell ter but that the III. CARTER APPELLANT jurors “guess speculate were not to or or why in any way wonder Mr. Carter and A. Factual Issues Peterson are before you Mr. today.” Appellant was convicted of Carter record discloses that The Peterson and government property, possession theft of closely were linked to appellant Carter cocktail, burglary a Molotov while Appellant Patterson the evidence. cocktail), (with armed a Molotov and ars Patterson, therefore, maintains that on.36 significant is a probability there the jury Carter, appearing reasoned in prison damaging The most evidence intro garb, already been convicted “in this against duced appellant Carter was the matter”; thus, likely it was that Patter testimony of Harold Parker and Richard son, good his friend and co-conspirator, Arrindell, two of the residents of a house guilty. argument was also This is not Farragut located at 1318 Street.37 Par without merit. ker on the testified that morning of Despite June authority o’clock, some at 2:00 or 3:00 contrary,32 majority resident, view awakened a third Rob- Cox, Rptr. F.Supp. (1963), 32. See Hall v. (W.D.Va. 324 171 786 cert. denied 377 U.S. 84 1971); Beto, F.Supp. Xanthull v. S.Ct. (S.D. 12 495 L.Ed.2d 1970); Peyton, Tex. McFalls v. F.Supp. Watt, 34. (10th Anderson v. 475 F.2d 881 Cir. (W.D.Va. 1967), (4th aff’d 401 F.2d 890 Cir. 1973). Page, See v. also Watt 452 F.2d 1174 1968), cert. denied 394 U.S. 89 S.Ct. (10th 1972). Cir. 22 L.Ed.2d 486 35. Relating American Bar Ass’n Standards See, Crist, g., Bentley by Jury e. F.2d 854 Trial at 93: “An incarcerated de- (9th 1972); Brierley, Cir. fendant required Gaito v. 485 F.2d witness should not be (3rd Beto, 1973); appear Cir. Hernandez v. in court in the distinctive attire of a (5th 1971), prisoner Cir. cert. denied 404 U.S. or convict.” (1971); 30 L.Ed.2d Brooks v. 3-6. ter contends that this instruction was er- although professed Parker to be unsure roneous; couples he this contention with their contents at the time of the un allegation that his convictions were that, loading. Parker also testified dur predicated on insufficient evidence. weeks, subsequent few ing appellant Carter, accompanied generally by appel Certain respecting instructions Patterson, lant returned to house at permissible inferences that may arise Farragut Street on several occa possession recently from erty prop stolen that, It was testimony sions. his further approved Supreme instance, appellant each Carter con Court. In Barnes v. United States privately appellant versed with Peterson jury district court instructed the that blanket, departed rolled-up with a “[pjossession recently property, stolen weap which Parker believed to contain satisfactorily explained, if not is ordinar ons. ily a circumstance from which you may testimony Arrindell’s corroborated and reasonably find, draw inference and supplemented that of Parker. He con light surrounding in the of the circum firmed that Carter came to stances shown case, the evidence in the visit the residents at 1318 Farragut person possession knew always several times and Street left with the property (Italics had been stolen.” an armload of M-14 rifles. These weap review, added.) Supreme On Court ons, testified, had been stored in the found that the inference satisfied the garage. They were during seized standard; is, doubt reasonable subsequent search of the residence40 and necessary evidence to invoke the infer being among identified as those stolen ence was sufficient for a juror rational from the Walter Reed arms room on to find the beyond inferred fact a rea June Accordingly, sonable doubt. the court held that the instruction comported with the de- presented Carter Appellant the requirements process. of due case, his the trial of alibi at fense own behalf in his the stand taking It is disputed by and Ar- appellant that, of Parker allegations refute inamorata, when Len- the reasonable doubt test he and his is Both satis- rindell. fied, a may eve- also from the infer Cruz, that one testified ette possession found in morn- exclusive recently to the next of June ning stolen property, Wash- unsatisfactorily her in her with ex- ing, Carter plained, was the perpetrator of apartment. ington against Peterson. was Marzell introduced Carter resident evidence The fourth 41. Other 38. him; these drawn some “doodles” included appellant Carter was in evidence 39. subject in a drawings of discussion are the a blue Falcon. drove opinion. following this section of dis- are this search The circumstances L.Ed.2d 380 U.S. 42. 412 opinion, United companion cussed -, Peterson, often noted that theft.43 It instruc against Three of the counts Car such as these do no tions more than “ac related, directly indirectly, or ter were probative its natural cord evidence of the Molotov cock proximity the mere force”; is, they merely are articula burglary. the scene of the These tail to reasoning process tions of a which the arson, of a possession Mo offenses jury may legitimately employ identify cocktail, degree burgla and second lotov person who committed an offense.44 a Molotov cocktail.46 ry while armed with Carter, Appellant recognized the validity of the crime of ar An essential element the latter general, instruction in de burning attempted burning son is application murs to its to the facts be building.47 We have been directed of a fore us. authority proposition for the to no inferred from a may

this element possession agree We is in finding Car that a defendant recently property. On the con ter’s contention that the vice in the in stolen the trial court to allow the to infer from given by lay trary, struction recently “guilty possession stolen its utilization of words Carter’s (Italics added.) attempted to the ar charged.” While items that he burn crimes by a more mory an inference of theft defendant would “accord force”, e., probative i. may logically follow from circum than its natural fact, unexplained possession burning, the inferred attempted stance of his of doubt, items, not, recently beyond same a reasonable cor logic stolen is recently of stolen necessarily support ollary possession does not extension of of Similarly, proved. the inference to other offenses. For an property, fact possessed inference to be valid under established fact that Carter later naked law, not, itself, principles presumed by criminal au stolen rifles would must, doubt, be beyond fact a reasonable a deduction thorize doubt, proved he had or yond flow from facts on which the a reasonable 45 depends inference the Molotov cocktail at “armed with” The trial court’s burglary.48 time of the approved 46. following have been These offenses instructions are defined in 43. Such instances, g., (1) (22 United code 401); e. sections: in other arson this court D.C.Code § 54, Johnson, (2) U.S.App.D.C. possession (22 433 140 of a v. Molotov cocktail D.C. 3215a); Pendergrast (3) (1970); degree v. United Code burglary § F.2d 1160 States, second 776, 20, 30, U.S.App.D.C. (22 F.2d 416 while armed with a Molotov cocktail 135 D.C. 926, 1801(b), 3202). (1969), 395 U.S. 89 S.Ct. Code §§ denied 787 cert. 1782, (1969) cases cited L.Ed.2d provides 47. 22 D.C.Code § that: sample Pendergrast instruc offers therein. maliciously attempt Whoever shall burn or appli tion, requisites for its out all sets any house, to burn . . cation. warehouse, any building, or other . Henkel, 226 U.S. 44. McNamara property part, the person, in whole or in of another Pendergrast 146, (1913); 57 L.Ed. S.Ct. public ... or build- 31, States, supra, District, ings belonging to the United 787, 788. Columbia, States or to the District of shall imprisonment suffer for not less than one Leary 395 U.S. S.Ct. v. United year years. nor more than ten (1969); cf. Tot v. 23 L.Ed.2d If the instruction had not authorized an in- 63 S.Ct. 319 U.S. burglary Romano, ference that the was committed while United States L.Ed. 1519 armed, may well have 15 L.Ed.2d 210 382 U.S. proper burglary. for the offense of majority Second States v. John- in United degree burglary, cases, jurisdiction, son, in this citing entails the supra, above comments entering building pre- unlawful of a with the intent an inference invalidates that “[w]hat to commit a process grounds criminal offense. We have sumption is a ‘lack of due unexplained possession proven Carter’s and the in- exclusive between’ the connection recently property may properly experience’ stolen lack be ‘in common ferred facts —the perpetrator invoked to infer that he was the to the circumstances of a ‘reasonable relation ’ ” theft, but not to infer that he was armed them . . . life as we know with a Molotov cocktail found in another App.D.C. n. 69. n. right play full giving therefore, instruction, sanctioned infer- credibility, weigh jury to determine jury might not have felt that the ences in evidence, justifiable and draw evidence, by the absent to warranted fact, mind a reasonable ferences the three counts As to instruction. beyond a fairly guilt might conclude cocktail, then, the Molotov which involve he concludes that reasonable doubt. If erroneous. the instruction was there must be such upon the evidence mind, he must in a reasonable doubt Sufficiency C. Evidence motion; or, to state it an grant Appellant Carter also insists upon way, if there is no evidence other there was insufficient evidence to might fairly which a reasonable mind support conviction on the three counts guilt beyond conclude reasonable which involve the Molotov cocktail. He doubt, granted. If the motion must be judgment acquittal moved for at the he concludes that either of the two results, of the government’s conclusion rea a reasonable doubt or no chief, and renewed the motion at the doubt, fairly possible, he sonable of all conclusion the evidence in the case. let the the matter. must decide having The motions been overruled case, given particularly In a one of court, the trial the issue of the sufficien evidence, that circumstantial determi cy of the evidence to convict was thus may upon the depend nation differ properly preserved for appellate review. pure speculation ence between and le Upon consideration, careful we are com gitimate proven inference from facts. pelled agree the evidence was (Italics added.)49 support insufficient to appellant Carter’s conviction, as to each of these three seeking to determine whether counts, impermis without benefit of the jury’s upon verdict was based “legiti sibly broad inference instruction. “pure speculation”, mate inference” or keep we must Judge Pretty- mind The applicable standard to a mo man’s observation: minds in “[T]he judgment acquittal tion for was ex doubt, absence, which a reasonable or its Curley amined in v. United States: established, must be are the minds of the rule, therefore, The true is that a jury.”50 judge, passing upon trial in a motion recapitulate To the evidence on this acquittal, directed verdict of must point appeal, it was shown that the evidence, upon determine whether the permissible room. The inferences from the 919, (1971); 924 Wood v. United proven circumstances would seem to include U.S.App.D.C. 344 F.2d 548 entry present intention to com- unlawful Melton, U.S.App.D.C. United States v. offense, viz., mit an theft. In Tot (1973), 491 F.2d the defendant was Court, supra, articulating in due entered, unlawfully to have shown statutory process presumption mandates for a court, finding no additional circumstance to jury permitted to infer stated that is “[t]he intent to commit a fur- sustain an inference of from one fact the existence of another essen- offense, burglary ther reversed his conviction ’ guilt, experience support if tial to reason Here, insufficiency of the evidence. at at the inference” 319 U.S. possessed property that the stolen fact Carter 1244. We have held that the connection be- circumstance”, missing is the “further ton, in Mel- proved tween the inferred fact and the fact supports that the inference Carter standard, must meet the reasonable doubt in intended to commit an offense at the time of per- order for the inference instruction to be entry. required his was not to form Johnson, supra. missible. United States inference, permit jurors to but to do so experience, On the basis of reason and a rea- requisites proc- of due would not violate the beyond could find sonable reasonable ess. property doubt that one who has stolen building from a U.S.App.D.C. 389, 391-392, into, 49. that had been broken entered 229, 232-233, cert. unlawfully denied 331 U.S. building that with the intention to Fox, S.Ct. 91 L.Ed. 1850 commit a theft. Cf. United States v. U.S.App.D.C. 433 F.2d 1235 Unit- Thomas, U.S.App.D.C. F.2d at 235. 50. at ed States emphasis or otherwise. that the exchange area bears room and the linen arms any offer government failed to evidence proximity close Walter Reed are in at the Molotov establish that cocktail facility. 63 of the Building other in each exchange in was not the linen area at morning burglary, at On “secured”; building 12:20, time nor Sergeant Dimech checked the was there that room, duty, room was as was his and found it arms by security personnel at any on examined Dimech discovered his next secure. round, m., intervening burglary. time before the 1:50 a. approximately at that had been cut. locks to the arms room That these circumstances are the break-in immediately reported He unquestionable. highly suspicious is It is office, Provost waited for Marshal’s entirely perpetra conceivable Cherry, and then returned to the Officer also left the burglary tors of the Molotov Cherry testified arms room. Officer But suspi cocktail at the scene. mere he room at about secured the arms cion to warrant a sufficient conv time, At particular 2:15 a. m. the iction,51 for, Curley, as noted we are exchange inspected was not linen area governed by proof beyond a standard personnel. military Offi- Supreme a reasonable doubt. Cherry on in cer recalled “[L]ater pronouncement Winship, Court’s In re evening I walked around build- articulates the fundamental nature of ing [Ajfter . again . one of the this standard: investigators had arrived . criminal the moral force of It is critical best to we decided it would be search the by a not be diluted the common law surrounding area ... It had not people that leaves proof standard of yet.” Estimating that done he be- been men are con whether innocent doubt m., this search a. gan Cherry at 3:15 important in our It is also demned. then further testified found bolt every go individual society that free cutters and crowbar outside was- ordinary affairs his ing about Building 63B. Shortly hateria section of government cannot that his confidence thereafter, he discovered Molotov of a criminal of adjudge guilty him exchange the linen cocktail inside area. convincing proper without fense out, As already set the device was lo- with utmost cert guilt of his factfinder floor, cated between long two ainty.52 A tables. white hospital number of uni- forms, upon polish which furniture required We are to view the sprayed, were also found on the evidence in the most light favorable to floor the area. There was testimony government, to ascertain whether a government from witness that Build- there is sufficient proof, substantial di ing 63 was p. “secured” at 5:00 m. on circumstantial, the rect together with afternoon burglary. before the The wit- reasonable from, to be inferences drawn there explained ness the word “secured” as jury from might find meaning that, after he ascertained that beyond guilty defendant a reasona one no was left inside the building, he begin ble doubt.53 analysis We our with locked the outside doors and the permissible windows. jury inference that ap He did not explicate his method pellant of deter- Carter at the scene of the mining anyone whether was still and, indeed, in the burglary perpetrator was a building, e., i. whether inspec- actual This, of the jury theft. could have tion, count, head closed circuit television, concluded fact from the of Carter’s ex- States, Bailey U.S.App.D.C. 992, Wright, v. United 135 (10th States v. F.2d 450 994 Cir. 95, 101, 1110, (1969); 1971). 416 F.2d 1116 Scott v. States, 105, 107, U.S.App.D.C. United 98 232 358, 364, 1068, 52. 397 1072, U.S. 90 S.Ct. 25 362, Thomas, F.2d 364 United States v. (1970). (Brennan, J.). L.Ed.2d 368 141, (9th 1971), 453 F.2d 143 Cir. cert. denied States, States, sub nom. Lucas v. United Glasser v. United 315 U.S. 405 U.S. 1069, 801; 31 L.Ed.2d S.Ct. L.Ed. 680 therefore, was insuffi that the evidence recently stolen possession elusive jury in find warranted however, cient to have established,

property. doubt, that ing, beyond a reasonable accused at of an presence the mere indictment, Carter, of the in the words not sufficient crime is of a the scene maliciously attempt to willfully and “did examination In our guilt.54 his establish warehouse”, know that he “did burn a record, met with a dearth we are unlawfully manufac ingly, willfully and evi or circumstantial any direct other use, ture, transport a Molo possess with cocktail linking the Molotov dence cocktail”, “while armed or that he appellants. other tov or either Carter with did enter with a Molotov cocktail ” evidence, Upon this reasona jury . . The ver to steal . intent may be where hypotheses ble advanced beyond having gone dicts on these counts by appellant Carter would not have been legitimate inference and the bounds of any involved in of the offenses delineat conjec speculation and into the realm of ture, counts; indeed, ed in these three judgments of ac the motion for shows, aught the record the Molotov associated as to the offenses quittal, might have cocktail been the ex cocktail, should with Molotov change Building area at the time 63 was was, granted. Appellant Carter But we are secured. ley admonished in Cur however, degree with second charged judge “if to direct offense of burglary, a lesser included acquittal opinion whenever in his the ev while armed. degree burglary second every hypothesis idence failed to exclude evidentiary relating to failure Since guilt, preempt but that of he would circum only concerns this count 55 Thus, jury.” functions of the we do armed, re-tri appellant’s being stance of require not the evidence foreclose Carter, which is mandat al of every premise conceivable inconsistent may this grounds, other include ed on Nevertheless, guilt. with aside from the charge.56 lesser the presence inference of next contends Carter Appellant appellants and the other Carter at the question instruction that the burglary, scene there is a total proper theft of apposite absence of evidence to connect him charged remaining offense ty, the weapon ques others with the the evi- maintaining that indictment, conclude, tion. We are constrained to 54. Hicks v. United U.S.App.D.C. 370 F.2d 227 (1893); Bailey v. Unit 37 L.Ed. 1137 S.Ct. jury provided The court below 98-99, supra 1113— ed at 416 F.2d at guilty options finding of the lesser or Carter Kelton, 1114; v. 446 F.2d United States greater ruling the insuffici- offense. Our as to Thomas, 1971); (8th v. United States Cir. only ency of the evidence relates p. -, U.S.App.D.C. supra, at 522 F.2d at finding that was armed. The has Carter 143; v. p. United States F.2d at necessary all elements for conviction of p. -, supra, Wright, at degree burglary. We remand on other second 994; p. at 450 F.2d at so, indicated, grounds, as above while Carter 1970); Holt, (8th 427 F.2d Cir. burglary may again while arm- not be tried Garguilo, United States ed, burglary may charge be reasserted. 1962). (2nd 252-254 Cir. (3d Ciongoli, 358 F.2d 439 Cf. United States Appeals 1966), the Court of wherein Cir. U.S.App.D.C. 55. 81 at F.2d at 233. that where a defendant the Third Circuit held greater of the offense under a is convicted 31(c) Rules of Criminal Rule of the Federal statute, persuaded that there but the court is may provides be that a defendant Procedure proof of the commission of the is not sufficient necessarily guilty includ- of “an offense found guilty greater that the defendant is offense and degree charged. Second ed” in the offense offense, may only of the lesser the conviction burglary of second lesser included offense is a stand; is to be in line with the sentence burglary degree since all of the while armed permitted for the lesser included offense. ele- lesser offense are also elements of the States, F.2d Robinson v. United See also Crosby greater v. offense. See of the ments Wilson, 1964); (8th United States v. 244, 245, Cir. U.S.App.D.C. United 1960). (4th F.2d 407 Cir. Kelly F.2d be- witnesses, entitled to jury was dence was insufficient to show the that he statements; the viewing possession was ever “found” lieve their most favorable light in the weapons; alternatively, argues stolen v. United the Glasser evidence does not establish the government, suf posses- of finding the ficiently alleged possession States, supra, that his of the by facts. weapons supported was “exclusive”. This court sion is requirement considered that a de Alleged D. Denial of Due Process possession fendant’s be “exclusive” in United States v. Johnson.57 As there Appellant Carter next asserts noted, many, all, but not of the decisions that the instruction under examination in this Circuit which have referred to the process him due denied count inference instruction under consideration of alleging government property, theft used word “exclusive” to de because the trial court failed inform quality possession scribe the of prerequi find, they beyond must use, site to its explaining that the exclu doubt, of el reasonable the existence all sivity requirement judi “is no more than of charge ements each to which the in cial shorthand underlying for the concept pertained, they struction even if that the accused must bear distinctive possession him to be in exclusive of relationship to property before the recently property.60 stolen He reasons allowed”, inference is and that this re permitted the instruction a short met, quirement may be even if the sto cut finding possession from to a property subject len is not to the direct guilt, determination of rather than re physical control of the accused nor locat finding quiring a on each element of the premises ed on under his dominion.58 In particular being by offense considered Johnson, explicitly the court declared jury. This argument is similar to requirement that the posses exclusive one advanced John may sion by be satisfied somewhat less son, supra, court, noting where this evidence than traditional concepts of court on the pre trial had instructed possession might require in legal other govern sumption of innocence and the Taking contexts. standard, into account this lesser proof burden of element ment’s each jury’s finding of exclusivi charged, of the offenses refused to find ty possession was permissible, under given there instruction errone circumstances shown the evidence ous. in this case. Reading given the instructions In most cases in this Circuit in which we no entirety, case in their find instant questioned given, instruction was support for Carter’s conten- possession, defendant was “found” in instructing general- tion. addition the sense when a search was con ly presumption on the innocence and ducted, goods there were stolen on his proof, the government’s burden of person premises. But actual seizure gave following trial court admonition the property from the defendant jury; requirement.59 not an absolute In the case, possession present defendant’s posses Carter’s recently property stolen property sion does not shift established proof. the burden of testimony, Though seizure. ap always has the pellant questions credibility proving burden of be- 43, supra. 60. A conviction cannot stand 57. See n. unless each ele- supported by ment evidence, the offense is sufficient at at 58. 140 speculation may in- not save an 1164, 1165. adequate predicate. factual See United States See, Wood, g., supra; e. United States Melton, supra; Bailey States, v. United States, Tractenberg U.S.App.D.C. v. United 391-397, 416 F.2d 1110 293 F. 476 Evidence “Doodle” yond a E. The every doubt reasonable essen- tial the offense. element of trial, admitted the court Early in the you Before may depict- draw inference photographs certain into evidence unexplained from the defendant’s or ing shortly com- the room after the arms unsatisfactorily explained possession of burglary. photo- mission the These of the property, you first must find graphs ostensibly por- were offered to proved the beyond Government has a tray the scene and to establish that a every reasonable doubt essential ele- place; taken burglary appellant Car- ment of the offense. ter, therefore, no objection. offered One the a photograph of exhibits was of a In this and language regarding other the pad, lay desk which on a desk in the instruction, disputed the court was close- arms at the time burglary. room following ly suggested the model by this pad; A face on the be- was drawn desk Pendergrast court face, low the following printed the hand supra. appeared: “King Kong sentence With the exception of the use of the Black”. printing Both the face and “crimes”, word which we have earlier were depicted photograph. Dur- erroneous, found to be the trial court’s trial, ing the course of the Car- fault, instruction without was insofar as ter occupied by producing himself “doo- pertained charge of to theft of dles”, drawings which included aof government However, property. as will number of faces. After rested, the defense shown, evidence, the “doodle” which Attorney the Assistant U. S. was offered to show Carter’s the case prosecuting moved that presence at of the burglary, the scene govern- “doodles” be turned over to the erroneously was against into admitted ment, comparison pad for with the desk only him. speculate We can objection defense, drawing. Over by evidence, whether it was this permis- the trial court ordered appellant Carter inference, both, sible aor combination of produce to the “doodles”. jury’s lead verdict. Conse- special F.B.I., A agent testify- of quently, on conviction this count ing the day, next stated that there had must be reversed remanded. analysis time for expert insufficient summarize, have found the fol- we To drawings. of these He conceded that he questioned trial regard to the lowing in “older, was experienced” told more instruction was (1) the court instruction: erroneously agents enough that there were not de- to include extended markings points finitive or identity to the Molotov pertaining three counts comparison effect a valid photo- cocktail; (2) of the in- without benefit graphed drawing and the “doodles”. instruction, ferences authorized Nevertheless, again objec- over defense evidence to sus- there insufficient tion, drawings the “doodle” ap- made conviction on appellant Carter’s tain pellant Carter received into evi- counts; (3) the instruc- these three given dence. The op- thus deny appellant Carter due did tion portunity compare drawings these his conviction for regard process depicted photograph the face We have government property. theft of pad. desk trial court should found that the further judgment motion granted the At the trial and before this insufficiency acquittal court, based that the asserted evidence, extent heretofore drawings were admissible under 28 indicated. We U.S.C. 1731.61 find that statute to § Hickory v. United statute reads: 61. The (1894), 38 L.Ed. the Court handwriting proved The admitted disputed genuineness handwriting held admissible, purposes of person shall be by comparing could determined it with not be genuineness comparison, determine party handwriting person. other the writ- unless handwriting to such attributed other

685 drawings to the we are inapplicable relevancy prof be test is whether The basic with, as, by its own tendency concerned here evidence has a to make fered terms, is limited to the statute handwrit a fact more or prob the existence of less not have been cited to ing. We than would be case without ben able applied statute to government’s which evidence.65 The cases efit of the than expression other words or assumes that the evidence proposition forms are not convinced that and we figures, probative, lay jury and that the was strictly should be other than making necessary compar statute capable analysis, construed.62 ative to determine whether the question produced by were sketches government The next seeks to justify However, the same individual. in this the admission of the “doodle” drawings instance, government’s where the own proposition: on the basis of this all facts possibilities cast doubt on the witness for having probative rational value are ad analysis, we are expert reliable specific missible unless some rule forbids exhibits, offered, belief it;63 the relevant, “doodles” were value;66 probative possessed jurors extent that the could find similar hence, they should not have been re ities between them and the drawing por jury’s ceived in evidence for the consid trayed on the pad desk and draw infer (But say this is not to eration. that a therefrom; thus, ences in the absence of qualified expert, properly testifying to rule, prohibitive the “doodles” were ad techniques use of generally accepta missible. The further ar ble to the artistic or scientific communi gues that the lack of expert testimony ties, express opinion could not as to bearing upon a comparison of the draw pad whether the face shown on the desk ings under consideration merely goes to the authentic work of Pe evidence, weight and does not terson, comparing after with his its admissibility. affect works.67) known Ordinarily, the relevancy defense had little opportunity to evidence is within the sound impact discretion rebut of the “doodle” exhib judge, the trial whose ruling its, will not which were offered after the defense disturbed unless an Further, abuse is had closed.68 shown.64 specifi- unquestioned ing which was was in only evidence photograph of them was introduced. purpose. for some other The lower federal complicated compari- This further the task of applied Hickory expert courts son, exclude testi- and could have lead to confusion. mony theory expert on the that the had based Frye States, U.S.App.D.C. 67. See v. United 54 comparison writing his which was not inde- (1923); 293 F. 1013 Jenkins v. United pendently Adoption relevant. of 28 U.S.C. 307 F.2d 637 legislative was a § 1731 reaction to those (1962); Jackson, U.S.App. States v. cases. D.C. Duveen, 425 F.2d 574 cf. Hahn v. (N.Y. Angelo, 133 Misc. 234 N.Y.S. In United States v. 62. Sup.Ct.1929). McCormick, 1946), (3rd supra, See also there Cir. was evidence that certain “Any gas coupons forged. 205. relevant §§ ration had been conclusions which supported qualified expert upheld are genuine the introduction of a witness court coupons comparison, should be [footnote omitted] for received sheet of unless referred citation, there are other indicating reasons for with a “cf.” exclusion.” § at analogy McCormick 491. reference was and not a direct holding under the statute. 68. Cf. Rule Evidence, Uniform Rules of (3d provides 1940). Wigmore, which Evidence 9-10 Ed. exclusion §§ 63. substantially outweighed by to be the risk that See, g., Hardy e. 64. issues, admission will confuse the mislead the App.D.C. 335 F.2d 288 jury, surprise. or create undue See also Rule Evidence, Federal Evidence, Rules of Rule Federal Rules of F.R.D. (1975), provides McCormick, exclusion if F.R.D. See also probative (2d value of 1972). substantially evidence is Evidence Ch. 16 Ed. outweighed by such considerations. noteworthy desk-pad drawings It is that the question produced; were not themselves undertaking then a survey exhibits to view these Officers requested cally pad Arms the on a desk in the Room ad While found deliberations. their during a ap- face underneath which rawing1 as to reach a verdict not jury could Kong is legend “King the Black.” (in whose home some was Patterson pellant found), it con- was property of the stolen As the officers were ap- was never (who Carter victed area, proaching Arms Room two on property any of stolen with automobiles, driven, rapidly were seen as four counts. premises) on person his they grounds. left Walter Reed unlikely, then, the “doodle” that It is not minutes Within thereafter as a time significant a factor was evidence through schedule was constructed evi- error verdict, we that the and find jury’s trial, at appellants dence Carter and not in was admitting in Patterson reached a residence at 1318 harmless. Farragut they joined Street where were by two members Kokayi Family. IV. CONCLUSION All four men participated then in re- by Having ap- so resolved issues raised Falcon, moving from blue often driven Carter, Patterson we find it pellants and Carter, govern- rifles and other further, go pre- we unnecessary to and property ment which had been stolen alleged grounds on other termit decision during the Arms burglary. Room argued appellants. of error these was property That thereafter transfer- remanded, and Reversed with instruc- Farragut into Street residence red tions. whence, during to time from time fol- weeks, rifles lowing Carter removed DANAHER, Judge (dis- Senior Circuit persons him to distribution dis- senting from reversal of the conviction trial. closed at Carter): stand, Carter, taking denied all Justice has Judge written much with with of the events above connection accord, in quite which I am but I think mentioned, sought to indeed he establish Carter’s conviction of theft should stand. which, enough, the clearly an alibi view, my In the evidence of Carter’s as its demonstrates. rejected verdict guilt overwhelming only so that I need Carter, proceeded, the trial seated As the salient applicable set forth facts right jury, at a table in front had at point issue. drawing pictures of faces which been burglary early the Arms Room to as “doodles”. have been referred morning in June 1971 was prosecution, on motion of judge, trial beyond peradventure. established drawings ordered those turned rifles, and, Government-owned M-14 shot- the Government over to due masks, guns, gas weapons instruction were and were they offered re- course and other manuals items of Government in evidence. ceived had been property stolen. objected, counsel had contend- Carter’s Military police making their rounds prosecution should re- ing that that locks discovered on the Arms Room sample quested drawings of Carter’s and protective been cut that a to trial.” during “prior the months It is had been judge regarded screen removed. that the understandable burglarized weapons and were stolen. drawing and was at trial became GX-18K 1. That Additionally, epithets against military objection as had received without had been (Tr. 567) (GX testimony scribblings written on the walls were found on slogan drawing 18-K found on [the the Arms Room read: wall in fact, pad]) the Arms Room desk “Super Pigs.” Pigs” or War “War “King slogan Kong is Black” is associated explained us: brief has Carter black, movements. radical “political” re- was crime was That this military arsenal the facts that a flected required regard ultimate per when it was was not specious claim to— short, drawings as established. Carter’s conclusion apparent fectly given in such instances is weight when to be during the trial and executed considering which is a com- not on notice the Government and content of items of form drawing pictures parison of there sit Carter Moreover, if, coun evidence. physical as Carter’s faces. have en judge could suggests, sel it was that judge So the district over taking pre-trial order the a tered objections, ruled defense counsel’s as he work, may art well of Carter’s samples “I remarked think the can take a was certainly position he in to that seem it and way look at decide one or the very samples production the order other”, observing “I further don’t think proceeded.2 as trial the perfected expert.” an you need that complains doodles had Carter in evidence received in rebuttal. been Surely Carter had executed his court- testified that But Carter had he had tak drawings no form compul- under room in part burglary. no whatever en Holt v. sion. 218 U.S. Surely receiving rebuttal evidence falls 54 L.Ed. 1021 S.Ct. exercise proper within of discretion (1910) Mr. Justice Holmes took of a note presiding judge. by States which “arose as to a question whether Alaimo, (CA 3, 1961), belonged prisoner.” to the He re- blouse denied, cert. S.Ct. an jected “extravagant as extension of L.Ed.2d 784 a claim the Fifth Amendment” that compelled had accused been become a judge upon was When called against Certainly, himself. Mr. witness rule, already he knew that in evidence long previous Holmes expe- Justice in his picture in the was the found Arms Room on the in rience bench Massachusetts Kong its is “King legend. Black” it is have known that common- would possibility compari- At issue was the of a comparisons be made that between place Exhibit son between that GX-18K and physical object already in evi- a known prepared as drawings Carter’s accused, dence, one traceable to the Their presence jury. authenticity plaster a footprint cast of where and attribution to Carter had become a crime at the scene of has been found beyond question. Undoubtedly the clear matching purposes with a received judge well aware recog- trial of our shoe. defendant’s that a “judge’s nition assessment ad- missibility only is vulnerable if the error clearly recognized Holmes Mr. Justice clear,” Sutton, United States a prohibition compelling “the 426 F.2d a criminal court be witness inman prohibition himself is a against Sutton, compulsion Judge id., in moral” recog- physical Robinson use him, that a from an might nized reasonable mind communications not extort —but purported It is so the Government could have done so and would have so testi- rely upon handwriting fied, 28 U.S.C. reasonably § could it be contended that he statute, predicate as a permitted for its offer of the doo- not have should been so to state? dles, we are not here concerned with hand- thereupon might and that the Carter doodles writing exemplars, Ranta, properly cf. United States v. not received in evidence for con- (8 1973). 482 F.2d CA course Of sideration in refutation of his prosecution’s we are not bound reliance claim? ground upon applicable to the facts dis- analysis handwriting no Where had been by the closed record here. authenticity sufficiently made but had been demonstrated, our court noted “it is immateri given only overnight An FBI witness was authenticity requirement might al opportunity to examine exhibits but testi- better met another method”. in a time he not been fied so short had Sutton, supra, See United 138 U.S. to establish with definiteness a basis for able 215, n.53, App.D.C. at at n.53. suppose, arguendo, that he certitude. Let us in when it the introduction evidence of permitted body as of his exclusion “doodles”. sheerly Carter’s court-room Obviously as material. may be matter, talking about practical judge I realize that made ref evidence, enunciating principle physical point at one to “other crimes” in erence wide, expanding, indeed which has charge jury. of his the course trials.4 in criminal acceptance However, instructions must be whole, not in terms of viewed as a some say went opinion The Holt on to challenged. later to be isolated reference recognition put judge trial in detail had before objection principle would forbid a jury the elements of the various of prisoner compare look at a jury to charged against the several ac fenses photograph with a his features respectfully, suggest, cused. I that there Moreover, proof. we need not con- courtroom, in that least was no one go how far a court would sider com- jury, who could have all the failed to pelling a man to exhibit himself. For precisely know what issues were in exhibited, when is whether volun- proof and what was essential to volved order, tarily or and even if the beyond a predicate a verdict reasonable far, evidence, goes order too if ma- doubt.6 terial, competent. Adams v. New York, 24 Sup.Ct.Rep. U.S. The court reminded us in Cupp v. 48 L.Ed. 575. Holt v. See United Naughten, 141, 147, 414 U.S. 94 S.Ct. supra, 218 U.S. at 31 S.Ct. 396, 400, (1973) 38 L.Ed.2d 368 at 6. a judgment of conviction is commonly put Holt blouse “and it fitted the culmination of a trial which in- Holt, him”, supra, at 252. Carter drew testimony witnesses, cludes argu- They doodles courtroom.5 were counsel, ment of receipt of exhibits in competent possible evidence in aid of the evidence, and instruction offered, purpose they for which de judge. Thus not only is the upon what pending weight, any, if challenged instruction but one of many them, jury might give having mind, to instructions, such but process characteristics, g., e. their their simili instruction itself is but one of several possible tude and other bases for com components of the trial may which re- parison (See with GX 18-K. note su sult in the judgment of conviction. pra). saying without at goes almost this myself I find satisfied that there considering the suffi- late date in the ruling no reversible error which In different context but in furtherance of the suspect makes a or accused the source of principle perceived to be from Holt v. United physical ‘real or evidence’ does not violate it. States, supra, increasingly ap the Court has Sutton, n.3, supra 5. Cf. United States v. proved physical the use of evidence even to U.S.App.D.C. at 426 F.2d at 1207-1208. analysis extraction chemical of a de sample. fendant’s blood In United States v. Patterson, 6. As to returned a not Dionisio, 1, 6, 410 U.S. 93 S.Ct. guilty verdict on the substantive counts which (quoting L.Ed.2d 67 from Schmerber v. Cali were identical to those with which Carter had fornia, 757, 764, 1826, 1832, U.S. 86 S.Ct. charged. Patterson had offered substan- 908) 16 L.Ed.2d the Court said: support alibi, tial evidence in posi- of an proof usually tive federal and state that at certain [B]oth courts have times covered privilege] Texas, protection held that indictment he had offers no been in [the Mexico and against compulsion fingerprint- Guatemala. to submit to ing, photographing, measurements, Incidentally, agree since I that we should identification, speak appear write or court, conspiracy reverse his conviction on a count in stand, stance, walk, to assume a 73-2057, No. we ap- should also dismiss his particular gesture. or to make a The dis- peal Patterson, in United States v. No. 74- emerged, expressed tinction which has often 1473, wherein he had prose- raised a claim of ways, privilege in different is that is a impropriety point cutorial likely on a against compelling bar ‘communications’ or again if arise he should be tried. ‘testimony,’ compulsion ciency following of the evidence a con

viction, the Government is entitled to

the benefit of all reasonable inferences. Mackin,

United States v. 163 U.S.App. D.C. denied, cert. 42 L.Ed.2d Crawford v. United 375 F.2d 332 view, my Carter’s conviction of

theft, under all of the clearly evidence so

establishing guilt, his aff should be

irmed.7 of America STATES

UNITED TINDLE, Appellant. J.

Isaac

No. 75-1317. Appeals, Court of Columbia Circuit. District filed denying motion

Order 3, 1975.

Oct. 10, 1975.

Nov. my I had earlier submitted esteemed col- I concur in the treatment the latter of opinion leagues proposed dealing with the claims in Carter’s case insofar as he deals with Carter, appeals consolidated Patterson and aspect the “Molotov cocktail” of the counts of appeal Peterson. As to Peterson’s in No. 73- arson, possession cocktail, of a Molotov separately opinion I have written second-degree burglary while armed. which, upon by my colleagues, concurrence opinion by I also Judge concur in the Justice companion will come down as case coinci- stated, and for reversing the reasons the con- dentally opinion by with the release of the viction of Patterson in No. 73-2057. Judge Justice. notes See Texas, (5th 1967); People 381 F.2d 619 Cir. Shaw, 381 Mich. 164 N.W.2d 7 prom- 37. These two individuals testified under People Zapata, Cal.App.2d prosecution. immunity Cal. ises of from B. Trial Court’s Instruction Marshall,38 as to Per- and went downstairs ert missible Inferences There, appel he was introduced to him. The four lants Carter and Patterson. judge, trial at the conclusion of light-blue Falcon automo proceeded to a evidence, jurors instructed the bile, in an all parked which was outside they permitted to infer appel- bags unloaded a number of ey,39 and lant “guilty Carter was of the crimes bags vehicle. The were then from the charged”, they determined, if beyond a automobile, in the seat of another placed doubt, reasonable that he was found in garage in a attached to the resi located unexplained, exclusive possession of developed weapons dence. recently stolen property. Appellant Car- bags, masks were contained in the gas

Case Details

Case Name: United States v. Lamont S. Carter, United States of America v. Jerome R. Patterson, United States of America v. Jerome R. Patterson

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Jul 18, 1975

Citation: 522 F.2d 666

Docket Number: 73-1922, 73-2057 and 74-1473

Court Abbreviation: D.C. Cir.