*1 сon- particularization basis for the of the the Commis- resolved should be lieves hearing regard thereto. with sion, should a or be tentions what the issues of notice without conclusion, clear that it seems in- They rather that contend be.” parties congressional of classification person not need articulate terested not may be affected” is “whose interest having admitted until after issues interpreted by narrowly the Commission. party proceeding, conse- with as a to who, petitioners, come within like Those discovery. quent Section access to interpretation enti- the class are 189(a) to so seem court does not hearing a and to become tled to seek a provide. it amena- The court considers proceeding. The Commis- party to which, con- when ble to construction however, prescribe rеgulations, sion’s (p) the Act with of sidered section specific the fo- to be as must intervention, permits hearing. nature of man- In this of the desired cus require party to the Commission those with- narrows ner the Commission he inform it of the issues on which larger to those entitled class heard, or, held wishes be as intervenors, participate thus Commission, to be ad- the contentions in the resolution the Commission assist Section vanced the basis therefor. doing so decided. In of the issues to be necessarily preclude 189(a) does not agency transgresses not we do think regulation application therefor that the legislative its charter. subject give matter content Affirmed. hearing sought. V 2.714(a) Q,F.R.
Section of 10 provides supporting also that a affidavit
accompany petition. require the To
person
may
interest
be affected”
“whose
support
in
the factual basis for such
of
UNITED STATES America
clearly
rеa
terest
an affidavit
v.
might
problem
arise, how
sonable. A
MACKIN,
Margaret
Margaret
a/k/a
ever,
requirement
support
with the
of a
Nelson, Appellant.
specific
“identifying the
affidavit
aspect
aspects”
or
as to which interven
of
America
UNITED STATES
sought
tion is
and “the
basis
[the
party’s]
regard
contentions with
to each
GIBSON,
Horton
Erana Mae
Erana
a/k/a
”4
aspect.
mat-
may
.
.
These
be
Horton, Appellant.
Lorana
a/k/a
argumentative
of a
or
ters
contentious
72-1948, 72-1949.
Nos.
ordinarily re-
not
character which are
Appeals,
United States Court
legal proceed-
quired to be under oath in
District Columbia Circuit.
ings.
problem
thus referred
Argued Sept.
however,
1973.
resolved,
not
need
now be
judgment
in-
it does
affect our
July 18,
Decided
1974.
peti-
properly
denied
tervention
Rehearing
Aug.
Denied
1974.
The actual basis for the denial
tioners.
Certiorari Denied Dec. 1974
part
comply with
was failure on their
See
ROBB, Judge: Circuit appellants Margaret Maekin convicted Mae Erana jury Gibson were degree premeditated murder of first (22 degree 2401), felo- D.C.Code first § (22 2401), ny murder D.C.Code § *3 robbery (22 2901). D.C.Code § appellant Court each District sentenced imprisonment each murder life on and a term three to fifteen count years count, robbery all sentences concurrently. affirm to be served We judgments. I. charged counts crimes three the murder and
of the indictment were robbery Porter. Mrs. of Mrs. Blanche 74-year widow, Porter, suffered old partial generalized arthritis, dеaf- ness, obesity, partial and loss blindness, She had bladder bowel control. moving great about, getting difficulty in standing up, bed, and even out of aid with the of a walker unable to distance, such walk more than a short to the bath- the distance from her room From on Oc- room. 1967 until death 8, 1971, tober she at the Nelson lived Nursing Washing- Home in northwest ton. At the death Mrs. Por- time of her home, patient ter was the managed by which was Maekin. sister-in-law, Porter’s Mrs. Mrs. Eva Forestville, Maryland, Curtis was the only relative of who saw Porter Mrs.
regularly. On October 1971 around telephoned P.M. 7:00 Mrs. Curtis Mrs. Maekin told her Mrs. Porter’s seventy-fifth birthday approaching Joseph Pauli, (ap- Washington, C.D. day, and that the next October Mrs. pointed by Court) appellants. this going Curtis was in a come cab and Kettlestrings, Washington, Donald A. D. birthday take Mrs. Porter for a out (appointed by Court) C. also en- luncheon. Mrs. Mrs. Curtis asked Mack- appearаnce tered an appellants. lady in to have the old dressed and Janis, Atty. N. Richard S. Asst. U. ready and tell her Mrs. Curtis was com- Jr., Titus, whom Harold H. U. S. her. Mrs. Maekin said she Atty., Terry Stephen John A. W. do this. would Grafman, Attys., U. Asst. S. were on the morning half-past About on the seven appellee. brief for of October 8 Mrs. called Maekin TAMM, Before Porter and Curtis and told her “Mrs. doesn’t MacKINNON ROBB, Judges. you today. up Circuit want come She is going Curtis out with friend.” Since was unusual for Mrs. Porter any go responded know she had anywhere, “I didn’t and indeed Mrs. Curtis going?” Mrs. friends. Where had not seen her is she outside without her replied years, “I She told Mackin don’t know. walker for three Mrs. Curtis con- call, every me to out with tinued to call Mrs. Mackin two or days. if friends.” When Mrs. Curtis asked three Each time when Mrs. Cur- plan to Mrs. Porter had been told of the tis asked if there was news from responded take her out to lunch Mrs. Mackin said her sister-in-law Mrs. Mackin “Yes,” up. anything. but She she had not come On “[d]on’t heard not called Mrs. one occasion be home.” Mrs. Curtis Mrs. Mackin seemed an- again noyed you that after- “I at four o’clock told I would let anything.” noon Porter was home know the minute I hear and asked Mrs. yet. replied Mrs. Mackin has “She Mrs. Curtis knew that Mrs. Porter’s yet.” come in eve- *4 At nine o’clock that Civil Service retirement check arrived ning again Curtis called to ask Mrs. month, on the first of each and her So- anything Mrs. Mackin if she had heard Security cial check on the third of each replied from Mrs. Porter. Mackin Mrs. when Mrs. On November 3 Cur- month. her, “Yes, I from heard and she be tis called and was told Mrs. Mackin couple days.” home in a that both checks had arrived but Mrs. returned, Porter morning had not Mrs. Curtis theOn of October the crying “Well, I started and said am police body found the of a white female going call her and have floating children River near the Anacostia Missing notified, Bureau be- Bridge Washington. Persons in Sousa southeast something happened cause I know has body robe, The was clothed in a a black green her now.” Mrs. Mackin said she was gown, underclothing blue and going to hold checks “to see she ring slippers, black and there one was heard from Mrs. Porter.” right ring finger and a Timex watch police on the left wrist. The estimated Haveron, LeRoy Hav- son of James a age of the dead woman as between Maryland. eron, Bethesda, On lived in forty fifty years, and this' estimate talking fa- with his November after description was recorded Curtis, he re- aunt, Mrs. ther and his body when was received ported Police of Columbia to the District morgue. autopsy From an the medical missing. also He that Mrs. Porter was concluded that Nursing cause examiner Home called the Nelson drowning body death was and that any news if she had asked Mrs. Mackin twenty- had the water than less grandmother. Mrs. Mackin of his four hours. had heard she had no news but she right. Porter, all she corpse Mrs. that floated the Anacos- morning tia River on of October 8 report LeRoy Haveron’s As a result of corpse Porter, Blanche Washington Mrs. Mrs. interviewed Police beginning but as will be seen it was not identified occasions, on several until November 30. told Mrs. November She colored off in a dark Porter had driven On the afternoon of 8 Mrs. October was un- who automobile a woman Haveron, son, Porter’s who James D. day Mackin, or two known to Mrs. California, telephoned lived in wish and said Porter had called later Mrs. happy birthday. his mother Mrs. felt like come back when “she would telephone. Mackin answered She not know did Mrs. Mackin said-she it.” told Mr. Haveron “Your mother has gone. had where Mrs. Porter gone lady . out . with a friend”. response to call birthday On November She added that Mr. cards Curtis, came Haveron James family from Mrs. Haveron and his had had ar- sent Washington mother. get search for his rived and them to Mrs. Porter would Nursing Home to the Nelson He went when she came home. accept Mrs. Mackin- took him to Mrs. proposal where Mrs. Gibson’s at that room. Porter’s He noticed that Mrs. time. Porter’s wheel chair and walker night On the of October 7 Mrs. Gibson room, no but there was clue still proposition, asking renewed her “What
to her whereabouts. Mackin told tonight, can I use the car to- him Mrs. Porter’s checks for month night?” explained She she “want- she, of November come and get go ed to old broad” and “drive Mackin, had returned them somewhere, into the woods and leave senders with a notation “not here”. her, very because she couldn’t well.” walk returning to on No- Before California pay $100, She offered to the Johnsons inquired vember 13 James Haveron at which she said she would obtain from morgue, describing godmother. mother as a his accept- The Johnsons years seventy-four He was woman old. proposal ed and the three went answering there was one that de- told Nursing Home, George the Nelson morgue. scription at the driving and Mrs. direct- ing him. evening 30 Victor On November Haveron, another of Mrs. Porter’s J. sons, Johnsons Mrs. Gibson arrived Paula, his wife went nursing shortly at the home mid- before morgue and identified Mrs. Porter’s night. house, Mrs. Gibson went into the body. On December 1 the Haverons saying get “I’m the old broad”. Nursing Home went the Nelson to A few minutes later she and Mrs. Mack- *5 up policy. pick Mrs. Porter’s insurance out came with Mrs. Porter between They were met who Mrs. Mackin They arms, helping held them. her her policy let- found them. Without put to walk, and her in the back seat ting Mrs. Por- Mrs. Mackin know that car, sitting Mrs. Porter in the mid- body if found asked ter’s dle with Mrs. Mackin and Mrs. Gibson sure it was Mrs. Porter who she was on either Mrs. Porter side. said Raising her on had called October 8. bad”, going “felt asked when she to “Yes, replied Mrs. Mackin her voice “get hospital” complained to you your mother. don’t think I know bothering that her “arthritis was her”. years.” with me for lived four She worry; told her Gibson “Now don’t Mrs. get we will there.” Porter’s The circumstances of Mrs. disappearance not become and death did placed in After Mrs. Porter had been January 1972, to the until known go the car Mrs. said to Gibson “Let’s her husband Antonia when Johnson Maryland somewhere, it is where dark”. investigating George made statements to aimlessly George then drove foí- Johnson story, summarize their as officers. We finally stopped so and the car an hour or and re- in their statements recounted Bridge roаd under on a dirt the Sousa peated in at the trial. Washington. kept say- in ing Mrs. Porter going get to the are we to addicts “When were narcotics The Johnsons get long hospital? testified, sup- This is a time who, Johnson as Antonia robbing, hospital.” Mrs. reassured the her, Gibson “stealing, ported their habit calling “dear”, her to everything.” They but told just selling dope, got get man of the car because “the appellant Er- out acquainted with the Gibson apartment Mrs. Mackin and Mrs. occupied a flat.” an who ana Gibson lady car and helped old out Early Mrs. October near theirs. god- River. “my toward the Anacostia walked her told the Johnsons gasp splash and home, and a nursing Then there was and there has this mother returned much and Mrs. Gibson too Mrs. Mackin knows old bitch that is this carry car, Mrs. got out without Mrs. Porter. get To rid of.” that we rings two the John- Johnsons project to rent Gibson showed she wantеd got the old did she had she said Johnsons sons’ car $50.00. lady going keep; Nursing Home, and was and she as follows: a Civil Serv- gave 1, a “brand one- ice the Johnsons new” retirement check dated October got $163.00; Security hundred dollar bill which she “from 1971 for a Social godmother.” 2, $119.50; check dated October 1971 for 1, a Civil Service check dated November the murder took After $163.00; Security 1971 for a Social nursing to her home Mackin back check dated November 1971 for $119.- apart- went to the Johnsons’ and then 50; and a Civil Service retirement check in the Mt. area of Wash- ment Pleasant dated December 1971 for $163.00. ington. Just arrived there noticing Gibson, Mrs. Porter’s Mrs. Mackin testified in her defense through car, purse was still went that she wanted Mrs. Porter to leave the purse, change, nursing took some small said home because an she “was ex- get rid of it” and it into tremely get along “Let me thrеw person difficult nearby sewer. with,” sometimes she “would nice and be the next time she couldn’t meaner.” be November 1971 Antonia and On She incontinent “but I believe she were arrested for armed could have controlled herself much bet- robbery. Detention Center While ter” and sometimes Mrs. Mackin“‘would drug therapy Antonia received and she have to scrub her room three drowning about of Mrs. brooded day”. According times a to Mrs. Mack- As she testified trial “I Porter. in she asked Mrs. Curtis “over a dozen thought often, especially it about when I times” to remove Mrs. Porter but each myself to admit I wanted to started promise time Mrs. Curtis “would do stop pretending be for real and and face so and then back out.” Mrs. Curtis myself living Stop . in a . fanta- she could not take in to live drugs sy world of ... didn’t it So, Mackin, with her. said Mrs. “I de- life, my it matter what took out of thought cided, asking someone didn’t matter. If it took me the next Maryland, car to twenty get take her to years together, I was possible, and then leave her there start, real, know, so that stop *6 she could be being thinking taken to her sister-in-law. phony.” her to This led thought Forestville, Maryland, I had of police. make full confession to the nursing home, where her lived. sister-in-law She took them to the to bridge area.” “I asked Mrs. Gibson she where Mrs. Porter had been could home, obtain a car so that she Por- murdered, [Mrs. to Mrs. Gibson’s and general could be taken in ter] area sewer where had Mrs. Gibson and I pocketbook. knew her sister-in-law would have thrown Mrs. Porter’s plan police pocketbook take her in.” The was to have recovered the “dropped disclosing off sewer. ... Without George the Forestville area.” Johnson what his had told wife them, police him, interviewed and he October, On the of 7th сorroborated Antonia’s statement ev- testified, Mrs. told her she had Gibson ery detail. pick found someone who would Mrs. Acting given on the information them up Maryland, Porter and take her out to police the Johnsons the obtained ar- they she had a man with a car and rest warrants Mackin and Mrs. Mrs. pick up would come and Mrs. Porter. Gibson, they were arrested on Janu- midnight. They did come around Mrs. ary 17, placed under arrest 1972. When upstairs Gibson and Mrs. Mackin went wearing Gibson was two Mrs. Mrs. and Mrs. Mackin “told Mrs. Porter rings. Porter’s going she came down She leave. steps stipulated front and we went out At trial it was that Mrs. George the man Mackin endorsed the name of Blanche door.” Johnson was Gibson, who introduced Porter on five checks that had been Mrs. Mrs. him, saying “George, the Nelson Mackin to this is mailed to Mrs. Porter at Margaret.” helped asking something He “You and Mrs. Gibson are me I can’t steps responded Mrs. Porter down the into the answer.” She “I wouldn’t they expected Then off and Mrs. know” ear. drove left when asked how she standing porch. Mackin on her Curtis to know her Mrs. sister-in- law was in the Forestville area. She Continuing testimony, Mack- her Mrs. said “there is no answer” when asked next two said that sometime why away she sent Porter without Mrs. days left, probably on after Mrs. Porter clothes, her wheel chair or her walk- October, Mrs. Gibson had 8th er. She admitted that as soon as Mrs. “they had driven called and said midnight Porter left at October finally around and around” and that she, Mackin, nursing Mrs. noted on the got “they out” and Mr. Johnson home records that Porter “Mrs. left Porter had Mrs. Gibson and Mrs. days’ with a friend on the 8th a few “George “walked near a river” where visit.” un- She knew this notation was told Mrs. to move and she Gibson true. . kind turned and she saw his give up Mrs. hands come push Porter a Mackin she had known Mrs. testifiеd years. May- Mrs. Gibson “three or four and Mrs. Porter went into the wa- be five” and were close ter.” friends. She denied that Mrs. referred to examination, Still on direct Mrs. godmother her as her but conceded that lying Mackin admitted godmother she was the of one of Mrs. relatives, “I Porter’s because Mrs. Gibson’s children. big certainly was not to be in a hurry Taking to tell them mother had that their the stand in her own behalf disposed up I of like that. covered Mrs. Gibson testified that she had long and said that for as a time that I known Mrs. four or five Mackin for away. years. patient could that I it was she was know Her mother had been a Although nursing a lie.” signed she she claimed at the home and her husband plastering Mrs. Porter’s October checks work had done and other request Mrs. Porter’s admitted she had called she there. She authority had no to endorse the Novem- her and told her “She wanted woman people Maryland, ber and that her December checks. She endorsed to be taken to money”, said, them, and “stole the tired” and had refused her and she was Maryland the license Nelson Nurs- because ing if the woman taken “to April “had would Home been lifted” lived at” close where she money” and she “needed the Ac- find the woman and take her back. cording repairs “reopen make rooming as a so she could asked Gibson she Concluding presence her direct his wife An- house.” *7 Mary- testimony tonia, lady to in an earlier take the she testified that if he would would, forging a not for case she had been convicted of he he but land and said placed probation nothing. for a she would check and on Mrs. said Gibson years. probation give ex- claimed term of three Her She him $75.00 $100.00. pired spoke once in to the Johnsons December 1971. that she project. the about Mackin On examination Mrs. cross George and planned she and Mrs. said to have Mrs. Gibson testified that she to the Nelson went Antonia Porter to “the Forestville area”. Johnson taken Nursing car. Mrs. in the Home Johnson Mrs. Curtis did not know where She get there”. him how to “told “hoped Gibson lived but that Porter] [Mrs. got and they there Mrs. Gibson had there.” She When would be taken near “brought upstairs, the midnight away Mackin went at be- Mrs. Mrs. Porter taken the with lady steps” then depend the and down on someone cause she “had to put George in the her why help get Johnson did not call car.” Asked she and the was Mrs. Gibson her Mrs. Porter car. Curtis to tell Mrs. leaving Porter, Mrs. replied being off Mrs. she drove to Forestville taken told bill with Mackin at the George Mrs. Gibson the one-hundred dollar home. supposed pay to which to Johnsons. Johnson Forestville, that was take Mrs. Porter and hоrri- We have related this sordid Maryland, he in he somewhere and said story appel- ble so the contentions They drove knew that was. where weighed may in lants be understood and finally stopped long time and around proof trial. We context at bridge. by a on a road dirt turn now to those contentions. get going to have to said “You all are He tire.” out I a flat because II.. helped out and Mrs. Gibson claims that Gibson “by her over the sea- and walked with the warrant on she was arrested They over there wall.” “walked by probable supported cause. was not up, she could stand . because says, Accordingly, she she evidence that you know, standing, in like the center wearing rings Porter’s at was Mrs. support. some she without sort So arrest, had lied and that she time of placed up against this wall had her hand got them, should have how she standing.” where she was this is argu suрpressed. think her We Johnson then told Mrs. Gibson ment is merit. without move, pushed river, Mrs. Porter into appellant argues the affida- that began car, ran back started it and support warrant was vit the arrest to move off while Mrs. still was Gibson it “based dou- deficient because was climbing in. me Then he said “Hand hearsay”, as there was no statement ble poeketbook” and when she reached infor- received the to how the informant rings drop for it that she “heard the affidavit, and mation out set time, I hit me on the foot. So showing infor- that was picked poeketbook, I handed him the Having mant examined was reliable. rings.” up told Antonia Johnson affidavit, record, we which is ring keep her to had a them because she prob- quite find to establish it sufficient keep Mrs. later Mackin told Briefly the sets able cause. affidavit them. out an of the mur- informant’s account Mrs. denied that she searched Porter, substantially der of Mrs. through purse and threw Mrs. Porter’s developed story was when admitted that She sewer. Although af- the Johnsons at trial. wearing Porter’s arrested she was Mrs. informant as the fidavit refers rings, and had lied when she that she “it”, phrased in the “source” or given police told the had frequently employed prose awkward rings her the six months before “about documents, apparent such it is lied that.” also admitted she had She eyewitness to the informant was an police when told knew noth- she she events The affidavit recites described. about Mrs Porter’s death. She “proven has reliable informant lied because she “scared”. . . on numerous occasions arrests”, have led and that tes- On cross examination Mrs. Gibson purse in the drop Mrs. Porter’s plan recovered tified informant sewer where the said it Porter off “to where the woman’s close *8 addition, the at”; In state- people been thrown. did not know lived but she plainly lived, are dec- people ments the informant or even who of where these sign against interest, of “just a let larations were. She was reliability. Finally, affida- lady their as the park her this and leave [out] indicates, thought the statements vit informant’s there her it not on own.” She many being respects in taken are consistent unusual that the woman was clothes, already police learned the midnight, what had without investigation Maryland. disappearance place of the their some unidentified gave Finally Mrs. Porter. think the affidavit swore Mrs of We that
437
plainly
the
its face was
sufficient. Unit
of
on
effects
the error.” Gaither v.
Harris,
States,
573,
154,
91
U.S.App.D.C.
ed
v.
403 U.S.
United
States
S.
134
2075,
(1971);
172,
1061,
Jones
(1969)
was [sic]
to.two
victim,
longer period.
made a
identifi-
who
courtroom
to a somewhat
nutes
cation,
completely
During
De-
unable to
of
was the
had been
none
these times
wearing
any
identify
mask
of
at a
one
defendants
fendant Mackin
George
covering”.
lineup.
John-
other
As
court noted that
identification
son’s
Although
the District
Court
opportunity
“better
he had an even
explored
care
the cir
commendable'
Mrs. Mackin
observe
we
of
identifications
cumstances
think the
We
than his wife.”
note that
there was never
contention
finding
independent
source
an
court’s
of
that
Mrs. Mackin
someone other
than
compelled by
supported if
the evi-
not
George
and Mrs. Gib
assisted
Johnson
dence.
putting
son in
John-
showing
question
The
is whether
have
Mrs. Mackin
sons’ car. As we
photograph
to the two
of Mrs. Mackin
introduced
testified
that
she was
very
witnesses resulted in “a
substantial
sug
George
Any
this
at
time.
Johnson
irreparable
of
likelihood
misidentifica
gestion
there
of mistaken identification
States,
tion”.
Simmons v. United
390
ring,
in fact the is
fore
hollow
has a
384,
967,
L.
971, 19
88
U.S.
S.Ct.
veracity
sue
one of
between
was
(1968).
is that
Ed.2d 1247
The answer
appellants,
rather
than
Johnsons and
totality
it did
“the
not but that under
one of
See United States
identification.
notwithstanding
circumstances”,
F.
499
U.S.App.D.C.-,
Garner, 162
v.
showing
photograph,
of the
thе iden
(1974).2
2d 536
Big
tifications
Neil v.
were reliable.
says
appellant
Mackin
gers,
188, 199,
U.S.
93
S.Ct.
prejudiced
because her chief counsel
agree
(1972).
439 drowning, weapon. to that of the since plea Wil- ous He guilty entered a of petty larceny again liams was a confessed in confederate the court might robbery, he have records charges [counsel] indicated that other knowledge had some as to the would John- be dismissed. He that testified drowning participation in get sons’ might or he knew he could a life sentence on charges alleged have heard some statement that in the indictment. to Williams. made Mrs. Antonia Johnson testified that ethically so, If he could not disclose she along had been indicted with her this to Mrs. Mackin or to the Court. pleas husband and also had entered of guilty appellant’s larceny re- robbery petty The contention must be in jected. charge spec- prejudice charges of is the two cases. She knew the in ulative, gossamer support exposed without even possible indictment her to a Moreover, addition, in the record. the record dis- life sentence. In she had been charged appellant’s counsel closes that the chief with a violation of the Harrison vigorously ably permitted plead and his Narcotic guilty co-counsel Act but was Campbell appellant. defended the to a misdemeanor under the Uni- U.S.App.D.C. States, form United 122 Narcotic Act. The Johnsons had appel- (1965), pending F.2d 359 cited not been sentenced lant, point. charged not in In that case the eases nor had anything been plainly record that a defendant showed connection with the murder prejudiced he and a co-de- of because Porter. represented by were the same fendant lawyer. Mrs. Johnson testified that she knew pleas guilty subjected
her
possible
her to a
years
pris-
sentence
of “17
IV.
on”. She also had been informed that
appellants argue
twenty-one years
since she
Both
old she
that
get
curtailing
“could
Youth
“erred in
Corrections Act”
District Court
get
on which meant to her
she could
of the informants
that
cross-examination
years.”
turn
months to six
“[s]ix
that
did not
state’s
She was
their claim
charge
you
escаpe
or to
then asked “isn’t it a fact
know,
that
evidence to
a murder
get
Johnson,
you
on oth
can
more favorable treatment
obtain
argu
you
charges.”
out on the
support
street earlier if
are sen-
er
In
ruling
appellants
tenced under
the Youth Corrections
a
ment the
cite
get
responded
Act?” She
“If I were to
which curtailed
District Court
go
today,
out
I
out
wouldn’t
of Mrs.
cross-examination
street,
receiving
hope
under
sir.” The
Court there-
a sentence
District
upon
questioning
record
curtailed further
con-
Act.
the Youth Corrections
cerning
hope
appellants’
Mrs. Johnson’s
receive
conten
establishes
Corrections Act treatment.
no merit.
Youth
tion has
appar-
it is
From what has
No-
Johnson testified
put
appellants
able to
ent that the
for armed
was indicted
vember 1971 he
jury
danger-
all
relevant facts
robbery, rоbbery,
before the
assault with
talking
dangerous
tending
weapon,
carrying
to show
ous
guilty
motivated
plea
weapon.
Johnsons were
He entered
question-
hope
Further
robbery
of reward.
reflected
court record
and the
have
charges
could not
of Mrs. Johnson
be dis-
would
the other
strengthened
inference
thus
of-bias
in November
In
case
missed.
another
burglary
that counsel
inference
created—an
indicted for
he was
forcefully
in their
armed,
appellants
drew
degree
rob-
armed
while
first
jury.3
danger-
closing arguments
robbery
bery,
awith
and assault
drug
recall,
addicts
argument
for Mrs.
As
counsel
In Ms
people
against
pending charges
These
them.
said:
*11
short,
appellants
every
prospective ju-
the
had
reason
On the voir dire of the
-
opportunity
prove
prosecutor
to
the
able
bias and
rors the
possi-
identified as a
judge
to
Raymond
trial
then
the
Maloney,
had
discretion
ble witness “Father
proof.
Ray,
control
extent of the
Blair
is
the
who
sometimes known as Father
322,
States,
U.S.App.D.C.
priest.
United
324-325,
130
a Catholic
.
.” Before-he
.
387,
(1968);
opening
prosecu-
F.2d
389-390
401
made his
statement the
States,
U.S.App.D.
Austin
135
v. United
tor
the
informed
court and counsel that:
(1969);
243,
456,
C.
418 F.2d
459
During
of Mrs.
the course
U.S.App.D.
States,
Tinker
135
v. United
testimony,
going to
Johnson’s
testify
she is
542, 544,
125, 127,
cert. de
C.
417 F.2d
priest
a
that she went to see
nied,
L.
396 U.S.
90 S.Ct.
confessional;
on
Eve
a
Christmas
to
judge
(1969).
did
Ed.2d
The trial
thing
and this when
first came
is
this
not
that
abuse
discretion.
out.
Now,
put
Malonson,
I
Father
have
appellants argue
“testi
that
to,
priest
went
on
the
that she
[sic]
religious
mony
motivation
to the
capital
However,
list,
I’ve
[sic]
improper
was
witness
Johnson
very
him
he feels
talked with
and
appel
Specifically
prejudicial”.
and
strongly
notwithstanding the fact
that
(a)
testi
lants
to
Mrs. Jоhnson’s
refer
willing
privi-
that she
waive her
is
to
mony
impelled her to
that her conscience
lege, he
that
be a viola-
feels
it would
to con
talk to
after she
went
religious
testify
to
tion of his
beliefs
priest
had
fession
told a
that she
and
regardless
any
under
circumstances
murder;
(b) the
been
prosecutor’s
involved
a
legal
he
or
whether
could
issue
proof in
to this
reference
testify.
could not
(c)
opening
jury;
his
to the
statement
lic
garding Mrs.
fervor
“failure to disclose
...
Johnson’s
to
renewed Catho
defense
evidence
counsel
re
[*]
I
will
[*]
bring
*X*
a
-X-
priest
-X*
over
[*]
his
prior
jury
appro
to the
voir dire so that
right.
All
THE COURT:
challenges
priate
array
to the
beliefs,
Ibut
.
. conscientious
made”;
veniremen
could have been
just bring
to
attention of
that
(d) the
“failure of the Government
argue
they
miss-
a
want to
defense
produce
priest
received
con
who
He is available.
witness.
say
appellants
the matter
fession.”
response
religious
this
disclosure
motivation
Mrs. Johnson’s
appellants
upon
prosecutor
for
sprung
counsel
“was
the defense
record,
ask
will not
we
opening
“For the
statement.”
stated
Government’s
bring
this
missing
Again
instruction
witness
turn to the record
we
opening
his
appellants’
priest.”
into focus.
Thereafter
contentions
furnishing
part of
have had
they
son
Narcotic
guilty
has been reduced so
meanor.
charges.
Counsel
I
conception
Continuing, he said:
These'
devious,
who was
had
get
to a
parties
of information
for Mrs.
Act
some consideration.
armed
You heard
charges
robbery.
intentional
charged
I
robbery charges
do
plead
Mrs. Johnson can
something
You heard Mrs. John-
armed
self-serving
plan, a
with the
guilty
argued
government
robbery,
methodical
cooperate,
Harrison
аnd this
a misde-
that
interest.
plead
drug
say
life
have.
the cases
larceny;
Mr.
things
were
tilla of a moment
did she
Don’t
Do
What does
They
get
[*]
are not
charged
you
something
you
are also
plead
think
can
today?
in which
petty
í¡!
really
heard about
get
guilty
aware
aren’t
for armed
get
larceny.
out of
believe
nothing
gunpoint, armed
[*]
Mr.
moment,
to?
aware.
plead
it,
Mrs. Johnson
what
Robbery.
that
they
[*]
robbery.
guilty?
Mrs. Johnson
do with their
Don’t
happened
indeed
all
one
robbery,
[*]
What
Petty
think
scin-
prosecutor
statement
referred to
confessional would be. There is no
showing
priest.
prosecutor’s
Mrs. Johnson’s confession to the
conduct
objection
reference,
any way
No
was made to
Moreover,
unfair.
showing,
nor was
speculation,
motion made to strike that
but
portion
opening
might
statement.
the defense
have benefited if “ev
regarding
idence
Mrs. Johnson’s re
On direct examination Mrs. Johnson
newed Catholic fervor” had been dis
objection
testified without
that she was
*12
prior
pro
closed
to the voir dire of the
a Catholic. The District Court however
spective jurors. Certainly we cannot
testify
refused to allow her to
that her
say that earlier disclosure of this item
priest prompted
confession to the
her to
of evidence would have been of critical
go
police.
The court ruled that
or even substantial value to the defense.
might
prosecutor
introduce this evi-
Xydas
States,
See
App.D.C. 184,
v. United
144 U.S.
dence on redirect,
if
the defendants
660, 667,
191, 445 F.2d
sought
impeach
to
testi-
Johnson’s
denied,
826,
57,
cert.
404 U.S.
92 S.Ct.
mony.
(1971).
noticed Mrs. Porter’s Tony ollection as what Johnson said. after appellants to the car returned over think back I am sure that pushing Anacostia into the testimony, you to resolve will be able River, showed her that Mrs. Gibson рarticular problem.” gave rings “My never said, husband good,” adding anything grant jury’s request that she me Whether to going keep them”. discre- “was the sound was a matter within that Mrs. Gibson Johnson also testified tion of the District Salzman Court. rings displayed car, and States, U.S.App.D.C. 393, United lady” “got elderly precisely (1968). Taking from the them F.2d “ keep them”. urged upon counsel for [s]he the action *13 seen, was appellants, As we have when Gibson not abuse the the did court rings. wearing the arrested she was its discretion. jury trial, could rea- From evidence the appellants a fair The appel- sonably they have concluded judgments are must be and rings from Mrs. took the lant Gibson Affirmed. just Maekin and Mrs. Porter before she river, pushed into the Appellants’ For Motion On Maekin, and abet- as an aider that Mrs. Rehearing guilty tor, was also of murder perpetration robbery. Mrs. Maekin ORDER though culpable, did not еven was robbery. PER CURIAM. proceeds of the share in the judge rightly As the district denying observed appellants’ mo- consideration On judgment of ac- a motion for rehearing, it is tion “ jury quittal there was enough f the feels [I] appellants’ by the Court Ordered aiding abetting, is denied. motion is aforesaid robbery.” hold Mrs. Maekin on the REHEARING MOTION FOR .ON argument ap final As their pellants the District Court claim Judge: ROBB, Circuit denying “plain committed jury’s request error” ap- rehearing the motion In their have certain prosecutor “misin- pellants claim request, in a to it. The set out read con- court as to the trial formed” the during jury its note received from supporting the the affidavit tents deliberations, this: was Mrs. Gibson. for the arrest of warrant agree- reach unanimous We cannot made for now This contention is charge; however, Robbery ment on According by appellants. time first opinion like of a few would is the prosecutor erroneously said to them Tony testimoney after [sic] Johnson’s description that a the affidavit stated the river thrown into Mrs. Porter was given by in- rings, of Mrs. Porter’s rings. with reference arrest, corrobo- was formant before (We when would like to know The by relative. Mrs. Porter’s rated rings by the testimo- were discovered find say they appellants “are unable to ney.) affidavit, [sic] any of this matter record.” court is which jury’s request, coun- Informed appear- colloquy appellants “I cite a stated: for the sel rereading trial pages of the strongly object and 234 would say testimony. transcript reflects for the ask which I would misrepresentation. prosecutor’s recollection it is their instruction that by ap colloquy cited In the speaking prosecutor
pellants the support search war of a affidavit apartment.
rant Mrs. Gibson’s affidavit, in the record as
This contain the mat Exhibit does Court’s appellants. by referred to
ter sep supported warrant was arrest affidavit, There Exhibit
arate Court prose misrepresentation
cutor. rehearing
The motion for is denied. TELEVISION, INC.,
FIDELITY Appellant,
FEDERAL COMMUNICATIONS COM- MISSION, Appellee, Inc., General,
RKO Intervenor.
No. 73-2213. Appeals,
United States Court
District of Columbia Circuit.
Argued June 1974. July
Order 1974. Aug.
Decided