The opinion of the court was delivered by: FOLLMER
Defendant Jackie Benny Boykin, also known as Benny Jackie Boykin, was indicted by a Grand Jury in this district on a one count indictment charging him with having, while a prisoner at the United States Penitentiary, Lewisburg, Pennsylvania, wilfully assaulted another inmate with a dangerous weapon, in violation of 18 U.S.C. § 113(c). He entered a plea of not guilty and the case was tried by a jury on January 30 through February 1, 1967. At the conclusion of the trial the jury returned a verdict of guilty, and the defendant was sentenced to the custody of the Attorney General for a period of four years.
On February 8, 1967, defendant filed a motion for a new trial, in support of which he alleges the following:
(1) Prosecution witnesses were not sequestered during the course of the trial and, defense witnesses were threatened, abused, and intimidated by the United States of America resulting in prejudice and bias.
(2) Trial Justice admitted inadmissable evidence to be introduced against defendant and said evidence was instrumental in obtaining a verdict of guilty.
(3) Petit jurors not being sequestered during the trial were allowed to travel to and from their homes each evening. One of these jurors, your petitioner has just learned rode to and from the trial proceeding in the company of several of the prison employees at the United States Penitentiary, Lewisburg, Pennsylvania during which travel the relative merits and guilt of defendant was discussed by these prison employees and this petit juror thereby depriving petitioner of his right to be heard by an impartial jury.
(4) Alleged oral admissions were allowed to be introduced by the prosecution, which petitioner-defendant denied making, and said oral admissions under the circumstances were inadmissable, Escobedo v. [State of] Illinois, 378 U.S. 478 [84 S. Ct. 1758, 12 L. Ed. 2d 977]; Miranda v. [State of] Arizona [384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694], (July 14, 1966).
Defendant's first contentions are untrue. Pages 78 and 79 of the trial transcript clearly show that both the prosecution and defense witnesses who were inmates at the Lewisburg Penitentiary were not permitted into the courtroom during the general course of the trial, but were brought into the courtroom one at a time solely for the purpose of testifying. At the conclusion of their testimony they were returned to the penitentiary.
The charges that defense witnesses were threatened, abused and intimidated were made by the defendant during the course of the trial and were answered at that time by the Government to the satisfaction of the trial court. (See pages 375 to 378 of the trial transcript). No evidence has been presented to change that opinion.
The defendant's third numbered contention first alleges that the court failed to sequester the jurors during the trial. Sequestration is done only under extraordinary circumstances. The defendant did not request the court to do this prior to or during the course of the trial, and can not now complain of the court's failure to do so.
However, defendant's next contention is much more serious. He claims that one juror rode to and from the trial in a car occupied by several employees of the Lewisburg penitentiary, and that there was conversation concerning his case. In order to determine the facts relevant to this incident, three separate post-trial hearings have been held by this court.
At the first hearing, held on April 25, 1967, it was developed that a Mrs. Ruth Shiner of Kulpmont, Pennsylvania, was called for jury duty in Lewisburg. On Monday, January 30, 1967, she rode to and from Lewisburg with another juror, Mrs. Mary Stanton. Mrs. Shiner was selected as a juror in defendant's case, but Mrs. Stanton was excused, leaving Mrs. Shiner without transportation to Lewisburg for Tuesday. At this point she called Mr. Charles Rosetta, whom she knew worked at the Lewisburg penitentiary, and he agreed to transport her to and from Lewisburg.
It is undisputed that on Tuesday, January 31, Mrs. Shiner rode to Lewisburg in a car occupied by Mr. Rosetta and four other civilian employees of the federal penitentiary. There is, however, considerable dispute as to what transpired on that trip. Mr. James Edward Kennedy, an inmate at the penitentiary, testified (Transcript of hearing held September 13, 1967, pp. 3-20) that while working in one of the prison offices he overheard a conversation between Mr. Charles Rosetta and ...