The opinion of the court was delivered by: FOGEL
On November 22, 1974, John W. Clark, William Christian, and John Griffin were found guilty by a jury on four counts charging them with conspiracy, (18 U.S.C. § 371), and aiding and abetting violations of the federal bank robbery statute, (18 U.S.C. §§ 2, 2113).
Each defendant has now filed motions which seek, in the alternative: (1) dismissal of the indictment based upon excessive pretrial delay; (2) a judgment of acquittal, under Rule 29 of the Federal Rules of Criminal Procedure; (3) a new trial, under Rule 33 of the Federal Rules of Criminal Procedure; or (4) arrest of judgment, under Rule 34 of the Federal Rules of Criminal Procedure.
In his original motions, Clark asserted 41 separate grounds in support of the relief sought; Christian and Griffin each asserted 34 such grounds. At this juncture, however, the defendants among them press only 16 separate contentions, which may be categorized as follows: (1) pretrial motions, ruled upon by the Court prior to trial but renewed thereafter; (2) challenges to the manner of jury selection; (3) rulings of the Court during trial; (4) the instructions of the Court to the jury; and (5) the legal sufficiency of the evidence to support the jury's verdict.
We shall discuss these contentions seriatim.
Defendants now challenge our rulings on pretrial motions in which they sought: (1) dismissal of the indictment based upon their contentions of excessive pretrial delay; (2) a severance; and (3) a change of venue. Each of these motions was denied prior to trial. After a review of the record, and the restatement of the position of defendants by their counsel in the post-trial motions and briefs in support of those motions, we reaffirm our original decision for the reasons hereinafter set forth.
On November 1, 1974, after extensive pretrial hearings, the Court denied the motions of Clark, Christian, and Griffin to dismiss the indictment based upon pretrial delay, and delivered oral findings of fact and conclusions of law with respect to those matters. We shall review the substance of those findings and conclusions.
The factual framework upon which we based our conclusions may be summarized as follows:
1. On February 8, 1973, incidents occurred at the home of Ernest Kelly, Sr., 5769 Kemble Avenue, Philadelphia, Pa., and at the Continental Bank, Broad Street and Nedro Avenue, Philadelphia, Pa., from which arose the instant federal prosecution. Christian and Griffin were arrested inside the Kelly home on the afternoon of February 8, 1973; Clark was not arrested on that date.
2. On or about March 1, 1973, at a meeting in Philadelphia between representatives of the United States Attorney's office, Washington, D.C., and the Philadelphia Police Department, the name of John Clark was suggested as a suspect in the February 8, 1973 incident.
3. On March 16, 1973, Ernest Kelly, Sr., and Thelma Kelly, his wife, were shown a photospread by Detective English of the Philadelphia Police Department; each identified the photograph of John Clark, who was still at large, as the fifth man involved in the February 8, 1973 incident. Detective English thereupon swore out a complaint against Clark on state charges including aggravated robbery, kidnapping, conspiracy, burglary, violation of the Uniform Firearms Act, and carrying a concealed deadly weapon. Later that day, arrest and search warrants were signed by Municipal Court Judge Edward T. Quinn, and Clark was arrested by Detective English.
4. On March 20, 1973, Clark began serving a fifteen year sentence imposed by Judge Ditter of this Court in an unrelated case, Criminal No. 71-163.
5. On March 21, 1973, Assistant United States Attorney Percy H. Russell, Jr., of the office of the United States Attorney in Washington, D.C., presented the testimony of Ernest and Thelma Kelly to a grand jury in Philadelphia. Both of the Kellys testified with respect to the participation of Clark in the incident of February 8, 1973.
6. On July 11, 1973, unindicted co-conspirator Thomas Clinton died, apparently of natural causes.
7. On August 24, 1973, the indictment in the instant case was lodged against the defendants.
8. On September 5, 1973, Herbert Fisher, Esq., was appointed to represent Clark in these proceedings. Fisher entered his appearance on September 12, 1973.
9. On September 5, 1973, Christian and Griffin failed to appear for arraignment on the indictment.
10. On September 25, 1975, Jeffrey Miller, Esq., the Assistant United States Attorney charged with the prosecution of this case, wrote to Fisher and suggested the possibility of a conflict in Fisher's representation of Clark, because Richard Dabney, a co-defendant, was represented in another criminal action in this Court by Herman Bloom, Esq., a partner of Fisher.
11. On September 28, 1973, Edward H. Weis, Esq., appointed counsel for Dabney, advised the Court in writing that the Defender Association of Philadelphia, with which Weis was associated, represented Clark in another matter which was the subject of a petition under 28 U.S.C. § 2255.
12. Between September 28 and October 1, 1973, Fisher withdrew as counsel for Clark because of potential conflict.
13. On October 1, 1973, Andrew Gay, Esq., was appointed to represent Clark. Gay filed an entry of appearance on October 3, 1973.
14. On October 3, 1973, Miller notified the Court in writing that William Christian and John Griffin had been arrested by the Federal Bureau of Investigation in Jacksonville, Florida.
15. On that same date, Weis wrote to the Court requesting a continuance of the trial date from October 29, 1973, when it was originally scheduled, until a date after November 12, 1973, because of Weis' impending marriage and wedding trip. A copy of this letter went to Fisher, but not to Gay, whose entry of appearance was filed on the same day the letter was written.
16. At some time between October 3 and October 28, 1973, Robert Meistering, Deputy Clerk of this Court, telephoned Gay and continued the trial as to Dabney and Clark. Gay did not formally object to this continuance, which was at the request of Weis, then counsel of record for Dabney.
17. On or about October 12, 1973, Christian and Griffin, who had been apprehended in Jacksonville, Florida, were taken to the District of Columbia, where they faced murder charges.
18. On October 25, 1973, this Court appointed Charles Burr, Esq., to represent Christian, and David Creskoff, Esq., to represent Griffin.
19. At some time between October 25, and October 29, 1973, Charles Burr, Esq., withdrew due to a conflict; between October 25 and November 7, 1973, David Creskoff, Esq., also withdrew.
20. On October 29, 1973, Eugene Clarke, Esq., was appointed to represent Christian, but declined this appointment prior to November 7, 1973, because of his previous representation of Ernest Kelly.
21. On November 7, 1973, James Binns, Esq., and Mark Dolin, Esq., were appointed to represent Christian and Griffin, respectively.
22. On November 10, 1973, Fred Davis died. Davis was purportedly an exculpatory witness in this matter.
23. On November 15, 1973, Clark wrote a letter to this Court, which the government concedes to be a request for a speedy trial (N.T. 93, June 26, 1974).
24. In late November or early December, 1973, the prosecuting authorities in the District of Columbia asked for a continuance of the murder case scheduled to be tried in that forum; the case was continued from January to February, 1974.
25. On December 5, 1973, Christian and Griffin were arraigned before Magistrate Leomporra on the instant indictment. Both defendants stood mute during the arraignment, and not guilty pleas were accordingly entered as to each.
26. On December 13, 1973, Clark wrote to this Court to request a speedy trial.
27. On December 21, 1973, Christian and Griffin wrote to this Court from the Baltimore City Jail stating that they had refused to consult with their appointed counsel because they were not given sufficient time, and also stated that their lawyers did not have proper identification. They asked to be brought to Philadelphia for assignment of counsel and preparation of their defense.
29. In the latter part of December, 1973, Lonny Anderson, purportedly an exculpatory witness in this matter, died.
30. On January 22, 1974, Clark wrote to Chief Judge Lord of this Court requesting a speedy trial, and sent a copy of that letter to us.
31. On January 28, 1974, we wrote to Chief Judge Lord stating, inter alia, that Christian and Griffin did not wish to be represented by Binns and Dolin, and that these attorneys accordingly sought to withdraw; that the trial of Clark had been continued due to the arrest of Christian and Griffin in Florida, because the four defendants could be tried together; that the Washington, D.C., trial had been continued until February 11, 1974; and that the Dabney trial had been specially listed for February 19, 1974.
32. On February 11, 1974, pretrial hearings began in the Washington, D.C., case involving Clark, Christian, and Griffin; the trial commenced one week later.
33. In the middle of April, during the Washington, D.C., trial, we asked Jeffrey Miller, Esq., to contact the Assistant United States Attorney prosecuting that case for the purpose of determining whether Christian and Griffin had counsel in the instant case, or if they desired to have counsel appointed by us.
34. On April 25, 1974, Miller wrote to this Court stating that Christian and Griffin had refused to discuss the selection of counsel in this matter with the prosecuting Assistant United States Attorney, and had instructed their attorneys representing them in that forum to refrain from taking any part in such selection.
35. On May 2, 1974, we appointed Harold Randolph, Esq., to represent Christian, and Ronald Brockington, Esq., to represent Griffin.
36. On May 9, 1974, Brockington withdrew from representation of Griffin.
37. On May 13, 1974, Ronald McCaskill, Esq., was appointed to represent Griffin. Four days later, before McCaskill had commenced his representation of Griffin, he was relieved of this appointment and thereafter appointed to represent Dabney, whose trial was then in progress.
38. On May 17, 1974, the trial of Clark, Christian, and Griffin in Washington, D.C., concluded with guilty verdicts ...