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United States v. Barrett

filed: March 31, 1989.

UNITED STATES OF AMERICA
v.
BARRETT, JAMES, APPELLANT



Appeal From the United States District Court for the Middle District of Pennsylvania, Criminal No. 87-00193-01 - Scranton.

Seitz, Stapleton and Cowen, Circuit Judges.

Author: Seitz

Opinion OF THE COURT

SEITZ, Circuit Judge

Defendant, James Barrett, appeals from sentences imposed after conviction by a jury on two counts. We have jurisdiction under 28 U.S.C. § 1291.

At the time of the events leading to the conviction we now review, the defendant was serving a sentence at the federal penitentiary at Lewisburg, Pennsylvania for a felony conviction for an offense against the United States as well as for a state conviction. Defendant and his then cellmate, Stanley Ulatowsky (Ulatowsky), were named as defendants in a multicount indictment containing conspiracy and substantive counts involving the possession of contraband in prison to aid in a prison escape attempt. Putting aside for the moment defendant's claim of prosecutorial misconduct, we address his attack on his conviction on Counts I and IX.

Count I charged defendant and Ulatowsky under 18 U.S.C. § 371 with conspiracy to commit offenses against the United States and proceeded to identify five object offenses. The punishment for conspiracy is a fine of not more than $10,000 or imprisonment for not more than five years unless the object offense is a misdemeanor, in which case the punishment is limited to the maximum punishment provided for that object offense. 18 U.S.C. § 371. Two of the object offenses listed in the indictment are felonies -- attempt to escape in violation of 18 U.S.C. § 751(a) and to possess false identification in violation of 18 U.S.C. § 1028(a)(1) and (6). A third object was to possess "prohibited objects" in violation of 18 U.S.C. §§ 1791 (a)(2) and 1791 (c)(1)(B),(E) and (F). This offense could be punishable as a misdemeanor or a felony depending on the nature of the prohibited objects. The fourth and fifth objects are misdemeanors - to cut cell bars in violation of 18 U.S.C. § 1361 and to possess stolen goods in violation of 18 U.S.C. § 641.

Count IX charged defendant with the substantive felony crime under 18 U.S.C. §§ 1791(a)(2) and 1791(c)(1)(B) of possession on June 16, 1987 of a prohibited object, a cutting instrument, designed or intended to facilitate escape.

Ulatowsky entered a guilty plea and defendant proceeded to trial. A narration of the proceedings subsequent to the close of the evidence is important to an understanding of defendant's claims of trial error.

While the jury was deliberating the district court called the jury back and, at the defendant's behest and over the government's objection, gave a "lesser included offense" instruction, which it had earlier refused to give. On Count I (conspiracy) it instructed the jury that "the charge in count one, conspiracy to commit felonies or misdemeanors, necessarily includes the lesser offense of conspiracy to commit misdemeanors." We note that the indictment does not explicitly charge a conspiracy to commit felonies or misdemeanors.

The judge also instructed the jury as to Count IX that the charge of possession of a cutting instrument "necessarily includes the lesser offense of possessing or obtaining prohibited objects that threaten the order, discipline or security of a prison or threaten the life, health or safety of an individual." 18 U.S.C. §§ 1791(a)(2) and 1791(c)(1)(F). This "lesser offense" is punishable as a misdemeanor.

The jury was given verdict slips to record its verdicts. The form, prepared by the judge, merely provided for a place to check guilty or not guilty. While the jury was still deliberating and after the lesser included offense charge was given, defense counsel requested the judge to give the jury more specific verdict slips that would indicate a third alternative, guilty of a lesser included offense as to Counts I and IX. The court denied the request even though, at the court's suggestion, defense counsel submitted an appropriate form.

The jury returned a general verdict of guilty on Count I (conspiracy) and on Count IX (possession of a prohibited object, etc.). In consequence, the court could not know at that point whether to sentence defendant for felonies or misdemeanors. It thereafter required the jury to answer special interrogatories.

Based on the jury's answers the court sentenced defendant on both counts under the pertinent felony ...


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