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June 20, 1994


The opinion of the court was delivered by: JAMES F. MCCLURE, JR.


 On February 3, 1994, a grand jury sitting in the Middle District of Pennsylvania returned a three-count indictment charging defendant Eddie Jennings with two counts of assault with a dangerous weapon on a correctional officer engaged in the performance of his official duties, in violation of 18 U.S.C. § 111(a)(b) (Counts One and Two), and with possession of a prohibited object, the weapon, while in a federal correctional institution, in violation of 18 U.S.C. § 1791(a)(2), (d)(1)(B) (Count Three). Jennings entered a plea of not guilty at arraignment on March 24, 1994.

 On June 7, 1994, a jury returned verdicts of guilty on all three counts of the indictment. Jennings was sentenced to a total of 210 months incarceration for the three counts, to be served consecutively to sentences previously imposed in this court and the United States District Court for the Central District of California. A breakdown of this sentence is provided later in this memorandum.

 The course of the prosecution of this case involved several unusual issues and incidents, requiring the court to make unusual rulings. This memorandum is intended to memorialize and explain further the rationale underlying those rulings.


 A. Prior Case

 Jennings first came before this court in a case docketed to No. 4:CR-92-204-01. In that case, Jennings, then an inmate at the United States Penitentiary at Lewisburg, Pennsylvania, was indicted for assault on a federal officer, assault with a dangerous weapon on a federal officer, and destruction of government property. The charges grew out of a melee incited at USP-Lewisburg when Jennings punched Lieutenant Duane Heverly of the Federal Bureau of Prisons. In the ensuing confusion, Corrections Officer Darryl Bird of the BOP was struck with a folding chair. It was the chair which was alleged in the indictment to have been the dangerous weapon.

 At trial, witnesses for the government were unable to identify with precision the person who struck CO Bird with the chair, and Jennings was acquitted of that charge. However, he was found guilty by the jury of the remaining charges. Those included the assault on Lieutenant Heverly in violation of 18 U.S.C. § 111, and the destruction of government property in violation of 18 U.S.C. § 1361. The latter charge arose from Jennings' use of a folding chair to shatter a glass restraining grill within the penitentiary. The court scheduled sentencing for Thursday, February 18, 1993, at 9:00 a.m. in the Federal Building, Williamsport, Pennsylvania.

 B. Sentencing in No. 4:CR-92-204-01

 At the designated time and place, the court, counsel for the government, and counsel for Jennings assembled in Williamsport. However, the court was notified that officers at USP-Lewisburg were having difficulty transferring Jennings into the custody of the United States Marshals Service, *fn1" which is responsible for the transport of prisoners to the courthouse. Unable to determine whether the difficulty constituted a valid waiver of the right to be present at sentencing, the court directed that Jennings was to be produced.

 At 11:22 a.m., the court convened for sentencing, with Jennings present in full body restraints. According to representations made to the court, he had been physically removed from his cell by the BOP and transferred to the custody of the marshals. Jennings was sentenced to concurrent terms of thirty-six months for the two counts for which he was found guilty, with those terms to run consecutive to the term of imprisonment imposed by the court in the Central District of California.

 Prior to sentencing, the court was unaware of the exact circumstances underlying the delay in Jennings' appearance before the court. The court was aware only that Jennings would not leave his cell and did not wish to come to Williamsport, and the court responded that Jennings had to come to Williamsport. At trial of the instant case, the reasons for the delay became clear.

 C. Events at USP-Lewisburg on February 18, 1993

 Upon the refusal to allow Jennings to take his radio, the atmosphere in Jennings' cell became dark, both literally and figuratively. Jennings used blankets and towels to cover the outside window to his cell, the small window in the door to the cell, and a small slot in the door to the cell known as a "wicket." The latter opening, similar to a mail slot, is used to pass items into the cell and receive items from the cell, and for the purpose of placing handcuffs on an inmate ("cuffing up") without the need to open the cell door. The wicket is covered by a flat plate with hinges and a key-lock.

 Corrections officers approached Jennings' cell for the purpose of cuffing up and exit to R&D, where the marshals were waiting. Jennings refused to cuff up and claimed, for the first time, that his life was in danger if he exited his cell. He demanded to see higher authorities, including the undersigned judge. The corrections staff assembled two teams of officers for the purpose of removing Jennings from the cell. The first is known as a confrontation avoidance team and is designed to avoid a physical altercation. The team consists of staff who appear to have some rapport with the inmate, and their task is to convince the inmate to follow directions without the need for force. The second type of team is known as a forced cell movement team, the purpose of which is to physically restrain and remove a troublesome inmate.

 In Jennings' case, the confrontation avoidance team consisted of Lieutenant Jarrett and Jennings' case manager. They were unsuccessful in convincing Jennings to cuff up and leave his cell peaceably. Final directions to cuff up were given to Jennings, and he continued to refuse. The forced cell movement team then was called upon to remove Jennings from his cell. Cell doors in the SHU are operated electronically at a separate station. Jennings' door was opened with the forced cell movement team ready outside.

 In order to understand the ensuing events, it is important to understand what "ready" means for a forced cell movement team. These teams consist of six to eight corrections officers wearing protective clothing and gear. This consists of a jump suit, protective gloves, a flak jacket-type vest, and a helmet. The helmet resembles a football helmet, but with a screen covering the entire area over the face; the protective mask more closely resembles a lacrosse face mask. Each member of the team has a specific assignment, either control of a particular limb or placement of restraints on the inmate. Two other members of the team are "in reserve" outside of the cell in case the inmate breaks loose. No member of the forced cell movement team carries a weapon. Entry into the cell is videotaped, and a videotape camera is kept outside of the cell to record any action which may occur in the hallway.

 During the trial of the instant matter, the government introduced into evidence and played for the jury the videotape of the entry into Jennings' cell on February 18, 1993. The tape first shows the final efforts to talk Jennings into leaving his cell, *fn2" Jennings' tirade about the alleged threat to his personal safety, and the final direction of the corrections staff to cuff up. Jennings again refused.

 Fortunately, the initial thrust missed CO Wolever, sweeping within inches of the protective mask. The point of the shank, however, might well have avoided the mask because the angle at which the thrust was made would have brought the point up under the bottom of the mask. The approach of the officers forced Jennings back inside the door and the struggle continued inside.

 Jennings was knocked onto his back and CO Wolever, whose assignment was the left arm, sought to control the arm and neutralize the weapon held in the left hand. Before he was able to do so, both CO Holdren and the second team member into the cell, Corrections Officer Thomas Holdren, were struck by the shank. CO Wolever had difficulty removing the shank from Jennings' hand because of the loop and sock. CO Holdren then gained control of Jennings' left hand and was punched in the helmet several times by Jennings (using his right hand) before CO Wolever was able to gain possession of the shank. Finally, CO Holdren and CO Wolever were able to control Jennings' arms while other officers controlled Jennings' legs and restraints were placed on Jennings.

 Jennings then was carried by the forced cell team to R&D, where marshals were to take custody of Jennings. A physician's assistant employed by the BOP checked the restraints and minor adjustments for circulation were made. Jennings then was transported by the marshals to the courthouse for sentencing. Jennings was sentenced and returned later to USP-Lewisburg while still in the restraints. He suffered no serious injury.

 After Jennings was brought to R&D, two members of the team were found to have been injured. CO Wolever suffered puncture wounds of the left wrist and forearm, right elbow, and right thigh. See Government's Exhibit 8. CO Holdren suffered puncture wounds to his upper right arm and the left side of his shoulder/neck area. See Government's Exhibit 9. The wounds were not life-threatening but did require medical attention.

 D. Indictment and Later Events

 On February 3, 1994, an indictment returned by a grand jury sitting in the Middle District of Pennsylvania charged Jennings with the offenses set forth in the "Background" section of this memorandum. In short, Jennings was charged with two counts of assault on a federal officer with a dangerous weapon and one count of possessing a prohibited object.

 Counsel was appointed for Jennings, and a number of pretrial motions were filed on Jennings' behalf. Included was a petition for writs of habeas corpus ad testificandum which sought to have six inmates brought to court to testify on Jennings' behalf. The proffered testimony indicated that Jennings would argue that his actions in SHU on the morning of February 18, 1993, constituted self-defense. The petition for writs of habeas corpus ad testificandum was denied on the basis that the proffer did not contain facts sufficient to support a claim of self-defense. A motion for reconsideration of that ruling also was denied.

 Defendant then filed a second petition for a writ of habeas corpus ad testificandum, seeking to introduce evidence of voluntary intoxication. That petition was denied because, as we ruled in No. 4:CR-92-204-01, § 111 sets forth a general intent crime to which voluntary intoxication is not a defense.

 Prior to jury selection on May 31, 1994, the court entertained a motion by Jennings to substitute counsel. Jennings proffered no valid reason for the substitution, and the motion was denied. Whereupon, in open court, Jennings hit his counsel in the side of the head with his closed fist, causing counsel to reel to the courtroom floor. The blow caused swelling and redness on the cheek and just below the left ear of counsel. Six marshals were required to restrain defendant, and he was taken from the courtroom. The court then allowed counsel to withdraw, and held that defendant had waived his right to the appointment of counsel.

 Immediately prior to jury selection, which had been continued to June 1, 1994, Jennings made threatening remarks, particularly against the Assistant United States Attorney, corrections officers, and his former counsel. These remarks, interspersed with foul language, included threats to cut the throat of former counsel and "drink his blood," to "slaughter" corrections officers, and to murder the Assistant United States Attorney. *fn3" Since Jennings possesses enormous physical strength, such threats were and are taken seriously by the court.

 On June 7, 1994, Jennings was transported without incident to the courthouse from USP-Lewisburg for trial and acted as his own attorney at trial. Prior to commencement of trial, Jennings provided to the court a document asserting that he objected to all pretrial proceedings and to the conduct of the trial. No questions were asked of any government witness on cross-examination. Jennings' defense consisted of his own testimony that he did not contest the government's case, that what he did was wrong, but that he had done things much worse and that he would do things much worse in the future (Jennings also said much the same in his opening statement). Jennings' only point of contention with the government's case was that he did not think a conviction in the instant case would solve the problem of his violent behavior.

 Following closing argument by the government (Jennings waived his closing argument) and the court's charge, the jury returned verdicts of guilty on all three counts of the indictment. An error in the manner in which the verdict slip was completed was corrected by sending the jury back to deliberation to complete a new form.

 After the verdict was returned, the court imposed sentence. We found that "there is in the record information sufficient to enable the meaningful exercise of sentencing authority pursuant to 18 U.S.C. [§ ] 3553. . ." Fed. R. Crim. P. 32(c)(1). The presentence investigation report conducted relative to No. 4:CR-92-204-01 was entered upon the record and that report contained sufficient information for imposition of sentence in the instant case, because Jennings' intervening incarceration had precluded any material change in circumstances since preparation of the report. Neither the government nor Jennings objected to the timing of sentencing or the use of the previous presentence investigation report.

 Based upon the information contained in the earlier presentence investigation report and the circumstances surrounding the charges in the instant case, the court imposed a sentence of 210 months. Jennings was sentenced to 120 months' incarceration for Count One, to be served consecutively to the sentence imposed in the Central District of California and the sentence imposed by this court in No. 4:CR-92-204-01. A sentence of 90 months' incarceration was imposed for Count Two in order to reach the aggregate sentence required under the United States Sentencing Guidelines. The latter term is to be served consecutively to the sentence imposed for Count One. Finally, the court imposed a sentence of 60 months' incarceration for Count Three, to be served concurrently with the terms of incarceration imposed for Counts One and Two. The period of incarceration is to be followed by a period of supervised release of three years. Fines were not imposed based upon Jennings' inability to pay.


 As noted above, this case involved several extraordinary events and circumstances, leading to unusual rulings by the court, including determinations (1) that Jennings' proffer did not provide a factual basis for a claim of self-defense; (2) that voluntary intoxication is not a valid defense to a charge of violating § 111; (3) that defendant's conduct effected a waiver of his right to appointed counsel; (4) to proceed with jury selection with defendant absent from the courtroom; and (5) to impose sentence immediately following the return of a verdict, without the preparation of a presentence investigation report. These rulings will be addressed seriatim.


 As part of his pretrial motions, Jennings filed an under seal, ex parte petition for writs of habeas corpus ad testificandum of other inmates. We issued a memorandum and order denying that petition and a memorandum and order denying a motion for reconsideration, from both of which most of the language of this section is taken.

 A. Writ of Habeas Corpus Ad Testificandum

 A federal district court has the authority to issue a writ of habeas corpus ad testificandum, which secures the appearance of an inmate, either state or federal, as a witness before the court. 28 U.S.C. §§ 2241(c)(5), 1651(a). A criminal defendant seeking such a writ must also satisfy the procedural requirements of Fed. R. Crim. P. 17(b). United States v. Cruz-Jiminez, 977 F.2d 95, 99 (3d Cir. 1992). The Compulsory Process Clause of the Sixth Amendment to the United States Constitution guarantees the right of a criminal defendant to offer testimony of witnesses favorable to the defense and to have compulsory process for the appearance of favorable witnesses. Cruz-Jiminez, 977 F.2d at 100 (citations omitted). Moreover, a court may not arbitrarily impede the ability of the defendant to present a defense. Id.

 "However, this right to present evidence is not absolute. A mere showing by the accused that some relevant evidence was excluded is insufficient; the accused must demonstrate that 'the testimony would have been both material and favorable to his defense.'" Id. A defendant's right to compulsory process is violated when: (1) he is deprived of the opportunity to present evidence in his favor; (2) the excluded testimony would have been material and favorable to his defense; and (3) the deprivation is arbitrary or disproportionate to any legitimate evidentiary or procedural purposes. Id.

 B. Jennings' Proffer In his petition, Jennings sought writs for each of the following, all inmates in federal correctional facilities (the facility to which each is designated follows the name of the inmate): Kent Clark USP-Marion, Ill. Corey Fowler USP-Marion, Ill. Ron Moore USP-Marion, Ill. Carlos Johnson USP-Marion, Ill. Gene DiUlio USP-Marion, Ill. Leroy Thompson USP-Florence, Colo.

 Jennings offered the testimony of each of these individuals for the purpose of showing that each was aware of harassment of and threats toward defendant by staff at the USP-Lewisburg. Carlos Johnson also would have testified that he continually told Jennings on the night before the incident that Jennings would be beaten if he left his cell, and that he provided a weapon to Jennings. *fn4" Specifically, Jennings' proffer was as follows:

As part of his defense, Defendant wishes to produce evidence that, as a result of his acquittal on Count I in 4:CR-92-0204-01, correctional officers at USP Lewisburg harassed and threatened physical retaliation against Defendant because of the acquittal including threats that Defendant would be severely beaten before he could be transferred from USP Lewisburg; that the harassment and threats of serious bodily injury escalated up to and including the morning of February 18, 1993; that as of the morning of February 18, 1993, Defendant was in great fear for his physical safety that he believed the correctional officers and staff of USP Lewisburg intended upon beating him and inflicting serious bodily injury; and that Defendant's refusal to leave his cell on the morning of February 18, 1993, and resulting conduct was justified as a result of his reasonable fear that he may be caused serious bodily injury at the hands of correctional officers and staff at USP Lewisburg.

 Petition for Writs of Habeas Corpus Testificandum at 2-3, P 7. This proffer indicates a theory of self-defense. In order to justify a writ of habeas corpus ad testificandum, then, Jennings had to demonstrate that the testimony of the witness would be favorable to the defense and material to a defense of self-defense.

 C. Law of Self-Defense

 To raise a valid claim of self-defense to a charge of assault under § 111, the defendant must show: (1) that he did not know the official status of the person assaulted; (2) that he reasonably believed that he was being attacked; and (3) that he used reasonable force to defend himself. E. Devitt, C. Blackmar, and K. O'Malley, 2 Federal Jury Practice and Instructions § 23.12. See also United States v. Gometz, 879 F.2d 256, 259 (7th Cir. 1989) (danger must occur at or near the point in time defendant committed the alleged acts), cert. denied, 493 U.S. 1033, 107 L. Ed. 2d 768, 110 S. Ct. 752 (1990). *fn5" Once the defendant produces evidence of the foregoing, the burden of proof is on the government to show that (1) the defendant knew that the person assaulted was a federal officer at the time of the assault, or (2) the force used by the defendant was excessive and would not have been justified even if the person assaulted was a private citizen and not a federal officer. Id. See also United States v. Alvarez, 755 F.2d 830, 842-843 (11th Cir.), cert. denied, 474 U.S. 905 (1985) (knowledge of official status of victim relevant to claim of self-defense, and government may prove either of above alternatives to establish case).

 D. Application of Law to Facts

 Jennings' proffer in the instant case simply failed to meet the standards necessary to establish self-defense, even accepting as true all of his allegations. Basically, Jennings contended that he had a reasonable basis for believing that officers at USP-Lewisburg intended to seek revenge for his acquittal on an earlier assault charge. This basis was threats by the officers and warnings from fellow inmates.

 However, Jennings had no reasonable basis for believing that an attack was imminent. The officers who came to his cell directed him to exit the cell for the purpose of leaving the prison for sentencing on the earlier assault charge. Jennings, an inmate, certainly knew that the corrections officers and marshals were federal officers, and they clearly were acting within the scope of their authority in transporting him to the courthouse. No aggressive action was taken relative to Jennings until well after his initial refusal to exit the cell, and there is no indication ...

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