decided as amended april 12 1972.: April 7, 1972.
Adams, Gibbons and Rosen, Circuit Judges.
The appellants Farries, Boulware, Tisdale, Ferguson and Swanson appeal from sentences imposed following guilty verdicts in a jury trial on an indictment charging various offenses which took place during a mutiny and riot at the United States Penitentiary, Lewisburg, Pennsylvania on February 1, 1970. On April 20, 1970, a 22 count indictment was returned in the Middle District of Pennsylvania against the appellants and two other defendants, Day and McGee. The indictment charged the defendants separately with twenty substantive violations of 18 U.S.C. § 111.*fn1 Count 1 charged that Farries and Boulware "did instigate, connive, willfully attempt to cause, and assist a mutiny and riot" in violation of 18 U.S.C. § 2*fn2 and 18 U.S.C. § 1792*fn3 Count 2 charged that Tisdale, McGee, Ferguson, Swanson and Day "did willfully attempt to cause, and assist a mutiny and riot" in violation of the same statutes. A separate attorney was appointed for each appellant in the district court pursuant to the Criminal Justice Act of 1964.*fn4 The attorneys made numerous pretrial motions directed to, among other things, the indictment, the venue, the sufficiency of pretrial discovery permitted by the court, and their ability to prepare adequately when their clients were in administrative segregation in the penitentiary. Each of the contentions advanced on behalf of the appellants was fully and carefully considered in the district court. Some were ruled on in advance of trial and others, in particular those directed to venue, were deferred to the trial. That trial took place between January 18, 1971 and February 25, 1971. On the first day one defendant, McGee, pleaded guilty to two counts of the indictment. The jury's verdict found one defendant, Day, not guilty. It found all of the other defendants guilty on at least two counts of the indictment. Farries was found guilty on Count 1 of instigating the riot and mutiny and on four counts of assaulting four correctional officers. He was acquitted on one assault count. Boulware was found guilty on Count 1 of instigating the riot and mutiny and on six counts of assaulting six correctional officers. Tisdale was found guilty on Count 2 of willfully attempting to cause and assist a mutiny and riot and on one count of assaulting a correctional officer. Ferguson was found guilty on Count 2 of willfully attempting to cause and assist a mutiny and riot and of two counts of assaulting two correctional officers. Swanson was found guilty on Count 2 of willfully attempting to cause and assist a mutiny and riot and on two counts of assaulting a single correctional officer with two different dangerous weapons.
At the trial the defendants were vigorously and ably represented, and they were afforded every reasonable latitude by the court in presenting their defense. After the verdicts the defendants made timely motions for a new trial, advancing twenty separate grounds. These were carefully considered by the district court and rejected in a reported opinion. United States v. Farries, 328 F. Supp. 1034 (M.D.Pa.1971). On appeal these twenty grounds have been compressed to thirteen, which for present purposes we have further compressed.
I. Objections to the Jury Panel
Appellants made a pretrial motion pursuant to Fed.R.Crim.P. 21 for a change of venue either to a different place of holding court within the Middle District of Pennsylvania or to a different district. They contended that it was impossible to obtain a fair and impartial jury in the Lewisburg vicinage (1) because of local pretrial publicity, (2) because of the dominant position in the local economy of the Lewisburg Penitentiary, and (3) because Lewisburg jurors would be antipathetic to them as Black Muslims. The district court denied this motion without prejudice to its renewal at the voir dire. It was renewed at that time, and the court conducted a thorough examination of the prospective jurors. It granted defendants' challenges for cause with extreme liberality, and it permitted each defendant four peremptory challenges. The motion for a change of venue was denied.
There is no reason to suspect that the jury was anything but fair and impartial. In the first place the nature of the pre-trial publicity to which the court's attention was directed was not at all like that involved in Marshall v. United States, 360 U.S. 310, 79 S. Ct. 1171, 3 L. Ed. 2d 1250 (1959); Irvin v. Dowd, 366 U.S. 717, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961); Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663 (1963), or Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). It consisted of news reports of the riot and of the injuries suffered by the guards, made at the time of the events, and of a brief report that the trial was about to commence and that the United States Marshal had undertaken the problem of courtroom security. We have made an independent evaluation of the circumstances. Sheppard v. Maxwell, 384 U.S. 333, 86 S. Ct. 1507, 16 L. Ed. 2d 600. We conclude that there was no substantial likelihood that the media reports which are disclosed in the record would interfere with the obtaining of a fair and impartial jury. We have taken into consideration not only the nature and content of the media reports relied upon but also the fact that at the voir dire few of the prospective jurors had any prior knowledge of the case. There was no reasonable likelihood that in the absence of a change of venue a fair trial could not be had, and these motions were properly denied. See Standard 3.2(c), Change of venue or continuance, Standards Relating to Fair Trial and Free Press, A.B.A. Project on Minimum Standards for Criminal Justice (1966).
As to the contentions of actual antipathy against Black Muslims, and of prejudice arising from the dominant position of the penitentiary in the economic life of Lewisburg, the extensive voir dire examination completely dispels any suspicion that either factor influenced the jury.
Defendant Swanson advances a refinement of the foregoing contentions. Prior to trial he moved under Fed.R.Crim.P. 23(a) to be tried without a jury. He contended that the three factors already discussed plus the fact that the jury must inevitably know from the nature of the charges that he was a convicted felon, made it mandatory that his request for a non-jury trial be granted. The Government took the position that it had no objection to a trial without jury if all defendants would waive a jury, but that because of the enormous expense and the serious security problems involved in a trial in which the defendants and many witnesses were inmates of various federal penitentiaries it would not consent to a severance. Under these circumstances the denial of this motion was proper. Singer v. United States, 380 U.S. 24, 85 S. Ct. 783, 13 L. Ed. 2d 630 (1965). A different issue might have been presented had we concluded that there was a substantial likelihood that pre-trial publicity had tainted the jury panel. Cf. Standard 3.3, Waiver of jury, Standards Relating to Fair Trial and Free Press, supra. A different issue might also have been presented had Swanson been willing to be tried simultaneously, with the court deciding his guilt and the jury deciding the guilt of the others. We express no view as to how such a request should have been disposed of. The record is clear that Swanson's motion was advanced in hopes of obtaining a severance. In these circumstances it was properly denied.
One other contention with respect to the jury panel arose out of an incident which took place during the voir dire. A prospective juror in the presence of other members of the jury panel, volunteered the information that his wife had advised him that one defendant had pleaded guilty. Defense counsel made a motion for a mistrial. Relying upon United States v. Restaino, 369 F.2d 544 (3d Cir. 1966) the district court declined to grant a mistrial, but instead gave an appropriate cautionary instruction based on that suggested in Restaino, 369 F.2d at 546 n. 3. This course was, in the circumstances disclosed in this record, entirely proper.
We conclude that the defendants were tried by a fair and impartial jury.
II. Deprivation of a Preliminary Hearing
The Government presented evidence to the grand jury which in turn returned an indictment. After the indictment was returned the defendants asked for a preliminary hearing. Fed.R.Crim.P. 5(c). This request was rejected. We have held that once an indictment has been returned a preliminary hearing is not required. United States v. Conway, 415 F.2d 158, 160-161 (3d Cir. 1969), cert. denied, 397 U.S. 994, 90 S. Ct. 1131, 25 L. Ed. 2d 401 (1970); Rivera v. Government of the Virgin Islands, 375 F.2d 988 (3d Cir. 1967). Compare Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967) with Federal Magistrates Act of 1968, 18 U.S.C. § 3060. The appellants suggest that Coleman v. Alabama, 399 U.S. 1, 90 S. Ct. 1999, 26 L. Ed. 2d 387 (1970), compels a reconsideration of our Conway decision. Cf. Adams v. Illinois, 405 U.S. 278, 92 S. Ct. 916, 31 L. Ed. 2d 202 (Mar. 6, 1972). But it does not follow that because counsel must be afforded when a preliminary hearing is held the holding of a preliminary hearing is constitutionally required. Indeed the opinion in Coleman v. Alabama suggests the contrary. 399 U.S. 1, 8, 90 S. Ct. ...