Appendix — Brumfield v. United States

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(3) Supreme Court, U.S.

86-1905 72a & D

NUMBER MAY 80 1987

JOSEPH F. SPANIOL, JR.

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER 1986 TERM

JIMMIE ARNOLD BRUMFIELD II, Petitioner

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

APPENDIX

Arax T. Brumfield

2921 Kirk Lane

Bossier City, Louisiana

(318) 746-7045

Counsel of Record

CLERK

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4 AP in til toe

NUMBER

IN THE SUPREME COURT OF THE

UNITED STATES

OCTOBER 1986 TERM

JIMMIE ARNOLD BRUMFIELD II, Petitioner

| Vv

UNITED STATES OF AMERICA, Respondent

PETITION FOR WRIT OF CERTIORARI

APPENDIX

Arax T. Brumfield

2921 Kirk Lane

Bossier City, Louisiana

(318) 746-7045

Counsel of Record

APPENDIX

TABLE OF CONTENTS

Transcript - Brumfield Conviction...1

Transcript - Sentencing........... 67

Petition-Habeas Corpus............. 81

Report & Recommendation

SPT eT eee Tee eee 109

Memorandum - Brief in support of

Response and Answer to Petition...116

Judgment Dismissing Habeas

oe seeen oe ht

ee ee eee eee 168

Motion to Supplement Transcript...170

Opposition to Motion to

Supplement Transcript.......cceeee 174

Memorandum to Counsel of

og a Gk.” re 190

Decision of 5th Circuit Court

i SEIS ch dase ewe eee wees veeeees 196

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA :

Plaintiff,:

-versus- : Criminal No.

JIMMIE A. BRUMFIELD, II, : 82-50004=02

Defendant.: Volume VI

TRIAL COURT: Honorable Tom Stagg, Judge

TRANSCRIPT: Reporter's Official Tran-

script in Above Cause

LOCATION: United States District

Court, Shreveport, LA

DATE: June 14,, 1982

TRANSCRIPT FILED:

BILL HOGAN, RPR

Official Court Reporter

United States District Court

P. O. Box 441

Shreveport, Louisiana 71162

(318) 226-5293

APPEARANCES:

FOR THE PLAINTIFF:

Mr. A. M. Stroud, Attorney

P. O. Drawer 1126

Shreveport, LA 71163

Mr. Carl A. Stewart, Attorney

United States Attorney's Office

Federal Building, 500 Fannin

Shreveport, LA 71101

FOR THE DEFENDANT:

Mr. J. Stacy Freeman, Attorney

1648 Benton Road

Bossier City, LA 71111

BE IT REMEMBERED that in the United

States District Court for the Western

District of Louisiana, Shreveport Divi-

sion, in the United States Courthouse, in

the City of Shreveport, Parish of Caddo,

State of Louisiana, on the 14th day of

June, 1982, the above entitled cause came

on for a ruling before the Honorable Tom

Stagg, Judge of said Court, and the

proceedings on the ruling are in the

words and figures following, to-wit:

THE COURT: The Court has listened

to the testimony of a considerable number

of witnesses for three days. I took in

excess of a hundred pages of trial notes

while the testimony unfolded. I have

read all of the exhibits that were filed

in evidence as transcripts of recorded

statements and other documentary evidence

that was submitted. And I'm now required

to make findings of fact and conclusions

of law based on the testimony and the

evidence in the case.

There are a few preliminary facts

concerning the defendant, Brumfield, who

served as the attorney for a person well-

known to this Court to be an escape art-

ist of sorts. And he served as his at-

torney back in 1979, in late 1979, when

hideaieneteiamtna aerate

Mr. White pled guilty in this Court on

marijuana charges and was sentenced, I

think in December, and transported to the

DeSoto Parish Jail from which Mr. White

escaped the following day. But while Mr.

White was in and out of the DeSoto Parish

business, he stayed in the Shreveport

Jail, I believe my memory serves me cor-

rectly that he was in and out of the

Shreveport Jail for four or five months

during 1979. Only a short part of that

time was he represented by Mr. Brumfield

as an associate of another attorney, Mr.

Graham Rogers.

Mr. White, the Court finds as a fact

and it has been stipulated so it's not

necessary really to find it that Mr.

White was a Federal prisoner when he es-

caped on November 1, 1980, having been

housed in the city jail pursuant to a

writ of this Court and that it's easy to

me to find that he walked out of the city

jail on November 1, 1980. Of course,

this Court was the trier of fact on that

charge of escape for which Mr. White was

convicted on December 14, 1981.

It's also true that Mr. Donald E.

Snyder, who was tried in this Courtroom

on Monday and Tuesday of last week or

Tuesday and Wednesday, rather, of last

week, was the cellmate of Mr. White at

the time of the escape and he was con-

victed by this Court on charges that he

was involved in the conspiracy and abet-

ting and assisting in the escape o Mr.

White. And that conviction was based on

evidence of Mr. Snyder's delaying tactics

in order to distract the jailer and to

give Mr. White the opportunity to get to

the jail elevator and out of the build-

ing.

One of the questions in this case

then is whether Mr. Brumfield had a part

to play in this same scenario which has

been played out in this Courtroom now for

the third time. Before the date of the

escape on November 1, the testimony shows

that Mr. Brumfield was contacted by Mr.

White's mother and she stated that Mr.

White had been apprehended in Florida,

Berra Beach, I think; and asked Mr. Brum-

field to consider to represent him, in-

structed Mr. Brumfield to negotiate the

fee with Mr. White. Mr. Brumfield went

to Florida to confer with White and while

he was there, he met Randy Costales for

the first time, who had been with Mr.

White at the time of his arrest -in

Florida. And he met with Dale White who

is the son of Garvin Dale White whom Mr.

Brumfield knew from the days of his rep-

resentation of Mr. White while Mr. White

was in the Mansfield Jail. I recall that

Pee

Mr. Brumfield or someone or Mr. White

said that his son was brought to the jail

but the folks in Mansfield wouldn't let

the son see Mr. Garvin Dale White, but I

remember that the fact of it is that Mr.

Brumfield already knew Dale White but he

met Randy Costales in Florida for the

first time.

I have dozens of edge tabs and other

markers to key me to certain bits of tes-

timony so if I seem to you to wander, it

is, in fact, true that I am trying to put

this together in as cohesive an order as

I can. If it would be in the future

necessary for this opinion to be reduced

to writing, I reserve the right to edit

and to use proper grammar but not to

change the substance of the findings or

the conclusions.

In any event, while Mr. Brumfield

was in Florida, Mr. White was transferred

to Shreveport and arrived here, I think

on the thirteenth. The jail reggister

shows that his first visitor was on Oc-

tober 14 when Mrs. Brumfield went to the

jail to see Mr. White and the record

shows that on the fifteenth, Mr. Brum-

field came back from Florida and went to

the jail to see Mr. White at ten o'clock

at night -- eight o'clock at night,

twenty hundred hours.

Randy Costales arrrived in

Shreveport from Florida on Sunday the

nineteenth of October. The testimony is

that he was bringing some suitcases and a

flight bag and a briefcase and other mat-

ter belonging to Mr. White which Mr. Cos-

tales had gathered together in Florida.

He came to Shreveport and was housed at

the office, law office across the street

from the defendant's residence. There is

a residential residence at 2920 Kirk

2 owt “a

Lane; there is an office residence at

2921 Kirk Lane. Mr. Costales moved into

a bedroom in that residence on the

nineteenth. The record shows that he

stayed at that residence the nineteenth,

the twentieth, the twenty-first, twenty-

second, and twenty-third, that on the

twenty-fourth, he traveled to Franklinton

with the Brumfields; stayed there the

twenty-fifth, twenty-sixth; went over to

Covington on the twenty-seventh; came

back to Shreveport late in the night of

the twenty-seventh and the record shows

that Mr. Costales was left at the airport

by Mrs. Brumfield sometime during the

mid-afternoon. Mrs. Brumfield didn't

recall at which terminal or did not know

what he -- what was his destination.

When they were in Franklinton, Mr.

Costales was introduced to the

defendant's brother, Billy Brumfield, as

or in the name of Randy Conn. He tes-

tified -- Billy Brumfield testified that

the introduction was under the name of

Costales and that he merely misunderstood

that it was Conn but that's neither here

nor there. It doesn't prove much of any-

thing. But the Government's Exhibit

Forty-Seven, which is the statement given

by Billy Brumfield, a length statement

given to Marshal -- United States Marshal

Fortier on November 4 indicates to the

contrary that Billy said several timess

that Randy was introduced as Conn rather

than otherwise. In any event, after the

Franklinton visit where they slept in

Billy Brumfield's trailer, ate at their

family table, shot rifles at targets and

stayed tagether for three days; they

returned to Shreveport and Mr. Costales

on Tuesday the twenty-eighth left for

parts or parts unknown. But while he was

in Shreveport, the record indicates that

he visited with Mr. White in the jail at

least on one occasion. Mr. Brumfield had

access to the jail and had the ability to

bring Mr. Costales to the jail to see Mr.

White.

The record indicates an extract of

the Government's Exhibit on the jail log

shows that between the time that Mr.

White was transferred to Shreveport on

the thirteenth of the month of October

that Mr. Brumfield visited or signed in

to visit with Mr. White between the thir-

teenth of October and the first of Novem-

ber that he signed in to see him at least

fifteen times. Only on one of those oc-

casions does the record show that Mr.

Costales was with hin.

When Mr. Brumfield was asked on the

witness stand how did it happen that Mr.

Costales was there when he went -- when

he -- Brumfield went to visit White, he

answered: "I don't know. I didn't know

him." Later, he testified in an answer

to other questions that he understood Mr.

Costales was a very good friend or family

relation of Garvin Dale White. He was

asked by Mr. Stroud: "Well, why,, if you

just met him, did you invite him to say

in your house?" To which Mr. Brumfield

disingenously answered: "Because he took

-- he chaffeured me around in Florida and

he took care of me and I'm just a country

boy." To which, under his voice, I heard

Mr. Stroud answer: "I'm a country boy,

too." So, whether or not one fellow had

reason to believe the other fellow is

what this lawsuit is all about. It suf-

fices to say that Mr. Costales was a

close associate of Mr. Brumfield -- of

Mr. White's and for some reason, he

stayed with the Brumfield's for the bet-

ter part of ten days. And I think it's

clearly shown in the record and from the

concrete evidence before this Court that

Mr. Costales was ultimately at the air-

port in Little Rock when Mr. Brumfield --

Mr. White got there or arrived there un-

der some circumstances which the record

does not indicate.

During the time that Mr. White

landed in the Shreveport Jail, Mr. Brum-

field went to work with the agents of the

Drug Enforcement Administration in an at-

tempt to negoiate a plea agreement for

Mr. White directed I presume towards the

shortening of his sentence since I have

read quite a number of the defendant's

notes that he made during those nego-

tiations. My name appeared in there

several times, length of sentence ap-

peared in there more than once and it

seemed to be some concern being evidenced

about how long Mr. White would have to

stay in jail. I received or directed

that those documents be received in

evidence to show that there was an ongo-

ing negoiation between the agents for the

DEA, agents for the Government and Mr.

Brumfield.on behalf of Mr. White.

Both Mr. White and Mr. Brumfield

testified that at the time of the escape,

they considered the negoiations were con-

tinuing. The DEA agent who was involved

most heavily in those negoiations tes-

tified that any plans that they had been

working on had been called off on October

31, because not much of the information

revealed by Mr. White could be verified.

Mr. Hawkins in answer to a question said:

"He had generally given me only surface

information." The fact that they were

discussing plea negoiations together

isn't dissentitive in a finding of

iiss ae

whether Mr. Brumfield is guilty of con-

spiracy or guilty of aiding and abetting

an escape. It does stand to buttress Mr.

Brumfield's testimony that that was the

cause of a large number of trips by him

to the city jail. And I notice that some

of those trips occurred at one-thirty on

the sixteenth, one-fifty on the seven-

teenth, at three-thirty on the twentieth.

I'm skipping those that occurred late at

night. There were times of meetings at

the city jail or signings in at the city

jail that would lead you to believe that

that would be a time of day during which

he would have been there in v.he company

of the DEA agent for the purpose of dis-

cussing information. In any event, the

testimony of Mr. Hawkins is that the ne-

gotiations had come to a halt. Mr.

Brumfield's notes had it on the last one:

"Why is Mr. Hawkins taking such a hard

line on the escape?", which, read one

Way, says we're in difficulty; read

ancther way, it has an innocent explana-

tion. In any event, I find that Mr.

Brumfield could not have been at the city

jail on the night of November 1 for fur-

ther discussions of plea bargains. Those

possibilities had diminished by that

time. And, furthermore, this jail log is

interesting because it shows that on Oc-

tober 30, at 7:40 P.M., Mr. Brumfield

went to the jail and at 7:40 saw both

Garvin Dale White and Donald Snyder at

the same time or the record shows it to

be at the same time. There was some tes-

timony to the effect that one man was

there for forty-five minutes before the

other man was brought in on one of those

nights. The same thing occurred on Oc-

tober 31, Friday night, at 8:35, Mr.

Brumfield's shown, his signature is shown

to have signed out for both Garvin Dale

White and Donald Snyder at 8:35. So for

two nights running Mr. Brumfield talked

to both Garvin Dale White and Don Snyder

together. On the night of the escape, he

told the jailer after he asked for Garvin

White to bring out Mr. Snyder, too. It

would be hard for me to believe that Mr.

Brumfield would be discussing confiden-

tial information on the inner workings of

the narcotics traffic in this country to

lead to plea discussions with the Govern-

ment and have those conversations going

on in the presence of Mr. Snyder, if that

is, in fact, what they were talking

about.

There were several police officers

who observed Mr. Brumfield's pickup

truck. These officers tesified that they

came to work at nine-thirty to go out on

the evening shift and that the pickup

truck would be on the parking lot parked

in a place where one or more of them

usually parked, so it was noticeable, and

that it would still be there when they

came out in the morning. I think the

presence of that truck on that parking

lot under those circumstances has an in-

nocent explanation; at least, it could

have in part.

On the twenty-fourth when Mr. Brum-

field went with Mr. Costales and his wife

and baby to Franklinton, the witness

Rodriguez testified that he was asked to

go fix it because it wouldn't start. And

it was left on the parking lot Friday

night. It would have been there Saturday

morning and it would have been there

Saturday night and it would have been

there Sunday morning and it would have

been there Sunday night. And Mr.

Rodriguez testified that he sent his man

Was Cie age

to fix it early in the morning of the

twenty-seventh and the keys were under

the floormat and the door was left un-

locked. Mr. Brumfield and his and Cos-

tales and wife and baby got home from

Franklinton late on the night of the

twenty-seventh. Mr. Brumfield is shown

to have checked into the jail to see Mr.

White at 10:20 in that evening. And any

policeman who came to work at nine-

thirty that evening would have seen no

truck -- would have seen the truck be-

cause it had there all weekend and up at

least to the time of ten-twenty when Mr.

Brumfield came. Mr. Brumfield could not

recall whether he took that truck home on

Monday night or Tuesday morning.

There is a slightly -- there is a

statement given by Mr. Brumfield to the

United States Marshal -- would you hand

me that sheet on top, please?

(indicating)

(Docment tendered)

THE COURT: In the statement given

on -- to the Marshal on November 5,

there's a slightly different explanation

where on Friday, Mr. Brumfield said that

he and Costales drove to the jail but

Costales decided not to go in and called

Mrs. Brumfield to come pick him up. Upon

completing his business at the jail, Mr.

Brumfield couldn't locate his truck keys

so he called for Mr. Costales to come

pick him up and he met Costales on the

corner, left the truck on the parking

lot. This is from Government's Exhibit

Fifty. After which, they soon departed

for Franklinton. Now that there is --

under either version, the presence of the

truck is explained.

On other occasions testified to by

the police officers and they said they

weal TY

saw it on most of the nights in question

up until the night of the escape. The

truck could easily have been there be-

cause Mr. Brumfield would be visiting

with Mr. White. The officers noted the

truck when they came to work and they

said that was around nine-thirty. The

book shows that on the twenty-eighth, Mr.

Brumfield arrived at 8:05, on the twenty-

ninth, Mr. Brumfield came to the jail at

7:08. He could have still been there.

On the thirtieth, he came to the jail at

7:40, on the thirty-first, he came to the

jail at 8:35. The truck could have still

been there when the officers came to

work. There's a very large question of

whether the truck was there -- in other

words, it's possible for the officers

coming on duty to testify that the truck

stayed on the parking lot. And par-

ticularly, it would have been noticeable

if it -- each time Mr. Brumfield parked

it in the same place.

Anyway, coming up to November 1, at

8:35, Mr. Brumfield signed into the city

jail to see White. Mr. Blake gave him

the book and he put his name in it. Mr.

-- Mr. Jenkins started down the hall to

get Mr. White. Mr. Brumfield began a

conversation with the lady jailer, Bar-

bara Dickson, about a family succession

proceeding she had asked Brumfield about

to handle for her. Mr. Brumfield tes-

tified that he dialed his wife, who's

also a lawyer, and when she answered the

phone, he testified he said: "Barbara,

pick up." And Barbara picked up a phone

towards the back of the booking desk

where she was stationed. And that caused

her to have a back turned to the hallway

which led to the cells where Mr. White

and Mr. Snyder were. Mr. Jenkins, after

-- first, the sequences that he -- first,

he signed the book to see White. Mr.

Jenkins left the desk to get White. Then

Mr. Brumfield asked Ms. Dickson about the

succession legal matter. Fourth step,

Mr. Brumfield picks up a phone on the

front desk to call to Arax and then he

said: "Pick up, Barbara." And Barbara

goes over to the rear phone to speak to

Mrs. Brumfield. Jenkins lets White out

of the Federal cell and closes the door.

It is either that someone -- Mr. Jenkins

asked Mr. Brumfield if he wants to see

Snyder or Jimmie asked for Snyder -- it

doesn't matter. It occurred while Mr.

Jenkins and Mr. White are leaving the

Federal cell. Mr. Brumfield answers or

nods in the affirmative. He testified he

said: "Yes, if he wants to talk to me."

Whereupon, Mr. Jenkins turned around and

went back to the cell, opened the cell

door and told Mr. Snyder to get dressed.

Mr. Snyder then went to the sleeping area

to put on his coveralls. Mr. Jenkins

said he stepped in the cell entry way and

out of the hallway. Mr. Brumfield, at

that point, is either at the booking desk

or on his way to the ‘eontecenes room to

..K to some drunk named Miller. And Mr.

White continues up the hall. § The

elevator comes up, the door opens; Mr.

White either signaled that elevator or it

fortuiously showed up. He got on the

elevator, roughly shoved the trustee to

one side, operated the button to the

first floor and walked out off the jail

to the parking lot.

Now Mr. White was dressed in a jog-

ging suit or a sweatsuit. Anyway,

civilian rather than jail clothing. It's

funny. Mr. White testified that he wore

that suit because it was cold in the

cell, chilly in the cell, but Mr. White's

cellmate, Snyder, was in that same cell

with him and he was clad only in his un-

dershorts. That's an inconsistency that

crowds in on you when you try to take

these things to part one step at a time.

This, you will remember, was on November

1, and the man well have been in his un-

dershorts because it was more comfort-

able. I found as a fact in his trial

that he was in his undershorts because it

was a part of' a scheme to delay the

jailer at the jail cell door, and he was

convicted on those facts. And those

facts have not changed since Tuesday's

trial of last week until this week's

trial.

Anyway, when he got to the first

floor, Mr. White calmly walked out of the

building. He said it was not calm, that

his heart was racing; but he went to the

pickup which he recognized as having

formerly belonged to himself and that he

had some keys hidden in that truck under-

neath -- in a magnetic keybox underneath

the toolbox in the back of the pickup.

This explanation could as easily be true

as untrue. He said he had the vehicle

specially fixed up for his girlfriend and

it was to haul a speedboat and that he

hid keys under the toolbox and he also

hid keys by taping a set to the radiator

pipe. One can only wonder if he was

giving that truck to his girlfriend, why

did he hide keys in it? Well, neverthe-

less, that has nothing to do with this

case except he said he had hidden keys in

the pickup truck. It is to be noted thax

Mr. Brumfield left that truck on the

parking lot for several ,iays before thax

with keys under the floormat in the fron

seat, because Mr. Rodriguez says that's

i ee hi

where they were and that's where he left

them. It really isn't too critical.

Either Mr. Brumfield left his keys, a set

of keys under the floormat or Mr. White

had a set of keys handily fixed where he

quickly could get to them. In any event,

he took off in that pickup truck and

drove to Mr. Brumfield's house, he said,

by a meandering route, that he looked at

a map ina filling station window and

then drove over the Interstate and off

the Interstate on Airline Drive to Kirk

Lane and left that Kirk Lane area in a

Lincoln Continental belonging to Mr. and

Mrs. Brumfield. And he went to North

Little Rock where he got on a -- some

manner of private aircraft and eluded law

enforcement officials for the next eleven

months.

There's a great deal of wonderment

to what happened immediately after Mr. --

important what happened before and the

week before, but what happened after, the

immediate aftermath of the escape? The

trustee who had ridden on the elevator

down with Mr. White came back up and told

Mr. Jenkins what had happened. Where was

Mr. Jenkins? He was still standing at

the jail cell door waiting for Donald

Snyder to put on his overalls. He --

Jenkins said -- he testified he slammed

the door shut and went to the booking

desk and where was Barbara Dickson? Bar-

bara Dickson was still talking o:r the

telephone to Mrs. Brumfield about the

succession matter. If this plan was

hoped to succeed and it did, it succeeded

marvelously well, because both of the

people that needed to be distracted were

still distracted while Mr. White went

down the elevator, out in the yard, inte

the pickup and off the parking lot. And

mhvigin Shas oy

until the trustee got back up to the jail

to tell Mr. Jenkins what had happened,

both the jailer -- both of the jailers

were still distracted from watching any-

thing to do with the elevator door. Mrs.

Dickson said she immediately hung up on

Arax and called downstairs to the jail.

Mr. Jenkins rode the elevator down to the

first floor to look for Mr. White and to

alert the police department about the es-

cape. He didn't see White so he went

back upstairs and he went to the con-

ference room to tell Mr. Brumfield what

had happened. Jenkins testified that

when he told the defendant about -- Mr.

Brumfield about the escape, Mr. Brumfield

said*he had to be kidding. Don't -- you

know -- he thought his leg wWas being

pulled particularly since he had suffered

through the Mansfield escape period. Mr.

Jenkins assured him it wasn't so. To

which Mr. Brumfield responded that he's

better write a statement because they, I

presume police, they would want to talk

to him about it. The Government's Ex-

hibit Eleven is the -- is a copy of the

handwritten statement written Mr. Brun-

field beginning immediately or soon after

the events took place. It's dated one,

November, at 2120 hours, which would be

9:20 he wrote out the statement.

Detective Shields came on to testify

that he arrived at the jail between

eight-forty-five and nine o'clock having

heard about the escape on his radio. He

first saw Mr. Brumfield in the break room

right next to the booking desk and that

they talked in that room. Mr. Brumfield

agreed with that. He said he had -- he

testified he talked to Shields for twenty

or thirty minutess before he gave any re-

corded statement. Then after, I suppose,

a aa, pope ae eee

eh ee ee ee ee ee

further conversations with Lieutenant

Bryant and Chief Heap was there and Terry

Shields was there and Mr. Jenkins was

there and others -- after all that con-

versation subsided, then the record shows

that Mr. Brumfield went with Mr. Shields

-- Officer Shields to the detective of-

fice where he gave a recorded statement

which was recorded beginning at 11:11 and

it lasted until 11:26 -- Government's Ex-

hibit Thirty-Four.

Brumfield then testified that he

left the detective office, went out of

the building to get in his car -- in his

truck and go home and found it to be

missing. He returned immediately to the

detective office and reported his truck

was missing, exhibiting his keys or his

set of keys to the truck to which he said

and Mr. Shields testified also that he

said it was -- to his knowledge, the only

set of keys and he added a somewhat poig-

nant thougght: "My name is ‘'Mud'," be-

cause of his circumstances. And then he

gave his seccond recorded statement which

began according to the typescript of

Government Thirty-Five which began at

11:39 and terminated at 11:54. After-

wards, he called his wife and asked her

to come and get him. He said he didn't

tell her about the escape or anything,

that he used some of the same language

that he used in Exhibit Thirty-Five. It

was something he testified: "I don't

know of a single other thing -- single

thing else that can go wrong." And he --

it is testified or was testified either

by him or by his wife that he said to

her: "What -- if anything else can --

whatever can go wrong has gone wrong" or

words to that effect. He did not want to

alarm his wife at the phone call, he

said, and did not tell her what had hap-

pened.

She testified that about midnight

she left her house in the white pickup

truck, the same one that Mr. White had

driven from the jail to the house. That

matches the time because if Mr. -- if G-

35 ended at 11:56 or 11:54, rather,

whereupon Mr. Brumfield called his wife

and she testified she left the house at

around midnight. That matches all of the

statements. She testified that she

didn't notice what cars were there in the

driveway when she went outside. She

simply got in the truck and came to the

jail; though Mr. Brumfield had told

Detective Shields that there was only one

set of keys to his knowledge. Mrs. Brum-

field had a set of keys which she said

she used to get to the jail] and it was

the same set of keys that Penny Frazier

had kept for a number of weeks and who by

coincidence otherwise had brought those

keys back on the evening before when she

came to dinner on the evening of October

33. I think both women testified that

Mr. Brumfield was not at home that eve-

ning and he did not see those keys

returned. This would explain why Mr.

Brumfield didn't know his wife had a set

of keys and why he was so surprised to

learn that she'd driven up to the jail in

the truck, if he, in fact, thought he had

the only set of keys. But then Detective

Sheilds said that when he told Mr. Brum-

field of the arrival of his wife in the

pickup truck that Mr. Brumfield responded

by putting his head down on the table on

his folded arms. And that when he looked

up a short time later, his eyes were

watery, a reaction prenant with guilty

knowledge or normal reaction of somebody

Se Sey Lect ita i dS is SES scl

ot £as ees

Sabai wees

astounded by the turn of events?

Nevertheless, a short time thereafter,

Mr. Brumfield was taken into custody and

was housed in the city jail.

Mr. Billy Brumfield testified about

several phone calls he received from per-

sons identifying themselves as Garvin

Dale White and Randy Costales that began

on November 3. The caller identified

himself as White and said he had Jimmie's

car. In response to Billy Brumfield's

questions, White acknowledged that he was

the person who had just escaped from jail

and explained that he was not the person

who had come to Billy Brumfield's house

with Jimmie, but that person was with

him. And then a person who called him-

self Randy got on the phone. Mr. Brum-

field couldn't say he made voice iden-

tification. Anyway, the request was that

Billy go to Little Rock and pick up the

car. It was explained that the Lincoln

keys were in the gas filler cap. After

that conversation, Billy talked it over

with his daddy and they went to the

sheriff to say what they knew. The

sheriff notified the Marshals and on the

next phone call, there was a recording

device for the November 4 phone call

which concerned the automobile. This

conversation is in the transcript which

is Exhibit Twenty-Eight.

Billy testified that he told Randy

that he had not picked up the car yet be-

cause he didn't have any money. Randy

assured him that the money would be at

Western Union the next day. My notes

show that there is Exhibits Twenty-Three,

Twenty -- Thirty-Two and Thirty-Three

which were money orders for five hundred

dollar -- a money order for five hundred

dollars received at the Franklinton West-

}

a6 le LD;

Ae ee

ern Union Office on the fifth of November

from Flagstaff, Arizona. Mr. Brumfield

-- Billy Brumfield testified that nobody

in Flagstaff, Arizona owed him any money.

And he gave the money order to the Mar-

shals who gave him a receipt. Costales

called back, I think, on November 7 and

Billy told him he still hadn't picked up

the car. He feared he waited too long

and Randy said: "I don't know. ie & |

talk to Arax about it or you talk to Arax

about it or I will." And there was

another call, either again on the sev-

venth or on the eighth of November in-,

quiring about the status of the car. And

he asked Billy: "Since it's the weekend,

can you go get the car? And if you'll go

get it tomorrow?" And then he told Billy

an interestingg thing: "Don't tell

anyone where you got the car. Tell them

you've had it all along." And Billy

played along with the game: "You mean

like they came down here last weekend and

I've had it ever since and got it fixed

and bring it back to Bossier?" And the

voice on the telephone, Mr. Costales, did

not know that the Inspector Bramel from

Little Rock had got a call from -- on the

fourth from the Shreveport Marshal's of-

fice about the car and on the fifth had

already located the car at the airport

and shortly thereafter, it was processed

for fingerprints. 7

Well, what does Mr. White say about

all this? Mr. White testified that Mr.

Brumfield, in his words, had nothing to

do with the escape. He stated that when

he saw both of the jailers were dis-

tracted and the elevator was open, he

made a, using his words, a sponaneous

decision to leave. On cross examination,

he testified that he didn't know the

Bathe RNB LRT A GRRE PEE

truck was out there in the parking lot

ana that he would have just kept on walk-

ing if it had not been there. He did

state that he had used that pickup to get

Mr. Brumfield's house to pick up some

stuff he needed that would help him get

out of the country. In his briefcase, he

said, there were telephone numbers of

persons who could hide him. And Mr.

Stroud pressed Mr. White. He says: "All

right. Who are those people? Where are

those numbers? What are their names?

Mr. Greer, you will remember, who was

here to protect the Constitutional rights

of Mr. White, intervened on Mr. White's

behalf; but, in any event, certain names

were mentioned at that time, which we'll

get to in a minute. Mr. White says he

went to get those belongings and that

when he went outside to leave, he found

the truck was gone and he went back in

and found some keys to the Lincoln and

cranked up the Lincoln and headed toward

Arkansas. And that he stopped eighteen

or twenty miles out of town, I presume in

the vicinity of Dixie Inn and bought a

hamburger and a coke and headed north

through Arkansas and on the way, he

stopped to place a call to his friend,

Rapneal Aguilar, in Mexico, using some of

the money he kept in his sock while he

was in jail. And after he got to Little

Rock, he was picked up by an airplane

with two Mexican pilots whose names he

didn't know.

Mr. Brumfield testified first that

he didn't know White was going to escape

and that all these good things were going

on in his behalf with the DEA. The

statement that he wrote which is

Government's Exhibit Eleven immediately

after the escape are consistent with the

.40

ee ee ee a aE ER cg a

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Pa hal.

sequence of events that I have found to

have existed during the short period from

Mr. Brumfield's arrival at the desk until

Mr. White stepped into the elevator.

However, the other circumstances

surrounding the escape both before and

after and Mr. Brumfield's explanation of

them are not credible nor is Garvin Dale

White's version of his escape believable.

There are too many or ee that came

together to produce anything other than a

planned escape. For example, if you

wonder what I'm looking at, to keep track

of what happened, I had to make a calen-

dar of October and every bit of informa-

tion that came to pass I put down on the

day that it came to pass to try to find

out if Mr. Brumfield was guilty of aiding

and abetting in this escape and every bit

of information, much of it circumstan-

tial, had to fit or he is not guilty.

He was asked in Government's Exhibit

Thirty-Five on page four, talking about

Dale White, and I think Brumfield said:

"I think at one time he lived in

Florida." That's on the bottom of page

three and top of page four. "When was

the last time you spoke with his son?"

Answer: "Last night at thee jail." "At

what jail?" "At this jail." “Okay. Was

he here?" "Oh, no. He was not here. He

called on the phone and I talked with him

over the phone because we were trying to

work out the situation I had told you

about earlier." "Okay. When was the

last time before that that you talked

with the son?" "That afternoon."

"Yesterday afternoon." "At my office,

yes, sir." "Okay. Where was he calling

from then?" "TI believe it was Arizona."

"Okay. What kind of work does he do?"

"He indicated to me he was a carpenter

mA peal

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and that he . . ." et cetera. "And

when's the time before yesterday after-

noon that you talked with him?" "TI can't

remember that." "Would it have been this

week?" Answer: "It would have been this

week. Yes, it would have been sometime

the early part of this week probably."

"Okay. And what was that conversation in

reference to?" Defendant answers: "This

case we're working on now. He has

privied information concerning this

Aguilar." "Right." Brumfield says: "He

knows the house number -- phone number

and then evidently has gotten some people

to go down there and he contact -- and be

contacts for him in his operations."

Well, if you plop that onto a map,

the escape occurred on Saturday and Mr.

Brumfield talked to Dale White about Mr.

Aguilar in the afternoon of the thirty-

first the day before and at night the day

before; and on Wednesday or Tuesday of

that week, he -- Mr. Brumfield testified

that he talked to Dale White about

Aguilar's home number. That's a bit of a

coincidence but then if you look in the

testimony about Mr. Aguilar, the tes-

timony of Mr. White, when he was asked:

"Did you know where the office was? Did

you leave the keys in the pickup?" "No,

they were in my briefcase." Oh, and then

he said: "I believe -- I believe so."

"Did you leave the keys in the pickup?"

He said: "I believe so."

And Mr. Stroud is asking him: "You

needed maps to get out of the area and

the phone numbers of key people to help

you out of the country?" To which he

answered, after consulting with Mr.

Greer: "Yes." Mr. Stroud said: "Who

are these people?" He answered: "A

Mexican friend, Rapheal Aguilar." Then

;

TO al he MIP SEL A Selle M

he was asked if there was anyone else?

And that -- my notes run out about that

point. But then Mr. Aguilar's name came

up again with Mr. Stroud talking about

the phone numbers: "Were any calls made

from the Brumfields' house at the night

of the escape?" To which Mr. White said

"No." "Who did you call?" He said: "I

called Rapheal out of the country."

"Where were you when you made that --

made the call?" He said he made two

calls. He called for a waffle shop up

where this country road meets the Inter-

state in Arkansas. And he got a Mexican

friend who couldn't speak English and he

paid for the call. "How much was the

call?" "Three or four dollars." "Did he

fly up to get you?" "No, he didn't."

And then later: "What type of plane?"

That wasn't answered but he did testify

that two Mexican pilots came to pick him

up.

Now, if you follow the evidence, you

would have read Government's Exhibit

Eighteen which was recovered from the

back of the Lincoln automobile in Little

Rock. It was testified that this was

mostly in Mr. Brumfield's handwriting ex-

cept for a page written we presume by Mr.

White in his handwriting with phone nun-

bers on it. And the note is telling Mr.

Brumfield -- he's an inveterate note-

taker and about as bad as I am about it,

but he takes notes and this note said:

"Ask about: Him being closer. Equip-

ment. Pilot. Anything we can use to

land in this area. Non-tower strips."

Mr. Brumfield explains this note by

saying this was when we were trying to

make a deal with Mr. Hawkins to get a

bust into this area so that the DEA could

get credit for it. To which I can only

EN EE OS A FRO TeeS

I ORE 9) 258E

sQy® see

he a 7 Wee YADA ee

answer in the -- in great restraint,,

"Horsefeathers!" This is a document in

the hand of the defendant tied to the

fact that he called Dale White three

times -- that he called Dale White to

find out Rapheal Aguilar's home telephone

number in Mexico, all which occurred on

Tuesday before the -- Wednesday before

the escape and two calls on Friday before

the escape and an airplane came to Little

Rock the day of the -- after the escape

and picked up Mr. White and was gone.

There was a newspaper of November 2,

Sunday,, found on the front seat of the

Lincoln when it was picked up. There

were fingerprints in that car of both Mr.

White and Mr. Costales.

The last kind of facts to talk about

have to do with the money that Mr. White

had; about the fact that Mr. Brumfield

sat in the conference room by his own ad-

LT, i AS ke gre EE

mittance for ten minutes when the last

time he saw Mr. White he was ten seconds

away from the doorway to the conference

room; about his claimed lack of any

knowledge about who Mr. Costales were or

was or how he fitted into the puzzle. I

Simply find that to be incredible. The

sweatsuit business and the money: When

Mr. White was on the stand, I asked him

about the money that he used to buy the

hamburger and the coke. And he said it

came from his sock and that you were al-

lowed to keep cash money in city jail.

"I just accumulated -- I had -- I just

had accumulated it." And the source of

} the money he was asked? Answer: wa

believe that I came with it. I had

Sixty-two dollars when I arrived there."

Question: "And when you were being asked

about the jumpsuit?" “yes, sir."

Question: "How were you dressed?" "Ina

sweatsuit." "Did you normally have that

on?" You said: "Ves." "'ves. It was

chilly up there.' Is that what you

answered?" He said: "That's correct."

You said in answer to Mr. Stroud's ques-

tion, he asked you a question: "Where

did the jogging suit come from?" Then you

answered first: "I brought it with me."

He then said: Question: "You did not

remember that at the Snyder trial." Then

the next thing: "Did you have it before

you were arrested?" Then you said: a

don't recall." "I think you said you had

Nike jogging shoes?" You answered:

"That's correct." Question: "Now clear

it up for me." Answer: ®°Yes, sir.*

Question: "Did you own that jogging suit

in Florida and bring it with you or was

it brought with you at the city jail

after you were incarcerated in the city

jail? It had to be one or the other. It

just didn't materialize in the property

room." Answer: "No, sir." Question:

"Or in any other way. How did the jog-

ging suit get in your possession in the

Federal holding cell at the Shreveport

City Jail?" Answer: "The jogging suit,

I believe, was brought to me as a part of

-- I think that I owned it before."

Question: "You think that you owned it

before? Now, Mr. White, you know how

that rings with me." Answer: "Okay."

Question: "It sounds like you are really

trying to answer it but being careful

about your answer if I can be blunt about

it?" Answer: "Let me give you -- no,

Sir." Question: "You either own a jog-

ging suit and you know that you own it or

you don't. It's a simple question. It's

a simple question. Now, sir, --"

Answer: "The jogging suit was brought to

me by Mr. Brumfield in the city jail and

put in my property." Question: "After

you arrived in Shreveport from Florida?"

Answer: "That's correct." "All right."

"Sir, the jailer gave it to me after

that." Question: "Did Mr. Brumfield

from time to time furnish you with spend-

ing money or cash money to use or for

whatever purpose you use it for in the

city jail?" Answer: "TIT came with my

own."

Mr. -- it is interesting to note in

passing that Mr. Brumfield said in answer

to a question or in part of the interview

with the Marshal that he gave Mr. White

four or five twenty dollar bills in the

presence of the city jailer. There was

apparently no lost motion from the time

that the escape began until Mr. White ar-

rived in Arkansas. Once he left the

vicinity of the jail, he was able to gain

transportation out of this area; to get

him out of the country simply by going to

Mr. Brumfield's house and getting in the

Lincoln Continental and going to Little

Rock. The arrangements for transporta-

tion beyond Little Rock from a non-tower

strip to North Little Rock Municipal Air-

port had been laid on by whom? This

Court finds it was by and with the assis-

tance of Mr. Brumfield.

In order to find Mr. Brumfield

guilty of conspiracy, this Court has got

first in count one: He's charged with

conspiracy. In order to find him guilty

of conspiracy, the Government must have

proved to beyond a reasonable doubt that

Mr. Brumfield and at least one other per-

son entered into an agreement to commit

the escape of Garvin White and that

second, that Mr. Brumfield committed at

least one overt act in furtherance of

that agreement. That those findings are

made necessary not only by the state of

the law but by a Fifth Circuit decision

in the United States versus Wilson. Then

from the Middlebrooks case, it says:

"There is rarely any direct evidence of

an agreement to join a criminal con-

spiracy and thus did the defendant's as-

sent can be inferred from the act which

furthered thee conspiracy's purpose."

Furthermore, "a common purpose or plan

may be inferred from a development and a

collocation of circumstances." That's

from the Maletosta case on banc in the

Fifth Circuit quoting from Glazer versus

The United States. "On the subject of

the type of evidence we are faced with,

the law is that the supporting evidence

may be direct or circumstantial and we do

not discriminate against sufficiently

probative evidence because it is in-

4ivrect.* That's a question from the

United States versus Richards. "Because

no one has a window to a man's mind,

knowledge must often be proved by in-

direct evidence." The evidence before

this Court overwhelmingly supports the

inference that the defendant was an ac-

tive, voluntary participant in the con-

spiracy to free Garvin Dale White from

custody. Those actions on his part are

numerous.

Let's see what had to happen. Any

escape, you've first got to have a man

with a desire, with a drive that wants

out of that jail. Well, that's Garvin

Dale White in spades. Second, you've got

to have some way to hide from or to

divert the jailer's view of what goes on

or you can't get out. Third, you've got

to have civilian clothes when you get

outside so as to camouflage your true

identity. Fourth, you need to have some

way to get away from the city jail or the

area of the jail, either on your own feet

in your own jogging shoes or with some

other conveniently located transporta-

tion. You've got to have, fifth, some

money to meet incidental expenditures and

talk to people on the telephone to help

you. And, sixth, you've got to have time

and transportation to get out of the im-

mediate area of the search for you, i.e.,

to get out of the Shreveport-Bossier

area. The facts found by this Court

showed involvement of Jimmie Brumfield

with respect to every element except the

first one. He did not give Garvin Dale

White any drive necessary to cause him to

want to get out of jail. I think that's

built in that man. But the jailer, Dick-

son, was diverted by the call to Mrs.

Brumfield that he, Brumfield, placed.

Snyder was a co-conspirator with White

and with Brumfield and part of the plan

was for him to be undressed when Jenkins

came to get then. The distractions I

found were so effective that Jenkins was

still at the door waiting for Snyder and

Dickson was still on the telephone when

Garvin Dale White was long gone from the

police building. He was able to get out

of the building unnoticed because he had

on a civilian jogging suit, furnished to

him by Mr. Brumfield. Mr. Brumfield's

truck, for whatever reason and however it

happened to be mobile, was there at the

disposal of Mr. White. He found the

defendant's house, if he didn't know how

to get there. And a key, the use of

another vehicle and his briefcase and

other matters which were left at the

defendant's house for him to pick up

should he get there.

And he had the money to call on the

telephone and talk to the people in

Mexico. Either he brought sixty-two dol-

lars to Shreveport or Mr. Brumfield's

testimony is true that he gave him twenty

dollar bills, four or five of them. Un-

der Middlebrooks and under the Maletesta

decisions, those actions by Mr. Brumfield

lead to the inference that there was a

common plan between at least Mr. Brum-

field and Mr. White to effect Mr. White's

escape and that Mr. Brumfield assented to

it. In addition to the factors that I

discussed, there was some other cir-

cumstances. The visits with Mr. White on

the several occasions that night prior to

the escape and the fact that he met both

with Snyder and with White for an ex-

tended period of time on Thursday night

and an extended period of time on Friday

night; there were the two prisoners talk-

ing to the lawyer in the conference room

on the jail, in the jail, you will -- I

will recall from the Snyder trial that

Mr. Snyder said they started to leave on

Friday night when the elevator opened and

there were so many people around the

booking desk but if you credit Mr.

Snyder's testimony they decided not to

go. But Mr. Brumfield met with them

beginning at 8:35 on Friday night and

beginning at 7:40 P.M. on Thursday night

in the conference room.

Another co-conspirator involved in

these charges against Mr. Brumfield is

Mr. Costales. And Mr. Costales was in

Shreveport for the better part or with

Mr. Brumfield for the better part of ten

days. He left Shreveport on Tuesday af-

ternoon the twenty-eighth and the

evidence or fingerprint evidence and

other evidence shows that Mr. Costales

was in Little Rock with Mr. White by the

following Sunday night. And that Mr.

Costales was on the telephone to Mr.

Billy Brumfield several times during the

week following the escape dealing with

the return of the automobile.

The evidence shows beyond a

reasonable doubt that an agreement ex-

isted andd that Mr. Brumfield agreed with

st. The evidence shows to me beyond a

reasonable doubt that the overt acts com-

mitted by the defendant were committed by

the defendant in furtherance of the con-

spiracy. The indictment lists overt acts

that applied to this defendant that Brum-

field drove the pickup truck to the jail.

After arriving at the jail, he asked the

jail officials for permission to see

White. The third one was that Mr. White

used Brumfield's truck to leave the jail

vicinity and drove it to jump Brumfield's

residence and that White drove the

Brumfield's Lincoln from that residence

to Little Rock. There are -- these are

the overt acts listed -- some of the

overt acts listed in the indictment. The

evidence of these acts is undisputed vir-

tually. The inference that these acts

were in furtherance of the conspiracy are

absolutely inescapable. The Government

has proved the two elements of the charge

of conspiracy and Mr. Brumfield is found

to be guilty of the charge of conspiracy

in count one.

It's somewhat anticlimatic to dis-

cuss count two, but it's required that I

deal with both counts of this indictment.

In count two, Mr. Brumfield is charged

with aiding and assisting the escape of

Garvin Dale White. There are two ele-

ments. First, that Mr. White was a

Federal prisoner and that he escaped from

custody and second, that Mr. Brumfield

aided and assisted in that escape. The

fact of the escape from custody is not in

doubt. In light of the findings of facts

and conclusions reached already by this

Court, there is no doubt that Mr. Brum-

field aided and assisted in that escape.

Without the moves made by Mr. Brumfield,

I don't believe Mr. White could have made

good his escape. There were multiple

steps involved in the plan and many of

those steps involved were those taken by

the defendant. The evidence shows beyond

a reasonable doubt that Mr. Brumfield is

guilty of the offense charged in count

two.

Mr. Brumfield, in his own testimony,

is responsible for some of the

credibility questions particularly those

involving the relationship of Randy Cos-

tales. He was also asked -- he was

asked such questions as: "Who introduced

you to Randy Costales?" To which Mr.

Brumfield answered: "I don't recall."

He could have said: Well, it might have

been Dale White because I was with him or

it might have been Garvin Dale because I

was with him and we were in Florida and

that's where all this started. He could

have said that, but he simply said: od '

don't recall." He gave no explanation

for how he met Randy Costales and brought

him home and established him in his of-

fice residence to sleep and to stay

together with him for ten days. It just

doesn't ring true. The sweatsuit, he was

asked: "Where did it come from?" "T

don't have any idea where it came from",

he said. Yet the man who received the

sweatsuit clearly said: "Mr. Brumfield

brought it to me." And it's hard to

separate the white from the chaff in this

case because so many stories were told by

so many people that it took me until this

afternoon to try to come to grips with it

and I had to draw a picture of the month

in question before it came clear. He was

asked: "Did Mr. -- to Mr. White if I

needed the help to get out?" And Mr.

Brumfield answered: "He didn't need my

help." And he said -- he was asked:

"Garvin Dale White was never at your

home?" "No. I wouldn't allow him

there." Well, if he wouldn't allow Randy

Costales there--if he wouldn't allow Gar-

vin Dale White there, but he allowed

Garvin Dale White's either good friend or

family relation to stay right there in

his family group in Kirk Lane and then to

visit the other family members in

Franklinton and to ride up and down the

length and breadth of Louisiana together.

How does that ring true? And the short

answer: It doesn't. It is only in con-

clusion that I say that the credibility

choices that the Court was required to

make, many of them were in favor of the

defendant but many of them were not. And

the decision of the Court is he is found

guilty beyond a reasonable doubt of the

offenses charged both in count one and

count two.

And this Court is adjourned until

nine-thirty tomorrow morning.

The defendant is notified of his

right to appeal this Court's decision and

that knowledge will be made fully aware

to you at the time of sentencing which

will occur on Friday, July 16.

All rise.

MR. MARSHAL: All rise.

THE COURT: The pre-sentence of the

Court will begin as soon as Mr. Simmons

gets after it. But sentencing, Mr. Sinm-

mons, Will be on the sixteenth of July.

(WHEREUPON, the Court was ad-

journed. )

(END OF TRANSCRIPT)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA,

Plaintiff, :

-versus- >: CRIMINAL

JIMMIE A. BRUMFIELD, II : NUMBER

Defendant. : 82-50004-01

CERTIFICATE OF REPORTER

I, Bill Hogan, do hereby certify

that the above and foregoing transcript,

consisting of pages 1 through 44, is a

full, true, correct and accurate

transcript of the proceedings, as

requested to be transcribed, had in the

ruling of the above cause on June 14,

1982, before the Honorable Tom Stagg,

Judge of said Court, as reported and

transcribed by me as wfficial Court

Reporter for the above Court.

Bill Hogan, Official Court Reporter

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA, :

Plaintiff,

-versus- : CRIMINAL

JIMMIE ARNOLD BRUMFIELD,II: NUMBER

Defendant : 82-50004

TRIAL COURT: HONORABLE TOM STAGG, JUDGE

TRANSCRIPT: REPORTER'S OFFICIAL TRANS-

CRIPT OF PROCEEDINGS IN

ABOVE CAUSE

LOCATION: UNITED STATES DISTRICT

COURTHOUSE, SHREVEPORT, LA

TRIAL DATE: JULY 16, 1982

TRANSCRIPT FILED:

TRANSCRIPT ORDERED BY: ARAX T. BRUMFIELD,

ATTORNEY

BILL HOGAN, RPR

Official Court Reporter

United States District Court

P. O. Box 441

Shreveport, Louisiana 71162

(318) 226-5293

APPEARANCES:

FOR THE GOVERNMENT:

Mr. A. Stroud, III, Attorney

P. O. Drawer 1126

Shreveport, Louisiana 71163

Mr. Carl Stewart, Attorney

United States Attorney’s Office

Federal Building, 500 Fannin

Shreveport, Louisiana 71101

FOR THE DEFENDANT:

Mr. J. Stacey Freeman, Attorney

1648 Benton Road

Bossier City, Louisiana 71111

BE IT REMEMBERED that in the United

States District Court for the Western

District of Louisiana, Shreveport Divi-

sion, in the United States Courthouse, in

the City of Shreveport, Parish of Caddo,

State of Louisiana, on the 16th day of

July, 1982, the above entitled cause came

on for sentencing before the Honorable

Tom Stagg, Judge of said Court, and the

proceedings on the sentencing are in the

words and figures following, to-wit:

MR. STEWART: Good morning, Judge.

THE COURT: Morning.

MR. STEWART: Did you wish to take

up sentencing prior to some introduction

or admissions?

THE COURT: We're going to do the --

MR. STEWART: Sentencing?

THE COURT: -- sentencing.

MR STEWART: Your Honor, before the

Court is United States versus Jimmie A.

Brumfield. The matter is before the

Court this morning for sentencing. Mr.

Brumfield is present in Court with

retained counsel, Mr. J. Stacey Freeman.

The Government is ready to proceed.

THE COURT: Mr. Freeman, I need to

ask as a matter of form that you and Mr.

Brumfield both have read the pre-sentence

report?

MR. FREEMAN: Yes, sir.

THE COURT: All right.

As the pre-sentence report has

been studied in preparation for thee

scheduled sentencing event, I need to ask

if there are any factual area -- errors

other than those which display the

Government's theory of the case. Are

there any factual errors in this pre-

sentence report that need to be called to

my attention?

MR. FREEMAN: No, sir. Not that I

know of, other than the, you know, of

course, the Government's --

THE COURT: And, Mr. Brumfield, did

you perceive in this report any erroneous

material that the Court should know about

before the sentencing procedure

proceedings?

MR. BRUMFIELD: It seems to be ac-

curate as regards my personal history and

the rest of the information, I, you know,

the remarks that you made towards the

Government's version, of course, we'll

accept.

THE COURT: I understood -- I under-

stood the -- that I needed to say that

because of from your statement, you don't

believe that what's in the Government's

case or what's in the Court's findings

are correct. And I understand that.

MR. BRUMFIELD: Yes, sir.

THE COURT: Now, I have and I ac-

knowledge the receipt of a number of let-

ters written on behalf of Mr. Brumfield

from various friends and neighbors and

clients. And in addition to these writ-

ten statements on behalf of Mr. Brum-

field, Mr. Freeman, do you have any other

statement that you --

MR. FREEMAN: No, sir.

THE COURT: -- would like to make on

behalf of Mr. Brumfield?

MR. FREEMAN: No, sir.

THE COURT: And, Mr. Brumfield, do

you have anything in the way of elocution

that you would care to say on your own

behalf?

MR. BRUMFIELD: Your Honor, I think

the things that I would say, you've prob-

ably heard many, many times. I believe

you understand my situation, you know. I

have really nothing new that I could tell

you. I just hope you understand; well,

tnat's my position.

THE COURT: Well, let me preface the

formal sentencing act by stating that you

said you understand my situation. I will

trust that you understand mine.

MR. BRUMFIELD: Yes, sir.

THE COURT: The trial that was held

and the findings that came from that file

-- from that trial are fresh in my mind.

I am as convinced today as I was on that

day that you were involved in the escape

of Garvin Dale White. It may have been

misguided to a greater extent that I

believe it was. I know it was misguided

to a certain extent. And for that act on

your part which allowed your client to

escape from the city jail, I am required

to sentence you. This is only the sec-

cond time that I can recall that a lawyer

stood where you stand. The other lawyer

had more grievous charges against him

than you do but it's especially painful

for a man who grew up in admiration of

lawyers and for his life's work followed

the footsteps of lawyers. And it's espe-

cially painful, but I think it needs to

be done. And it's ordered that you be

committed to the custody of the Attorney

General for a term of two years. And

that on the second count, the imposition

of sentence on count two is suspended and

you shall be placed on five years super-

vised probation to begin at the end of

your confinement sentence.

And you are ordered, if you wish to

avail yourself of that, voluntarily to

surrender yourself at the designated in-

stitution at nine o'clock on July 26. I

will recommend to the Bureau of Prisons

and to the probation people that they

strive for something nearby, the Federal

prison camp at Texarkana. It is the

closest institution and place of confine-

ment that I think would allow you access

to your wife and to your baby on a more

regular basis than would a institution

more further removed from Shreveport.

And if that can be done, Mr. Maples; if

not, I wish you would let me know so that

I could make some stronger repre-

sentations and a recommendation.

The appeal process now begins. I

have a packet of information, an item

from Gilbert Ganucheau, the clerk of the

Fifth Circuit with instructions for using

the notice of appeal form; the voucher

payment forms in case Mr. Freeman isn't

by your side, the Court will appoint

counsel for the perfection of an appeal

if you choose that route.

And, Mr. Terry, if you'll please

hand these to mr. Freeman.

Mr. Freeman, is there anything else

that you need to have covered at this

time?

MR. FREEMAN: No, sir.

THE COURT: Mr. Stewart, does the

Government have anything else at this

time?

MR. STEWART: Nothing, Your Honor.

THE COURT: We will briefly recess

MR. BRUMFIELD: Your Honor, --

THE COURT: Yes, sir.

MR. BRUMFIELD: There's one small

thing that I needed if I could ask for it

and that is a certified copy of the con-

viction andd the sentencing.

THE COURT: Yes, sir.

MR. BRUMFIELD: There's a piece of

personal business that I must attend to

regarding that.

THE COURT: A certified copy of the

-- of what was said here this morning or

MR. BRUMFIELD: No, sir. No, sir.

Just the --

THE COURT: -- or what the ruling

from the Bench was?

MR. BRUMFIELD: Just the conviction,

sir, and just the sentencing.

THE COURT: Mr. Brumfield, can I --

you said it's for a personal matter --

MR. BRUMFIELD: Yes, sir. I would

rather explain it to you between us.

(Conference)

THE COURT: All right. We'll take

care of that. Bob Terry will -- I'll get

Bob Terry to attend to it.

That's all. This Court is in

recess for ten minutes.

MR. MARSHAL: All rise.

(Recess)

(END OF TRANSCRIPT)

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA :

Plaintiff, :

-versus- CRIMINAL

JIMMIE ARNOLD BRUMFIELD,II: NUMBER

Defendant : 82-500

CERTIFICATE OF REPORTER

I, Bill Hogan, do hereby certify

that the above and foregoing transcript,

consisting of pages 1 through 8 is a

full, true, correct and accurate

transcript of the proceedings, as

requested to be transcribed, had in the

sentencing of the above cause on July 16,

1982, before the Honorable Tom Stagg,

Judge of said Court, as reported and

transcribed by my as Official Court

Reporter for the above Court.

Bill Hogan, Official Court Reporter

ea >

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA CRIMINAL

VERSUS NUMBER

JIMMIE ARNOLD BRUMFIELD, II 82-50004-02

PETITION FOR HABEAS CORPUS

The Petition of Jimmie Arnold Brum-

field, II, a resident andd domiciliary of

Bossier Parish, Louisiana, who respect-

fully represents:

Jimmie Arnold Brumfield II was

charged with and found guilty after a

bench trial of Conspiracy to Assist in

the Escape under 18 U.S.C. 371 and Aiding

and Assisting in the Escape under 18

U.S.C. 752(1) of Garvin Dale White in the

Indictment entitled United States of

America vs. Jimmie Arnold Brumfield II,

Criminal No. 82-500004-01/02. The date

of conviction was June 14, 1982.

Petitioner was sentenced to two (2)

years at the Federal Correctional In-

stitute in Texarkana, Texas and five

years active probation by the Honorable

Judge Tom Stagg, on the 16th of July

1982.

Jimmie Arnold Brumfield II was

originally incarcerated at the Federal

Correctional Institute in Texarkana,

Texas. He “as placed on parole July 26,

1983, successfully completed his parole

July 26, 1984 and is presently serving a

5 year probated sentence with the United

States Department of Probation and

Parole, Western District of Louisiana,

Shreveport Division.

By being on parole, Petitioner can-

not leave the Western District of

Louisiana without permission from his

parole officer. He must file a report

with probation and parole once a month,

and the Department of Probation and

Parole has the authority to supervise his

life, both personal and business. Al-

though, Jimmie Arnold Brumfield II is not

physically incarcerated behind bars, he

is in fact incarcerated within the West-

ern District of Louisiana. Besides the

actual sentence of Probation,

Petitioner's rights have been impaired

ass follows:

a. As a convicted felon, he is un-

able to possess firearms.

b. Because of his conviction, he

was disbarred from the Practice of Law by

the Louisiana Bar Association, State of

Louisiana, and is unable to make a living

at a Profession that took him seven (7)

years to obtain.

c. He is unable to obtain employ-

ment in any area in which he was trained

such as practicing law, the Insurance

Business, the Banking and Financial - Busi-

ness or any that he can use his mind.

Because of the Stigma of his conviction,

and the pressure, both above and below

board placed on him, most companies are

afraid to have anything to do with Jimmie

Arnold Brumfield II.

d. He is unable to travel freely.

Each time he leaves the Western District

of Louisiana, he must obtain permission

from his Probation Officer, and when he

returns, he must remember to check in.

Jimmie Arnold Brumfield II appealed

the decision, however, after he arrived

at the Federal Correctional Institute, it

was made clear to him that if he

STE Se a ne ae

proceeded with the appeal, his chances of

parole would be greatly reduced and that

life at the prison would be made much

more difficult. Pursuant to those warn-

ings, Jimmie Arnold Brumfield II dis-

missed his appeal.

Petitioner believes that he is being

held unlawfully for the following

reasons:

a. He was denied his right to a

jury trial. Pressure was placed on him

and his wife for him to waive his right

to trial by jury. Petitioner was asked

and pressured to sign his Jury trial

waiver well in advance of trial, wherein,

Garvin Dale White and Donald davder

signed their Jury Trial Waivers the morn-

ings of their trials.

b. Petitioner was not afforded his

right to be tried by an impartial trier

of facts. The Honorable Judge Tom Stagg

was convinced that Jimmie Arnold Brun-

field II was guilty before the first wit-

ness was ever sworn. Petitioner has

reason to believe the following:

de It was impossible for Judge Tom

Stagg to be completely unbiased because

of the extreme publicity that the case

had, both with the news media, and among

the Shreveport and Bossier Bar Associa-

tion.

a. Jimmie Arnold Brumfield II's

conviction was very important to both

Brian Joffrion and A. M. Stroud III.

Judge Tcx Stagg is and was personal

friends with both Brian Joffrion, the

United States Marshal, and A. M. Stroud

III. Mr. Joffrion sat in the courtroom

the entire time the case was being tried

as a case worker. Then toward the end

of the trial, he was allowed to testify

as a rebuttal witness against Jimmie Ar-

nold Brumfield II.

3. Judge Tom Stagg had read the

transcript of the State court proceeding

entitled State of Louisiana versus Jimmie

Arnold Brumfield and Arax T. Brumfield.

The preliminary examination transcript

contained hearsay statements and other

inadmissible statements.

4. Judge Tom Stagg was the trier of

fact in the proceedings entitled United

States of America versus Garvin Dale

White, wherein Garvin Dale White was con-

victed of Simple Escape.

5. Judge Tom Stagg was the trier of

fact in the proceedings entitled United

States of America versus Donald Snyder

wherein, Donald Snyder was charged in

connection with the Garvin Dale White es-

cape. Donald Snyder was charged with

both Conspiracy to Assist in the Escape

under 18 U.S.C 371 and Aiding in the Es-

cape under 18 U.S.C. 752(1) of a Federal

Prisoner, namely Garvin Dale White.

Judge Tom Stagg stated in his ruling that

he believed prosecution's witness, Judy

Philpot who testified that when she

visited Donald Snyder in Texarkana,

field helped in the escape of Garvin Dale

White. A transcript of the Donald Snyder

trial was ordered and paid for nearly one

year ago, but has not been delivered.

Jimmie Arnold Brumfield II was given no

opportunity to cross examine Judy Phil-

pot, denying him his right to Due Process

and the right to confront and cross-

examine the witnesses against him. Mrs.

Philpot was available for the Donald

Snyder trial the preceding Tuesday, and

would have been available for the Jimmie

Arnold Brumfield trial. It might be

noted that Jimmie Arnold Brumfield II was

in no way warned about the Philpot tes-

timony prior to the Snyder trial, and by

that time, had no way to subpoena her to

his trial. Even if Jimmie Brumfield had

subpoenaed her, he would have had to call

her as his witness, still denying him the

right of cross examination. Judge il-

legally took judicial notice of the

Snyder trial in the Brumfield trial.

6. In Judge Tom Stagg's oral

reasons for finding Jimmie Arnold Brum-

field II guilty, he referred to the

Donald Snyder trial stating:

"It is also true that Mr. Donald E.

Snyder, who was tried in this countroom

Monday and Tuesday of last week....was

the cell mate of Mr. White at the time of

the escape and he was convicted by this

court of the charges that he was involved

in the conspiracy and abetting and as-

sisting in the escape of Mr. White, and

that conviction was based on evidence

that Mr. Snyder's delaying tactics in or-

der to distract the jailer and give Mr.

White the opportunity to get to the jail

elevator andd out of the building."

page 18 of Judge Stagg's opinion:

"TI found as a fact in his trial that

he was in his undershorts because it was

part of the scheme to delay the jailer at

the jail door and he was convicted on

those facts, and those facts have not

changed."

Judge Tom Stagg reasoned that Donald

Snyder and Jimmie Arnold Brumfield II

were co-conspirators, thus establishing a

conspiracy. By establishing the con-

spiracy, he allowed hearsay testimony,

which would have not otherwise been ad-

missible, thus compounding the error.

Vs Judge Tom Stagg cross examined

Garvin Dale White and successfully con-

fused him concerning how he obtained the

jogging suit and other items, thus put-

ting himself in the position of advocate

for the United States of America and not

an impartial judge or trier of fact.

Note page 34 of Judge Stagg's opinion

wherein he noted that Jimmie Arnold Brum-

field II furnished Garvin Dale White with

a jogging suit. Also, all prisons sell

jogging suits. Judge Tom Stagg never al-

lowed the checking of Garvin Dale White's

prison property sheet. Also note page

105 of the transcript of the preliminary

examination in the proceedings entitled

State of Louisiana vs. Jimmie Arnold

Brumfield II.

"0. How long had he been in the

jogging suit?

A. As well as I can recall, ever

since he came there.

Q. He never did put on the required

prison uniforn.

A. That's right.

Garvin Dale White wore the jogging

suit at the Shreveport City Jail before

Garvin Dale White saw Jimmie Arnold Brun-

field II for the first time in the

Shreveport City Jail.

Also, Jimmie Arnold Brumfield II is

not responsible for what the prisoners

wear. All other prisoners but Garvin

Dale White were forced to wear regular

uniforms. Garvin Dale White was treated

like a celebrity by the jailers and al-

lowed to wear whatever he wanted. The

responsibility for proper clothing of the

prisoners rests entirely on the jailers,

not the prisoner's attorney.

dad. Tom Snow and Jim Hawkins vio-

lated the rule of Sequestration. Before

testifying, Tom Snow and Jim Hawkins were

in a hall, Jim Hawkins standing on one

side and Tom Snow standing by a door on

the other side of the hall. Tom Snow had

a copy of the State court proceedings

reviewing and discussing it with Jim Haw-

kins. The Rule of Sequestration was also

violated by Brian Joffrion. He was al-

lowed to sit through the entire trial as

a “case worker," listening to all tes-

timony. After nearly everyone testified,

Mr. Joffrion was called as a rebuttal

witness. Judge Stagg ruled in U.S. vs.

Garvin Dale White that the case worker

had to testify first, but testify no more

after other witnesses testified.

e. A defendant is to be presumed

innocent until proven guilty beyond a

reasonable doubt. Judge Stagg was con-

vinced that Jimmie Brumfield was guilty

before he ever commenced the trial.

Careful evaluation of his decision will

prove that he did not believe a word

Jimmie Arnold Brumfield, Arax T. Brum-

field or any of Defendant's witnesses

said, but believed all prosecution wit-

nesses, even though Tom Snow was caught

in several inconsistencies. He held that

Jim Brumfield did not represent Donald

Snyder, even though the evidence is over-

whelming that he did. Attached hereto is

a fee contract wherein $2,600.00 was as-

Signed to Jim Brumfield to cover his fee.

A. M. Stroud was aware of Jimmie Arnold

Brumfield's representation of Donald

Snyder because Jimmie Arnold Brumfield II

discussed Donald Snyder case with hin.

A. M. Stroud III allowed Judge Tom Stagg

to believe that Jimmie Brumfield did not

represent Donald Snyder and that Jimmie

Brumfield had no reason to visit Donald

Snyder other than to conspire in the es-

cape of Garvin Dale White, when Mr.

Stroud knew that this was not so.

f. A prosecutor has a duty, both

ethically and legally to inform the court

and the defendant of any favorable infor-

mation concerning the defendant's case.

Shortly after the trial of Jimmie Arnold

Brumfield II, an article was published in

the National Bar Journal. Mr. Howard

Skinner, the attorney appointed to repre-

sent Mr. White immediately after his cap-

ture, read the article. The article

lined out the testimony of Garvin Dale

White, wherein he described his escape

and the fact that Jimmie Arnold Brumfield

II did not aid in the escape. The Tes-

timony of Garvin Dale White was the same

as the story told to Mr. Skinner.

Believing that this was relevant in

Jimmie Arnold Brumfield II's defense, he

called Carl Stewart, then the Assistant

U. S. Attorney prosecuting the case.

Carl Stewart never contacted the defen-

dant or the court with this information.

A copy of the National Bar Journal report

and the letter from Mr. -Skinner is at-

tached hereto and made a part hereof.

g. Jimmie Arnold Brumfield II was

originally charged in the State Court for

Aiding in the Escape of Garvin Dale

White. He was required to post a

$10,000.00 bond. The state court

proceedings dragged on for a year, caus-

ing great financial hardship. He in-

curred attorneys fees and his law prac-

tice dwindled to practically nothing.

This drove Mr. Brumfield into poverty.

Then, after defendant and his family were

financially and emotionally drained,

charges were dropped in State court and

reinstated in Federal Court. No formal

procedures of transfer were utilized. At

that time, Defendant was again arrested,

and, unlike most defendant's under

Similar circumstances, was required to

post either a cash or surety bond of

$10,000.00 requiring him again to pay a

bondsman $1,000.00 in order to be

released from jail. $2,000.00 for a

bondsman may not seem like much money to

most people,, but the Brumfield family,

it was all the money in the world. At

that time, the Federal Proceedings were

rushed through, requiring defendant to

spend more money on attorneys fees, and

at the same time, completing the destruc-

tion of his law practice. The assistant

U. S. Attorney, A. M. Stroud III, U. S.

Marshal Tom Snow and U. S. Marshal Brian

Joffrion took an active part in the State

Court proceedings, being in constant con-

tact with both Robert Gillispi and Paul

Carmouche. (Note that A. M. Stroud III

is first Assistant District Attorney for

Caddo Parish. By taking an active part

in the State court proceedings, rather

than immediately prosecuting the case in

Federal Court, Assistant U. S. Attorney

A. M. Stroud derived several advantages.

i. He did not have to worry about

complying with the requirements of a

speedy trial, since there was no Federal

indictment handed down, so he could take

his time to build his case.

2. He was made privy to information

derived through a quite lengthy prelimi-

nary examination at the state court

level.

x He managed to completely drain

the defendant and his wife both emo-

tionally and financially so that defen-

dant could not adequately defend his case

when it came to Federal Court. As a

result, Jimmie Arnold Brumfield II had to

defend his case as a pauper. Defendant

was required to seek permission from

Judge Stagg for all witnesses subpoenaed.

In order to subpoena witnesses, Defendant

had to tell Judge Stagg in advance what

the witnesses would testify to and "how

these witnesses would prove his in-

nocence." Judge Stagg limited the number

of witnesses defendant was able to sub-

poena.

h. The burden of proof for cir-

cumstantial cases.is different in Federal

Court than it is in State Court. In

Federal Court, the prosecution must only

prove that Defendant is guilty beyond any

reasonable doubt. Under Louisiana law,

the prosecution must eliminate any

reasonable hypothesis. As can well be

seen, the prosecution has a lesser burden

of proof in Federal Court than it does in

State Court. Defendant believes that not

only did the prosecutor fail to prove him

guilty beyond a reasonable doubt, but,

that he proved he was innocent beyond a

reasonable doubt. He gave direct

evidence that he did not aid in the es-

cape of Garvin Dale White. The prosecu-

tion most certainly did not eliminate any

reasonable hypothesis of innocence. By

transferring the case from State Court to

Federal Court, Defendant was given a much

more burdensome task to defend.

$. There was no direct proof that

Jimmie Arnold Brumfield II conspired or

aided in the escape of Garvin Dale White,

however, there was direct proof that he

did not. The only person besides Jimmie

Arnold Brumfield II who would know what

really happened was Garvin Dale White,

and Garvin Dale White testified that

Jimmie Arnold Brumfield II did not con-

spire in or aid in his escape.

ir There is a legal presumption

100

that when a party fails to call a witness

on his behalf, that witness would not

testify on his behalf if he were called.

The United States called Judy Philpot as

a witness at the Donald Snyder trial, and

they called the Jail elevator operator at

the Garvin Dale White trial. These wit-

nesses would both have been available for

the Jimmie Arnold Brumfield trial, but

were not called. It must be presumed

that they would not have helped the

prosecution's case. The prosecution

succeeded in bringing Judy Philpot before

Judge Stagg in the Donald Snyder trial,

and did not have to subject her to cross

examination in the Jimmie Arnold Brum-

field trial.

k. All statements made by Jimmie

Arnold Brumfield II while incarcerated in

the Caddo Parish Jail should be

suppressed. Jimmie Arnold Brumfield II

101

did not voluntarily give these statements

in the Caddo Parish Jail to Brian Jof-

frion, Tom Snow, Jim Hawkins and other

law enforcement officers. He was told by

his attorney, Frank Harlow, that if he

did not make the statement he would not

be released from jail. Judge James E.

Clark had already told Jimmie Arnold

Brumfield's wife that if his attorney

would contact him, he would reduce the

bond. The statements made by Jimmie

Brumfield at the jail were not recorded.

Brian Joffrion took hand written notes

and latter typed the notes. After Brian

Joffrion listened to Jimmie Arnold

Brumfield's testimony he took the stand

and used his recollection of that meeting

to discredit Mr. Brumfield. Judge Stagg

specifically referred to Brian Joffrion's

testimony in discrediting Mr. Brumfield.

Jimmie Arnold Brumfield's account of what

102

was said at the meeting is totally dif-

ferent that Mr. Joffrion's account of the

statements. Petitioner believes that Mr.

Joffrion listened to the trial, and tes-

tified in such a manner to suit his pur-

poses.

1. <A foot note, that Jimmie Arnold

Brumfield II was an experienced trial at-

torney of over five years experience,

was, in 1980 little more than fiction.

Jimmie Arnold Brumfield II graduated from

L. S. U. Law School in May of 1977 and

began practicing law in October of 1977.

At the time of Garvin Dale White's es-

cape, he had only practiced law for three

years.

m. An adequate chain of evidence

was not established between the notes in-

troduced at trial as notes found in a

brief case in the Lincoln Towncar when

the Lincoln was recovered. Mover

103

believes that the notes were part of the

Garvin Dale White file which was ordered

returned to Judge Tom Stagg and motions

were denied to ascertain what was in the

file. Mover is not convinced that the

notes were in fact found in the Lincoln

used in Garvin Dale White's trip to the

Airport.

n. All evidence found in the office

of Jimmie Arnold Brumfield II and home of

Jimmie Arnold Brumfield II (2920 and 2921

Kirk Lane) should have been suppressed.

The U. S. Marshals, D.E.A. Agents,

Shreveport Police and other law enforce-

ment officers searched every file and

every inch of the house and office, thus

conducting an unauthorized and general

search. See record for copies of the

Search warrant. (Note that the search

warrant was signed by U. S. Magistrate

James Barton shortly after the escape).

104

The Federal government was involved in

this case from the beginning.

Defendant filed an appeal with the

5th Circuit Court of Appeal, but volun-

tarily dismissed the appeal because of

the following reasons:

a. Lack of financial ability to

pursue the appeal. Arax T. Brumfield,

petitioner's wife, is presently the sole

support of the family and is engaged in

the practice of law in private practice.

Any adverse publicity would hamper her

ability to make a living.

b. While petitioner was in prison,,

he was afraid that pursuing the appeal

would hamper his chance of making parole.

In fact, Petitioner had gone to his hear-

ing, and because of a letter written by

Carl Stewart demanding that he serve his

sentence to completion, one board member

105

recommended that he be placed on parole

after serving one year of his sentence.

The other board member recommended that

he serve his entire sentence until

completion. -The parole case was sub-

mitted to the entire board for decision.

At that time, Petitioner decided that it

would be in his best interest to drop the

appeal. At the time, it was more impor-

tant to be released from prison and be

with his two year old daughter, than it

was to prove his innocence.

C. Petitioner was placed on parole

after his stay at the Federal Correc-

tional Institute in Texarkana,, he was on

parole for one yearand his is presently

on probation for five years. He and his

family were and still are afraid that any

appeal would result in attempts to revoke

his probation and additional harassment

by the U. S. Justice Department. There

106

is an old saying "If the Feds want you,

they'll get you"

d. After the two year ordeal with

the State and Federal charges, and after

a year of incarceration, my wife was not

mentally or emotionally able to withstand

further harassment or pressure.

Petitioner was afraid any further

proceedings would destroy both her mental

and physical health.

Representation for these

proceedings:

a. Arraignment - Arax T. Brumfield,

2921 Kirk Lane, Bossier City, La.

b. Trial - J. Stacey Freeman, 1648

Benton Road, Bossier City, La.

c. Sentencing - J. Stacey Freeman,

1648 Benton Road, Bossier City, La.

dad. Michael Fawer, 700 Camp Street,

New Orleans, La.

107

JIMMIE ARNOLD BRUMFIELD II, being

first duly sworn under oath, presents

that he has subscribed to the foregoing

petition and does state that the informa-

tion herein is true and correct to the

best of his knowledge and belief.

s/Jimmie Arnold Brumfield II

JIMMIE ARNOLD BRUMFIELD II

SWORN TO AND SUBSCRIBED to before me

this the 17th day of April 1986.

s/Arax T. Brumfield

NOTARY PUBLIC

s/Arax T. Brumfield

ARAX T. BRUMFIELD

Attorney for Petitioner

2921 Kirk Lane

Bossier City, Louisiana 71112

(318) 746-7045

108

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA CRIMINAL

VERSUS NUMBER

JIMMIE ARNOLD BRUMFIELD II 82-50004-

01/02

REPORT AND RECOMMENDATION OF MAGISTRATE

In accordance with the standing or-

der of Honorable Tom Stagq, Chief Judge,

filed with the Clerk of this Court on

March 11, 1981, this federal habeas cor-

pus action was referred to the under-—-

Signed Magistrate for review, report and

recommendation.

On April 17, 1986, petitioner Jimmie

Arnold Brumfield II, pro se, submitted to

the Clerk of this Court his petition for

habeas corpus pursuant to 28 U.S.C. A.

2255. In making his cotietewes attack

upon his conviction and sentence,

109

petitioner Brumfield alleges that he was

charged and found guilty after a bench

trial of conspiracy to assist in the es-

cape under 18 U.S.C. S.S. 371 and aiding

and assisting in the escape under 18

U.S.C. S.S. 752(1) of Garvin Dale White

in the indictment entitled "United States

of America vs. Jimmie Arnold Brumfield

II", Criminal No. 82-50004-01/02.

He further alleges that his convic-

tion was June 14, 1982, and on July 16,

1982 he was sentenced to two (2) years at

the Federal Correctional Institute in

Texarkana, Texas and five (5) years ac-

tive probation by Honorable Judge Tom

Stagg. He further alleges that after

being incarcerated in the Federal Deten-

tion Center, he was placed on parole July

26, 1982 and completed his parole July

26, 1984 and presently is serving a five

(5) year probated sentence with the

110

United States Department of Probation and

Parole, Western District of Louisiana,

Shreveport Division.

The main thrust of petitioner's col-

lateral attack on his conviction and sen-

tence is that imposes a severe hardship

upon him (formerly a practicing attorney)

and his wife, who is a lawyer. He con-

tends that inasmuch as he is on proba-

tion, there are many things which he can-

not do because of his conviction and sen-

tence.

Plaintiff Brumfield, as grounds for

his attack on his conviction and sen-

tence, makes numerous contentions of

pretrial and trial errors, and the reason

why he did not complete his appeal to the

United States Court of Appeals for the

Fifth Circuit after conviction. He fur-

ther claims bias and prejudice on the

part of Judge Stagg during the course of

111

his trial and admission of evidence and

failure of the prosecution to call cer-

tain witnesses.

Pursuant to an order of this court

on April 24, 1986,, and in accordance of

Rule 4 of 28 U.S.C. S.S. 2255, the Clerk

was directed to serve the United States

Attorney for the Western District of

Louisiana with a copy of petitioner's mo-

tion attacking his conviction and sen-

tence. In accordance with Rule 5 of 28

U.S.C. S.S. 2255,, respondent, the United

States, through an Assistant United

States Attorney, on May 23, 1986 filed an

answer denying the allegations of plain-

tiff, supported by a 25 page brief in

response to plaintiff's 14 page petition

and additional attachments.

One of the special defenses of

respondent is that by perfecting his ap-

peal with able and efficient counsel rep-

112

CG LRET LR OIE ST

resenting him, and then abandoning that

appeal, petitioner is prevented from

making a collateral attack on his convic-

tion and sentence. It further is argued

that all of this could have been

presented on appeal, but due to strategy

of petitioner and his attorney, the pro-

cedure was not followed through and was

abandoned. Cited by respondent are

several cases, including United States v.

Hanyard, 762 F.2d 1226 (5th Cir. 1985).

This is further buttressed by United

States v. Timmereck, 99 S.Ct. 2085 (1979)

in which the court held that "Respondent

could have raised his claim on direct ap-

peal but did not, and there is no basis

here for allowing collateral attack to do |

service for an appeal." Thus, the

Supreme Court reversed the Sixth Circuit.

Even though Timmereck petitioner entered

a guilty plea, the same rule is ap-

113

plicable after conviction and sentence

upon failure, without cause, in appeal of

his case by presenting the same conten-

tions which he now presents to this

Court.

Petitioner Brumfield also contends

that some of the pretrial statements and

confessions he made should not have been

admitted at trial. Further, he claims he

was denied a speedy trial. This is

Similar to the recent case of United

States of America v. McClure, 786 F.2d

1286 (5th Cir. 1986).

Petitioner also alleged in his

numerous contentions that there were wit-

nesses which the prosecution could have

called but did not which was prejudicial

to him. The record shows that petitioner

had the same opportunity to call these

witnesses in his behalf. No objection

was made of this contention during his

114

trial, and further it is refuted in

United States v. Inadi, 8.¢ct.

’

54 U.S.L.W. 4258, (March 10, 1986). The

Supreme Court reversed the Third Circuit

and held that an unindicted co-

conspirator's statement may be introduced

at trial and government was not required

to produce witnesses, holding that Rule

801(dad)(2)(E) of the Federal Rules of

Evidence was applicable.

The answer anc brief of respondent

goes into great and minute detail as to

the uncontested facts in this case, and

refutes each contention presented by

petitioner by citing numerous cases which

are applicable. The answer and brief of

respondent, United States of America, ac-

cordingly is adopted in toto by the un-

dersigned Magistrate and made a part of

this report and recommendation as Ex-

hibits 1 and 2.

115

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

JIMMIE ARNOLD BRUMFIELD II )

Petitioner )

vs. ) CRIMINAL

UNITED STATES OF AMERICA ) NUMBER

Respondent ) 82-50004-02

MEMORANDUM BRIEF IN SUPPORT OF RESPONSE

AND ANSWER OF UNITED STATES OF AMERICA

TO PETITION FOR WRIT OF HABEAS CORPUS BY

A PERSON IN FEDERAL CUSTODY PURSUANT TO

28 U.S.C. 2255 rILED BY JIMMIE ARNOLD

BRUMFIELD II

May It Please The Court:

ARGUMENT

I. The Motion For Habeas Corpus

Relief Pursuant To 28 U.S.C. 2255 Should

Be Denied.

STATEMENT OF THE CASE

District Court Proceedings

116

ee i

An indictment was returned by the

Grand Jury in the Western District of

Louisiana February 19, 1982, charging in

Count I on or about November 1, 1980,

that Randy Costales, a/k/a Randy Conn,

Jimmie A. Brumfield, II and others did

conspire to effect the escape and attempt

to escape from the Shreveport City Jail,

of Garvin Dale White, who was a federal

prisoner transferred to the jail pursuant

to a Writ of Habeas Corpus ad Testifican-

dum, all in violation of 18 U.S.C. 751(a)

and 18 U.S.C. 371. Count II charged Cos-

tales and Brumfield with wilfully aiding

and assisting the escape of White from

the Shreveport City Jail in violation of

18 U.S.C. 752(a). (Vol. 1,, pgs. 1-3)

After waiving trial by jury,

Petitioner was tried before Honorable Tom

Stagg, United States District Judge,

Western District of Louisiana, and con-

117

victed on each count.

On July 16, 1982, petitioner was

sentenced to custody for two years on

Count I. Imposition of sentence was

suspended on Count II, and Petitioner was

placed on five years supervised probation

upon the completion of the confinement

sentence imposed on Count I. (Rec. pg.

351). Petitioner filed a Notice of Ap-

peal August 10, 1982. _By Motion To Dis-

miss Appeal filed November 15, 1982, by

his attorney, Michael H. Fawer, same was

dismissed by the Fifth Circuit. (Rec. pg.

129). |

A Motion For Reduction Of Sentence

was filed March 15, 1983 and denied.

(Rec. pgs. 131, 133).

A Petition For Writ of Habeas Cor-

pus, pursuant to 28 U.S.C. 2255 was filed

April 17, 1986. By Memorandum Order, the

Government was ordered to respond. (Rec.

118

pg. 135). i

STATEMENT OF THE FACTS

Roy Jenkins, Assistant Superinten-

dent for the Shreveport Jail, testified

as to the events on Saturday, November 1,

1980, when Petitioner arrived at the jail

at about eight or eight-thirty in the

evening, asking to see Garvin Dale White.

(Vol. I, pg. 22, line 13). Jenkins

proceeded to the holding cells and opened

the door, letting Garvin Dale White out,

who walked down the hall. (Vol. I, pg-

23, line 14). Brumfield, who was at the

booking area, asked the jailer to also

bring another Federal prisoner,, Donald

E. Snyder. Jenkins turned around to tell

Snyder that Brumfield also wanted to see

him. Snyder was in his underclothes.

Jenkins asked him to put on his coveralls

which he had in the sleeping area. The

jail elevator operator then told Jenkins

119

that White who had been proceeding down

the hall, had escaped. (Vol. I, pg. 24,

lines 23-24). After Jenkins reported the

escape to the radio operator, he informed

Brumfield who responded, "they" will

probably want to talk to me. (Vol. I, pg.

26, line 32).

The Assistant Jailer, Barbara Jean

Dickson, stated that as Jenkins walked

down the hall to get White and Snyder,

Brumfield made a phone call and asked her

to pick up the phone. Brumfield's wife

was on the phone and wanted to talk to

her about a succession. (Vol. I, pg.

53,, line 19). Previously, Brumfield had

appeared at the jail almost every night

to talk to White. (Vol. I, pg. 57, line

47).

Detective Terry Shields, Shreveport

Police Department, upon learning of the

escape returned to the Shreveport City

120

Jail. (Vol. II, pg. 99, line 12). Brun-

field had prepared a written statement

(G-11). (Voli. IZ, pe. 101, Aine 27).

Brumfield was not under arrest or a

suspect. He was requested to give a re-

corded statement in the detective's of-

fice to Shields and Detective Owens.

(Vol. II, pg. 103, lines 34-38).

A copy (G-34) of the recorded state-

ment was in accord with Brumfield's writ-

ten statement (G-11). He stated he had

come to the jail that night to talk with

White and bring him something to eat. He

said he went over to the booking desk,

signed in and called his wife, whom he

said had been working on some type of

succession for one of the jailers. Brum-

field said he asked the jailer to pick up

the telephone and talk to his wife.

After the jailer did this, Brumfield said

he left the counter or the desk and

121

walked into the conference room. He

claimed he learned of the escape after

one of the jailers came to him and told

him of it. Brumfield then left the jail

about four minutes later. (Vol. II, pg.

104, lines 42-46, pg. 105, lines 47-48).

He then returned and reported his truck

was stolen. Brumfield approached Shields

in the sront part of the office with keys

in his hand, “And he used some slang

terms and basically said that his name

was mud." Brumfield stated he had driven

the vehicle to the jail that night.

(Vol. II, poe. 105, iine $0, pe. i106,

lines 51-53). The keys that Brumfield

handed to Detective Shields were dupli-

cate keys, with Brumfieid explaining he

had thrown the original keys away. (Vol.

II, pg. 109, line 67). Brumfield

telephoned his wife to pick him up.

(Vol. II, pg. 110, line 72). He told her

122

not to have a flat tire on the way over

as he did not need anything else to go

wrong. (Vol. II, pg. 111, line 78).

When Brumfield's wife arrived, she

was informed the truck was stolen.

However, she had the original factory

keys. Brumfield had earlier told the

detectives he had thrown the factory keys

away. She stated she had gotten the fac-

tory keys off of the counter in her

house. (Vol. II, pg. 115, line 90).

These factory keys were noted by the

detective to have a sticky substance on

them as if they had been taped. (Vol.

II, pg. 115, lines 93). Officer Owens

had observed Mrs. Brumfield drive up to

the police station in the truck which

Petitioner had previously just reported

stolen. (Vol. II, pg. 114, line 86).

When Petitioner was informed the truck he

had reported stolen was parked outside,

123

he folded his arms on the desk and laid

his head in his arms, then raised his

head with watering eyes. (Vol. II, pg.

123, lines 124-127).

Brian Joffrion, United States Mar-

shal, had among his responsibilities, the

care, custody and control of Federal

prisoners within the Western District of

Louisiana. (Vol. II, pg. 200, line 4).

On November 5, 1980, he interviewed

Petitioner Brumfield in the Caddo Parish

Courthouse, first advising him of his

constitutional rights pursuant to

Miranda. Graham Rogers and Frank Harlow,

attorneys for Brumfield were present and

consentedd to the interview. Marshal

Joffrion made notes which he used later

in the ‘day or the next day to type up a

coherent report of that interview. (Vol.

II, pg. 200, lines 5-11, pg. 201, lines

12-17). There was no doubt but that the

124

interview was freely and voluntarily

given by Brumfield with the consent of

both of his attorneys who were present at

the time the interview was reduced to the

Marshal's notes. (G-44A & B). The Trial

Judge ruled that the notes could be used

by Joffrion in his testimony as he recog-

nized them to have been made by him at

the time of the taking of the statement.

(Vol. II, pg. 203, line 30 at pg. 205).

The notes taken during the interview

by Joffrion with Brumfield, were read as

follows:

A "10-5-80. Jim Brumfiéld. 11:12

A.M., Caddo Parish Jail, Caddo Parish

Courthouse. Randy Costales, Randy Cos-

tales came to Louisiana, the Shreveport-

Bossier area, several days after White

arrived. C is not a pilot xnown to have

driven Porches and black Cadillacs.

Identified 3-9-66-101-88 as Costales.

125

Costales was picked up with White at In-

dian River. Purpose of Costales'

presence in Florida. He chaffeured Brum-

field. In Shreveport to visit with.

Brumfield accompanied Costales several

times to visit White. Previously Brice.

Last name unknown. Brother-in-law of

White visited White. Costales visited

White both in and out of Brumfield's

presence. There were at least two

visits, possible more. Costales only one

staying at Brumfield office. He stayed

in front room with double bed. He had

use -- had use of Silverado pickup truck,

white four-wheel drive, big tires, mag-

nesium fin wheels, chrome grill, al-

batross. Acquired four to six months

ago. Truck registered to a fellow named

Chatham. Chatham had truck in the name

of Sullivan. Chatham came through and

Signed over some papers. It seems like I

126

picked up truck. I drove truck every

day. Saw some pumps and trucks. They

were in there when Costales drove it

back. Jim visited White, drove vehicles

alternately. Conn, Ccstales, used all

three vehicles. Costales accompanied

Brumfield to Franklinton. Introduced him

as Costales. Stayed at Billy's house.

Dale White, Garvin Dale White's son,

drove Brumfield to Florida airport. ID

3965-10180.

Friday, 10-31-80, Costales departed.

Costales mentioned Boulder, Colorado.

Arax took Costales to airport, regular

airport. Costales rode something on out-

side of box. Purpose of frequent visits

with Jim at City Jail. Brumfield, Dale

White would call Brumfield. Brumfield

and the Whites were working on some plea

bargains. Dale White had contact with

father and knew of people involved. Dale

127

would feed information to father and

Brumfield to in turn to give to DEA

agents. Short socks, may have taken

Levis. Doesn't know where sweatsuit came

from. Brought in wine. Costales once

went with Brumfield to jail in truck

prior to going to Franklinton. Costales

had Arax pick him up. He in turn was

called by Brumfield to retrieve the

truck. Was left in lot. Too, went to

Franklinton. White had never been to

Brumfield's home. How did White know

where truck was? Don't know. I can con-

ject I'd park in same place. Why not

report Lincoln's -- Lincoln stolen.

S tuation unpleasant. Warren McClawson

was to have reported Lincoln stolen.

Garvin Dale White did not have permission

to drive Lincoln. If he took it, he

stole it. ID, Sullivan, 396710180, later

identified as Hanafin. Brumfield

128

provided cash to Garvin Dale White, four

or five twenties in front of jailer.

Don't remember giving Garvin Dale White

any money in Mansfield. Don't ever

remember having any money. Purpose of

Randy coming to Shreveport: He was to

meet with Garvin Dale White. He was

going to take truck to Arizona. Opal

White is mother of Garvin Dale White.

Parker, Arizona is one residence. Jim

said he did give Dale White a thousand

dollars. Brumfield got money from Opal

White who turned it over to Dale White.

Dale drove Brumfield to Mansfield Satur-

day morning. Dale was not allowed to see

father. All property was given to Cos-

tales to care for except a little bag

jewelry in a little bag for Costales."

(Vol. II, pg. 212, line 34).

Daniel P. Merriam, officer with the

Shreveport Police Department recalled

129

seeing Brumfield's pickup truck on the

top lot of the City Hall and Murphy

Street side of the police station at

about nine-thirty p.m. When he left work

at six a.m. on the next day, October 26,

1980, the pickup truck was still parked

where he had originally seen it. (Vol.

II, pg. 154,, lines 8-10, pg. 156, line

19). He observed the pickup on October

25, 28, 29, 30 and 31 in the same spot.

He was off duty October 26, 27, 1980.

(Vol. II, pg. 156, lines 19-25).

Shreveport Police Officer William Randy

Rogers also observed the white pickup

parked on the cop lot at the same time as

Merriam made his observations. (Veli. I,

pgs. 140-13).

Special Agent James 0. Hawkins,

DEA, on November 2, 1980, executed a

search warrant at 2921 Kirk Lane, Bossier

City, Louisiana. (Voi. I2, Ge 2138,

130

lines 7-10). He found one plastic bag

containing miscellaneous pieces of iden-

tification for Michael Sullivan, and a

brown chart bag containing numerous

aeronautical charts of southern United

States, Caribbean and South America.

(Vol. II, pg. 219, line 14). On November

7, 1980, he received a telephone call

from Brumfield advising he wanted to wash

his hands of this matter and he had

several items of clothing and personal

belongings at his residence belonging to

Randy Costales which he wanted Hawkins to

pick up. (Vol. II, pg. 220, line 21).

These items were received into evidence

ass G-36-37, 47).

Billy Arnold Brumfield, brother of

Petitioner, testified that Randy Costales

came to his house with petitioner in Oc-

tober 1980. Costales stayed at the

brother's house for approximately three

131

days. Petitioner was driving a new Lin-

coln Continental. (Vol. II, po. 236,

lines 4-11, pg. 237,, line 14). Sub-

sequently on November 3, 1980, Billy Ar-

nold Brumfield received a phone call from

a person identifying himself as Garvin

Dale White. (Vol. II, pg. 239, lines 23-

24). White told him he had Petitioner's

car. Billy Arnold Brumfield asked him if

he was the fellow that had broken out of

jail. He stated he was that person.

White asked about Petitioner, and Billy

Arnold Brumfield responded that he was in

jail, as White had broken out of jail and

they put his brother in his place. (Vol.

Ii, pg. 24, line 26). White let Billy

Arnold Brumfield talk to Randy Costales

during the phone conversation. Costales

and White wanted Billy Arnold Brumfield

to get Petitioner's car which was at the

Little Rock, Arkansas Municipal Airport

132

Geman

with the keys in the gasfiller cap.

(Vol. II, pg. 243, lines 27-31). White

said he would send him some money to make

the trip to recover the car. (Vol. II,

pg. 244, lines 38-39,pg. 245, line 40).

Three days later he received a money or-

der (G-32) which he turned over to the U.

S. Marshal's Service. (Vol. II, pg. 245,

lines 46-47).

Inspector Lucian Bramel, U. S&S.

Marshal's Service, Little Rock, Arkansas,

located Petitioner's car at the Little

Rock, Airport. The 1979 Lincoln Con-

tinental was backed into the parking lot

located immediately in front of the main

hangar. (Vol. II, pgs. 266-269).

Hershel S. Garner, U. S. Marshal's

Service, Little Rock, Arkansas, located

the keys in the small door where the gas-

filler was located. (Vol. II, pg. 274,

lines 10-11).

133

It was stipulated that an expert

fingerprint examiner witness, if called

as a Government witness would testify

that it was determined that the fin-

gerprints of Randy Costales and Garvin

Dale White were taken from items con-

tained inside the 1979 Lincoln

automobile. (Vol. II, pg. 298).

Inspector Tommy L. Snow, U.S.

Marshal's Service, questioned Donald

Snyder on November 1, 1980, as to the

jailbreak by White. Snyder told Snow the

only thing he could tell him was to check

Brumfield's house. (Vol. II, po. i71,

line 18). Snow observed at about eleven-

forty-five p.m. on November 1, 1980,

there was a pick-up truck and Lincoln

Continental parked in the driveway of

2920 Kirk Lane, next to Petitioner's

residence at 2921 Kirk Lane. The Lincoln

Continental drove away, then at about

134

twelve o'clock, the pick-up left. (Vol.

II, pg. 176, lines 48-49).

When Snow requested Petitioner on

January 7, 1981 to give handwriting ex-

emplars, he said "no", but placed his

hand on Snow's shoulder saying sit down,

I'm going to tell you what happened that

night. Snow did not initiate the conver-

sation. (Vol. II, pg. 178, lines 64-65).

Snow stated as to Petitioner's volun-

teered statement while not under arrest:

at After we got inside the house,

he proceeded to tell me his version of

the events that night. He stated that

and I quote "they" had made extra keys

for his car -- for his truck, that when

White escaped, he went down and found the

extra keys that were taped to the truck.

He drove to 2920 Kirk Lane, parked the

truck in the driveway, went across the

street to 2921 to obtain a briefcase and

135

some other property that he had left

there; that while he was in 2921 Jimmie

had called Arax to come pick him up; she

backed out in the pickup and left and

when White came out of 2921, he saw the

pickup was gone so he went into 2920, got

a set of keys that was laying on the

counter, got in the Continental and drove

away." (Vol. II, pg. 179, line 68).

The Government rested its case.

(Vol. III, pg. 309).

Petitioner called Garvin Dale White

as a defense witness, who admitted escap-

ing from the Shreveport City Jail on the

night of November 1, 1980. (Veil. II,

pg. 327, line 41). He explained he went

to the white pickup truck parked on the

cop lot, retrieved a set of keys in a

magnetic box which he knew the location

of as he had previously owned it. (Vol.

III, pg. 331, lines 49-50). He drove to

136

fa i A tS

Petitioner's residence, crossed the

street to his office, entered through a

window and located his small caribou

briefcase with low altitude charts in it.

(Vol. III, pg. 339, lines 80-81, pg. 340,

line 83, pg. 346, line 118). White then

entered Petitioner's residence, finding

keys to the Lincoln. (Vol. III, pg. 348,

San6 i237}. White then drove to North

Little Rock, Arkansas, where two pilots

from Mexico flew him away. (Vol. III,

pg. 375, lines 240-243). White admitted

at the time of his arrest in Florida,

terminating his escape he was using an

alias name David DeMarco. (Vol. III, pg.

381, lines 266-268).

Petitioner's wife, Arax Brumfield,

first met Randy Costales on October 18,

1980 at 2920 Kirk Lane, Bossier City,

Louisiana. He remained in the Shreveport

area until October 28, 1980, when he left

137

by plane. (Vol. III, pg. 436, lines 10-

14). Costales came to Shreveport to try

to work on a deal to reduce some of

White's jail time, so it would be less

than life imprisonment. (Vol. Zit, oe.

437, line 18). Mrs. Brumfield was aware

that Costales brought with him belongings

of White, such as travel cases which were

placed in the Brumfield's office located

on Kirk Lane. (Vol. III, pg. 440, lines

36-38).

Mrs. Brumfield identified a set of

keys to the pick-up truck which she lent

to a neighbor to use to move some furni-

ture. These keys were returned about a

month later. This was the only set of

keys she knew of that her husband had

been using. (Vol. III, pg. 443, lines

58-62, D=-3). Penny Frazier returned the

set of keys to the Brumfield residence

the Friday night prior to the escape.

138

(Vol. III, pg. 444, lines 64-67). On the

weekend prior to the escape, the pick-up

truck was left by Petitioner on the jail

parking lot "Because it wouldn't work and

we had gone to Franklinton, so we left it

there." (Vol. III, pg. 444, lines 68-

69).

Mrs. Brumfield testified that within

three weeks prior to November 1, 1980,

she discussed with Petitioner looking

into a succession matter for jailer Bar-

bara Dickson. On the night of the es-

cape, Petitioner called her and placed

Ms. Dickson on the phone to discuss the

succession. (Vol. III, pg. 446, lines

83-84, pg. 447, lines 88-89). The next

week she heard from Petitioner was when

he called her to pick him up at the jail,

stating, "--he said something to the ef-

fect that anything that can go wrong has

gone wrong. Come pick me up." (Vol.

III, pg. 448, line 99). She left her

house in the white pick-up truck with the

set of keys Penny Frazier returned.

(Vol. III, pg. 449, lines 105-107). When

she arrived at the jail, Charley Owens

asked her why her husband had reported

the truck stolen whereas she drove up in

it. (Vol. IV, pg. 454, line 132). She

spent the night in jail.

Petitioner Jimmie Arnold Brumfield

testified in his defense. He was con-

tacted by White, who was in jail in

Florida and requested to meet him.

Petitioner met with White at the Federal

Correctional Institute in Miami, remain-

ing there two or three days. (Vol. IV,

pg. 479, line 27). Petitioner met Chris

Eulberg in Florida, having heated discus-

sions concerning an airplane. (Vol. III,

pg. 479, lines 29-30). Approximately two

or three days after Petitioner returned

140

to Shreveport from Florida, White was

transferred from Florida back to

Shreveport. (Vol. IV, pg. 480, line 35).

While in Florida, Petitioner seenkous

some of White's property from the prison

authorities which he gave to Randy Cos-

tales. (Vol. IV, pg. 481, lines 41-42).

Petitioner, shortly after returning

to Shreveport, Louisiana, arranged to

represent White as to possible plea bar-

gains in return for providing informa-

tion. (Vol. IV, pg. 482, lines 48-49).

Petitioner stated on October 24,

1980 (Friday night), he went to the City

Jail to see White. The pick-up would not

start, therefore, he requested Niftali

Rodriguez to repair it. After returning

from Franklinton, on Monday night or at

one o'clock Tuesday morning, he drove the

pick-up from the jail parking lot to his

residence. (Vol. IV, pg. 509, lines 110-

141

221). On Saturday, November 1, 1980,

White asked him to meet him at the jail

as he could only get out of his cell to

make a phone call. (Vol. IV, pg. 510,

line 116). Petitioner drove to the jail

in the pick-up, parked it and used the

elevator to get to the booking desk.

(Vol. IV, pg. 511, line 122). Petitioner

said he signed in at the desk, told

jailor Jenkins he wanted to see White.

He called his wife for the purpose of

jailor Barbara Dickerson talking to her

about a succession matter. (Vol. IV, pg.

512, lines 127-130). He further tes-

tified he was waiting for Jenkins to

bring White out of his cell and saw White

and Jenkins walking toward him. (Vol.

IV, pg. 514, line 138). Petitioner went

into the conference room. Jenkins en-

tered, telling him White had just es-

caped. (Vol. IV, pg. 517, line 148). He

142

verified this with Jenkins. (Vol. IV,

pg. 518, line 152). Petitioner went to

the parking lot, finding the pick-up

missing. He returned to the jail floor

stating to Detective Shields, "I said

something to the effect that my middle

name was mud and that I had to report

this truck missing." (Vol. IV, pg. 526,

line 184). He claimed no explanation for

his wife driving to the jail to pick him

up in the pick-up truck shortly after he

reported it missing. (Vol. IV, pg. 528,

line 200, pg. 529, lines 201-202).

On cross-examination, Petitioner

stated that on November 1, 1980, while in

the jail after being advised of the es-

cape, he wrote out a statement prior to

anyone asking him for a statement. Later

they asked him for a statement. (Vol.

IV, pg. 556, lines 255-258).

The defense rested its case. (Vol.

143

V., pg. 632).

Deputy United States Marshal Tommy

L. Snow testified as a Government wit-

ness, that on November 1 and the early

morning hours of November 2, 1980, he

stationed himself next to a market to ob-

serve the residence at 2921 Kirk Lane.

He saw the Lincoln Continental leave that

night with two people in it. (Vol. V,

pg. 634, lines 3-6).

Brian Joffrion,, United States Mar-

shal, testified on rebuttal that

Petitioner had previously explained to

him that the pick-up stayed on the jail

parking lot for the reasons he and Cos-

tales went to the jail in it. When they

arrived, Costales decided he did not want

to go in and see White, so he called Arax

Brumfield, who came and picked him up.

When Brumfield completed his business, he

couldn't find his keys, so he called Cos-

144

tales who came by and picked him up. The

Marshal testified Petitioner did not men-

tion anything about the truck being

broken. (Vol. V, pg. 645, line 7, pg.

646, lines 8-9, pg. 652).

These are considered to be the

operative facts together with those set

forth in the argument section of this

brief.

The facts as to the circumstances of

the escape have been reviewed by the

Fifth Circuit Court of Appeals in U.S. v.

Snyder, 707 F.2d 139 (5th Cir. 1983). In

the latter case, it was also stated in

the decision the record is clear that

both Snyder and Brumfield were deeply in-

volved in White's escape attempt.

Petitioner's Habeas Corpus proceed-

ing filed with this Court is an abuse of

the writ, and should be dismissed. The

Fifth Circuit stated in Sosa v. U.S., 550

145

F.2d 244 (5th Cir. 1977):

"Although the Supreme Court enforced

the general rule against surrogate ap-

peals in Sunal v. Large, 332 U.S. 174, 67

S.Ct. 1588, 91 L.Ed. 1982 (1947), the

Court was careful to preserve the not in-

considerable number of exceptions to the

rule, see 332 U.S. at 178-181 & nn. 6-13,

67 S.Ct. 1588, when "the writ has...

been entertained either without con-

Sideration of the adequacy of relief by

the appellate route or where an appeal

would have afforded an adequate remedy',

332 U.S. at 178, 67 S.Ct. at 1591. The

Court's catalogue of exceptions shows

that the archetypal case for the applica-

tion of the rule precluding collateral

attack is when direct appeal has been

foregone as a tactical maneuver. See 332

U.S. at 180-182, 67 S.Ct. 1588."

In Jones v. Estelle,, 699 F.2d (5th

146

Cir. 1983), the Fifth Circuit set forth a

standard of review in abuse of writ

cases:

"The standard under which the con-

tention that a petitioner has abused the

writ is to be decided was set out by this

Court in its earlier decision in this

case:

Under the decision of this Court in

Paprskar v. Estelle, 612 F.2d 1003 (5th

Cir. 1980), abuse of the writ for failure

to assert a ground for relief in a prior

petition exists only where that failure

was due to inexcusable neglect or inten-

tional relinquishment. (emphasis in

original)."

Petitioner states the following

reason for dismissing his appeal:

"Jimmie Arnold Brumfield II appealed

the decision, however, after he arrived

at the Federal Correctional Institute, it

147

was made clear to him that if he

proceeded with the appeal, his chances of

parole would be greatly reduced and that

life at the prison would be made more

difficult. Pursuant to those warnings,

Jimmie Arnold Brumfield II dismissed his

appeal." (Paragraph 5 - Habeas Motion,

pg. 3).

This reason for deliberating bypass-

ing the appellate process is incredulous,

particularly when he was represented by

Michael S. Fawer, known as a competent

expert attorney in the field of criminal

law. It would appear that awaiting the

conclusion of the appeals of Garvin Dale

White, (U.S. v. White, 748 F.2d 257 (5th

Cir. 1984) and Donald Ray Snyder, (U.S.

v. Snyder, 707 F.2d 139 (5th Cir. 1983),

and then a considerable time, accrued as

a tactical advantage to Petitioner not

permitted to be a justifiable excuse for

148

not pursuing an appeal. To adopt

Petitioner's reasoning which is prepos-

terous, would allow other incarcerated

prisoners to bypass the direct appeals

route. In addition, Petitioner and his

wife were both attorneys. Accordingly,

there was abundant legal assistance to

continue the appeal which he voluntarily

chose to abandon. By way of summary, it

can be said Brumfield failed to appeal

his conviction, subjecting his case to

charges of deliberate bypass, see

Montgomery v. United States, 469 F.2d 148

(Sth Cir. 1972), procedural default,

United States v. Frady,, 456 U.S. 152,

166-68 (1982), and waiver off those non-

constitutional claims which could have

been raised on direct appeal, United

States v. Hanyard, 762 F.2d 1226, 1230

n.1 (5th Cir. 1985). Accordingly,

Petitioner's habeas proceedings should be

149

dismissed summarily.

In Paragraph 6 of his habeas

proceeding, he sets forth unsupported

vague conclusionary allegations. In sec-

tion "a.", he alleges he was denied his

right to a jury trial due to pressure

placed on him by his wife. Contrary to

this present assertion, the Waiver of

Trial By Jury signed June 9, 1982, con-

tains thereon the following statement of

his retained attorney, J. Stacey Freeman:

"I, J. Stacey Freeman, Attorney

and Counselor-at-law, represent that I am

attorney of record for JIMMIE A. BRUM-

FIELD, II, Defendant herein; that prior

to the signing of the foregoing waiver,

the Defendant above named was fully ad-

vised as to the rights of an accused, un-

der the Constitution and laws of the

United States, toa speedy and public

trial by jury, and further represent

that, in my opinion, the above waiver by

the Defendant, JIMMIE A. BRUMFIELD, II,

of trial by jury, is voluntarily and un-

derstandably made, and recommends to the

Court that the waiver be approved."

(Rec. pg. 105).

If such concrete statements in writ-

ing, contained in the Waiver of Trial By

Jury, as made by Petitioner and his At-

torney, could at this time, be dis-

regarded as suggested by Petitioner, a

precedent would be set where there would

be no finality to criminal trials. The

totality of the circumstances reflecting

such a claim at this late date mitigates

against acceptance, but that the claim be

rejected as frivolous.

Also in Paragraph 6 of his habeas

petition, it is alleged the Trial Judge

was biased, therefore he was denied his

right to a trial by an impartial trier of

151

tile

fact. No motion was filed in the Dis-

trict Court for recusal of the Trial

Judge on the basis of prejudice or bias.

Petitioner makes his allegations in

his habeas corpus petition to this court

under oath. Insofar as the allegations

raise allegations of bias and prejudice,

they are made too late in time and are

patently without merit.

Appellant should have filed an Af-

fidavit timely prior to trial as provided

in 28 U.S.C. 144 nd 555(a) pursuant to a

motion. The affidavit would, in the pre-

trial setting, have been judged as to

sufficiency on the following test:

"1. The facts must be material and

stated with particularity;

al The facts must be such that,

if true they would convince a reasonable

man that a bias exists;

"3. The facts must who the bias

132

is personal, as opposed to judicial, in

nature."

See U.S. v. Miranne, 688 F.2d 980

(Sth Cir. 1982).

The Trial Judge questioned

Petitioner to clarify his testimony.

(Vol. V, pgs. 611-628). Insofar as al-

legations are made, that the Trial Judge

participated in questioning witnesses,

there was no error. In U.S. v. Owens,,

453 F.2d 355 (5th Cir. 1971), the Fifth

Circuit held it was the duty of the trial

court to conduct an orderly trial and to

make certain as far as possible, that

there is no misunderstanding of the tes-

timony of witnesses. Any questions

eliciting answers from the witnesses in

Petitioner's trial were for clarification

purposes as permitted, there being no un-

fairness or impartiality in the trial

court's conduct.

All allegations, as to the proceed-

ings against Petitioner, causing emo-

tional and financial draining, do not af-

ford grounds for relief. All indications

are that the proceedings caused stresses

ordinarily associated with the trial of

any defendant. As to expenses,

Petitioner never demonstrated to the

Court that he should have had an attorney

appointed to represent him as a forma

pauperis matter.

The rule of sequestration was not

violated by United States Marshal Brian

Joffrion called as a rebuttal witness.

He was the Government's case agent and

allowed to remain in the courtroom during

trial. Garvin Dale White was in the cus-

tody of Marshal Joffrion at the time of

the escape, and was within the exclusion

of Rule 615, Federal Rules of Evidence,

as his presence was essential to the

154

presentation of the case as a case agent

whom the District Judge excluded from the

rule of sequestration.

The allegation that the rule of

sequestration was violated by Deputy

United States Marshal Tom Snow and S/A

Jim Hawkins, DEA, is not supported by

facts, but only conclusionary allegations

presented to this Court in the habeas mo-

tion. In addition, no prejudice is al-

leged, nor was the alleged violation of

sequestration called to the attention of

the Trial Judge. A failure to sequester

witnesses is not grounds for reversal un-

less the party requesting sequestration

can show prejudice. Government of Virgin

Islands v. Edinborough, 625 F.2d 472 (3rd

Cir. 1980).

On page 7 of the habeas writ,, it is

alleged in a conclusionary allegation

that the Trial Judge was convinced

155

Petitioner was guilty even before the

trial began. Further, that the Trial

Judge did not believe the Petitioner or

his witnesses, but only the prosecution

witnesses. The Trial Judge has the right

to evaluate and assign credibility to

trial witnesses. His decisions as to

credibiity choices were thoroughly jus-

tified based upon the totality of the

evidence adduced during the trial.

Petitioner's guilt was proven beyond a

reasonable doubt.

Petitioner's claims of pre-

indictment delay by the Government are

without merit. He claims that after

state proceedings dragged on for a year

and were dropped, the Government had

Cnarges brought before a Grand Jury which

were rushed through. (Petitioner's

Brief, pg. 8).

The indictment was returned February

156

19, 1982 in the United States District

Court, Western District of Louisiana A

plea of not guilty was entered February

26, 1982. Numerous pre-trial motions

were filed, with trial beginning June 10,

1982 and ending June 14, 1982 with the

Trial Judge finding Petitioner guilty on

both counts. Sentencing occurred on July

16, 1982.

There is no evidence that there was

any pre-indictment delay caused by the

Government. The Fifth Circuit in U.S. v.

West, 568 F. 2d 365 (5th Cir. 1978)

stated the criteria set forth in U. S. v.

Marion, 404 U.S. 307, 30 L. Ed. 2d 468

(1971) governs cases of establishing ac-

tual prejudice. Marion makes it clear

that proof of prejudice is generally a

necessary but not sufficient element of a

due process claim, and the due process

inquiry must consider the reasons for the

157

delay as well as the prejudice to the ac-

cused. In the case at bar, Petitioner

has not crossed the threshold of

demonstrated prejudice, nor shown that

its pretermission is warranted By some

violation of the Petitioner's constitu-

tional right to due process other than

mere delay in indictment. No showing has

been made by Petitioner that there was

any loss of witnesses, witness memory

loss demonstrating any prejudice.

Petitioner's contentions that his

rights to a speedy trial as protected un-

der 18 U.S.C. 3161 premised upon the

federal authorities cooperating with the

state authorities with respect to

Brumfield's initial arrest on state

charges, the date of his arrest on those

state charges being the triggering date

for the speedy trial limitations has been

clearly been ruled upon by the Fifth Cir-

158

cuit.

Contrary to this argument, the Fifth Cir-

cuit has clearly stated that a state ar-

rest does not trigger the time provisions

of the federal speedy trial act. U.S. v.

Wilson, 657 F.2d 755 (5th Cir. 1981),

U.S. v. Mejias, 562 F. 2d 435 (2d Cir.

1977). In U.S. v. Phillips, 569 F. 2d

1315 (5th Cir 1978), the Fifth Circuit

adopted the reasoning in U.S. v. Mejias,

supra.

Petitioner argues without merit that

the Government not calling Judy Philpot

or the jail elevator operator as wit-

nesses at his trial, it can be presumed

their testimony would have been un-

favorable. There was no reason for the

Government to have called either witness

at Petitioner's trial. Where witnesses

are equally available to the prosecution

and the defendant, no unfavorable in-

159

ference can be drawn from the Government

not calling the witnesses. Shurman v.

U.S., 233 F.2d 272 (5th Cir. 1956).

Petitioner, in his habeas motion,

argues that his statements, while incar-

cerated in the Caddo Parish Jail, should

be suppressed as not having been volun-

tarily made to U.S. Marshall Brian Jof-

frion, Tom Snow and S/A Jim Hawkins. His

allegation is that, "He was told by his

attorney, Frank Harlow, that if he did

not make the statement, he would not be

released from jail. Judge James E. Clark

had already told Jimmie Arnold

Brumfield's wife, that if his attorney

would contact him, he would reduce the

bond...

It is patently obvious that

Petitioner's first statement, written out

in the jail immediately after the escape,

was on his own volition. When Deputy

160

Marshall Shields asked him for a state-

ment, he handed it to him while not under

arrest. (G-6_. Then he voluntarily gave

a recorded statement. (G-7) The re-

corded statement tracked his written

statement.

Petitioner's second statement to the

United States Marshall, a few days later,

was also voluntary and while not under

arrest. Petitioner's third statement was

unsolicited and volunteered to Deputy

Marshall Snow on January 1, 1981, at the

time he was requesting handwritten ex-

emplars, was also given while not under

arrest.

It is well-settled that an un-

solicited remark by an accused, not in

response to interrogation, does not fall

within the rule of Miranda v. Arizona,

384 U.S. 436 (1966). U.S. v. Carpenter,

611 F. 2d 113 (5th Cir. 1980). Likewise,

161

Petitioner's statements to Shields and

the Marshal were not subject to Miranda.

Petitioner did not dispute that he

was not in custody when these statements

were given when he testified at the sup-

pression hearing.

Pursuant to a Search Warrant ex-

ecuted November 2, 1980, by S/A Hawkins,

DEA, there was recovered from the 1978

Chevrolet Silverado Pickup truck (1) a

certificate of registration for a 1978

Chevrolet inthe name of Mike Sullivan,

and (2) one black address book. (Rec. pg.

23). The allegation that the items were

not kept properly, prior to use at trial

as evidence, is unfounded and not sup-

ported by fact. Accordingly, the vague

conclusionary allegation should be

rejected. In addition, the Trial Judge

properly rejected contentions that search

warrant affidavits were invalid as same

162

contained lies and inaccuracies. (Re.

pg. 226). Franks v. Delaware, 438 U.S.

154. (1978). There were no allegations

of deliberate falsehood or of reckless

disregard for the truth, accompanied by

an offer of proof. Petitioner's allega-

tions, as to the search warrants and ex-

ecution thereof as set forth in his

habeas writ, should be rejected as being

without merit.

CONCLUSION

For the foregoing reasons, the con-

tentions of Petitioner should be rejected

as being unfounded and completely without

merit. Particularly, the writ should be

dismissed as it is a deliberate attempt

to bypass a direct appeal from his con-

viction which he abandoned pursuant to

the motion of Michael Fawer, his retained

counsel.

163

Respectfully submitted,

UNITED STATES OF AMERICA

By:

JOSEPH S. CAGE, JR.

United States Attorney

a - PERKINS, JR.

Assistant United States

Attorney

164

CERTIFICATE

I hereby certify that a copy of the

foregoing Response and Answer of United

States of America To Petition for Writ of

Habeas Corpus by a Person In Federal Cus-

tody Pursuant to 28 U.S.C. 2255 filed by

Jimmie Arnold Brumfield II and Memorandum

Brief in Support of Response and Answer

was mailed postage prepaid and certified

to Arax T. Brumfield, 2921 Kirk Lane,

Shreveport, Louisiana, 71112, attorney

for petitioner.

Shreveport, Louisiana this the 22nd

day of May, 1986.

D. H. PERKINS, JR.

Assistant U.S. Attorney

3Bl12 Federal Building

500 Fannin Street

Shreveport, Louisiana

(318) 226-5284

165

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA

VERSUS CRIMINAL NO. 82-5-0004-02

JIMMIE ARNOLD BRUMFIELD II

JUDGMENT

For the reasons stated in the Report

and Recommendation of the Magistrate pre-

viously filed herein, and after an inde-

pendent review of the record, including

written objections filed by the

petitioner, having determined that the

Magistrate's findings are correct under

the applicable law;

IT IS ORDERED that the application

for writ of habeas corpus filed- by

petitioner Brumfield be DISMISSED.

THUS DONE AND SIGNED at Shreveport,

Louisiana on this the 6th day of August,

166

1986.

JUDGE TOM STAGG, CHIEF JUDGE

Judgment entered 8-7-86

167

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF LOUISIANA

SHREVEPORT DIVISION

UNITED STATES OF AMERICA CRIMINAL NUMBER

VERSUS 82-500004-01/02

JIMMIE ARNOLD BRUMFIELD II

NOTICE OF APPEAL

OF JUDGMENT DISMISSING

PETITION FOR HABEAS CORPUS

TO THE 5TH CIRCUIT COURT OF APPEALS

NOW INTO COURT, through undersigned

counsel,comes and appears Jimmie Arnold

Brumfield II, defendant above named ap-

peals to the United States Court of Ap-

peals for the 5th Circuit from the Judg-

ment of the Honorable Judge Tom Stagg

Dismissing and Denying his Petition for

Habeas Corpus entered in this Court on

the 7th day of August, 1986.

168

ARAX T. BRUMFIELD

ATTORNEY FOR JIMMIE ARNOLD

BRUMFIELD II |

2921 Kirk Lane

Bossier City, Louisiana

71112

CERTIFICATE OF SERVICE

I HEREBY certify that a copy of the

above and foregoing has this day been

delivered to the United States Attorney's

Office, 3rd Floor Federal Building, 500

Fannin St., Shreveport, Louisiana 71112.

ARAX T. BRUMFIELD

169

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

UNITED STATES OF AMERICA

APPELLEE NO. 86-4624

versus

JIMMIE A. BRUMFIELD

APPELLANT

MOTION TO SUPPLEMENT TRANSCRIPT

NOW INTO COURT through undersigned

counsel, comes and appéars JIMMIE ARNOLD

BRUMFIELD II, appellant in the above and

foregoing who with respect represents:

Jimmie Arnold Brumfield II is ap-

pealing from a Judgment Dismissing a

Petition for Writ of Habeas Corpus in the

Western District of Louisiana, Shreveport

Division.

The entire transcript of his trial

has been forwarded to the court of ap-

170

peals.

The Honorable Judge Stagg took judi-

cial notice of facts contained in both

the United States of America vs. Garvin

Dale White CR 81-50056 and United States

vs. Donald Snyder trial,

NO. 81-50061. Both of these cases have

been up before this Honorable Court of

Appeals and decisions rendered by this

court.

Appellant feels that it is essential

for the equitable consideration of his

case that the Court of Appeals consider

in addition to the Brumfield transcript,

the Garvin Dale White transcript and the

Donald Snyder Transcript, including all

exhibits. Part of the Donald Snyder

record is a copy of the transcript from

State of Louisiana vs. Jimmie A. Brun-

171

field.

Because both the above and foregoing

cases have been appealed to this court,

transcripts have already been typed.

Jimmie Arnold Brumfield has already paid

for the Donald Snyder transcript.

WHEREFORE, Appellant, Jimmie Arnold

Brumfield II prays that this honorable

court order that the record be supple-

mented by including the entire transcript

and record from the Donald Snyder trial

and the Garvin Dale White file.

ARAX T. BRUMFIELD

Attorney for Appellant

2921 Kirk Lane

Bossier City, Louisiana

71112

CERTIFICATE OF SERVICE

I HEREBY CERTIFY THAT A COPY OF THE

ABOVE AND FOREGOING has this day been

mailed to the United States Attorney,

Western District of Louisiana, Shreveport

Division.

Bossier City, Louisiana this the

llth day of September, 1986.

ARAX T. BRUMFIELD

173

UNITED STATES COURT OF APPEALS

FOR THE 5TH CIRCUIT

UNITED STATES OF AMERICA

Appellee

versus APPEAL NO. 86-4624

JIMMIE ARNOLD BRUMFIELD II

OPPOSITION TO MOTION TO SUPPLEMENT

TRANSCRIPT AND EXTENSION

MAY IT PLEASE THE COURT;

United States of America, Appellee

opposes the motion to supplement

transcript with the transcripts in the

trials of Garvin Dale White and Donald

Ray Snyder, both of whom have been con-

victed and said convictions affirmed by

this Court. See, U.S. v. White, 748 F.2d

257, (5th Cir. 1984) and U.S. v. Snyder,

707 F. 2a 139, (5th Cir. 1983). The

trial Judge decided that guilt of Appel-

lant Jimmie Arnold Brumfield, II upon the

facts and evidence proven at his trial.

174

Accordingly, the record should not be

supplemented or the extension granted.

IOn addition, Appellant did not raise in

the District Court a contention that the

Trial Judge decided is guilt on evidence

in the White and Snyder cases. The rule

is well established that an appellate

court will not review an issue raised for

the first time on appeal unless the trial

court has committed plain error. See

U.S. v. Spears, 671 F. 2d 991, 992 (7th

Cir. 1981); Fed. R. Crim. p. 52(b) and U.

S. vs. McLeod, 608 F. 2nd 1976, (5th Cir.

1979).

Signed this the 16th day of Septem-

ber 1986.

D. H. PERKINS, JR.

Assistant U. S. Attorney

3Bl12, Federal Building

500 Fannin St.

175

Shreveport, Louisiana 71101

(318) 226-5284

176

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA

Appellee

versus APPEAL NO. 86-4624

JIMMIE ARNOLD BRUMFIELD II

RESPONSE TO OPPOSITION

TO MOTION TO SUPPLEMENT

TRANSCRIPT AND EXTENSION

MAY IT PLEASE THE COURT

Were the facts as D. H. Perkins

states,defendant would truly have no com-

plaint. All of the rights and privileges

guarantted under the U. S. Constitution

would have been scruplously

Examination of the records shall

reflect differently:

A. U. S. v. White as overturned be

because the counsel for White

who was Brumfield, may not have

truly defended White, but may

177

have had an interest in protect-

ing Brumfield. Now it is urged

that Brumfield may have been

harmed because the same judge

heard all three cases involved

violating all rights guaranteed

under the United States Con-

Situation. Remember, impartial

trial under the U. S. Constitu-

tion - due process, etc.

B. U. S. v Snyder. Here, the judge

took judicial notice of this

case in the Brumfield decision

without notice to defendant in

the Judgment of Conviction.

Remember, Right to Cross Examine

witnesses against you, presump -

tion of innocence until proven

guilty.

Mr. D. H. Perkins points out plain

error and review of the transcript makes

178

it glaring error.

Attached hereto and made a part

hereof is a copy of the transcript of the

Honorable Judge Tom Stagg, wherein he

took Judicial Notice of the White and

Snyder trial, which is made a part

hereof. Please note the highlighted

areas.

RESPECTFULLY SUBMITTED

ARAX T. BRUMFIELD

Attorney for Jimmie A. Brumn-

field

CERTIFICATE

I HEREBY CERTIFY that a copy of the

above and foregoing has this day been

delivered to Mr. D. H. Perkins, Jr., At-

torney for the United States of America

by placing said document in the United

States mail and addressing it to 3Bl2

179

Federal Building, 500 Fannin St.,

Shreveport, Louisiana 71101.

Bossier City, Louisiana this the

23rd day of September 1986.

ARAX T. BRUMFIELD

QUOTES FROM TRANSCRIPT WHICH WAS ATTACHED

TO RESPONSE TO OPPOSITION TO MOTION TO

SUPPLEMENT TRANSCRIPT -AND EXTENSION

Page 4

another attorney, Mr. Graham Rogers.

Mr. White, the Court finds as a fact

and it has been stipulated so it's not

really necessary really to find it that

Mr. White was a Federal prisoner when he

escaped on November 1, 1980, having been

180

housed in the city jail pursuant to a

writ of this Court and that it's easy to

me to find that he walked out of the city

jail on November 1, 1980. Of course,

this court was the trier of fact on that

charge of escape for which Mr. White was

convicted on December 14, 1981.

It's also true that Mr. Donald E.

Snyder, who was tried in this Courtroom

on Monday and Tuesday of last week or

Tuesday and Wednesday rather, of last

week, was the cellmate of Mr. White at

the time of the escape and he was con-

victed by this Court on charges that he

was involved in the conspiracy and abett-

ting and assisting in the escape of Mr.

White. And that conviction was based on

evidence of Mr. Snyder's delaying tactics

in order to distract the jailer and to

give Mr. White the opportunity to get to

the jail elevator and out of the build-

181

ing.

One of the questions in this case

then is whether Mr. Brumfield had a part

to play in this same scenario which has

been played out in this Courtroom now for

the third time. Before the date of the

escape on November 1, the testimony shows

that Mr. Brumfield was contacted by Mr.

White's mother and she stated that Mr.

White had been apprehended in Florida,

Berra Beach, I think; and asked Mr. Brum-

field to consider to represents him, in-

structed Mr. Brumfield to negotiate the

fee with Mr. White. Mr. Brumfield went

to Florida to confer with White and while

he was there, he met Randy Costales for

the first time, who had been with Mr.

White at the time of his arrest in

Florida. And he met with Dale White who

is the son of Garvin Dale White whom Mr.

Brumfield knew from the days of this rep-

182

resentation of Mr. White while Mr. White

was in the Mansfield Jail. I recall that

Mr. Brumfield or someone of Mr. White

said that his son was brought to the jail

but the folks in Mansfield wouldn't let

the son see Mr. Garvin Dale White, but I

remember that the fact of it is that Mr.

Brumfield already knew Dale White but he

met Randy Costales in Florida for the

first time.

I have dozens of edge tabs and other

markers to keep me to certain bits of

testimony so if I seem to you to wander,

it is, in fact, true that I am trying to

put this together in as

page 18

man may well have been in his undershorts

because it was more comfortable. I found

as a fact in his trial that he was in his

undershorts because it was a part of the

scheme to delay the jailer at the jail

183

cell door, and he was convicted on those

facts. And those facts have not changed

since Tuesday's trial or last week until

this week's trial.

Anyway, when he got to the first

floor, Mr. White calmly walked out of the

building. He said it was not calm, that

his heart was racing; but he went to the

pickup which he recognized as having

formerly belonged to himself and that he

had some keys hidden in that truck

underneath--in a magnetic keyboard under-

neath the toolbox in the back of the

pickup. This explanation could as easily

be true as unt~ue. He said he had the

vehicle specially fixed up for his

girlfriend and it was to haul a speedboat

and that he hid keys under the toolbox

and he also hid keys by taping a set to

the radiator pipe. One can only wonder

if he was giving that truck to his

184

girlfriend, why did he hide keys in it?

Well, nevertheless, that has nothing to

do with this case except he said he had

hidden keys in the pickup truck. It is

to be noted that Mr. Brumfield left that

truck on the parking lot for

page 38

your own feet in your own jogging shoes

or with some other conveniently located

transportation. You've got to have,

fifth, some money to meet incidental ex-

penditures and talk to people on the

telephone to help you. And, sixth,

you've got to have time and transporta-

tion to get out of the immediate area of

the search for you, i.e., to get out of

the Shreveport-Bossier area. The facts

found by this court showed involvement of

Jimmie Brumfield with respect to every

element except the first one. He did not

give Garvin Dale White any drive neces-

185

sary to cause him to want to get out of

jail. I think that's built in that man.

But the jailer, Dickerson, was diverted

by the call to Mrs. Brumfield that he,

Brumfield, had placed. Snyder was a co-

conspirator with White and with Brumfield

and part of the plan was for him to be

undressed when Jenkins came to get then.

The distractions I found were so effec-

tive that Jenkins was still at the door

waiting for Snyder and Dickerson was

still on the telephone when Garvin Dale

White was long gone form the police

building. He was able to get out of the

building unnoticed because he had on a

civilian jogging suit, furnished to him

by Mr. Brumfield. Mr. Brumfield's truck,

for whatever reason and however it hap-

pened to be mobile, was there at the dis-

posal of Mr. White. He found the

defendant's house, if he didn't know how

186

to get there. And a key, the use of

another vehicle and his briefcase and

other matters which were left at the

Gefendant's house for him ce eiak up

should he get there.

And he had the money to call on the

telephone and talk to the people in

Mexico. Either he brought sixty-two dol-

lars to Shreveport or Mr. Brumfield's

testimony is true that he gave him twenty

dollar bills, four or five of them. Un-

der Middlebrooks and under the Maletesta

decisions, those actions by Mr. Brumfield

lead to the inference that there was a

common plan between at least Mr.. Brum-

field and Mr. White to effect Mr. White's

escape and that Mr. Brumfield assented to

it. In addition to the factors that I

discussed, there was some other cir-

cumstances. The visits with Mr. White on

the several occasions that night prior to

187

the escape and the fact that he met both

with Snyder and White for an extended

period of time on Thursday night and an

extended period of time on Friday night;

there were the two prisoners talking to

the lawyer in the conference from on the

jail, in the jail, you will--I will

recall from the Snyder trial that Mr.

Snyder said they started to leave on

Friday night when the elevator opened and

there were so many people around the

booking desk but if you credit Mr.

Snyder's testimony they decided not to

go. But Mr. Brumfield met with them

beginning at 8:35 on Friday night and

beginning at 7:40 p.m. on Thursday night

in the conference room.

Another co-conspirator involved in

these charges against Mr. Brumfield is

Mr. Costales. And Mr. Costales was in

Shreveport for the better part or with

188

Mr. Brumfield for the better part of ten

days. He left Shreveport on Tuesday af-

ternoon the twenty-eighth and the

evidence or fingerprint evidence and

other evidence shows that Mr. Costales

was on the telephone to Mr. Billy Brun-

field several times during the week fol-

lowing the escape dealing with the return

of the automobile.

The evidence shows beyond a

reasonable doubt that an agreement ex-

isted and that Mr. Brumfield agreed with

it. The evidence shows to me beyond a

reasonable doubt that the over acts

end of quotation from

transcript.

189

UNITED STATES COURT OF APPEALS

Fifth Circuit

Office of the Clerk

January 6, 1987

MEMORANDUM TO COUNSEL OR PARTIES LISTED

BELOW:

No. 86-4624 - USA vs. Brumfield

Enclosed is a copy of the Court's deci-

sion this day rendered in the above case.

judgment has this day been entered in ac-

cordance therewith pursuant to Rule 36 of

the Federal Rules of Appellate Procedure.

Rules 39, 40 and 41, FRAP and Local Rules

39 and 41 govern costs, petitions for

rehearing and mandates. A petition for

rehearing must be filed in the Clerk's

office within fourteen (14) days from

this date. Placing the petition in the

mail on the 14th day will not suffice.

Criminal Appeals. Local Rule 41 provides

190

that "A motion for a stay of the issuance

of a mandate in a direct criminal appeal

filed under FRAP 41 shall be granted

simply upon request. Unless the petition

sets forth good cause for stay or clearly

demonstrates that a substantial question

is to be presented to the Supreme Court,

the motion shall be denied and the man-

date thereafter issued forthwith."

Court-Appointed Counsel Cases. This

Court's plan under the Criminal Justice

Act provides that in the event of affir-

mance or other decision adverse to the

party represented, appointed counsel

shall promptly advise the party in writ-

ing of the right to seek further review

by the filing of a petition for writ of

191

certiorari with the Supreme Court and

shall file such petition if requested to

do so in writing by such party.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

By: s/Betty G. Martinez

Deputy Clerk

Enclosure

cc: Mr. Arax T. Brumfield

Mr. D. H. Perkins, Jr.

OP-JDT-1

Rev. 11/86

192

FIFTH CIRCUIT STATEMENT ON PETITIONS

FOR REHEARING OR REHEARING EN BANC

NECESSITY FOR FILING

It is not necessary to file a peti-

tion for rehearing in the Court of Ap-

peals as a prerequisite to the filing of

a petition for certiorari in the Supreme

Court of the United States.

PETITION FOR PANEL REHEARING

A petition for rehearing is intended

to bring to the attention of the panel

claimed error's of fact or law in the

opinion. It is not to be used for rear-

gument of the issue previously presented

or to attack the court's well settled

summary calendar procedures. Petitions

for rehearing are reviewed by panel mem-

bers only. Four copies of all petitions

for rehearing shall be filed.

193

EXTRAORDINARY NATURE OF SUGGESTIONS

FOR REHEARING EN BANC

A suggestion for rehearing en banc

is an extraordinary procedure which is

intended to bring to the attention of the

entire court a precedent-setting error of

exceptional public importance or an

opinion which directly conflicts with

prior Supreme Court or Fifth Court prece-

dent. Alleged errors in the determina-

tion of state law, or in the facts of the

case (including sufficiency of the

evidence), or error asserted in the

misapplication of correct precedent to

the facts of the case, are matters for

panel rehearing but not for rehearing en

banc.

THE MOST ABUSED PREROGATIVE

Suggestions for rehearing en banc

are the most abused prerogative of appel-

late advocates in the Fifth Circuit.

194

While such suggestions were filed in 13%

of the cases decided by this circuit last

year, less than 1% of the cases decided

by the court are ci’ en banc; and -

most of the rehearings granted resulted

from a request for en banc consideration

by a judge of the court initiated inde-

pendent of any suggestion.

PETITION FOR REHEARING EN BANC

The form, contents and number of

copies of the suggestion are set out in

Local Rule 35 copied on reverse side.

195

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 86-4624

Summary Calendar

UNITED STATES OF AMERICA Respondent-

Appellee,

versus

JIMMIE ARNOLD BRUMFIELD, II Petitioner-

Appellant.

Appeal from the United States District

Court for the Western District of

Louisiana (D.C. No. CR-82-50004-02)

(January 6, 1987)

Before POLITZ, WILLIAMS, and JONES,

Circuit Judges.

POLITZ, Circuit Judge:*

We review the dismissal of a peti-

tion for habeas relief under 28 U.S.C.

196

$.8. 2255. Finding neither clearly er-

roneous finding of fact nor error of law,

we affirm.

* Local Rule 47.5 provides: "The pub-

lication of opinions that have no

precedential value and merely decide par-

ticular cases on the basis of well-

settled principles of law imposes need-

less expense on the public and burdens on

the legal profession." Pursuant to that

Rule, the court has determined that this

opinion should not be published.

Initialed: HAP 12-19-86, JBW 12-22-86,

EAJ 12-31-86

Background

On the evening of November 1, 1980,

attorney Jimmie Arnold Brumfield, II

visited his client, Garvin Dale White, a

federal prisoner temporarily confined to

the Shreveport City Jail. Brumfield had

197

been visiting White very frequently, al-

most on a daily basis. The jailer first

took White to the conference room and

then turned to get another inmate

requested by Brumfield, Donald E. Snyder.

As the jailer stepped out of view, White

walked quickly past the assistant jailer

who was on the telephone speaking, at

Brumfield's request, to Brumfield's wife,

also an attorney. White entered the

empty jail elevator, descended to the

ground floor, walked out of the

jail/police station/city hall onto the

parking lot, got into Brumfield's pickup

truck, drove to Brumfield's law office,

secured the keys to Brumfield's Lincoln

Continental, drove to the Little Rock,

Arkansas airport, there met Randy Cos-

tales, and promptly departed. White was

arrested nearly a year later in Florida.

Advised of the escape, Brumfield im-

198

mediately and voluntarily gave the police

a written statement. Later he gave a re-

corded statement which essentially

tracked this earlier writing. Brumfield

walked outside, found his pickup gone,

returned inside, reported his vehicle

stolen and called his wife to come get

him. When Mrs. Brumfield arrived at the

station she was driving the purportedly

stolen pickup, using the original set of

keys which Brumfield had just told the

police he previously had thrown away.

Mrs. Brumfield had taken the keys from

the counter in their home. When informed

that his wife had just driven up in the

"stolen pickup," Brumfield, seated at a

desk, laid his head in his arms.

Testimony established that Randy

Costales, a friend of White's, had been

staying with the Brumfields and that

Brumfield had taken notes concerning

199

landing aircraft at Little Rock airport.

Brumfield was indicted on two

counts: conspiracy to effect the escape

of White in violation of 18 U.S.C. SS

751(a) and 351, and aiding and abetting

that escape, 18 U.S.C. SS 752(a). He was

convicted after a bench trial and

received a prison sentence of two years

on one count and five years probation on

the other. He noticed but did not pursue

a direct appeal. White and Snyder were

separately tried.

Long after completion of the jail

term Brumfield filed the instant SS 2255

petition, contending that: (1) he was

denied his constitutional right to trial

by jury; (2) his trial was constitu-

tionally infirm because witnesses vio-

lated the rule of sequestration; (3) he

was denied his constitutional right to a

speedy trial because of the delay between

200

the offense and the federal indictment;

(4) his fourth amendment rights were vio-

lated by an illegal search; (5) he was

not given Miranda warnings before giving

a statement; (6) the evidence was insuf-

ficient to support a conviction; and (7)

the trial judge was not impartial.

The magistrate recommended dismissal

because Brumfield had no right to col-

laterally attack his conviction and be-

cause no contention raised had merit.

The trial court summarily adopted the

magistrate's report and dismissed the

petition.

Analysis

At the threshold we observe that a

collateral attack may not "do service

for an appeal." United States v. Tim-

mreck, 441 U.S. 780, 784 (1979) (quoting

Sunal v. Large, 332 U.S. 174, 178

(1946)). More specifically, “habeas will

201

not be permitted to sustitute for an ap-

peal when the choice to seek habeas

relief is made in order to seize some

legal or tactical advantage. ..." Sosa

v. United States, 550 F.2d 224, 248 (5th

Cir. i977). Despite the government's

contention to the contrary, we find in-

sufficient reason to conclude that

Brumfield's decision to dismiss his

direct appeal was designed to secure an

advantage over the government. United

States v. Caceres, 745 F.2d 935 (5th Cir.

1984). We therefore consider the merits

of the appeal, as did the magistrate and

district court.

1. Jury trial.

Brumfield first contends that he was

denied his constitutional right to trial

by jury because he was pressured to

waive that right. We find in the trial

record a clear and unequivocal waiver of

202

jury. The SS 2255 pleading makes a con-

trary conclusional statement but fails to

allege any details as to why, when, how,

and by whom lawyer Brumfield was strong-

armed. This contention is without merit.

Rs Violation of sequestration order.

The witnesses were placed under the

rule of sequestration. Fed.R.Evid. 615.

Brumfield contends that his trial was

constitutionally infirm because Brian

Joffrion, United States Marshal, was in

the courtroom before he testified, and

because Deputy Marshal Tom Snow and DEA

agent James Hawkins discussed the case

"in the hall" before testifying. Neither

of these acts constitutes reversible er-

ror. Joffrion was excused from the rule

as the case agent, and there is no show-

ing of prejudice from the alleged

Snow/Hawkins conversation, United States'

v. Cupua, 656 F.2d 1035 (5th Cir. 1981).

203

Permitting the witness to testify was

within the trial court's discretion.

This assignment lacks merit.

3. Speedy trial.

Immediately after the escape the

state district attorney began an inves-

tigation which was pursued for ap-

proximately a year. When the state

authorities terminated their criminal in-

vestigation the United States Attorney

took the matter to a grand jury and

secured the two-count indictment. Brum-

field claims a denial of his sixth amend-

ment right to a speedy trial because of a

delay between the escape and his indict-

ment. To establish this claim, Brumfield

must show, inter alia, actual prejudice,

Barker v. Wingo, 407 U.S. 514 (1972);

United States v. West, 568 F.2d 365 (5th

Cir. 1978), such as unavailability of

witnesses or their loss of memory from

204

the delay, United States v. Marion, 404

U. S. 307 (1971). Brumfield makes no

such claim but refers to financial and

emotional drain caused by the delay. Al-

though regrettable, neither loss con-

stitutes the prejudice component envi-

sioned in Barker v. Wingo.

4. Illegal search.

Brumfield next contends that his

fourth amendment rights were abrogated

when, in execution of a search warrant

after the escape, officers carefully

combed “every inch" of his house. The

search warrant lists with particularity

clothing, keys to a specific vehicle,

certain papers, fingerprints of Garvin

Dale White, and “other instrumentalities"

relevant to White's escape. While the

final generic listing is somewhat inart-

ful, we do not find the warrant fatally

overbroad. Under the circumstances ex-

205

tant, the actions of the officers were

not constitutionally impermissible. See

Andresen v. Maryland, 427 U.S. 463

(1976).

5. Absence of Miranda warnings.

Brumfield suggests that his fifth

amendment rights against self-

incrimination were violated because he

made involuntary statements at the jail

without the benefits of the Miranda ad-

visory. The claim lacks merit. Miranda

applies only to interrogations in a cus-

todial setting. Miranda v. Arizona, 384

U.S. 436 (1966). Upon close examination,

Brumfield's challenge is not within the

rubric of Miranda.

6. Insufficient evidence.

Brumfield maintains that his guilt

was not proven beyond a reasonable doubt.

We have held that this claim presents an

issue for direct appeal but that it is

206

not cognizable ina SS 2255 setting.

Sears v. United States, 265 F.2d 301 (5th

Cir. 1959). "The guilt or innocence of

the defendant is not in issue on a SS

2255 proceeding, but rather the validity

and the fairness of the proceedings

against him." United States v. Kasten-

baum, 613 F.2d 86, 89 (5th Cir. 1980)

(quoting 2 C. Wright, Federal Practice

and Procedure, SS 593 at 592 (1969)).

Circuit precedents vary. See, e.g.,

Cabell v. United States, 636 F.2d 246

(8th Cir. 1980); Chin v. United States,

622 ¥.24 i690 (24: Cir. (1980), cert.

denied, 450 U.S. 423 (1981); United

States v. Vaughn, 797 F.2d 1485 (9th Cir.

1986); Bean v. United States, 679 F.2d

683 (7th Cir. 1982).

7. Court not impartial.

Finally, Brumfield charges that the

trial judge was not impartial. His al-

207

legations include exposure to extensive

pretrial publicity, friendship with the

prosecutor, inappropriate involvement in

the trial by questioning a witness, and

takin

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