United States of America, Plaintiff-appellee, v. Rodney Jenkins, Defendant-appellant.united States of America, Plaintiff-appellee, v. Frederick Edwards, Defendant-appellant.united States of America, Plaintiff-appellee, v. Carl Henderson, Defendant-appellant, 851 F.2d 357 (4th Cir. 1988)

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US Court of Appeals for the Fourth Circuit - 851 F.2d 357 (4th Cir. 1988) Submitted: March 9, 1988. Decided: July 8, 1988

Donn Edward Garvey, Jr., Anderson & Garvey; Warren Glenn Stambaugh, Stambaugh & Stambaugh; David Rosenblum, Rosenblum & Rosenblum, on brief, for appellants.

Henry E. Hudson, United States Attorney; Barry M. Tapp, Assistant United States Attorney, on brief, for appellee.

Before DONALD RUSSELL and WILKINS, Circuit Judges, and BUTZNER, Senior Circuit Judge.

PER CURIAM:


Rodney Jenkins, Frederick Edwards and Carl Henderson appeal their convictions for various offenses arising from their participation in a prison riot. We affirm.

On July 10, 1986 rioting and arson occurred in two facilities of the central correctional complex operated by the District of Columbia Department of Corrections at Lorton, Virginia. A group of inmates had formulated plans for the riot and arson the previous month with the avowed purpose, as expressed by one of the originators of the plan, "to get a whole lot of guys released out on early parole." There were no attempted escapes during the riot, but property damage estimated at more than $3,000,000.00 resulted primarily from arson.

Jenkins, Edwards and Henderson were convicted under the Assimilative Crimes Act (the Act), 18 U.S.C.A. Sec. 13 (West 1969), of conspiracy to riot and inciting to riot, Va.Code Ann. Sec. 18.2-408 (1950 & 1982 Repl.Vol.); rioting, Va.Code Ann. Sec. 18.2-405 (1950 & 1982 Repl.Vol.); and damaging correctional facilities, Va.Code Ann. Sec. 53.1-203(2) (1950, 1982 Repl.Vol. & Supp.1987). They were also convicted of conspiracy to commit arson, 18 U.S.C.A. Sec. 371 (West 1969), and arson, 18 U.S.C.A. Secs. 81 and 2 (West 1969).

Pursuant to the Act, offenses committed at the Lorton correctional facilities are governed, in part, by the criminal laws of the surrounding jurisdiction, the Commonwealth of Virginia. Va.Code Ann. Sec. 53.1-203(2) provides:

It shall be unlawful for a prisoner in a state, local or community correctional facility or in the custody of an employee thereof to:

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Willfully break, cut or damage any building, furniture, fixture or fastening of such facility or any part thereof for the purpose of escaping, aiding any other prisoner to escape therefrom or rendering such facility less secure as a place of confinement.

Defendants challenge their convictions for violation of this section, asserting that there was no evidence that the prison was rendered less secure as a place of confinement. To the contrary, the convictions were sufficiently supported by the specific testimony of the prison administrator that "security was severely compromised." Although perimeter security was never breached, the fires required mass movement of over 1,000 inmates, many of whom were armed with makeshift weapons. The efforts of more than 250 law enforcement officers were needed to restore control.

Defendants also assert for the first time on appeal that section 53.1-203(2) cannot be assimilated under the Act because it only applies to Virginia correctional facilities. This argument ignores one of the basic underlying policies of the Act which is to conform the law governing a federal enclave with that of the surrounding jurisdiction. United States v. Price, 812 F.2d 174, 175 (4th Cir. 1987) (citing United States v. Sharpnack, 355 U.S. 286, 293 (1958)). Under the Act a crime committed at a federal prison is punishable in federal court "in the way and to the extent that it would have been punishable if the [prison] remained subject to the jurisdiction of the state." United States v. Press Publishing Co., 219 U.S. 1, 10 (1911).

Defendants further contend that the government failed to prove either the existence of a conspiracy or their willful participation in one. Considered in the light most favorable to the government, the evidence at trial was sufficient to support the conspiracy convictions. Glasser v. United States, 315 U.S. 60, 80 (1942). The testimony of various inmates shows that Jenkins and Edwards were leaders in planning the riot. In the early morning hours of July 10, Edwards initiated the riot in dormitory K-2 by setting fire to his bed and breaking windows. He then urged other inmates to join the riot and arson. Meanwhile, Jenkins and Henderson committed arson and destroyed property in dormitory K-1, and Henderson also incited others to join the riot.

After the riot while awaiting trial on these charges at a federal facility in Fredericksburg, Virginia, Henderson and Edwards admitted their participation in the scheme to fellow inmate Earl Latham who subsequently testified to these admissions at trial. Defendants assert that Latham was a government agent who elicited an uncounseled confession in violation of their sixth amendment right to counsel. Massiah v. United States, 377 U.S. 201 (1964); United States v. Henry, 447 U.S. 264 (1980). However, there was no evidence that the government placed Latham in the same facility as the Defendants for the purpose of soliciting information from them. " [T]he Sixth Amendment is not violated whenever--by luck or happenstance--the [government] obtains incriminating statements from the accused after the right to counsel has attached." Maine v. Moulton, 474 U.S. 159, 176 (1985), quoted in Harker v. State of Maryland, 800 F.2d 437, 445 (4th Cir. 1986).

AFFIRMED.

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