U.S. v. Patrick, 75-1127

• Decision Date: 05 March 1976
• Docket Number: No. 75-1127,75-1127
• Citation: 532 F.2d 142
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Theodore Roosevelt PATRICK, Jr., aka Ted Patrick, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 142

532 F.2d 142

UNITED STATES of America, Plaintiff-Appellant, v. Theodore Roosevelt PATRICK, Jr., aka Ted Patrick, Defendant-Appellee.

No. 75-1127.

United States Court of Appeals Ninth Circuit.

March 5, 1976.

Paul Friedman, Asst. U. S. Atty. (argued), Seattle, Wash., for plaintiff-appellant.

Patrick M. Wall (argued), New York City, for defendant-appellee.

OPINION

Before BROWNING, DUNIWAY and KILKENNY, Circuit Judges.

DUNIWAY, Circuit Judge:

Patrick was indicted for kidnapping in violation of 18 U.S.C. § 1201. The trial court entered a judgment which recites:

This action came on for trial before the Court, Honorable Walter T. McGovern, United States District Judge, presiding, and the issues having been duly considered, and a decision having been duly rendered, finding defendant NOT GUILTY as charged in the Indictment,

It is Ordered and Adjudged, the Defendant is hereby acquitted.

The United States appeals. We conclude that the United States cannot appeal, and we therefore dismiss.

The Criminal Appeals Act, 18 U.S.C. § 3731, as amended in 1971, provides, in pertinent part:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

In United States v. Wilson, 1975, 420 U.S. 332, at 338-39, 95 S.Ct. 1013, at 1019, 43 L.Ed.2d 232, at 239, the Court construed the Act as follows:

These changes are consistent with the Senate Committee's desire to authorize appeals whenever constitutionally permissible, but they suggest that Congress decided to rely upon the courts to define the constitutional boundaries rather than to create a statutory scheme that might be in some respects narrower or broader than the Fifth Amendment would allow. In light of this background it seems inescapable that Congress was determined to avoid creating nonconstitutional bars to the Government's right to appeal. The District Court's order in this case is therefore appealable unless the appeal is barred by the Constitution.

Accord: Serfass v. United States, 1975, 420 U.S. 377, 387, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 273.

We therefore turn to the question whether "the double jeopardy clause . . .prohibits further prosecution." (§ 3731, supra.)

Here is what happened in this case. Patrick was employed by the California parents of a young woman of 19, who had joined a religious sect and gone to live at its headquarters in the state of Washington, to forcibly remove her to California and "deprogram" her i. e., persuade or compel her to give up her belief in the tenets of the sect and return to her former beliefs and life. Patrick did what he was hired to do.

The case was set for trial on December 10, 1974. On December 2, the government filed its trial memorandum, in which it urged that the defense of necessity would not be available to Patrick in the case. In his reply memoranda Patrick's counsel stated that the elements of the offense defined in § 1201 were present, and that "No claim will be made that Patrick did not engage in the conduct attributed to him." Counsel then proceeded to urge that the defense of necessity was both appropriate and available. He defined the defense as that set out in the Model Penal Code § 3.02 (Tent. Draft No. 8, 1958):

Conduct which the actor believes to be necessary to avoid an evil to himself or to another is justifiable, provided that: (a) the evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.

Patrick's second memorandum discusses the law and sets out in detail the evidence that counsel proposed to produce in support of the defense. The memorandum concludes:

(W)e submit that the defense we assert is a proper one, its merits in this particular case being a question for the jury under proper instructions, and that the type of evidence we have in part disclosed here is admissible in support of that defense.

The government, meanwhile, in a letter dated December 6, came up with a suggestion that "there is no reason for this case to involve an extended jury trial, and . . . the case can be disposed of almost as a matter of law by the court." The basis for the suggestion was that if the court ruled that the defense of necessity was not available there would be no case left to try because Patrick conceded the act and a finding of guilt could be entered, thus enabling Patrick to present the issue to this court on appeal. On the other hand, counsel said,

If the court rules that the mere belief of danger is a defense then there is no litigable issue for the United States would concede and stipulate that the victim's parents believed her to be in some sort of danger. Under those circumstances a finding of "not guilty" would be entered.

Some discussion between counsel and, by telephone, with the judge, ensued on December 9. Trial was reset for December 11. Obviously, it was agreed that government counsel's suggestion would be adopted in substance, although the discussions are not reported. When the case was called for trial on December 11, a written waiver of jury trial in due form, signed by Patrick and counsel and dated December 10, was presented and approved by the judge. He then called for argument.

Government counsel began as follows:

I believe Mr. Wall (Patrick's counsel) and I are in agreement that there are no factual disputes, that the dispute is essentially a legal dispute, the question of whether or not under the federal kidnapping law it is a crime or, rather, there is a defense of justification by necessity.

He then proceeded with a legal argument predicated upon the facts stated in the memoranda of Patrick's counsel.

Next, Patrick's counsel was heard. He began with the following statement.

The arrangement that has been made is that I am to give an offer of proof so that if Your Honor should rule on the question of law against me, that offer would be a sufficient basis for any further review.

What I would like to do, then, is to tell you in as brief a fashion as I can what we would have established, we believe, by uncontradicted and believable testimony.

After a brief colloquy as to whether he should first argue the law, he was permitted to and did make his offer of proof which covers some 30 pages of the reporter's transcript and incorporates his 20 pages of memoranda, together with a number of exhibits. This was followed by an extensive argument on the law. In response, government counsel outlined rebuttal evidence that the government would offer. The defendant's exhibits were offered and received in evidence at the end of the arguments.

Finally, the court made the following ruling:

THE COURT: All right, it is indicated by both sides that the questions before the Court are as follows:

One, may a parent legally justify kidnapping an adult child upon necessity grounds here alleged.

My answer to that is in the affirmative, that there is such a common law defense and I so find.

The next question that I consider is stated by Mr. Schwartz (government counsel) in his letter to the Court of December 6, item No. 3:

Does the availability of the defense turn upon the parents' mere belief that a set of circumstances exist, or, rather, must it be demonstrated that the circumstances in fact exist?

My answer to that question is that the availability of the defense turns upon the parents' reasonable cause to, and that they do in fact have sufficient belief to consider that the child, Kathe Crampton, was in imminent danger.

The conclusion of the Court is, of course, that the parents did have such a belief and, in fact, I think the government does, in fact, concede that point.

The next question is No. 2 in Mr. Schwartz's three-pronged questionnaire:

If a parent may avail himself of such a defense, is it available to an agent of the parent?

I might add that I do not find, I do not make a finding from the facts alleged by either side of their offers of proof as being true or not true.

For this purpose of my decision, it is totally unnecessary. I am speaking only in terms of the reasonable belief in the minds of Mr. and Mrs. Crampton. Where parents are, as here, of the reasonable and intelligent belief that they were alone not physically capable of recapturing their daughter from existing, imminent danger, then the defense of necessity transfers or transposes to the constituted agent, the person who acts upon their behalf under such conditions.

Here that agent is the Defendant.

So that there be no mistake, my ruling here today is based solely upon the facts...