U.S. v. Caldwell, 77-1721

Decision Date27 June 1980
Docket NumberNo. 77-1721,77-1721
Citation625 F.2d 144
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Lawrence Daniel CALDWELL, Defendant-Appellant.
CourtU.S. Court of Appeals — Seventh Circuit

Joanne M. Frasca, Sidley & Austin, Chicago, Ill., for defendant-appellant.

Theodore J. McDonald, Asst. U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.

Before FAIRCHILD, Chief Judge, SWYGERT, Circuit Judge, and JAMESON, Senior District Judge. *

JAMESON, District Judge.

Lawrence Daniel Caldwell has appealed his conviction of unlawful attempt to escape from the United States Penitentiary at Marion, Illinois, in violation of 18 U.S.C. § 751(a). 1 We affirm.

Procedural Background

Caldwell was indicted on March 30, 1977. Larry O. Baker was appointed to represent him. At trial Caldwell was permitted to act as co-counsel. He made his own opening statement, cross-examined Government witnesses, examined his own witness on direct examination, and made his own closing argument.

On appeal Baker filed a brief on Caldwell's behalf on October 13, 1977, and the Government filed its answer brief on November 11, 1977. In a letter dated December 15, 1977, Caldwell informed the court that he did not consider the brief filed by Baker a valid document because he had never authorized its filing.

Baker had withdrawn as counsel for Caldwell on October 13, 1977, the day the brief was filed. Caldwell later obtained other counsel for this appeal. They filed a supplemental brief on November 13, 1978. The Government filed its supplemental brief on January 2, 1979, and appellant filed a reply brief on February 1, 1979.

Oral argument was presented on April 9, 1979. On March 19, 1979 the Supreme Court had granted certiorari in United States v. Bailey, 585 F.2d 1087 (D.C.Cir.1978), one of the cases upon which appellant relied. An order was entered on May 31, 1979, holding this appeal under advisement until decision by the Supreme Court in United States v. Bailey. Bailey was decided by the Supreme Court on January 21, 1980, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575. Both parties filed supplemental briefs following the decision in Bailey.

Factual Background

At the time of the alleged offense, January 1, 1977, Caldwell had been incarcerated at the Marion Penitentiary for approximately four years. He had previously been confined at the United States Penitentiary in Leavenworth, Kansas, and the District of Columbia jail, following his conviction in the District of Columbia of felony murder.

In February, 1976, Caldwell was an eyewitness to a murder within the prison, where he saw an inmate stab another inmate. He testified that he was contacted by friends of both the assailant and the victim and threatened with death by each group if he failed to cooperate.

On January 1, 1977, eleven months after he had witnessed the murder, Caldwell attempted to escape. He obtained a hacksaw and sawed through a metal window bar in the kitchen where he had worked for over a year. After going out the window he climbed up to the roof and across to the loading dock. A guard spotted movement over the kitchen and dining room area and fired a warning shot and then fired two shots at the suspect. When Caldwell was apprehended he had a buckshot wound and had with him a deck of Tarot cards, radio, food, maps, and a small amount of change.

Caldwell testified that believing he was threatened with death, he felt he had these options: (1) to arm and defend himself, but this would be futile; (2) report the incident, but if he did so, he would be stigmatized as an informer and to be protected would be placed in a segregation unit, which would mean solitary confinement; and (3) escape from the penitentiary and remain free.

Contentions on Appeal

Appellant contends that (1) the district court erred in failing to instruct the jury on the defense of duress; (2) the court erred in admitting into evidence and submitting to the jury an exhibit which referred to the defendant's convictions with excerpts underlined in red ink; and (3) appellant was denied his constitutional right to effective assistance of counsel. 2

Instructions on Defense of Duress

The court instructed the jury that the crime charged required proof of specific intent and that to "establish specific intent, the prosecution must prove beyond a reasonable doubt that the defendant knowingly did an act which the law forbids, purposely intending to violate the law". The terms "knowingly", "willfully", and "unlawfully" were properly defined. The court did not, however, give an instruction on the defense of duress; nor was any duress instruction requested. 3 Appellant argued that the failure to give an instruction on the duress defense was reversible error under the "controlling cases" of United States v. Nix, 501 F.2d 516 (7 Cir. 1974) and United States v. Bailey, 585 F.2d 1087 (D.C.Cir.1978).

In Nix, the defendant had been convicted of an attempt to escape from the United States Penitentiary at Marion. There was substantial evidence that he was intoxicated at the time of the alleged escape. In reversing the conviction, with one judge dissenting, this court held that escape is a "voluntary departure from custody with an intent to avoid confinement" and that the defendant was "entitled to an instruction that includes this mental component as an element of the crime". The court continued: "If the defendant offers evidence that he was intoxicated at the time of the offense, the jury must be instructed to consider whether he was so intoxicated he could not form an intent to escape." 501 F.2d at 520. 4

Appellant argued in his first supplemental brief that the rule "established in Nix has been also applied to cases involving defenses of duress", citing United States v. Bailey, supra. In Bailey the defendants were convicted of escape from the District of Columbia jail. They had been recaptured after remaining at large for periods ranging from one month to three and one-half months. At the trial the defendants had adduced evidence that there were frequent fires in the jail, that they had been threatened with physical violence by guards, and that some of them had been beaten by guards and had received inadequate medical treatment. The district court instructed the jury that the conditions at the jail were not a defense and rejected the defendants' proffered instruction on duress as a defense, holding that the duress defense was unavailable because they had not turned themselves in after they had escaped the allegedly coercive conditions.

The court of appeals, with one judge dissenting, reversed, holding that the district court should have allowed the jury to consider the coercive conditions at the jail in determining whether the defendants had formulated the requisite intent to sustain a conviction under § 751(a), which required the prosecution to prove that the defendants left federal custody "voluntarily" and with an "intent to avoid confinement". 5 The court held further that an escapee was not acting with the requisite intent if he escaped solely in order to avoid "nonconfinement conditions", as opposed to "normal aspects of 'confinement'." 585 F.2d at 1093, n. 17.

In reversing, the Supreme Court rejected the court of appeals' "narrow definition of confinement" and held that "the prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission." 100 S.Ct. at 633. The Court concluded that it need not speculate "on the precise contours of whatever defenses of duress or necessity are available against charges brought under § 751(a)." The Court continued in part:

Under any definition of these defenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm," the defenses will fail. LaFave & Scott, supra, (W. LaFave & A. Scott, Handbook on Criminal Law), at 379. Clearly, in the context of prison escape, the escapee is not entitled to claim a defense of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of § 751(a) was his only reasonable alternative. (Citing United States v. Boomer, 571 F.2d 543, 545 (10 Cir.), cert. denied, 436 U.S. 911 (98 S.Ct. 2250, 56 L.Ed.2d 411) (1978)). 6

100 S.Ct. at 634-35.

We need not decide whether such evidence as that submitted by respondents was sufficient to raise a jury question as to their initial departures. This is because we decline to hold that respondents' failure to return is "just one factor" for the jury to weigh in deciding whether the initial escape could be affirmatively justified. On the contrary, several considerations lead us to conclude that, in order to be entitled to an instruction on duress or necessity as a defense to the crime charged, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure and that an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force.

100 S.Ct. at 635-36.

While Caldwell was captured during his attempted escape, it is clear that he had no intention of turning himself in if the escape had succeeded. He testified:

I didn't intend to be frivolous about it. I intended to escape. I intended to remain free. (Tr. 92).

It was eleven months after he witnessed the murder before he attempted to escape. It was apparent from the evidence he had planned the escape for some time. He admitted that he had the opportunity to notify the prison authorities of the threats against his life, but he did not want to face the possibility of solitary confinement. He admitted that he was not in immediate danger of death or severe injury. There is no evidence of any...

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