U.S. v. Bifield

Decision Date03 March 1983
Docket NumberNo. 544,D,544
Citation702 F.2d 342
Parties12 Fed. R. Evid. Serv. 1361 UNITED STATES of America, Appellee, v. Daniel BIFIELD, Appellant. ocket 82-1281.
CourtU.S. Court of Appeals — Second Circuit

John R. Williams, New Haven, Conn., for appellant.

David K. Rose, Intern, Bridgeport, Conn. (Alan H. Nevas, U.S. Atty., D. Conn., New Haven, Conn., Harold James Pickerstein, Chief Asst. U.S. Atty., Bridgeport, Conn., Jeremiah Donovan, Asst. U.S. Atty., D. Conn., New Haven, Conn., for appellee.

Before FEINBERG, Chief Judge, and KAUFMAN and CARDAMONE, Circuit Judges.

CARDAMONE, Circuit Judge:

On September 23, 1981 appellant, Daniel Bifield, an inmate awaiting sentencing at the Bridgeport Community Correctional Center in Connecticut, gained access to the cell adjoining his and escaped through an open window. After spending several weeks in the United States, he fled to the Bahamas. While in hiding there and for the over four months that he was at large, Bifield became the object of an international manhunt. Successfully managing to elude his pursuers, he finally returned to the United States in late January 1982 and went to Denver, Colorado. There his luck ran out. On February 5 he was captured by United States Marshals and Special Agents of the Federal Bureau of Investigation (FBI).

Bifield was returned to Connecticut, and tried on a single count of escape from the custody of the Attorney General of the United States, in violation of 18 U.S.C. Sec. 751(a) (Supp. V 1981), before Judge Ellen B. Burns and a jury in the District of Connecticut. Found guilty on June 10, 1982, appellant was sentenced to a five-year term of imprisonment to be served consecutively to the sentences being served at the time of his escape.

Several issues are raised on this appeal. The first is whether Judge Burns erred when she rejected as a matter of law appellant's defense of duress 1 to the charge of escape. The second, related to the first, is whether the effect of the trial court's ruling denied appellant his constitutional and statutory right to testify on his own behalf before the jury which tried him. The third is whether the trial court's charge to the jury unconstitutionally diluted the presumption of innocence. Before discussing these issues we briefly detail the factual background, particularly as it bears on appellant's claim of duress.

At a hearing outside the presence of the jury the duress defense was fully presented. Prior to his escape Bifield was suffering from kidney stones. A doctor who had examined appellant on August 5, 1981 confirmed the kidney stone diagnosis and testified that pain associated with that condition is often so severe as to require immediate medical attention and hospitalization. A fellow inmate stated that Bifield complained of pain and having blood in his urine. Requests to the Bridgeport jail medics to render some sort of treatment were ignored. Another doctor testified that he saw Bifield at St. Vincent's Hospital Emergency Room in Bridgeport sometime in August 1981 and found him to be suffering from "acute renal colic with a documentation of blood in his urine." The doctor stated that the patient was in need of acute care hospitalization. However, United States Marshals did not permit him to remain at St. Vincent's, but instead transported him to a hospital within the Connecticut State Prison. Appellant presented evidence that while in the State Prison he received no medical care. Further testimony was presented that during this period Bifield was in a good deal of pain--"holding his side ... vomiting." Appellant testified that after just a few days at the State Prison he was sent back to Bridgeport where officials refused him admission to the jail infirmary. He stated that one evening while he was in great pain ("I would have been glad if I died"), and shortly after his request to see a medic was ignored, he saw a wide open window in the adjoining cell. He gained access to the cell and escaped. Bifield claimed that he left the Bridgeport facility because officials there refused to treat his condition.

He stated that four weeks after his escape he obtained medical treatment at the Princess Margaret Hospital in Nassau. Aware of pursuit by the FBI, he moved on to Andros Island, also in the Bahamas, where he received further medical care. Eventually he was forced to flee the Bahamas to avoid capture. He claimed that it was his intention to surrender himself when cured, but that the threat which caused him to flee prison had not yet evaporated and that its coercive force still existed at the time of his arrest in Denver:

Q--[C]an you tell the Court whether or not it was your intention that once you got cured you would turn yourself in?

A--I would. I was going--when I was ready, when I was all ready I was going to get in contact with you and say, "John, I'm ready to give myself up."

The reason he gave for not contacting his lawyer was that he was still suffering from attacks of kidney stones. On cross examination he conceded that while in the Bahamas he swam in the hotel pool, used the beach, went horseback riding and rented a boat to take a ride.

Finally, it appears that appellant was familiar with prison procedures for making a complaint regarding treatment in jail. He claims that he spoke to Bridgeport jail counselors many times and that they merely referred him to the medical department which ignored him. He also said that he spoke to his father and to his wife. According to him, none of these efforts produced results.

After the presentation of this proof, the trial court ruled that the defense of duress or necessity failed as a matter of law and could not be presented to the jury. As a result, appellant claims he was prohibited from taking the stand in his own defense and rested his case without presenting any evidence.

I

We turn to appellant's contention that the district court erred in rejecting as a matter of law his defense of duress. Bifield claims that he presented sufficient evidence to raise at least a factual dispute as to each element of the defense, and that such disputes require jury resolution.

In order to establish the duress defense, a prisoner charged with attempted escape must show the existence of all of the following conditions:

(1) the prisoner must be faced with a specific threat of death or substantial bodily injury in the immediate future;

(2) there must be no time for a complaint to the authorities or there must exist a history of futile complaints which make any benefit from such complaints illusory;

(3) there must be no evidence of force or violence used towards prison personnel or other "innocent" persons in the escape attempt; and

(4) the prisoner must intend to report immediately to the proper authorities when he attains a position of safety from the immediate threat.

United States v. Boomer, 571 F.2d 543, 545 (10th Cir.), cert. denied, 436 U.S. 911, 98 S.Ct. 2250, 56 L.Ed.2d 411 (1978); United States v. Wyler, 526 F.Supp. 76, 77-78 (S.D.N.Y.1981), aff'd, 697 F.2d 301 (2d Cir.1981), cert. denied, --- U.S. ----, 103 S.Ct. 145, 74 L.Ed.2d 122 (U.S. 1982). Where, as here, a defendant actually succeeds in escaping from federal authorities and is subsequently charged with escape, he must prove that he made a bona fide effort to surrender as soon as the claimed duress lost its immediate coercive force. See United States v. Bailey, 444 U.S. 394, 412-13, 100 S.Ct. 624, 635-36, 62 L.Ed.2d 575 (1980); United States v. Trapnell, 638 F.2d 1016, 1030 (7th Cir.1980); United States v. Michelson, 559 F.2d 567, 570 (9th Cir.1977) (escapee must submit to proper authorities after obtaining a position of safety). Where the evidence, even if believed, fails to establish all of the elements of the duress defense, the trial court may rule upon the defense as a matter of law and need not submit it to the jury. See Bailey, 444 U.S. at 415, 100 S.Ct. at 637; Trapnell, 638 F.2d at 1030-31.

We examine the proof at trial giving full credence to appellant's version of this episode. Appellant testified that he was forced to escape because officials at the Bridgeport Community Correctional Center repeatedly refused to treat him for kidney stones which were causing him great pain. Concededly, no force was used in the escape. We accept, as did Judge Burns, appellant's claims that the Bridgeport prison officials refused to treat him, that this refusal threatened him with "substantial bodily injury," and that further requests to those officials for medication would have been futile. Nonetheless, no evidence was offered that Bifield ever attempted to turn himself in after he had escaped from the immediate danger to his health present at Bridgeport, i.e., his inability to obtain adequate medical treatment at the Bridgeport facility. After his escape appellant admits he spent three weeks in the United States without making any effort to contact anyone who could have provided him with the medical attention he claims he so urgently needed. In fact, at no point during the entire four and one half months after his escape from Bridgeport and the danger allegedly present there does it appear that appellant made any effort to report to federal officials, who could have given him medical aid.

Appellant did testify that he intended to turn himself in as soon as he was cured. But this self-serving statement as to past intentions, standing alone, unaccompanied by any act, simply does not support a finding of this element of the defense. See Bailey, 444 U.S. at 415, 100 S.Ct. at 637. Even if Bifield's testimony had the flat finality of Douglas MacArthur's famous--"I shall return"--phrase, it would be of no consequence here. For courts must look to an escapee's bona fide attempt to turn himself in and not to his intention to do so, no matter how convincingly expressed. Thus, appellant's duress defense fails as a matter of law.

II

Given that the defense failed as...

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