U.S. v. Dorrell

• Decision Date: 17 April 1985
• Docket Number: No. 84-5121,84-5121
• Citation: 758 F.2d 427
• Parties: 17 Fed. R. Evid. Serv. 1293 UNITED STATES of America, Plaintiff-Appellee, v. Walter Ward DORRELL, III, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 427

758 F.2d 427

17 Fed. R. Evid. Serv. 1293

UNITED STATES of America, Plaintiff-Appellee, v. Walter Ward DORRELL, III, Defendant-Appellant.

No. 84-5121.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted Jan. 7, 1985.

Decided April 17, 1985.

Paul Seave, Los Angeles, Cal., for plaintiff-appellee.

Yolanda B. Gomez, Los Angeles, Cal., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before SNEED, POOLE, and FERGUSON, Circuit Judges.

SNEED, Circuit Judge:

The defendant, Walter Ward Dorrell III, appeals from his convictions for willfully injuring property of the United States, in violation of 18 U.S.C. Sec. 1361 (1982), and for knowingly entering a military reservation for an unlawful purpose, in violation of 18 U.S.C. Sec. 1382 (1982). Dorrell objects to the trial court's refusal to allow him to present a defense of necessity and to the court's exclusion of certain evidence and redaction of his written confession. The district court had jurisdiction under 18 U.S.C. Sec. 3231 (1982). This court has jurisdiction over Dorrell's timely appeal under 28 U.S.C. Sec. 1291 (1982). We affirm.

I. FACTS AND PROCEEDINGS BELOW

On December 21, 1983, security guards apprehended the defendant in the area of the missile assembly plant at Vandenburg Air Force Base. After searching the defendant and the surrounding area, the guards found that Dorrell had carried with him a variety of tools, including a sledgehammer, two screwdrivers, a pair of bolt cutters, a crescent wrench, and a can of spray paint. Political slogans had been spray-painted on the missile assembly building and on a large shipping container standing nearby.

Dorrell was taken to the base security building and questioned. He received and waived his Miranda rights. He then admitted that he had entered the base with the intention of damaging the MX missiles and that he had spray-painted the missile assembly building. Finally, Dorrell prepared a written statement setting forth the substance of his oral confession.

Two days earlier, Dorrell had made a videotape, explaining his motivation for entering the base. On the tape, Dorrell stated that he intended to enter the base and destroy the MX missile. He wished to pound the missile into scrap metal, which could be used to make an instrument of peace. His desire to do so stemmed from his concern about nuclear war and world starvation. Dorrell expressed similar sentiments in both his oral confession and his written statement.

At a pretrial discovery conference, Dorrell's counsel intimated that Dorrell intended to assert the necessity defense. The government moved in limine to exclude this defense. ¹ At the hearing on the motion, the district court ruled that the defendant should make an in camera offer of proof if he intended to assert the defense at trial. Accordingly, Dorrell lodged under seal an offer of proof summarizing the evidence he After reviewing the defendant's offer of proof, the district court granted the government's motion in limine, finding that the proffered evidence was insufficient as a matter of law to support the necessity defense. The court also rebuffed Dorrell's efforts to introduce the videotape, ruling on the morning of the trial that the tape was inadmissible. Finally, the court granted the government's motion in limine to redact the defendant's written confession, removing as irrelevant those portions that stated his reasons for entering Vandenburg.

would present in support of a necessity defense. Essentially, Dorrell proposed to introduce his own testimony and the testimony of three other witnesses about the threat of nuclear war and to play his videotape to the jury.

Following a jury trial, Dorrell was found guilty as charged. He received a suspended sentence and was placed on probation for five years. Commencement of the probationary period was stayed pending the outcome of this appeal.

II. ISSUES

The primary issue raised on appeal concerns the trial court's treatment of the necessity defense. Dorrell contends that the trial court erred in granting the government's motion in limine to exclude that defense. Dorrell also argues that the trial court abused its discretion in refusing to admit the videotape into evidence and in redacting Dorrell's written confession.

III. DISCUSSION

A. Necessity Defense

In support of his position that the granting of the motion in limine was error, Dorrell argues that the judge should have allowed him to present the evidence to the jury before ruling on the defense. Had he failed to establish the elements of the defense, the appropriate response, Dorrell contends, would have been to decline to give a jury instruction on necessity. This contention is without merit.

Admittedly, a criminal defendant has the right to have a jury resolve disputed factual issues. United States v. Contento-Pachon, 723 F.2d 691, 695 n. 2 (9th Cir.1984); see Sandstrom v. Montana, 442 U.S. 510, 523, 99 S.Ct. 2450, 2458, 61 L.Ed.2d 39 (1979). Where the evidence, even if believed, does not establish all of the elements of a defense, however, the trial judge need not submit the defense to the jury. United States v. Bifield, 702 F.2d 342, 346 (2d Cir.), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983); see United States v. Bailey, 444 U.S. 394, 416-17, 100 S.Ct. 624, 637-38, 62 L.Ed.2d 575 (1980). Accordingly, we have in the past allowed the district court to determine the admissibility of the necessity defense by motions in limine. See, e.g., Contento-Pachon, 723 F.2d at 695; United States v. Lowe, 654 F.2d 562, 566-67 (9th Cir.1981). The sole question presented in such situations is whether the evidence, as described in the defendant's offer of proof, is insufficient as a matter of law to support the proffered defense. If it is, then the trial court should exclude the defense and the evidence offered in support. Contento-Pachon, 723 F.2d at 693 (duress defense); United States v. Shapiro, 669 F.2d 593, 596 (9th Cir.1982) (same); accord United States v. Karr, 742 F.2d 493, 497 (9th Cir.1984); United States v. Gordon, 526 F.2d 406, 408 (9th Cir.1975). The trial court ruled properly in this case.

"The defense of necessity is available when a person is faced with a choice of two evils and must then decide whether to commit a crime or an alternative act that constitutes a greater evil." Contento-Pachon, 723 F.2d at 695. ² Asserting the defense requires a showing that the defendant "act[ed] to prevent 'an imminent harm which no available options could similarly prevent.' " United States v. Nolan, 700 F.2d 479, 484 (9th Cir.) (quotingUnited States v. May, 622 F.2d 1000, 1008 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980)), cert. denied, 462 U.S. 1123, 103 S.Ct. 3095, 77 L.Ed.2d 1354 (1983). In addition, the defendant must establish that he reasonably anticipated the existence of a direct causal relationship between his conduct and the harm to be averted. See United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972); see also United States v. May, 622 F.2d 1000, 1008 (9th Cir.), cert. denied, 449 U.S. 984, 101 S.Ct. 402, 66 L.Ed.2d 247 (1980).

Here, Dorrell's asserted necessity defense fails for two reasons. First, even if believed, the evidence summarized in his offer of proof does not establish that Dorrell lacked alternative courses of action to change United States nuclear policy or to avert the risk of nuclear war. Second, Dorrell cannot establish that he reasonably anticipated that breaking into Vandenburg would achieve these ends. We shall examine briefly each of these deficiencies.

1. The Availability of Other, Legal Alternatives to Violating The Law

Those who wish to protest in an unlawful manner frequently are impatient with less visible and more time-consuming alternatives. Their impatience does not constitute the "necessity" that the defense of necessity requires. So it is here. Dorrell made no showing of the required "necessity." "The defense of necessity does not arise from a 'choice' of several sources of action; it is instead based on a real emergency." United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981). ³ Consequently, "if there was a reasonable, legal alternative to violating the law," the defense fails. United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980); accord United States v. Quilty, 741 F.2d 1031, 1033 (7th Cir.1984); United States v. Gant, 691 F.2d 1159, 1163-64 (5th Cir.1982). Here, Dorrell had such an alternative. ⁴

Although it is doubtful that Dorrell could bring a legal challenge to United States nuclear policy, he does have recourse to the political process to redress his concerns regarding nuclear war. "There are thousands of opportunities for the propagation of the anti-nuclear message: in the nation's electoral process; by speech on public streets, in parks, in auditoriums, in churches and lecture halls; and by the release of information to the media, to name only a few." Quilty, 741 F.2d at 1033. The availability of this option prevents Dorrell from raising the necessity defense in the instant case.

Courts in other circuits have considered the status of the political process as an alternative to criminal behavior and have concluded that the defendant's failure to resort to the political process precludes the assertion of the necessity defense to charges arising from political protests. For instance, in United States v. Seward, 687 F.2d 1270 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983), the Tenth Circuit upheld the trial court's refusal to entertain the defendant's proferred necessity defense in a prosecution for trespassing arising from protests at the site of a nuclear power plant. The court noted that

[t]he defense of necessity .... can be asserted only by a...