U.S. v. Lopez

Citation885 F.2d 1428
Decision Date15 September 1989
Docket Number87-1214,Nos. 87-1213,s. 87-1213
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Samantha D. LOPEZ; Ronald J. McIntosh, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Geoffrey Hansen, Asst. Public Defender, San Francisco, Cal., for defendant-appellant Lopez.

Judd C. Iversen, Claire Leary, San Francisco, Cal., for defendant-appellant McIntosh.

Joseph P. Russoniello, U.S. Atty., Mark N. Zanides, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee.

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

Before CHOY, SNEED and HUG, Circuit Judges.

HUG, Circuit Judge:

On November 5, 1986, Ronald J. McIntosh landed a helicopter on the grounds of the Federal Correctional Institution at Pleasanton ("FCI Pleasanton") in order to effect the escape of his girlfriend, Samantha D. Lopez. Although the escape was initially successful, the two were apprehended ten days later near Sacramento. As a result of this incident, Lopez was convicted of escaping from federal custody, and McIntosh was convicted of aiding Lopez' escape, air piracy, and using a gun in the commission of air piracy. Both Lopez and McIntosh asserted the defense of necessity at trial. On appeal, they contend that the district court's jury instructions concerning that defense were erroneous. McIntosh also argues that an instruction on lesser included offenses should have been given and that error was committed in limiting the scope of cross-examination of a witness. We unanimously affirm all convictions except McIntosh's conviction for aiding escape. The majority of the panel affirms that conviction. In section II B of this opinion, we all find the instructions on the necessity defense were erroneous. Judge Hug, in this opinion, concludes the error is not harmless. However, in the concurring opinion of Judge Sneed, in which Judge Choy joins, the conclusion is that the error is harmless. The majority of the panel, thus, affirms the conviction for aiding escape.

I. FACTS

Lopez and McIntosh met and became romantically involved in December 1985 while both were inmates at FCI Pleasanton. At that time, Lopez was serving a 50-year sentence and was not scheduled to become eligible for parole until October 1991. McIntosh's presumptive parole date was February 14, 1988. In mid-1986, McIntosh asked to be transferred from FCI Pleasanton to the Federal Prison Camp at Lompoc, California ("Lompoc"). His request was approved, and he was scheduled to be transferred on October 28, 1986. On that date, McIntosh was released from the Pleasanton facility and allowed to travel to Lompoc without supervision. Instead of reporting to Lompoc as instructed, however, McIntosh escaped.

Evidence presented by the government at trial indicates that McIntosh spent the time between his escape on October 28 and Lopez' escape on November 5 preparing for Lopez' removal from FCI Pleasanton. On October 31, McIntosh, already an experienced helicopter pilot, took a practice flight with an instructor from Navajo Aviation. For purposes of this practice flight, McIntosh assumed the alias Lyle Thompson. Also on October 31, McIntosh and another individual, Ken Lee Hamilton, rented an apartment in Carmichael, California. In discussions with the apartment manager, Hamilton identified McIntosh as Bill Stafford.

Finally, on November 4, McIntosh went to Aris Helicopter in San Jose, California and, using a third alias, Fred Holbrick, made arrangements to take a helicopter flight the next day.

When McIntosh arrived at Aris on November 5, he told Peter Szabo, the pilot assigned to his flight, that the purpose of the trip was to survey some land that he intended to purchase and develop. According to Szabo's testimony at trial, the two men took off in the helicopter and flew northwest, eventually entering Bollinger Canyon near Danville. After circling the canyon twice, McIntosh asked Szabo if they could land. Szabo, however, refused, reminding McIntosh that company policy forbade such landings absent permission from the landowner. At that point, Szabo claims he heard McIntosh say "set it down." He further states that, when he turned toward his passenger, he realized McIntosh was pointing a pistol at him. He therefore landed the helicopter as instructed.

According to Szabo, after he set the helicopter down, McIntosh ordered him to get out of the aircraft and then flew off alone. The time was approximately 10:45 a.m. At 11:15, the helicopter approached FCI Pleasanton. McIntosh landed the helicopter on the prison athletic field, and Lopez, who had been waiting there for McIntosh, got into it. Having successfully retrieved Lopez, McIntosh took off and flew away. The entire incident took less than a minute.

The two fugitives were eventually apprehended on November 15, 1986 as they attempted to purchase wedding rings and other jewelry at a jewelry store near Sacramento. Soon thereafter, the pair was indicted for their participation in the events of November 5. 662 F.Supp. 1083 (N.D.Cal.1987). Specifically, Lopez was charged with escaping from federal custody, in violation of 18 U.S.C. Sec. 751 (1982), and McIntosh was charged with aiding Lopez' escape, in violation of 18 U.S.C. Sec. 752 (1982), air piracy, in violation of 49 U.S.C.App. Sec. 1472(i) (1982), and using a gun in the commission of air piracy, in violation of 18 U.S.C. Sec. 924(c) (Supp. II 1984). 1

At trial, neither Lopez nor McIntosh disputed the fact that Lopez escaped from FCI Pleasanton in November 1986. Nor did they challenge the government's assertion that McIntosh aided Lopez in that escape. Rather, Lopez and McIntosh defended on the ground that Lopez' escape was necessary because her life had been threatened by prison authorities and was in immediate danger. 2

According to Lopez, her problems at the prison began in early 1986. At that time, Lopez was a member of the Inmate Council, a group organized to act as liaison between the prisoners and the administration. She also worked in the business office at FCI Pleasanton where she often handled the prison's financial records. Lopez testified that she went to the warden in March 1986 with a long list of prisoner complaints. She claims that the warden responded to her concerns by stating that he did not care about the prisoners' problems and that no one else cared either. Lopez allegedly then told the warden that, while people on the outside might not care about the prisoners' complaints, they would probably be interested in the evidence of misappropriation and mismanagement of funds that she had uncovered while working in the business office. According to Lopez, the warden responded by threatening her life, intimating that she might not live long enough to take her case before the parole board and remarking that "accidents happen in prisons every day."

In the months following her interview with the warden, various other prison officials allegedly began to torment and threaten Lopez. 3 Lopez contends that the situation grew so intolerable that she feared her life was in immediate danger and that the only alternative available to her was escape. McIntosh, in turn, argues that, given the danger Lopez was in, he had no choice but to "rescue" her from the prison. 4

After hearing the evidence presented by Lopez and McIntosh, the jury rejected their necessity defense and convicted them on all counts. Thereafter, the trial court sentenced Lopez to a five-year term for escape to run consecutive to her prior conviction. McIntosh received a 20-year sentence on the air piracy count, a concurrent five-year sentence for assisting Lopez' escape, and a consecutive five-year sentence on the gun charge.

Both Lopez and McIntosh have timely appealed to this court. Our jurisdiction is predicated upon 28 U.S.C. Sec. 1291 (1982).

II. THE NECESSITY DEFENSE INSTRUCTIONS

Lopez and McIntosh's primary contention on appeal is that the district court's instructions to the jury on their respective necessity defenses were defective. 5 Lopez claims that the district court misstated the law of necessity in its instructions and improperly refused to give a supplemental theory-of-the-case instruction. McIntosh argues that the district court erred by importing a fourth element into his necessity defense that resulted in his being held criminally liable for the actions of another.

We address each defendant's arguments in turn.

A. Lopez' Necessity Instructions

The jury was instructed on Lopez' necessity defense as follows:

In this case, the defendant Lopez contends that the act charged in count one, namely, prison escape, was justified by the--by duress or necessity.

"Legal justification" means that an otherwise criminal act may not be punished, if that act was necessary in order to avoid a significantly greater evil. The four elements of Ms. Lopez's necessity defense are:

One, that the threat or threats to Ms. Lopez, and the fear which the threats caused, were immediate, and involved death or serious bodily injury;

Second, that Ms. Lopez['s] fear was well-grounded. This means that Ms. Lopez had a good-faith belief in the imminence and severity of the threat, and that belief must also have been objectively reasonable;

Three, that there was no reasonable and legal opportunity to avoid or escape the threatened harm; and

Four, that Ms. Lopez made a bona fide good-faith effort to surrender to authorities after she reached a position of safety.

The government must prove all elements of the crime of prison escape, including the lack of justification, beyond a reasonable doubt. This means that you may not find Ms. Lopez guilty of the crime of prison escape unless the government proves beyond a reasonable doubt that at least one of the elements of her claimed defense of necessity is not present. That is, if the government proves beyond a reasonable doubt that at least one of...

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