U.S. v. Bailey

Decision Date19 October 1978
Docket NumberNos. 77-1404,77-1413 and 77-1502,s. 77-1404
Citation585 F.2d 1087,190 U.S. App. D.C. 142
PartiesUNITED STATES of America v. Clifford BAILEY, Appellant. UNITED STATES of America v. Ronald Clifton COOLEY, Appellant. UNITED STATES of America v. Ralph WALKER, Appellant.
CourtU.S. Court of Appeals — District of Columbia Circuit

David A. Levitt, Watertown, Mass. (appointed by this court), for appellant in No. 77-1404.

Robert A. Robbins, Jr., Washington, D.C. (appointed by this court), for appellant in No. 77-1413.

John Townsend Rich, Washington, D.C. (appointed by this court), for appellant in No. 77-1502.

David G. Hetzel, Asst. U.S. Atty., Washington, D.C., with whom Earl J. Silbert, U.S. Atty., and John A. Terry and Steven R. Schaars, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. William D. Pease and James F. Hibey, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellee.

Before WRIGHT, Chief Judge, and McGOWAN and WILKEY, Circuit Judges.

Opinion for the court filed by Chief Judge J. SKELLY WRIGHT.

Dissenting opinion filed by Circuit Judge WILKEY.

J. SKELLY WRIGHT, Chief Judge:

Appellants in these criminal jury cases were convicted of violating18 U.S.C. § 751(a) (1976) 1 by escaping "from the custody of the Attorney General" when they departed from the New Detention Center of the District of Columbia Jail ("Northeast One") in the early morning hours of August 26, 1976. Appellants Bailey and Walker had been brought from federal prisons where they were serving sentences for federal crimes to the D.C. Jail pursuant to writs of Habeas corpus ad testificandum issued by the Superior Court of the District of Columbia 2; appellant Cooley was serving a sentence in the D.C. Jail for a federal crime. Appellants raise various issues, both individually and in common, but only two require extended discussion 3: whether the trial court erred in refusing to let the jury consider whether evidence of threats, assaults, and conditions in the jail either negated the intent required to commit the crime of escape or provided a defense of duress, and whether the prosecution's evidence and the trial court's instructions were adequate on the issue of whether appellants were in the custody of the Attorney General by virtue of the convictions alleged in the indictment. We conclude that appellants are entitled to a new trial because the trial court did not properly instruct the jury as to what constitutes an "escape" and excluded relevant evidence from the jury's consideration. We also find that the trial court's instructions on the custody element were in some respects confusing and potentially misleading, but these problems will presumably be corrected in the new trial.


Appellants first contend that the trial judge erred in refusing to let the jury consider certain allegedly exculpatory evidence. The evidence in question sought to establish that there were frequent fires in the D.C. Jail where appellants were confined, set by both inmates and guards, and often allowed to burn while the inmates suffered from lack of proper ventilation, 4 that appellants had been threatened with physical violence by guards, 5 that appellants Bailey and Cooley had actually been beaten by guards, 6 that appellant Walker had epilepsy and had received inadequate medical treatment for his condition, 7 and that appellant Cooley had been forced by his co-appellants to leave the jail. 8 Appellants argued in the District Court and assert again on appeal that this evidence was relevant either as negating the specific intent they claim is required as an element of the crime of escape or as establishing a defense of duress.

The trial court admitted this evidence during the trial, but effectively precluded the jury from considering it with regard to intent by holding that the crime of escape requires only general, rather than specific, intent. 9 The court also refused to allow the jury to consider the defense of duress, holding that the duress defense is available only when the person asserting it turns himself in, and that this prerequisite was absent in appellants' cases as a matter of law. 10

A. Intent

Our consideration of the relevance of the evidence in question to the elements of the crime of escape under 18 U.S.C. § 751(a) leads us to agree with the Seventh Circuit in United States v. Nix, 501 F.2d 516 (7th Cir. 1974), that a great deal of unnecessary confusion has been generated by the use of ill-defined terms and concepts such as "specific" and "general" intent. 11 Much of this unhelpful complexity can be avoided by returning to basic principles beginning with a clear definition of the crime of escape and proceeding to consider the proper roles of prosecution, defense, court, and jury in trying escape cases.

Consciously ignoring labels such as "specific" and "general" intent, the court in Nix concentrated on "what constitutes the 'escape' element of the crime." 501 F.2d at 518. Although "escape" is usually treated as a single element of the offense defined in Section 751(a), the word "escape" like many other legal terms 12 is not self-defining. A jury needs more instruction than this one word if it is properly to consider whether a defendant has "escaped." The Seventh Circuit found that "(m)ost courts, confronted with evidence that a defendant could not or did not form An intent to leave and not to return, have held such an intent essential to proof of the crime of escape." Id. (emphasis added). 13 The court then concluded that this "close to unanimous" approach of the courts was justified by "the desire to have one human element of 'blameworthiness' as a basis for punishment" 14 and because "a prisoner who has no intent to escape because he is grossly intoxicated, or thinks his jailer has told him to leave, or mistakes the boundaries of his confinement, or has a gun held to his head by another inmate is not likely to endanger society, as a wilful escapee is." Id. at 519.

On the basis of its review of precedents and policies, the Seventh Circuit defined "escape" for purposes of Section 751(a) as "a voluntary departure from custody with an intent to avoid confinement." Id. Following the Seventh Circuit's analysis, we conclude that an "escape" occurs when a defendant (1) leaves custody (2) voluntarily, 15 (3) without permission, 16 and (4) with an intent to avoid confinement. 17

In order to convict a defendant of escape, the prosecution must prove each of these factors beyond a reasonable doubt. In the ordinary case the prosecution can establish a Prima facie case that a defendant "escaped" by offering evidence that the defendant departed from custody without permission. Absent any additional evidence introduced by the defendant, such a case can be submitted to the jury with the instruction that the jury may infer the defendant's intent from the circumstances. 18 The defense has the opportunity, however, to submit additional evidence tending to negate any essential aspect of the offense. For example, a jury can consider whether evidence of jail conditions, threats, and violence such as that presented by appellants in the District Court raises reasonable doubts concerning a defendant's capacity to act "voluntarily," or his intent to avoid confinement. 19

The prosecution then has the opportunity to rebut the defense's evidence. The prosecutor can offer evidence of any circumstances or behavior inconsistent with the defendant's exculpatory contentions. Depending on that evidence, a prosecutor may argue that the conditions allegedly necessitating the defendant's departure from custody were relatively mild, that alternative remedies short of escape (E. g., resort to prison authorities or the courts) were available, or that the defendant failed to return voluntarily to custody once the conditions allegedly motivating the escape no longer threatened him. If the defendant takes the stand in his own defense, the prosecutor can inquire why he did not return voluntarily and can test the credibility of his defense by the rigors of cross-examination.

Finally, when instructing the jury on the elements of the offense charged, the judge should direct the jurors' attention to those considerations that require special emphasis. In addition to specifying the major indicia of voluntariness and intent the immediacy, specificity, and severity of any alleged threats or fears, the availability of viable alternatives to unauthorized departure, and the defendant's decision whether and when to return to custody the court should remind the jury of the inevitable difficulties associated with prison discipline 20 and of the possible biases of defense and prosecution witnesses testifying with respect to that aspect of the case. 21 It is the jury, however, that must make the final determination whether the prosecution has met its burden of proving each of the elements of the crime beyond a reasonable doubt. The court may not, as the District Court did in this case, take upon itself the responsibility for making this determination.

Our analysis of the law of escape indicates that the District Court erred in its definition of the offense and consequently precluded the jury's consideration of evidence that was relevant to an essential element of the crime. The trial judge instructed the jury that a defendant "escaped" if he "without authorization did absent himself from his place of confinement." Tr. 802. Relying on the opinion of the Tenth Circuit in United States v. Woodring, 464 F.2d 1248, 1251 (10th Cir. 1972), the trial judge told the jury that only a "general intent" was required to commit the crime of escape, and that this "means only that a defendant has the purpose to do something, the will to do the act. It means the act was done consciously and not inadvertently or accidentally." Tr. 803. Woodring is weak authority for ...

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