U.S. v. Boomer

• Decision Date: 14 March 1978
• Docket Number: Nos. 76-1755 and 76-1756,s. 76-1755 and 76-1756
• Citation: 571 F.2d 543
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Charles Warren BOOMER and Gerald Edwin Heft, Defendants-Appellants.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 543

571 F.2d 543

UNITED STATES of America, Plaintiff-Appellee, v. Charles Warren BOOMER and Gerald Edwin Heft, Defendants-Appellants.

Nos. 76-1755 and 76-1756.

United States Court of Appeals Tenth Circuit.

Argued and Submitted Nov. 16, 1977.

Decided March 14, 1978.

Bruce E. Miller, Asst. U. S. Atty. (James P. Buchele, U. S. Atty., Topeka, Kan., on the brief), for plaintiff-appellee.

Leonard D. Munker, Federal Public Defender, Kansas City, Kan. (John O. Martin, Asst. Federal Public Defender, Kansas City, Kan., on the brief), for Charles Warren Boomer, defendant-appellant.

E. J. Webber, Topeka, Kan., for Gerald Edwin Heft, defendant-appellant.

Before McWILLIAMS, BREITENSTEIN and DOYLE, Circuit Judges.

McWILLIAMS, Circuit Judge.

Boomer and Heft, inmates in the United States Penitentiary at Leavenworth, Kansas, were jointly charged and tried for attempted escape from that institution in violation of 18 U.S.C. § 751(a). At trial, both defendants admitted their attempt to escape and relied upon duress or coercion as a defense. Each related a long history of alleged abuse and mistreatment at the hands of both prison officials and fellow inmates. The issue of coercion was submitted to the jury with instructions relating thereto. By its verdict, the jury rejected, in effect, the defense of coercion and convicted the defendants. Both Boomer and Heft appeal their convictions. We affirm.

The principal matter raised in this appeal concerns the instruction given the jury on coercion. In this regard, the jury was instructed that coercion or necessity could be a legal excuse for the crime charged in the indictment. The trial court further elaborated by stating that before the jury could excuse the defendants because of coercion certain conditions must exist. The trial court then enumerated a number of conditions which had to exist before the jury could find coercion. In this connection, the trial court instructed the jury, in part, as follows:

Coercion or necessity may provide a legal excuse for the crimes charged in the Indictment. In order, however, to provide a legal excuse for any criminal conduct, all the following conditions must exist:

(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.

At trial, the defendants objected to the language appearing in the second and fourth paragraph of the court's instruction on coercion. We do not believe the language complained of is erroneous or misleading, and, on the contrary, we deem it to be a correct statement of the law.

In Shannon v. United States, 76 F.2d 490 (10th Cir. 1935), this Court stated that coercion which would excuse the commission of a crime must be immediate and of such a nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. In Shannon the court made further comment as follows:

One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion and is not entitled to an instruction submitting that question to the jury. Id. at 493.

Paragraph 2 of the trial court's instruction defining coercion squares with the quoted language from Shannon. One who escapes from a penal institution is not excused even though faced with an immediate threat of death or serious bodily harm, if there is a reasonable and viable alternative to the act of escaping. The second paragraph in the instruction advises the jury that the defendants' attempted escape was not excused if they had time to complain to the prison authorities about their imminent danger, unless there was evidence of prior futile complaints of a similar nature which would indicate that any benefit from a complaint would only be illusory.

A recent case involving the defense of coercion as justification for an escape from a penal institution by an inmate who was threatened with sexual assault is People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974). In that case, the California Court of Appeals made a definitive statement as to when the defense of coercion or necessity is available. The trial court in the instant case apparently modeled its instruction...