U.S. v. Campbell, s. 79-1497

• Decision Date: 20 December 1979
• Docket Number: Nos. 79-1497,s. 79-1497
• Parties: UNITED STATES of America, Appellee, v. John Stanley CAMPBELL, Appellant. UNITED STATES of America, Appellee, v. Riley Ray FULTZ, Appellant. to 79-1500.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 922

609 F.2d 922

UNITED STATES of America, Appellee, v. John Stanley CAMPBELL, Appellant.

UNITED STATES of America, Appellee, v. Riley Ray FULTZ, Appellant.

Nos. 79-1497 to 79-1500.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 12, 1979.

Decided Nov. 30, 1979.

Rehearing and Rehearing En Banc Denied Dec. 20, 1979.

Clark L. Holmes, Des Moines, Iowa, for appellants.

Don C. Nickerson, Asst. U. S. Atty., Des Moines, Iowa, for appellee; Roxanne Barton Conlin, U. S. Atty., Des Moines, Iowa, on brief.

Before BRIGHT, ROSS and STEPHENSON, Circuit Judges.

STEPHENSON, Circuit Judge.

Appellants Riley Ray Fultz and John Stanley Campbell appeal from two separate jury convictions in the Southern District of Iowa. The jury in Nos. 79-1497 and 79-1499 ¹ found the defendants guilty of robbing a federally insured bank in violation of 18 U.S.C. §§ 2113(d) and 2. The jury in Nos. 79-1498 and 79-1500 ² found the defendants guilty of escape from federal custody in violation of 18 U.S.C. § 751(a). The contentions raised on appeal from the separate convictions are similar, and the appeals have been consolidated. We affirm the convictions.

On November 20, 1978, Fultz and Campbell were transported by the United States Marshal to the Story County Jail in Nevada, Iowa to await sentencing for a bank robbery conviction. They remained in the custody of the United States Marshal for the scheduled December 5, 1978 sentencing. Late November 26, 1978, or early November 27, 1978, Fultz and Campbell, along with two others, escaped from the Story County Jail.

After the escape, on January 26, 1979, Fultz and Campbell robbed the Central National Bank, Ingersoll Branch, in Des Moines, Iowa. They were arrested on February 10, 1979, in Panama City, Florida. The trial for escape began on May 23, 1979, and the defendants were found guilty. The trial for the bank robbery started on June 4, 1979, and also resulted in the convictions of Fultz and Campbell.

The defendants' first argument is that in neither trial were they allowed to present their theory of the case to the jury. Their defense at both trials was that they were coerced to commit the crimes. The theory they wished to present was that a prison gang called the "Wolverines" forced them to commit both crimes, the escape, and then the bank robbery, with death the punishment for their refusal. In both cases the trial judges denied motions by the defendants to produce as witnesses members of the gang incarcerated at Leavenworth prison. The motions were denied because the supporting affidavits were insufficient to show they could have satisfied the immediacy requirement of a coercion defense. In the bank robbery trial the judge simply refused to instruct on this theory of defense because of the insufficient evidence. The court in the escape trial additionally sustained the government's motion at the close of all evidence to strike evidence relating to the coercion defense.

Basically a defense of duress or coercion requires that there be an immediate threat of death or serious bodily harm which requires the defendant to commit the criminal act, and it must be in a situation in which there was no opportunity to avoid the danger. United States v. Saettele, 585 F.2d 307, 309 (8th Cir. 1978), Cert. denied, 440 U.S. 910, 99 S.Ct. 1220, 59 L.Ed.2d 458 (1979); United States v. Michelson, 559 F.2d 567 (9th Cir. 1977); United States v. Patrick, 542 F.2d 381, 386-88 (7th Cir. 1976), Cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977); United States v. Gordon, 526 F.2d 406 (9th Cir. 1975). Additionally, most courts require the offender to surrender when the threat abates, this factor usually arising in escape cases. United States v. Michelson, 559 F.2d 567, 569-70 (9th Cir. 1977).

The defendants are required to introduce facts sufficient to trigger consideration of the coercion defense by way of an instruction. They must introduce evidence on all elements of the defense. United States v. Patrick, 542 F.2d 381, 388 (7th Cir. 1976), Cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977). If evidence is introduced, but it is apparent that all of the requirements of the coercion defense are not addressed, the trial court is not obligated to allow the evidence to remain for consideration by the jury. United States v. Gordon, 526 F.2d 406, 408 (9th Cir. 1975).

We conclude that both trial courts correctly determined that testimony of members of the prison gang could not prove the immediacy of the threat, or show that Fultz and Campbell were unable to surrender when the threat abated. Therefore, they properly denied the motions to produce the witnesses. We also do not agree with the defendants' contention on appeal that testimony stating either defendant would have immediately killed the other in the event of disobedience of gang rules satisfied the immediacy or surrender requirements of the defense. Therefore, the trial courts properly excluded any instruction on the duress defense, and Judge Stuart in the escape case properly exercised his discretion in striking evidence related solely to that defense.

Requiring the defendants' allegations to meet the previously mentioned test for coercion before an instruction will be given does not unconstitutionally shift the burden of proof. The trial court may require the accused to place before the court facts giving rise to a coercion defense, which will then be instructed upon. At that point the prosecution must rebut the issues of coercion beyond a reasonable doubt. See United States v. Hearst, 563 F.2d 1331, 1336 n. 2 (9th Cir. 1977), Cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Johnson, 516 F.2d 209, 212-13 (8th Cir.), Cert. denied, 423 U.S. 859, 96 S.Ct. 112, 46 L.Ed.2d 85 (1975). Defendants' burden of going forward to introduce sufficient facts to support an instruction on a coercion defense in no way altered the government's obligation to prove willfulness beyond a reasonable doubt, and the trial courts properly instructed the juries on the willfulness requirement.

Defendants next contend that both trial courts should have granted defense motions for a continuance on the grounds that harassment from prison officials at Leavenworth affected their preparation for trial. The granting of a continuance is in the sound discretion of the trial court and will be reversed only upon a showing of an abuse of its discretion....