U.S. v. Durham, No. 00-12276.
| Decision Date | 04 April 2002 |
| Docket Number | No. 00-12276. |
| Citation | 287 F.3d 1297 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Jeffery Scott DURHAM, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Gwendolyn L. Spivey, Tallahassee, FL, for Defendant-Appellant.
Stephen P. Preisser, Pamela A. Moine, Pensacola, FL, for Plaintiff-Appellee.
Appeal from the United States District Court for the Northern District of Florida.
Before TJOFLAT, BARKETT and WILSON, Circuit Judges.
Jeffery Scott Durham appeals his conviction on multiple counts of armed bank robbery, possession of a firearm during a crime of violence, and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g), 924(c),(e), and 2113(a),(d). Durham argues that his due process and Sixth Amendment rights were violated when he was forced to wear a restraining device referred to as a "stun belt" during his trial. After reviewing the briefs and the record, and after the benefit of oral argument, we find that the district court did not make findings on the record sufficient to justify the use of this extraordinary security measure. The government has not demonstrated that this error was harmless. Therefore, we vacate Durham's conviction and remand the case to the district court for further proceedings consistent with this opinion.
In a nine-month span beginning in February of 1998, armed robbers attacked a bank in Gainesville and two banks in Pensacola, Florida. The gunmen raided the vault at two of the three banks, and made off with a total of close to $500,000 from the robberies. While no one was killed or seriously injured at any of the banks, the robberies were nonetheless quite violent. In one instance, the robbers tied up the bank's employees and held them at gunpoint for some forty-five minutes while the gunmen attempted to locate the combination to the bank's vault.
In December of 1998, Durham was arrested in California after it was determined that he was wanted for numerous bank robberies throughout Florida, including the three robberies described above. Durham was promptly transferred to the Middle District of Florida to face charges related to a bank robbery there.
While awaiting the disposition of those charges, Durham attempted to escape from the Tampa jail where he was being held. Durham managed to slip out of a set of leg irons using a key he concealed on his person, and proceeded to scale an eight-foot interior fence topped with razor wire. Durham jumped from the fence onto an armed corrections officer, and attempted to wrestle the officer's shotgun away from him. During the struggle, the officer was able to toss the shotgun over an adjacent fence. Durham then climbed the exterior fencing to an outside wall and jumped to the ground, where he was apprehended by other deputies.
Durham eventually pled guilty to the pending robbery and weapons charges in the Middle District of Florida and received a 330-month term of incarceration in December of 1999. Durham was soon transferred to the Northern District of Florida to face charges related to the 1998 bank robberies in Gainesville and Pensacola. In January of 2000, Durham was charged in the Northern District of Florida on eight counts of armed robbery, possession of a firearm by a convicted felon, and possession of a firearm during a crime of violence.
During his pretrial detention in a Pensacola jail, Durham plotted yet another escape attempt. In a letter to his sister (concealed in some legal materials mailed to his former attorney), Durham provided detailed instructions on how to mail him a set of hacksaw blades without the blades being discovered. After being confronted with the letter, Durham confessed to planning his escape, and revealed a number of specific details about the plan.
Courtroom security personnel, aware of Durham's recent history of escape attempts and the violence of his alleged crimes, decided to take substantial security precautions before bringing Durham into the courtroom for his trial. Durham's legs were to be shackled and he was to wear a "stun belt" throughout the trial. A stun belt is a device placed around the defendant's midsection that uses an electric shock to temporarily disable the defendant if his actions pose a security threat. The belt is controlled by a remote device held by a security official in the courtroom. If the belt is activated, the defendant will receive a powerful electric shock sufficient to temporarily incapacitate him.
Upon becoming aware of the court's intention to use the stun belt at trial, Durham filed a motion seeking to prohibit its use. In this motion, Durham began by making several factual claims about the operation of a stun belt. Durham claimed that most stun belt models were designed to administer from 50,000-70,000 volts of electricity sustained over an eight-second period. Shock of that magnitude "typically causes the recipient to lose control of his limbs, to fall to the ground, and often to defecate or urinate upon himself." Durham requested an evidentiary hearing to confirm these claims and to explore a number of other questions relating to the operation and physical effects of the stun belt.1 Durham also argued that the stun belt interfered with his rights to confer with counsel and to participate in his own defense.2 He further noted that a stun belt may prejudice the defendant in front of the jury, as the belt's presence may imply that the defendant is a violent individual that can only be controlled through extraordinary means.
On February 7, 2000, Durham's trial was slated to begin. That morning, the court held a hearing outside of the presence of the jury to resolve several pretrial motions. The first issue the court took up regarded Durham's motion to prohibit the use of the stun belt. Durham's attorney began the argument by reiterating his factual claims about the power and devastating effects of the stun belt. He proceeded to argue that he feared that Durham would be "more concerned about receiving such a jolt than he is about thinking about the testimony and giving me aid and assistance in the defense of this case." Durham's attorney also made the less compelling argument that the device interfered with Durham's comfort, as the belt pinched the small of Durham's back whenever he leaned forward in his chair.
The government responded by mentioning Durham's attempted escapes from the Tampa and Pensacola jails, and argued that the stun belt was necessary to protect the security of those in the courtroom.3 Durham's attorney then reiterated his point that the belt would adversely affect his ability to confer with his client.
Following this colloquy, the court addressed the arguments by stating to Durham's attorney, The court went on to state that
For the remainder of the hearing, the court briefly addressed two questions: the possibility of attaching the device in a different manner, so as to minimize Durham's discomfort, and whether there was any possibility of an accidental discharge. The court did not receive evidence on these questions, but asked several questions of the deputy marshal that had responsibility for courtroom security.4 The deputy assured the court that the belt was attached properly and that it could not be adjusted to increase Durham's comfort. When asked about the possibility of accidental discharge, the deputy stated, After hearing this statement, the court issued its ruling on Durham's motion to prohibit the use of the stun belt, stating the following:
[T]he motion has to be denied, Mr. White. Certainly, on balancing the interest, I think that this is a minimal intrusion into the defendant's normal liberties of exercising his arms and sitting in the chair. And I don't find that there is any rational basis for him to be unduly apprehensive so as to in any way interfere with his ability to participate and advise you as part of his defense. So the motion is denied.
Other than the conclusion that Durham was a "heightened security risk" and that there was "no rational basis for him to be unduly apprehensive" about the belt's discharge, the court did not make any factual findings to justify its denial of Durham's motion. The court found no facts regarding the operation of the stun belt or the potential for accidental discharge. The court did not explain why less severe security methods — such as shackles alone — would have been inadequate to restrain Durham. The court also provided no guidance to Durham on what behavior would prompt the deputy to activate the stun belt.
Shortly after the ruling denying Durham's motion, the jury trial began. On February 9, 2000, Durham was convicted on all eight of the counts listed in the indictment. Durham was sentenced to a total of 1,265 months of imprisonment, to run consecutive to the 330 month sentence already imposed in the Middle District of Florida. Durham timely filed the instant appeal of his conviction and sentence.
Durham raises eight distinct claims of error in the instant appeal. We will consider only the first of these claims — that the district court erred in requiring Durham to wear a stun belt throughout the guilt phase of his trial.5
We have never addressed whether the use of...
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