U.S. v. Haney, No. 00-1421.

• Decision Date: 04 February 2003
• Docket Number: No. 00-1421.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert M. HANEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

318 F.3d 1161

UNITED STATES of America, Plaintiff-Appellee, v. Robert M. HANEY, Defendant-Appellant.

No. 00-1421.

United States Court of Appeals, Tenth Circuit.

February 4, 2003.

David A. Lane, Miller, Lane, Killmer & Greisen LLP, Denver, CO, for Defendant-Appellant.

Daniel S. Goodman, Attorney, Criminal Division, Appellate Section, United States Department of Justice, Washington, DC (John W. Suthers, United States Attorney, and Andrew A. Vogt, Assistant United States Attorney, Denver, CO, with him on the brief), for Plaintiff-Appellee.

Before TACHA, Chief Circuit Judge, SEYMOUR, EBEL, KELLY, HENRY, BRISCOE, LUCERO, MURPHY, HARTZ and O'BRIEN, Circuit Judges.

ON REHEARING EN BANC

PAUL KELLY, JR., Circuit Judge.

Background

Defendant-Appellant Robert M. Haney was charged with attempted escape from prison, 18 U.S.C. § 751(a), and possession of escape paraphernalia, 18 U.S.C. § 1791(a)(2), (d)(1)(B). A jury acquitted him of the former, but convicted him on the latter. He was sentenced to thirty six months imprisonment to run consecutively to previous federal sentences to be followed by three years supervised release. 1 R. Doc. 285 at 2-3. On appeal, Mr. Haney argued that the district court erred in (1) not permitting a duress defense to the charge of possession of escape paraphernalia, and (2) failing to grant a downward adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. The panel reversed Mr. Haney's conviction on the first point and therefore did not reach the second. United States v. Haney, 287 F.3d 1266, 1267 (10th Cir.2002).

We granted rehearing en banc, requesting that the parties address the following issues in addition to any other pertinent points:

(1) whether, in the prison context, an inmate who is not threatened but assists in the escape of another can claim to have acted under duress (third-party duress defense), and (2) if so, whether an inmate must make some previous attempt to contact prison authorities in order to prove the lack of a reasonable alternative.

Having carefully reviewed the record, it appears that Mr. Haney did not raise a duress defense as to the charge of possession of escape paraphernalia. Even if he did, his objection to the lack of a duress defense was based upon his actions as an aider and abetter. In convicting Mr. Haney, the jury responded on the special verdict form that Mr. Haney was convicted as a principal only, not on an aiding and abetting theory. 1 R. Doc. 217 at 2. Thus, either based upon a failure to raise the defense as to the possession of escape paraphernalia charge, or by limiting his assertion of the defense only to his capacity as an aider and abetter, Mr. Haney has waived any claim on appeal that his conviction should be reversed for lack of a duress instruction. We further hold that the failure to so instruct does not constitute plain error. Fed.R.Crim.P. 52(b). Accordingly, we now vacate the panel opinion, and remand the case to the panel for disposition of the sentencing issue raised on appeal.

Discussion

A criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law. United States v. Scafe, 822 F.2d 928, 932 (10th Cir.1987). We have stated:

When a criminal defendant has raised a theory of defense, the trial court should refer to that theory and to the testimony bearing on it and submit the issue with an instruction on the applicable law. The jury should be advised of the defendant's position so as to put the issues raised by the theory of defense squarely before it.

United States v. Lofton, 776 F.2d 918, 920 (10th Cir.1985) (citations omitted). In this case, Mr. Haney's theory of defense included duress only insofar as he might be convicted on a theory that he aided and abetted his co-defendant who had been threatened.

Fed.R.Crim.P. 30 then provided:

No party may assign as error any portion of the charge or omission therefrom unless that party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which that party objects and the grounds of the objection.

A request for an instruction before the jury retires for deliberations is insufficient to preserve an objection to the actual instructions of the court. Jones v. United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Here, the court held a number of charge conferences prior to instructing the jury and allowed counsel to object after the jury charge based on the record previously made. 16 R. (00-1429)1543. That record reveals that Mr. Haney objected on the basis that he should receive a duress instruction only in response to a theory that he aided and abetted his co-defendant's attempted escape.

Before reaching the merits of this matter, we must first inquire (1) whether Mr. Haney sought a duress defense on the charge of possession of escape paraphernalia, and if so, (2) under what conditions? Only by piling inference on inference would we be able to conclude that Mr. Haney sought to assert such a defense as to possession of escape paraphernalia charge. The record is unequivocal, however, that the duress defense Mr. Haney sought to assert was limited specifically to the extent that a jury might find that he aided and abetted his co-defendant.

A. Pretrial Proceedings

In a motion to sever his trial from that of his co-defendant, Mr. Haney indicated that he intended to assert a duress defense because he was assisting his co-defendant in his escape attempt and honestly believed that his co-defendant's life was in danger. 1 R. Doc. 51 at 1-2. The government then filed a motion in limine requesting the district court to require Mr. Haney and his co-defendant to make a pretrial showing that they were entitled to the duress defense. 1 R. Doc. 72 at 1. Mr. Haney then filed a "Notice of Defense" which contained the broad assertion that he intended to "interpose a defense ... of duress as it relates to his co-defendant's life being at stake." 1 R. Doc. 88 at 1. The Notice of Defense did not specifically indicate whether the defense would be asserted to both charges or only the attempted escape charge. The government's motion only mentions the duress defense on the attempted escape charge. 1 R. Doc. 72 at 2.

The district court ruled that Mr. Haney's co-defendant would be permitted to assert a duress defense, 1 R. Doc. (00-1429) 114 at 4, but reserved ruling on Mr. Haney's request. 5 R. (00-1429) at 121, 126. At that hearing (May 11, 1999), defense counsel explained "that we have attempted to enter a duress defense, solely in terms of Mr. Haney. It's been couched in terms of Mr. Haney aiding and abetting Mr. Francis. We've been arguing that from the beginning." 5 R. (00-1429) at 121. Several months later, Mr. Haney then filed a memorandum in support of his position that he, too, should be allowed to assert the defense "to the charges pending" against him. 1 R. Doc. 138 at 3 (emphasis added). In response, the government argued that Mr. Haney should not be allowed to assert a duress defense because (1) duress was unavailable as a matter of law because the threat was to a third-party, non-family member, and (2) he could not meet the elements of duress even if the defense was available in these circumstances. 1 R. Doc. 142 at 6-8.

B. The District Court's Status Conference on Mr. Haney's Duress Defense

The district court heard argument on the issue at a status conference held on November 19, 1999. At that hearing, Mr. Haney's argument that he was entitled to the duress defense clearly focused on the attempted escape charge. His counsel also informed the district court that Mr. Haney's primary defense to the charges would be that he did not have the specific intent to escape; he was merely assisting his co-defendant in his escape attempt. 7 R. (00-1429) 17. Counsel stated:

At trial Robert Haney is not going to interpose a duress defense to his alleged attempted escape.... In other words, if the government can prove that Robert Haney was himself trying to escape from custody, we have no duress defense.... [I]f the jury believes Haney was trying to escape, they can convict Haney. But if they believe he was simply trying to aid or abet or act as an accomplice to Francis, then they need to find him not guilty under a duress defense.

7 R. (00-1429) 20-21. The full transcript from the status conference demonstrates that Mr. Haney's only argument was that he was entitled to a duress instruction on the attempted escape charge if the government sought an aiding and abetting instruction on that charge. Counsel stated that, "I conceded in my motion Haney should not have a duress defense as it applies solely to his own alleged attempted escape." 7 R. (00-1429) 29.

A further indication that Mr. Haney's only argument was that he be allowed to assert the duress defense if the government sought an aiding and abetting instruction is counsel's offer to enter into the following stipulation with the government:

[I]f I can get a stipulation from the government that they will not argue aiding and abetting, facilitation, encouraging, accomplicing on their escape with Robert Haney, then I can argue to the jury that, hey, he wasn't trying to escape. He was simply trying to help Francis escape. If you find that he himself was not trying to escape and he was merely trying to help Francis escape, you must find him not guilty on all charges, all right? If I make that argument to the jury, I don't need a necessity or duress defense.

7 R. (00-1429) 27; see also id. at 28 ("If... Mr. Haney isn't going to get nailed for assisting Mr. Francis and we intend to present a lot of evidence in this trial that he wasn't trying to escape, he was merely trying to assist Mr. Francis we don't need necessity. We don't need duress."). Based on the government's representation that it did not intend to rely on an aiding and abetting theory, the district court characterized the duress...