U.S. v. Johnson
| Decision Date | 11 February 1992 |
| Docket Number | Nos. 90-30344,90-30370 and 90-30373,90-30348,90-30366,s. 90-30344 |
| Citation | 956 F.2d 894 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Carolyn Sue JOHNSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Trisha Ranae WOOD, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kristy Ann BRECK, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Ulualoaiga EMELIO, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Angela BARACCO, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
George G. Curtis, Portland, Or., for defendant-appellant Carolyn Sue Johnson.
Robert Reid, Bates, Smucker & Reid, Portland, Or., for defendant-appellant Trisha Ranae Wood.
Jenny Cooke, Portland, Or., for defendant-appellant Kristy Ann Breck.
Michael Norris, Portland, Or., for defendant-appellant Ulualoaiga Emelio.
Susan Elizabeth Reese, Reese and Goffredi, Portland, Or., for defendant-appellant Angela Baracco.
Frank Noonan, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Appeal from the United States District Court for the District of Oregon.
Before GOODWIN, SCHROEDER and NOONAN, Circuit Judges.
Carolyn Sue Johnson, Trisha Ranae Wood, Kristy Ann Breck, Ulualoaiga Emelio, and Angela Baracco were convicted of a variety of drug offenses. All of them appeal. We affirm all of the convictions, but remand all of the cases for resentencing.
These cases arise out of a drug ring run in Portland, Oregon by Daniel Longoria, Sr. He was the kingpin. His son, Daniel, Jr., operated as an assistant. A group of large, rough men, collectively known as "The Samoans," although some were of other origin, acted as the boss's bodyguards, enforcers and collectors. Emelio was one of this group. At the lowest level of the structure were a number of women, some of whom are the defendants here.
The testimony presented at trial and the verdict of the jury leave no doubt that the defendants did the things with which they are charged. The issues raised on appeal go to rulings of the court which affected either the defenses offered or the sentencing. The dominant issue on the appeals of Breck, Johnson and Wood is the duress defense as it interacts with sentencing.
The defense of duress is a common law concept that federal criminal law has incorporated. United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). The defense assumes that the defendant has voluntarily performed the criminal act; his or her will has not been so overcome that another choice was impossible; the act done was intentional. As the defense has been phrased in standard, but not completely comprehensive, terms in this circuit:
There are three elements of the duress defense: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm.
United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir.1984).
The formula is addressed to the impact of a threat of force upon a reasonable person: The fear must be "well-grounded." There must be no "reasonable" opportunity to escape. The formula is in harmony with the analysis of duress in the Model Penal Code which recognizes duress in the use of unlawful force "that a person of reasonable firmness in his [or her] situation would have been unable to resist." American Law Institute, Model Penal Code § 2.09(i) (1985).
In determining if the fear was "well-grounded," the defense does permit the fact-finder to take into account the objective situation in which the defendant was allegedly subjected to duress. Fear which would be irrational in one set of circumstances may be well-grounded if the experience of the defendant with those applying the threat is such that the defendant can reasonably anticipate being harmed on failure to comply.
The question, relevant to the defense of duress in the cases before us, is whether a special vulnerability to fear--a vulnerability not produced by those persons causing the defendant's criminal action--may be taken into account. As a defense to a charge of criminal conduct, such subjective vulnerability has not been admitted. Here, as elsewhere in the criminal law, there is "an unwillingness to vary legal norms with the individual's capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable." Model Penal Code, § 2.09 comment 2. "Stark, tangible factors that differentiate the actor from another, like his [or her] size, strength, age, or health, would be considered in making the exculpatory judgment." Id. at comment 3. As has been evident by the need to add the personal feminine pronoun in quoting from the Model Penal Code, its makers apparently did not consider gender as one of the "stark, tangible factors." As will be seen, however, there are sets of circumstances in which gender is also a factor to be considered.
Moreover, a purely subjective element that cannot be taken into account in determining criminal liability may be taken into account in sentencing. Id., comment 2; LaFave and Scott, Criminal Law (Rev. ed. 1986) § 5.3(d). Federally, the Sentencing Guidelines specifically provide for the possibility of downward departure if the defendant "committed the offense because of serious coercion, blackmail or duress, under circumstances not amounting to a complete defense." U.S.S.G. § 5K2.12. The Commission's Policy Statement on this guideline declares: "The extent of the decrease ordinarily should depend on the reasonableness of the defendant's actions and on the extent to which the conduct would have been less harmful under the circumstances as the defendant believed them to be." The perception of the particular defendant thus must be taken into account.
Evidently the Commission had in mind the showing of duress less than what constitutes a defense to a crime; for if the defense were "complete," there would have been no crime requiring a sentence. United States v. Cheape, 889 F.2d 477, 480 (3d Cir.1989). Consequently, it has been held that the injury threatened need not be imminent and may include injury to property; and there need not be proof of inability to escape. Id. Moreover, the Commission emphasizes not only "the reasonableness of the defendant's actions" but "the circumstances as the defendant believed them to be." U.S.S.G. § 5K2.12. The latter clause directs the sentencing court's attention to the defendant's subjective evaluation of the circumstances in which the defendant was placed.
With these principles and precedents in mind, we turn to the cases at hand.
The Duress Defense In Relation To Wood.
According to Trisha Wood's testimony, she began to work for Longoria only after he had hit her in the face and one of his enforcers had thrown her across the room. Given the violence that she had already observed on the part of Longoria, including his putting of dynamite in her housemate Kathy King's mouth, she was under threat of immediate severe physical harm. She tried to escape three times. The first time she was caught her life was threatened. The second time she was subjected to severe physical abuse. The third time Longoria put a gun in her mouth and also threatened to kill her daughter. If Wood's testimony were believed, she met the strictest test for having been under duress.
The court so charged the jury. But the jury either did not believe Wood's story or at least did not believe that she was without reasonable opportunity to escape. The jury convicted her of the single count with which she was charged, distribution of heroin on September 14, 1989.
Wood's conviction must stand, but duress remains relevant. In imposing sentence, the court took into account all the drugs that she had distributed while working for Longoria from July 1, 1989 to September 14, 1989. Wood had admitted these distributions while contending that they had been made under duress. She cannot fairly be made accountable for them without passing on her claim of duress. The jury verdict as to her act on September 14, 1989 does not speak to her state prior to this date. If her contention is correct, she committed no crime prior to this date. The sentencing court cannot hold her responsible without first deciding whether she was in fact under duress.
If the court should conclude that Wood has not carried her burden of proving duress because her evidence of duress is not credible, it is still open to the court to consider whether there was duress that did not amount "to a complete defense." U.S.S.G. § 5K2.12. In making such an assessment, the court is not confined to the classical definition of duress, but should properly consider the individual before the court and her particular vulnerability. In this regard, the testimony of Wood's expert, Margaret Ann Fillmore, is of special interest.
At the trial, Wood buttressed her contention of duress with the testimony of Fillmore, who was found qualified to testify as an expert on the psychology of human behavior. She had had substantial experience in dealing with battered women and testified that Trisha Wood fitted the profile of a battered woman. The substance of her testimony is as follows, incorporating within it the text on which she relied:
Battered woman syndrome is a set of psychological and behavioral reactions exhibited by victims of severe, long-term, domestic physical and emotional abuse. L. Walker, The Battered Woman Syndrome (1984). Battered woman syndrome is not a mental disease or defect; rather, battered woman syndrome is a post-traumatic stress disorder. Its psychological effects are often similar to the effects of imprisonment on kidnap victims and prisoners of war. Once battered women believe themselves to be helpless victims of abusive men, they...
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