U.S. v. Miller

• Decision Date: 19 June 1986
• Docket Number: No. 85-5899,85-5899
• Citation: 793 F.2d 786
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jerry MILLER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 786

793 F.2d 786

UNITED STATES of America, Plaintiff-Appellee, v. Jerry MILLER, Defendant-Appellant.

No. 85-5899.

United States Court of Appeals Sixth Circuit.

Argued May 5, 1986.

Decided June 19, 1986.

Wilbur M. Zevely (argued), Florence, Ky. (Court Appointed), for defendant-appellant.

James Zerhusen, Asst. U.S. Atty., Covington, Ky., Louis DeFalaise (argued), for plaintiff-appellee.

Before ENGEL, CONTIE and RYAN, Circuit Judges.

CONTIE, Circuit Judge.

Jerry Miller appeals from his conviction pursuant to 18 U.S.C. Sec. 2113(e) for attempting to free himself from confinement for armed bank robbery by forcing a person to accompany him without consent. Miller contends that the evidence of force was insufficient to sustain his conviction and that his conviction pursuant to 18 U.S.C. Sec. 2113(e) was barred by his prior conviction under subsections (a), (d) of that section. We affirm.

I.

On June 12, 1985, Jerry Miller was indicted for attempting to escape federal custody in violation of 18 U.S.C. Sec. 751(a), Count I, and for forcing a person to accompany him without consent in such escape in violation of 18 U.S.C. Sec. 2113(e), Count III. Miller's compatriot in the escape, Perry Melton, was indicted on identical charges in Counts II and IV of the indictment. On July 29, Miller moved to dismiss Count III of the indictment. The motion to dismiss asserted that 18 U.S.C. Sec. 2113(e) should be limited to escapes which are in furtherance of or in connection with the robbery of which the defendant was convicted. "The statute was not designed to include an attempted escape long after conviction." Miller also moved to require the United States to elect between Counts I and III of the indictment on the ground that Count I (escape) is a lesser included offense of Count III (use of force to require accompaniment during escape), and that prosecution for both offenses violated the Double Jeopardy Clause of the Fifth Amendment.

On August 23, 1985, a hearing was held before a magistrate regarding Miller's motion to dismiss, and, on September 23, the magistrate recommended denial of the motion. Regarding Miller's motion to dismiss Count III, the magistrate found:

The statutory language, however, has no ambiguities and in defining the particular acts punishable in Sec. 2113(e), it is significant that the disjunctive "or" is used. It is reasonable to assume from reading this statute that Congress intended to punish the act of forcing another to accompany a defendant in an attempted escape, whether the defendant's confinement is pre-conviction or post-conviction.

The magistrate also concluded that prosecution for both offenses did not violate the Fifth Amendment. On October 1, 1985, the district court denied Miller's motions.

The evidence in this case, tried to a jury, indicates that Miller had been convicted on May 10, 1985 for robbing a bank insured by the FDIC and putting in jeopardy the lives of bank employees by use of a dangerous weapon in violation of 18 U.S.C. Sec. 2113(a), (d), and was sentenced to 25 years imprisonment. Miller was held in the Boone County Jail from November 13, 1984 to May 15, 1985. Such custody was arranged through agreements between the county and the U.S. Marshals Service.

Charles Baughman testified that he worked the night shift, midnight to 8 a.m., on May 13, 1985 at the Boone County Jail. On that morning, Miller was in the maximum security area. When locking down the cells, Baughman found that there was water on the floor inside the maximum security cell area in which Miller and Melton were sitting. Miller and Melton asked for a mop to clean up the water. Baughman went back to the control room and told Bonnie Moore, the matron, that "I'm going to take a mop back to D cell. They've got a mess back there." Further, "[t]here's something wrong. I've got a funny feeling there's something wrong," Baughman said. "Watch me real close." Baughman testified that the area had "an unusual quietness to it." Moore was able to watch Baughman from the control room because the hallways are monitored by cameras. The outer door outside the maximum security cell area was open, but the inner door opening into the dayroom was still locked. When Baughman opened the door to push the mop in, Miller told Melton to "[g]et that mop." Melton hopped behind Baughman, jabbed something in his back, and said, "[t]his is a gun. Don't do something stupid, or, you won't get hurt." Baughman did not see anything in Melton's hand and moved around before being warned by Miller, "[j]ust do what you're told. You won't get hurt." Miller and Melton stooped down behind Baughman, and the three proceeded through the hallways, opening doors as they went. Baughman testified that both Miller and Melton told him that he would not get hurt if he did not do anything stupid. When the three reached a door near the control room that Baughman was unable to unlock, Miller and Melton told Baughman to "[t]ell them to unlock the door, or we're going to kill you." Bonnie Moore and Don Altenhofen were in the control room, which was locked with the lights turned out to prevent Miller and Melton from seeing in. Baughman testified that he accompanied Melton and Miller because he felt threatened. Miller and Melton screamed into the control room that they would kill Baughman if the door was not opened. Miller had a weighted sock which he slammed against the control room door. When the door never opened and Miller and Melton heard the elevator bringing down help, they ran back to their cells and Baughman locked the doors behind them. Baughman indicated that Melton was directing the escape, but that Miller had tapped Baughman on the shoulder and told him to do what he was told and he would not get hurt. Baughman emphasized that Miller said "[t]ell them to open the door, or we're going to kill you." Miller had asked for the mop.

Bonnie Moore confirmed that Baughman told her that it was too quiet and that he was suspicious. Moore indicated that she heard, over the monitor, someone say, "don't try anything stupid," and saw Miller following behind Baughman in a stooped posture. When they reached the control room, Miller pressed his face up against the glass, Moore called for help, and Miller was banging a weighted sock against the glass. Moore heard Melton and Miller saying "Open the door," and "Kill him." Moore heard Melton tell Baughman that he would kill him if he did not open the door, but did not hear Miller make such a statement.

Don Altenhofen testified that he heard someone ask him to open the door or else Baughman would be killed, but he was uncertain who made the threat. Altenhofen testified that he believed that Miller had his left hand on Baughman outside the control room door.

Jack Pundle of the Boone County Police Department testified that he participated in a search of Miller and Melton and their cells and no firearm was found. Several rolled-up papers were found and it was theorized that these were jammed in Baughman's back.

On October 1, 1985, the jury convicted Miller on both counts, and, on October 4, 1985, the court merged the counts for the purposes of sentencing and imposed upon Miller one sentence of fifteen years imprisonment, to be served, however, consecutive to any sentence he was then serving. Defendant's motions for a judgment of acquittal at the close of the evidence had been denied.

II.

Fed.R.Crim.P. 29(a) provides in pertinent part for entry of judgment of acquittal "if the evidence is insufficient to sustain a conviction of such offense." "In deciding whether evidence is sufficient to withstand a motion for an acquittal, we must view the evidence and all reasonable inferences in the light most favorable to the government.... If the evidence is such that a reasonable mind might fairly find guilt beyond a reasonable doubt, the denial of defendant's motion for acquittal must be affirmed." United States v. Holloway, 731 F.2d 378, 381 (6th Cir.), cert. denied, --- U.S. ----, 105 S.Ct. 440, 83 L.Ed.2d 366 (1984); United States v. Elkins, 732 F.2d 1280, 1287 (6th Cir.1984).

18 U.S.C. Sec. 2113(e) provides:

Whoever, in committing any offense defined in this section, or in avoiding or attempting to avoid apprehension for the commission of such offense, or in freeing himself or attempting to free himself from arrest or confinement for such offense, kills any person, or forces any person to accompany him without the consent of such person, shall be imprisoned not less than ten years, or punished by death if the verdict of the jury shall so direct.

(emphasis added). Case law defining the term "force" within the context of subsection (e) is indeed sparse. The government cites United States v. Rizzo, 416 F.2d 734 (7th Cir.1969), in which the court, in an analogous factual situation, held the evidence sufficient where "[t]he turnkey, Price, testified during the Government's case in chief that he thought that defendant had a real gun and as a result was in fear of his life and obeyed the defendant's order to accompany the latter in his attempted escape." Id. at 736. Evidence of physical mistreatment or psychological coercion has been found sufficient, Coon v. United States, 360 F.2d 550, 553 (8th Cir.), cert. denied, 385 U.S. 873, 87 S.Ct. 145, 17 L.Ed.2d 100 (1966), as has evidence of participation in a scheme involving the use of force, even where the defendant himself did not specifically apply the force, United States v. Bux, 261 F.2d 807, 808 (3d Cir.1958).

Several factors support denial of the motion for acquittal. First, it is clear that Miller was an integral part of the scheme to escape. Second, Miller's intention to use force in some respect is evidenced by his possession of the weighted sock. Third, the evidence establishes unequivocally that Miller threatened Baughman, warning him that he would get hurt if he did anything stupid. This evidence is sufficient to allow a jury to infer that Baughman accompanied...