U.S. v. Riffe

• Decision Date: 06 July 1994
• Docket Number: No. 93-1878,93-1878
• Citation: 28 F.3d 565
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Leonard P. RIFFE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 565

28 F.3d 565

UNITED STATES of America, Plaintiff-Appellee, v. Leonard P. RIFFE, Defendant-Appellant.

No. 93-1878.

United States Court of Appeals, Sixth Circuit.

Submitted April 21, 1994.

Decided July 6, 1994.

Janet L. Parker, Asst. U.S. Atty., Bay City, MI (briefed), for plaintiff-appellee.

Robert J. Dunn, Bay City, MI (briefed), for defendant-appellant.

Before: MERRITT, Chief Judge; KENNEDY and NELSON, Circuit Judges.

MERRITT, Chief Judge, delivered the opinion of the court, in which NELSON, Circuit Judge, joined. KENNEDY, Circuit Judge (pp. 570-72), delivered a separate opinion concurring in part and dissenting in part.

MERRITT, Chief Judge.

Defendant Leonard Riffe appeals his convictions and sentences for conspiracy to distribute marijuana while a prisoner in violation of 21 U.S.C. Sec. 846 (Count 1) and for aiding and abetting the use of the mail to facilitate the distribution of marijuana in prison in violation of 21 U.S.C. Sec. 843(b) (Counts 2 and 3). On appeal, Riffe claims that the district court committed reversible error when it refused to give a jury instruction on his theory of defense of duress by fellow prisoners and that there was insufficient evidence to support convictions on Counts 2 and 3. Although we find that sufficient evidence existed for the jury to convict, we agree that the district court erred when it refused to give a duress jury instruction. The most significant issue before us is whether the defense of duress, and hence an instruction on duress, is available only if a prisoner has attempted to present himself to prison authorities and attempted to seek safe haven from prison administrative procedures even though there is evidence that such action is likely to result in serious physical harm or death.

I.

Riffe is an inmate at Michigan's Standish Maximum Correctional Facility. In 1992, a federal grand jury indicted Riffe and Stephanie Kania, Riffe's girlfriend, for conspiracy to distribute marijuana and aiding and abetting the use of the mail to facilitate distribution of marijuana. Kania pled guilty and agreed to cooperate with the government. Defendant was tried by a jury and convicted of all three counts.

The goal of defendant's scheme was to smuggle marijuana into Standish. Kania would receive packages containing marijuana or money to buy marijuana at her post office box in Carrollton, Michigan, sent by an unknown coconspirator. Once a mailing arrangement was made, Riffe would call Kania and instruct her to retrieve the package from her post office box and deliver the marijuana to a prison guard at a location outside the prison arranged by Riffe. The guard would then deliver the marijuana to Riffe inside the prison.

On appeal, Riffe argues that the district court erred in denying his judgment of acquittal motions on Counts 2 and 3 because the evidence was insufficient to support the convictions for knowingly and intentionally aiding and abetting the use of the mail to facilitate the distribution of marijuana. He argues that the government failed to present any evidence that he was directly involved in the actual mailing of the marijuana. He contends that the evidence merely showed that he had apprised other Standish inmates of Kania's mailing address and that those inmates were responsible for arranging the mailings. However, he admitted that he instructed Kania about the packages, that he utilized Kania to pick up the marijuana, that he arranged drops between Kania and prison guards outside the prison and that he arranged for the guards to deliver the marijuana to him. He concludes, however, that this evidence is insufficient to convict him under 21 U.S.C. Sec. 843(b). When reviewing a claim of insufficient evidence, we examine the evidence in the light most favorable to the government and draw all inferences in the government's favor in order to determine whether any rational trier of fact could have found the elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Head, 927 F.2d 1361, 1365 (6th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 144, 116 L.Ed.2d 110 (1991).

The statute under which the defendant was charged and convicted reads:

It shall be unlawful for any person knowingly or intentionally to use any communication facility in committing or in causing or facilitating the commission of [a drug trafficking crime].

21 U.S.C. Sec. 843(b). The statute specifically defines "communication facility" to include the mail. 21 U.S.C. Sec. 843(b). The elements of Sec. 843(b) which the jury was required to find beyond a reasonable doubt are (1) the knowing or intentional (2) use of the mail (3) to facilitate the commission of the marijuana distribution. United States v. Dotson, 871 F.2d 1318, 1321 (6th Cir.1989)(citation omitted), vacated in part on other grounds, 895 F.2d 263 (6th Cir.), cert. denied, 498 U.S. 831, 111 S.Ct. 94, 112 L.Ed.2d 66 (1990). Because Riffe was charged with aiding and abetting, the second element actually required the jury to find that Riffe aided and abetted the use of the mail. 18 U.S.C. Sec. 2. Riffe argues incorrectly that he could not have aided and abetted in the use of the mail because he was in prison when the packages were mailed.

Kania testified that she would receive packages at her post office box based on Riffe's arrangements, that she knew the packages contained either marijuana or money to purchase marijuana which would eventually be smuggled into the prison and that Riffe was the only person who knew her post office box number. Riffe would call her and tell her that a package was coming to her post office box and that she should retrieve it. Riffe would later call her to affirm that the package of drugs had arrived and give her instructions regarding where to meet a prison guard to forward the package to him.

Postal Inspector Paul Durand's trial testimony supported Kania's testimony. He also testified that when he confronted Riffe about the scheme, Riffe admitted that he had arranged the mailings to be sent to Kania's post office box and had arranged for the prison guards to receive the marijuana from Kania and deliver it to him in the prison.

While Riffe is correct that he might not have had direct involvement in the actual mailing of the packages because he was in prison, he clearly aided and abetted others, including Kania, in using the mail to facilitate this drug scheme. He directed the entire scheme, arranged for third parties to mail the marijuana to Kania, directed Kania to use her post office box for the drug offense and instructed Kania on how to further facilitate the scheme once she received the mailed packages. Contrary to defendant's argument, there is no requirement that the defendant be the person who initiates the mailing in order to be convicted under Sec. 843(b). United States v. McLernon, 746 F.2d 1098 1107 (6th Cir.1984). ¹ Viewing the evidence in the light most favorable to the government, sufficient evidence existed for the jury to find all of the elements of Sec. 843(b) beyond a reasonable doubt.

II.

Riffe next argues that the district court committed reversible error when it refused to give the standard Sixth Circuit jury instruction or allow the jury to pass on his defense of duress. ² Riffe's theory of defense throughout trial was that he was under duress, including the threat of immediate harm, from a prison gang to supply marijuana to members of the gang as repayment of a debt which he owed to them because Riffe's girlfriend, Kania, had used or failed to deliver $1,300 worth of cocaine that belonged to the gang. He offered significant evidence that gang members threatened to kill him if he did not carry out this smuggling operation, and he argues that he was entitled to have the jury pass on his defense of duress rather than have it ruled out by the court.

Riffe presented evidence that he had no alternative but to comply with the demands of the prison gang to smuggle marijuana into the prison, that going to prison officials would have put him in more danger because the protective segregation was ineffective and that he would have been put in additional danger from other inmates because prison officials would have required him to identify the inmates who were threatening him. Defense witness Michael Laukas, an inmate at Standish, testified that he saw and heard gang members threatening Riffe with knives over the smuggling of marijuana in order to repay the $1,300 debt and that Riffe was reasonably afraid for his life. Laukas also testified that Riffe could not have obtained adequate protection by prison officials. He explained that Standish did not have an adequate protection system and that Riffe would have put himself at greater risk of harm if he had gone to prison officials for help because they would have required him to give up the names of inmates who were threatening him.

Riffe testified that gang members had threatened his life if he refused to smuggle marijuana into the prison for them. He explained that he did not report the threats to prison officials because prison officials would have required him to disclose the names of inmates making the threats and that the prison's protection system would not have adequately safeguarded his physical well-being after making such identifications. He testified that the basis for this belief was that in 1985-86 while in protective segregation after giving up a name to prison officials, Riffe had been stabbed in the chest. He also testified that a friend had been killed after a similar incident in another institution.

Postal Inspector Durand also testified that Riffe had relayed to him that he feared for his life while in the prison, and Kania testified that she was concerned with the defendant's physical safety in the prison and that the defendant had told her that he was being threatened if he did not continue to produce marijuana...