U.S. v. Spletzer, 75-3616
| Decision Date | 26 July 1976 |
| Docket Number | No. 75-3616,75-3616 |
| Citation | 535 F.2d 950 |
| Parties | 2 Fed. R. Evid. Serv. 218 UNITED STATES of America, Plaintiff-Appellee, v. Robert Donald SPLETZER, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Kenneth H. Jones, Jr., Ft. Worth, Tex. (court appointed), for defendant-appellant.
Frank D. McCown, U. S. Atty., Ft. Worth, Tex., Judith A. Shepherd, Asst. U. S. Atty., Dallas, Tex., for plaintiff-appellee.
Appeal from the United States District Court for the Northern District of Texas.
Before GEWIN, GODBOLD and SIMPSON, Circuit Judges.
Appellant Robert Donald Spletzer was adjudged guilty, following a jury trial and adverse verdict, of escape from federal custody in violation of 18 U.S.C. § 751(a). The indictment charged that he knowingly, wilfully and unlawfully escaped. We reverse and remand.
In 1972 Spletzer was convicted of the federal offense of theft from a federally insured bank and sentenced to eight years' imprisonment. After serving approximately two years he was scheduled to be released on parole on July 1, 1975. As a transitional step toward his return to society, he was transferred to the Salvation Army Work-Study Center (Center) in Fort Worth, Texas on April 7, 1975. The Center is an authorized pre-release facility of the federal government. Upon admission to it, all the inmates are required to sign an "Acknowledgement of Custody." Spletzer signed this document, which states, among other things, that the signor understood that leaving the Center without permission or failing to return within the prescribed time would be deemed an escape from the custody of the Attorney General.
Nevertheless, on April 18 and 19 Spletzer remained out all night without permission, but he was not punished or reprimanded for this offense. A similar transgression on May 1 and 2 likewise resulted in no adverse consequences for Spletzer. In both of these instances, however, he had telephoned the Center.
On the morning of May 13, Spletzer signed out of the Center to go to work. He failed to report back to it by his 10 p. m. curfew time, and when he failed to return or report in the next morning, the Center Director, Olin Tunnel, was ordered by a Bureau of Prisons official to place Spletzer on escape status. This direction apparently resulted in the indictment and conviction in this case, and the revocation of Spletzer's parole.
Since the sufficiency of the evidence is a crucial issue in this case, we detail below the relevant trial testimony. At the trial Director Tunnel testified for the prosecution and a barmaid and Dr. Blaine McLaughlin, a psychiatrist, were the two important defense witnesses.
The barmaid testified that on May 13 and 14 she worked at the Bank Vault Lounge, which is located approximately one block from the Center. Spletzer was an occasional customer of the Bank Vault; he arrived there with a party named Tony Salkeld, a former resident of the Center, at 9 or 10 p. m. on the 13th. Spletzer had been drinking "quite a bit" and was intoxicated by the time he and Tony left the lounge at between 10 and 11.
Later, the barmaid closed the lounge and encountered Spletzer outside. At her invitation he accompanied her to her residence, which was located approximately six miles from the Center. Spletzer was intoxicated, but twice on the way to her apartment, and again upon their arrival there, he asked her about a telephone to call the "halfway house." 1 Her apartment did not contain a telephone; she told him where one was located, but that he would have to wait until the next morning to use it. Before falling asleep at the barmaid's apartment, Spletzer repeatedly asked about a telephone. He never located one, however, so he did not phone the Center that night.
In the early morning hours of the 14th, Spletzer and his hostess engaged in intercourse, but when she left for work at between 8 and 9:30 a. m. she was unable to awaken him. At approximately 11 a. m. Spletzer again arrived at the Bank Vault. He had already been drinking and he consumed one or more beers there; he left about 15 minutes after entering.
Center Director Tunnel testified that he became concerned about Spletzer's whereabouts on the morning of the 14th. He undertook to locate him and convince him to return to the Center in order to avoid his being placed on escape status. At 11 a. m. on the 14th, however, he placed Spletzer on escape status pursuant to the direction of a prison official. At 2 p. m. Mr. Tunnel found Spletzer at Kenny's Bar, which is located approximately three blocks from the Center. Spletzer was drinking at this time; he rebuffed the Director's attempts to persuade him to return, saying he would not go back and that "they" would never take him alive.
After an hour of such dialogue between Mr. Tunnel and Spletzer, the Director left him and called the F.B.I. to inform it of Spletzer's whereabouts. When he returned, Spletzer was still at the bar and he remained with him until the F.B.I. took him into custody without physical resistance. Near the end of Director Tunnel's direct testimony, the following colloquy occurred:
Q. (Prosecutor) During the time you had the conversation with (Spletzer) beginning at approximately at (sic ) 2:00 in the afternoon of May 14th did he indicate he understood what you were saying?
A. Not I don't think so. Only that I wanted him to come back, and he didn't want to come back. He was pretty intoxicated, in my opinion, at the time.
Q. All right, what happened when the F.B.I. agent got there?
A. He surrendered to their custody.
Q. Tell us what you remember seeing happen.
A. When they came in he and spoke to him, . . . he stood up from the bar and they took him. . . . (H)e didn't as far as I remember he didn't attempt to physically resist them taking him.
On cross-examination Mr. Tunnel testified that the escape provisos in the "Acknowledgment of Custody" that Spletzer signed were not rigidly enforced, and that inmates were not reported to prison officials until they had exceeded their curfew by ten or twelve hours. The Director further testified that Spletzer had never previously indicated a desire or intention to escape, and that if he had believed that Spletzer intended to escape on the 13th, he would not have waited until 11 a. m. on the 14th to report him. He further stated:
I don't think at 10:00 on the 13th he was intending to escape. I do think it is possible that he would have left, possibly left town or something on the afternoon of the 14th, in the condition I found him. I think it certainly would have been a high risk to have ignored the condition.
Later, Mr. Tunnel reiterated that Spletzer "seemed to be pretty intoxicated."
The government stipulated that Spletzer was a chronic alcoholic. Dr. Blaine McLaughlin, a psychiatrist, testified as an expert witness for the defense concerning Spletzer's mental condition. Dr. McLaughlin testified that Spletzer suffered from permanent brain damage as a result of his alcoholism, that he did not have the capacity to control his drinking pattern when under the influence of alcohol, and that he suffered from periods of toxic psychosis during which he was unable to distinguish right from wrong or make responsible decisions. In response to a hypothetical question by defense counsel that was identical to the fact situation on which Spletzer's arrest and indictment were based, Dr. McLaughlin testified that Spletzer would be in a state of toxic psychosis and unable to make a rational decision during the time that he failed to return to the "halfway house."
There are three elements of the federal escape offense established by18 U.S.C. § 751(a): (1) an escape, (2) from the custody of an institution where the prisoner is confined by direction of the Attorney General, (3) pursuant to a judgment of conviction or other process issued under the laws of the United States by a court. United States v. Chapman, 455 F.2d 746, 749 (5th Cir. 1972); United States v. McCray, 468 F.2d 446, 448 (10th Cir. 1972); Hardwick v. United States, 296 F.2d 24, 26 (9th Cir. 1961). In the case sub judice Spletzer filed a sworn admission prior to trial that conceded the second and third elements of the offense. Nevertheless, over defense objection on the grounds of irrelevance, incompetence and prejudice, the government was permitted to introduce into evidence a certified copy of Spletzer's prior conviction. This document revealed that the prior offense was "theft from a Federally Insured Bank(,) Bank Robbery." 2
Following the close of the government's case, Spletzer made a motion for a judgment of acquittal, which was denied. As previously noted, Spletzer was indicted for knowingly, wilfully and unlawfully escaping; the trial judge also instructed the jury, without objection, that specific intent was required to convict. Accordingly, 3 specific intent became a necessary element for conviction pursuant to the "law of the case" doctrine. 4 United States v. Woodring, 464 F.2d 1248, 1251 (10th Cir. 1972). See generally United States v. Johnson, 495 F.2d 242, 243-44 (10th Cir. 1974); United States v. Locke, 425 F.2d 313, 315 (5th Cir. 1970).
On this appeal Spletzer contends that his conviction should be overturned because the evidence, especially with respect to specific intent, is insufficient to support it. In addition, Spletzer asserts that the trial court committed prejudicial error in admitting into evidence a full copy of the prior judgment, which revealed that his earlier conviction was for bank robbery. It is our conclusion that both of these points are meritorious.
Since the element of specific intent became the law of the case, 5 the government was required to present sufficient evidence, viewing it most favorably to the government and making all reasonable inferences and credibility...
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