U.S. v. Turner

• Decision Date: 24 January 1995
• Docket Number: No. 93-3370,93-3370
• Citation: 44 F.3d 900
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Merrie Warren TURNER, aka Merrie Foutz, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 900

44 F.3d 900

UNITED STATES of America, Plaintiff-Appellee, v. Merrie Warren TURNER, aka Merrie Foutz, Defendant-Appellant.

No. 93-3370.

United States Court of Appeals Tenth Circuit.

Jan. 24, 1995.

Robin D. Fowler (Randall K. Rathbun, U.S. Atty., and Michael G. Christensen, Asst. U.S. Atty., with him on the brief), Asst. U.S. Atty., Wichita, KS, for plaintiff-appellee.

Braden W. Sparks (Michael C. McClintock, Gonzaga University School of Law, Spokane, WA, with him on the briefs) of Braden W. Sparks, P.C., Dallas, TX, for defendant-appellant.

Before BRORBY and McWILLIAMS, Circuit Judges, and BURCIAGA, ^* District Judge.

BRORBY, Circuit Judge.

The defendant, Merrie W. Turner, appeals the district court's decision refusing to instruct the jury on the defense of necessity and imposing certain limitations as conditions of her probation. We have jurisdiction under 28 U.S.C. Sec. 1291, and affirm.

BACKGROUND

Due to persistent antiabortion protests at a clinic in Wichita, Kansas, a preliminary injunction was issued on August 5, 1991, by a United States District Court in Wichita. The injunction prohibited, inter alia, "trespassing on, sitting in, blocking, impeding or obstruct[ing] ingress into or egress from any facility at which abortions, family planning, or gynecological services are provided by plaintiffs in Wichita, Kansas."

On August 20, 1991, Ms. Turner scaled the fence surrounding the Women's Health Care Services clinic with about forty other protesters. Ms. Turner testified she was at the clinic as a "sidewalk counselor" and entered the clinic in order to pray and place her body in front of a woman who was attempting to enter the clinic.

Ms. Turner was indicted for assault on a federal officer in violation of 18 U.S.C. Sec. 111, and obstruction of a federal court order in violation of 18 U.S.C. Sec. 1509. The assault charge was dropped and Ms. Turner was eventually convicted by a jury on the obstruction charge. Ms. Turner filed a motion for judgment of acquittal, which was denied by the district court. United States v. Cooley, 787 F.Supp. 977, 982-83 (D.Kan.1992). On appeal, this court vacated and remanded that ruling on the ground the district court judge should have recused himself from presiding over the trial. United States v. Cooley, 1 F.3d 985, 998 (10th Cir.1993).

Ms. Turner was retried and again convicted. Judgment was entered against her and a sentence of one year supervised probation imposed. (Doc. 103.) This appeal followed.

DISCUSSION

A

Ms. Turner's primary claim on appeal is the district court erred in refusing to instruct the jury on the defense of necessity. "The refusal to give a particular jury instruction, even if the instruction is an accurate statement of the law, is within the discretion of the district judge." United States v. Vasquez, 985 F.2d 491, 496 (10th Cir.1993). Moreover, while "a defendant is entitled to an instruction regarding [her] theory of the case, ... [a] defendant is not entitled to an instruction which lacks a reasonable legal and factual basis" id.; see also United States v. Schoon, 971 F.2d 193, 195 (9th Cir.1991) ("A district court may preclude a necessity defense where 'the evidence ... is insufficient as a matter of law to support the proffered defense.' "), cert. denied, --- U.S. ----, 112 S.Ct. 2980, 119 L.Ed.2d 598 (1992).

Ms. Turner argues the district court erred in refusing to provide the jury with the following instruction:

An element of the government's case is that the defendant did not commit the crime charged in this case to avoid a greater evil. The defendant acted to avoid a greater evil if:

1. The evil she sought to avoid was greater than the evil sought to be prevented by the law defining the crime she is charged with committing.

2. The defendant believed that her conduct was necessary to avoid an evil to other persons; and

3. The defendant believed that her conduct was the least harmful alternative to avoid this evil.

Invocation of the necessity defense requires a showing by the defendant that: (1) she was faced with a choice of evils and chose the lesser evil; (2) she acted to prevent imminent harm; (3) she reasonably anticipated a direct causal relationship between her conduct and the harm to be averted; and (4) she had no legal alternatives to violating the law. United States v. Schoon, 955 F.2d 1238, 1239-40 (9th Cir.1991).

The defense of necessity does not arise from a "choice" of several courses of action.... It can be asserted only by a defendant who was confronted with ... a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts. It is obviously not a defense to charges arising from a typical protest.

United States v. Seward, 687 F.2d 1270, 1276 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 789, 74 L.Ed.2d 995 (1983); see also United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 635, 62 L.Ed.2d 575 (1980) ("if there was a reasonable, legal alternative to violating the law ... the defenses [of necessity or duress] will fail").

While citing almost fifty cases holding that the defense of necessity does not apply to those who seek to obstruct access to, or the operations of abortion clinics, see, e.g., City of Wichita v. Tilson, 253 Kan. 285, 855 P.2d 911, 915-16 ("Every appellate court to date which has considered the issue has held that abortion clinic protestors ... are precluded, as a matter of law, from raising a necessity defense"), cert. denied, --- U.S. ----, 114 S.Ct. 468, 126 L.Ed.2d 420 (1993), Ms. Turner nevertheless argues the defense of necessity applies here because "[s]he entered the clinic's premises for the express and sole purpose of educating this woman with essential information concerning medical facts related to fetal age as well as other available options should she wish to forego the abortion."

This case does not require us to examine each of the four elements needed to invoke the necessity defense (although there is precedent to support the conclusion that all four are wanting in cases such as this). Rather, Ms. Turner's appeal can be resolved solely on the basis that legal alternatives existed to her violating the law and thus, she was not entitled to have the jury instructed on the defense of necessity.

There is little question but that the goals of educating women concerning medical knowledge about abortions and alternatives to abortion could be achieved by any number of legal alternatives. See, e.g., Zal v. Steppe, 968 F.2d 924, 929 (9th Cir.) (noting necessity defense unavailable to abortion protestors because legal alternatives existed to achieve goal of persuading women not to have abortions), cert. denied, --- U.S. ----, 113 S.Ct. 656, 121 L.Ed.2d 582 (1992); Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342, 1350-52 (3rd Cir.) (same), cert. denied, 493 U.S. 901, 110 S.Ct. 261, 107 L.Ed.2d 210 (1989). For instance, Ms. Turner could go door-to-door conveying her views, distribute literature personally, through the mails or via publication, or simply continue her otherwise lawful protests. Plainly, women can be, and in fact are educated on issues concerning abortion by legal means; violating the laws of the United States and ignoring orders of the federal courts are not the only way of doing so. ¹

While it may be true, as Ms. Turner argues, that she could have taken more drastic means of educating women, this does not change the fact that the means she chose were illegal. As such, we conclude the defense of necessity is not available as a matter of law under the facts presented.

In addition, we agree with the observations of the Kansas...