United States v. Capozzi

• Decision Date: 26 July 2013
• Docket Number: No. 12–6169.,12–6169.
• Citation: 723 F.3d 720
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Derek Albert CAPOZZI, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

723 F.3d 720

UNITED STATES of America, Plaintiff–Appellee,

v.Derek Albert CAPOZZI, Defendant–Appellant.

No. 12–6169.

United States Court of Appeals,Sixth Circuit.

July 26, 2013.

ON BRIEF:Stephen D. Milner, Lexington, Kentucky, for Appellant. Charles P. Wisdom, Jr., Jordi de Llano, United States Attorney's Office, Lexington, Kentucky, for Appellee. Derek A. Capozzi, Florence, Colorado, pro se.

Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Defendant–Appellant Derek Capozzi (“Capozzi”) pleaded guilty and was convicted of escaping from federal custody. He appeals his conviction and sentence, raising three issues. First, he argues that the district court erred by refusing to allow him to present an affirmative defense of necessity; he claims that escape was his only option to avoid imminent, serious injury from a heart condition. Second, Capozzi contends that the district court abused its discretion by declaring a mistrial based on jury deadlock. He argues that his reprosecution violated the Double Jeopardy Clause because there was no manifest necessity to declare a mistrial. Finally, Capozzi challenges his fifty-one-month sentence, arguing that he was entitled to an additional reduction under the Sentencing Guidelines for acceptance of responsibility. We reject Capozzi's arguments and, therefore, AFFIRM his conviction and sentence.

I. BACKGROUND

On April 1, 2010, Capozzi, a federal prisoner serving a sentence in a federal prison in Pennsylvania, was transported by the U.S. Marshals Service pursuant to an Ex Parte Order and Writ of Habeas Corpus Ad Testificandum to London, Kentucky, in order to permit him to testify in a federal criminal trial. R. 81 (Ex Parte Order at 1) (Page ID # 241). Capozzi was held at the Grayson County Detention Center in Leitchfield, Kentucky (“GCDC”), which had a contract with the federal government to house federal inmates. R. 115 (Trial Tr. at 4–5) (Page ID # 454–55).

On April 15, 2010, while Capozzi was being transported in a van by GCDC personnel to an airport in Lexington, Kentucky, Capozzi “rolled out of the back of th[e] van” and fled on foot. R. 114 (Hr'g Tr. at 11) (Page ID # 434); see R. 115 (Trial Tr. at 8–13) (Page ID # 458–63). The GCDC personnel then immediately stopped the van and pursued Capozzi, firing shots. R. 114 (Hr'g Tr. at 11) (Page ID # 434); see R. 58 (Mem. in Supp. of the Defense of Duress at 4) (Page ID # 153). On April 17, 2010, law enforcement agents discovered Capozzi hiding underneath tree limbs, dirt, and leaves in a wooded area. R. 115 (Trial Tr. at 93) (Page ID # 543). He was then returned to federal custody.

Subsequently, Capozzi was indicted on a charge of escaping from federal custody in violation of 18 U.S.C. § 751(a). R. 1 (Indict. at 1–2) (Page ID # 1–2). Prior to trial, Capozzi moved to present a defense of necessity to the jury, arguing that his escape was justified because he faced an imminent risk of death or serious bodily injury as a result of “post-traumatic arteriovenous fistula” originating from a chest stabbing in 2008. R. 58 (Mem. in Supp. of the Defense of Duress at 2) (Page ID # 151). Capozzi asserts that “he believed that his escape at that moment was his only chance at saving his own life.” Id. at 3 (Page ID # 152). After a hearing on the issue, the district court denied Capozzi's motion, finding that Capozzi had not made a prima facie showing of each of the elements of the defense. R. 72 (Dist. Ct. Op. at 2) (Page ID # 214). As a result, the district court precluded Capozzi from presenting his necessity defense to the jury and refused to give a jury instruction on the defense.

Although the trial spanned three days, the jury heard less than three hours of presentations, including both witness examinations and opening and closing arguments. R. 85 (Dist. Ct. Op. at 2) (Page ID # 277). Following an hour and a half of deliberations, the jury sent a note to the district judge asking for a copy of the transcript of the testimony of the last witness as well as a copy of defense counsel's closing argument. R. 117 (Trial Tr. at 198–99) (Page ID # 648–49). The district court informed the jury that no transcripts were available. After an additional hour and a half of deliberations, the jury submitted another note stating that “without a transcript of today's final witness, the jury cannot come to a decision.” Id. at 201 (Page ID # 651).

The district court then gave the jury a supplemental instruction designed for instances in which the jury appears to be deadlocked, to which neither party objected. See id. at 201–05 (Page ID # 651–55). After approximately two more hours of deliberation, the jury submitted a note stating: “[A]fter continued respectful deliberation, the jury has not reached a verdict.” Id. at 207 (Page ID # 657). The district court concluded that the jury was “hopelessly deadlocked.” Id. The district court then brought the jury back into the courtroom and asked each juror whether he or she believed that further negotiations would enable the jury to reach a unanimous verdict. All jurors responded that they did not believe further negotiations would facilitate a unanimous decision. Id. at 212–14 (Page ID # 662–64). Following these responses, the district court, over Capozzi's objection, declared a mistrial on the ground that the jury was deadlocked. See R. 85 (Dist.Ct.Op.) (Page ID # 276–78).

A retrial was scheduled, but Capozzi subsequently decided to plead guilty. See R. 150 (Crim. Minutes—Arraignment and Plea) (Page ID # 809). At sentencing, the government objected to the U.S. Probation Office's recommendation of a three-level reduction for acceptance of responsibility. The government explained that it was not moving for a third-level reduction under U.S.S.G. § 3E1.1(b) because “Capozzi did not accept responsibility until after we had tried this matter one time, [and] expended substantial resources to do that.” R. 172 (Sent. Hr'g Tr. at 3) (Page ID # 916). The district court found that because the government did not move for a reduction under § 3E1.1(b), Capozzi was entitled only to a two-level reduction for acceptance of responsibility. Id. at 4 (Page ID # 917). The district court sentenced Capozzi to fifty-one months of imprisonment, the top of his Guidelines range. R. 166 (Judgment at 2) (Page ID # 872). This appeal followed.

II. ANALYSIS

A. Necessity Defense

Capozzi first challenges the district court's denial of his request to offer evidence of an affirmative defense of necessity and its refusal to instruct the jury regarding the defense.¹ “We review a district court's decisions concerning whether to give a particular jury instruction for abuse of discretion.” United States v. Sloan, 401 Fed.Appx. 66, 68 (6th Cir.2010). “An abuse of discretion will not be found if the jury instructions as a whole ... adequately informed the jury of the relevant considerations and provided a basis in law for aiding the jury in reaching its decision.” United States v. Anderson, 605 F.3d 404, 411 (6th Cir.2010) (internal quotation marks omitted). However, we review de novo the question of law whether a defendant has established a prima facie case of necessity. United States v. Ridner, 512 F.3d 846, 849 (6th Cir.2008).

“ ‘In a criminal case it is reversible error for a trial Judge to refuse to present adequately a defendant's theory of defense.’ ” United States v. Johnson, 416 F.3d 464, 467 (6th Cir.2005) (quoting United States v. Garner, 529 F.2d 962, 970 (6th Cir.1976)). In order for a defendant to be entitled to present a defense to the jury, “it is essential that the testimony given or proffered meet a minimum standard as to each element of the defense so that, if a jury finds it to be true, it would support an affirmative defense.” United States v. Bailey, 444 U.S. 394, 415, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). Thus, a trial judge has a “duty to require a prima facie showing by the defendant that he can produce evidence on each of the elements of the defense.” Johnson, 416 F.3d at 468. “The defendant's preliminary burden is not a heavy one and is met even where there is weak supporting evidence.” Ridner, 512 F.3d at 849 (internal quotation marks omitted). To establish a prima facie case, the defendant must present some evidence that could support each of the following elements:

“(1) that defendant was under an unlawful and present, imminent, and impending threat of such a nature as to induce a well-grounded apprehension of death or serious bodily injury;

(2) that the defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct;

(3) that the defendant had no reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid the threatened harm;

(4) that a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm; [and]

(5) that defendant did not maintain the illegal conduct any longer than absolutely necessary.”

United States v. Shemami, 425 Fed.Appx. 425, 427 (6th Cir.2011) (quoting Johnson, 416 F.3d at 468). If the evidence Capozzi presented at the pretrial hearing was “insufficient as a matter of law to support” a defense of necessity, then the district court properly excluded the evidence. Johnson, 416 F.3d at 468.

In this case, we agree with the district court that Capozzi did not establish a prima facie case for his necessity defense. Even assuming, as did the district court, that Capozzi made a prima facie showing that he reasonably believed he was under an imminent and impending threat of serious injury from his heart condition, he failed to present evidence to establish a prima facie case for several of the other elements of the defense. Capozzi presented no evidence that he had no reasonable, legal alternative to violating the law. Specifically,...