US v. Lopez

• Decision Date: 17 February 1987
• Docket Number: No. CR-86-1035 EFL.,CR-86-1035 EFL.
• Citation: 662 F. Supp. 1083
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES of America, Plaintiff, v. Samantha D. LOPEZ and Ronald J. McIntosh, Defendants.

662 F. Supp. 1083

UNITED STATES of America, Plaintiff, v. Samantha D. LOPEZ and Ronald J. McIntosh, Defendants.

No. CR-86-1035 EFL.

United States District Court, N.D. California.

February 17, 1987.

Mark Zanides, Asst. U.S. Atty., San Francisco, Cal., for plaintiff.

Geoffrey A. Hansen, Asst. Fed. Public Defender, San Francisco, Cal., for Samantha D. Lopez.

Judd Iversen, San Francisco, Cal., for Ronald J. McIntosh.

ORDER

LYNCH, District Judge.

This case involves the alleged escape of two federal prisoners. Defendant Ronald McIntosh disappeared on October 28, 1986, during an unescorted transfer from F.C.I. Pleasanton to the federal prison at Lompoc. He landed a helicopter in the Pleasanton recreation yard on November 5, 1986, and flew off with defendant Samantha Lopez. Federal authorities apprehended them ten days later in a Sacramento shopping mall where they were buying a set of wedding rings.

Defendant Lopez was charged with escape from federal custody, a violation of 18 U.S.C. section 751(a). McIntosh was indicted for air piracy, 49 U.S.C. § 1472(i), use of a weapon to commit a crime, 18 U.S.C. § 924(c), and aiding and abetting Lopez' escape, 18 U.S.C. § 752. Escape charges against him are pending in a separate case.

Defendants contend that they are both entitled to raise the defense of necessity/duress to their charges. To establish a necessity/duress defense in an escape from confinement prosecution, a defendant must establish the existence of the following requirements: 1) that the threat and fear which the threat caused were immediate and involved death or serious bodily injury; 2) that the fear was well grounded, i.e., the escapee had a good faith belief in the imminence and severity of the threats and the belief was objectively reasonable; 3) that there was no reasonable opportunity to avoid or escape the threatened harm; and 4) that the defendant submitted to proper authorities after attaining a position of safety. United States v. Bailey, 444 U.S. 394, 410-13, 100 S.Ct. 624, 634-36, 62 L.Ed.2d 575 (1980); United States v. Williams, 791 F.2d 1383, 1388 (9th Cir. 1986); United States v. Peltier, 693 F.2d 96, 98 (9th Cir.1982).

The government has filed a motion in limine for an order precluding defendants from presenting such evidence to the jury. In response to the government's motion, each defendant has filed a written offer of proof in camera. By these offers of proof, defendants seek to establish the prima facie case required to be shown before defendants are entitled to an instruction on the defense of necessity/duress. See Peltier, 693 F.2d at 98. The parties agree that if Lopez makes a prima facie showing of each element of the necessity/duress defense, she will be entitled to an instruction on that defense.

The following issues are in dispute and are presently before the Court: 1) McIntosh's liability for aiding and abetting Lopez' escape if she is found not guilty by reason of necessity/duress; 2) the availability of necessity/duress as a separate defense to all of McIntosh's charges; and 3) the sufficiency of defendants' pretrial offers of proof.

I. Aider and Abettor's Liability if the Principal is Acquitted by Reason of Necessity/Duress

McIntosh requests the following jury instruction: "If you find defendant Samantha Lopez not guilty of escape because she acted under necessity/duress, then you must also find defendant McIntosh not guilty of aiding and abetting her alleged escape." The government contends that McIntosh can be convicted of aiding and abetting Lopez' escape even if Lopez succeeds on her necessity/duress defense.

The culpability of aiding and assisting escape under 18 U.S.C. section 752 is governed by the same principles as those of the general aiding and abetting statute, 18 U.S.C. § 2. United States v. Castro, 621 F.2d 127, 129 (5th Cir.1980). The general rule is that a defendant can be convicted of aiding and abetting even if the principal is not identified or convicted; however, an aider and abettor may not be held liable absent proof that a criminal offense was committed by a principal. "The fact that the principal need not be identified or convicted has never been thought to obviate the need for proof showing that an underlying crime was committed by someone." United States v. Powell, 806 F.2d 1421, 1424 (9th Cir.1986); see also Shuttlesworth v. Birmingham, 373 U.S. 262, 265, 83 S.Ct. 1130, 1132, 10 L.Ed.2d 335 (1963) (there can be no conviction for aiding and abetting someone to do an innocent act).

This Court must therefore determine whether Lopez committed a criminal offense if her necessity/duress defense succeeds. This determination requires an examination of the theoretical distinctions between two categories of defenses: justification and excuse. Lopez' alleged defense of necessity/duress must then be classified as either a justification or an excuse.

Justification defenses are those providing that, although the act was committed, it is not wrongful. For example, a forest fire is burning toward a town of 10,000 residents. An actor burns a field of corn located between the fire and the town in order to set up a firebreak. By setting fire to the field with the intent to destroy it, the actor satisfies all the elements of the crime of arson; however, he most likely will have a complete defense because his conduct is justified. Burning the field avoided a greater societal harm; therefore, the act is not a crime. See P. Robinson, Criminal Law Defenses § 24 (1984); Comment, Necessity Defined: A New Role in the Criminal Defense System, 29 UCLA L.Rev. 409, 413 (1981).

When a defense is categorized as an excuse, however, the result is that, although the act is wrongful, the actor will not be held accountable. "Where the actor is not blameworthy, for reasons of either incapacity or extreme pressure, there is not criminal liability." Comment, supra p. 4, at 414. Thus, an insane person who robs a bank will be excused from liability.

Simply stated, when a defendant prevails on a justification defense, no wrongful act occurred; the act itself becomes lawful. If a defendant succeeds on a defense classified as an excuse, a wrongful act occurred; however, no criminal liability is attached to the actor.

The classification of a defense as a justification or an excuse has an important effect on the liability of one who aids and abets the act. A third party has the right to assist an actor in a justified act. Therefore, a third party could not be held liable for aiding and abetting the arson described in the hypothetical above. In contrast, a sane getaway driver could be convicted of aiding and abetting an insane person's bank robbery. Excuses are always personal to the actor. See G. Fletcher, Rethinking Criminal Law § 10.1 (1978); P. Robinson, supra p. 4, § 37(a); Williams, The Theory of Excuses, Crim.L.Rev., Nov. 1982, at 732, 735; Comment, supra p. 4, at 414-15.

The defense of duress or coercion traditionally arises when a person unlawfully commands another to do an unlawful act using the threat of death or serious bodily injury. "The pertinent question is whether circumstances overwhelmed the actor's will so that the inability to make the `correct' choice is excused." Comment, supra p. 4, at 430. The defense of duress/coercion is generally classified as an excuse. P. Robinson, supra p. 4, § 25; Comment, supra p. 4, at 431.

The defense of necessity may be raised in a situation in which the pressure of natural physical forces compels an actor to choose between two evils. The actor may choose to violate the literal terms of the law in order to avoid a greater harm. The defense of necessity is categorized as a justification. United States v. Richardson, 588 F.2d 1235, 1239 (9th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979); W. LaFave and A. Scott, Criminal Law § 50 (1972); Comment, supra p. 4, at 431.

In the context of prison escapes, the distinction between duress/coercion and necessity has been hopelessly blurred. In fact, courts seem to use the two terms interchangeably. See United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980); United States v. Bailey, 585 F.2d 1087, 1096-98 (D.C.Cir. 1978), rev'd on other grounds, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). The defense of duress/coercion does not precisely apply because no one has commanded the prisoner to escape. Additionally, "a prisoner who escapes because of intolerable conditions usually does not act in the panicked, overborne state associated with duress.... Prisoners threatened with physical or sexual attack generally flee not in a blind, unthinking reaction, but because escape appears preferable to risking assault." Dolinko, Intolerable Conditions as a Defense to Prison Escapes, 26 UCLA L.Rev. 1126, 1167-68 (1979).

The defense of necessity technically does not arise in the prison escape situation because the threat in a necessity situation traditionally emanates from physical, not human, forces. Commentators have argued that this natural forces restriction serves no useful purpose and should be abandoned. See Gardner, The Defense of Necessity and the Right to Escape From Prison — A Step Towards Incarceration Free From Sexual Assault, 49 S.Cal.L. Rev. 110, 132 (1975); Dolinko, supra, at 1170-71.

This Court believes, however, that the defense asserted by Lopez, under the facts of this case, most nearly resembles necessity, which is a justification to the alleged crime. See Dolinko, supra, at 1167-82 (concluding that "the necessity paradigm more closely approximates the prison-escape situation"). In the present case, Lopez' claim is not that the alleged threats overwhelmed her will so that her inability to make the "correct" choice should be excused. Instead, Lopez claims that she, in fact, did make the correct choice. She contends she violated the law to avoid the greater societal harm of being killed or seriously injured. The...