*1 (1975). FARRIS, Before ALARCON and NOR- 95 S.Ct. legisla- RIS, is no indication either the Judges. There Circuit subsequent interpretation of history tive Congress pas- intended
the Act that ORDER sage private enforcement reme- to create dy. only reported case under the Bona This case remanded to the U.S. District Rights Act since the enactment Fide Court for the Central District of California Quiet appears in 1972 to be the Title Act proceedings further inconsistent v. United States decision Tenth Circuit’s Supreme with the decision of the Court Reimann, F.2d 135 Corp. City Golden State Transit v. Los government, private party, not a which the — U.S. —, Angeles, declaratory judgment action. initiated a Reimann provides ap- no for the private pellants’ theory that there is a provisions of of action to enforce the
cause Rights Act. the Bona Fide opinion express We no as to the availabil- either the ity of remedies this case under Act, Quiet Act or the Tucker 28 U.S.C. Title 1346(a)(2). The Court of Claims would § jurisdiction appear to have exclusive over damage claims such as those asserted in Cape Corp. Fox v. United See this case. States, (9th Cir.1981).
Affirmed. America,
UNITED STATES Plaintiff-Appellee, WILLIAMS, Sears,
Irvin Ronald Gene Johnson, Morris L. STATE TRANSIT CORPORA- GOLDEN Defendants-Appellants. TION, corporation, a California Plaintiff/Appellant, 84-5177, 84-5178 and 84-5184. Nos. Appeals, United States Court of ANGELES, municipal CITY OF LOS Ninth Circuit. corporation, Defendant/Appellee. No. 83-6441. Argued and Submitted March 1985. Appeals, United States Court Decided 1986. June Ninth Circuit. June Fasman,
Zachary D. Kathleen Johnson Siegel, Ragnsford, David B. Crowell &
PREGERSON, Judge. Circuit Williams, Sears, and Johnson Appellants pleas guilty conditional entered violation offense of 7511 We affirm the district of 18 U.S.C. § rulings in all one re court’s but *3 pre district court erred spect. The offer ruling that defendant Johnson’s trial a du was insufficient Thus, appellant we reverse ress defense. remand to the dis conviction and Johnson’s proceedings to en court for further trict present his able Johnson ap the convictions of trial. We affirm at and Sears. pellants Williams
FACTS 22, 1983, inmates, six includ-
On October Williams, Johnson, and ing appellants Sears, the United States Pen- escaped from Lompoc, by driving itentiary at California through pris- garbage truck prison fence, A short distance from on fence. truck, by heavy gunfire from riddled towers, out of control nearby guard went security roadblocks. One and collided with of the truck and the escapee died the cab custody. into taken back others were arraignment, appellant Johnson After including: a pretrial motions filed several Based On the Indictment Motion to Dismiss alleg- Government Conduct Unconscionable knowl- officials had advance ing Berliner, Atty., Los E. Asst. U.S. James in, his of, encouraged or assisted edge Cal., plaintiff-appellee. Angeles, for for Production of Evi- escape; a Motion Defendant; and a Mo- dence Favorable Austin, Etra, P. Sidley John & Donald Informa- of Informant tion for Disclosure Defender, Gyorgy, Deputy Federal Public joined and Williams Appellants tion. Sears Cal., Lichtman, Angeles, for de- Los Jay sepa- also filed a in those motions. Sears fendants-appellants. Discovery. The district rate Motion motions. denied all of these court government subsequently moved limine present- preclude Johnson from de- to a duress ing evidence that related govern- PREGERSON, granted the FLETCHER, fense. The court Before limine, but accorded motion ment’s HALL, Judges. Circuit dere, writing right, appeal 11(a)(2) reserving on Procedure Rule of Criminal 1. Federal adverse judgment, to review of the from the states: pretrial any specified mo- determination approval court and the con- With the appeal, prevails on If the defendant tion. may government, en- a defendant sent of the plea. be allowed to withdraw shall guilty plea nolo conten- ter a conditional opportunity make The district court’s denial of mo regarding of proof his duress defense. tion to dismiss an indictment based on out rageous government conduct involves a 17, 1984, May appellants On each question of law. Ra States v. pled single guilty violating to a count of mirez, (9th Cir.1983). As (escape prison). They U.S.C. § such, we review it de novo. See United pled conditionally, reserving rights their McConney, 1200- appeal from the district court’s adverse — rulings Appel- on their mdtions. —, right ap- lant Johnson also reserved his
peal
ruling granting
the district court’s
government’s
motion in limine preclude
process
The due
clause of the Fifth
a duress defense.
may
Amendment
bar
conviction where
July
judge
On
sen-
involvement in a criminal
*4
appellant
years
pris-
tenced each
five
enterprise grossly outrages
the
and shocks
on; the sentences were
run
ordered to
con-
See United
justice.
universal sense of
secutively
appellants
with sentences
al-
Russell,
States v.
423, 431-32,
411 U.S.
93
ready
serving.
were
1637, 1642-43,
(1973);
S.Ct.
DISCUSSION (9th Cir.1981) (per curiam), 881-82 cert. 1. Outrageous Government Conduct. denied, 456 962, 2040, U.S. 102 72 (1982). The involvement of the Appellants contend district court government must be “malum in se” in denying erred their motion to government “engineered have must and di dismiss their indictments due to “out- enterprise rected the criminal from start to rageous government conduct.” In Gonzales, United States v. finish.” motion, 539 appellants of this Johnson and 1238, (9th Cir.1976) F.2d (per cu Sears filed alleging (a) declarations that: riam). Only egregious such conduct prison several months before consti escape, their process tutes a placed authorities them in due violation. administrative segregation planning to escape with the The few convictions re that courts have prison truck; (b) prison use of authorities ground versed on the outrageous plan were aware of the and took government involvement have resulted steps it; (c) no prevent although prison government conduct that rises ato initially changed authorities prison Sears’ level of See Greene v. activity.” “creative employment from the mess hall in order to States, United 783, (9th 787 Cir. truck, hinder his access to they 1971) (government agent helped establish later him duty; returned to mess hall operations then sustained criminal (d) prison “per- authorities assisted in and illegal was the customer boot haps encouraged” escape attempt. The operation legging helped create). government appellants’ refuted the allega- tions and supported provid- position by its present case, In the outrageous ing prison declarations of employees and government conduct fails. The by providing the camera court government did not “create” offense information that related current inmates Greene, charged, see 787, and Bureau 454F.2d at did security of Prison nor measures. denying “engineer In it appellants’ motion, and direct the criminal enter the district Gonzales, that, prise court ruled See taking even from start to finish.” allega- their true, tions as 539 alleged F.2d at The conduct of the 1239-40.
government
“fatally
plan
fell
neither devised
short” of the
pro
kind
nor
creative,
direct
vided
weapons
escape.
continuous involve-
used in the
required
ment
outrageous They
sustain the
did not facilitate
access
government conduct defense.
nor
they
did
authorize its use. We there-
Duncan,
971,
court was correct
find that
fore
961,
denied,
103 S.Ct.
law,
cert.
U.S.
ruling, as a matter
(1983).
motion
After re
informant, the
government
camera,
identity of
viewing
disputed
evidence in
of such
communication
substance
concluded that
the information
the court
informant,
per-
identity
sought
not sufficient
confidential
to be discovered was
re-
information was
ly
whom such
material to overcome the
sons to
security
concerning prison
safety
in inmate
compelling
records
interests
layed,
court,
regarding
measures,
prison security.
information
The district
there
and other
fore,
its discretion
prior knowledge
properly
exercised
prison authorities’
considering
competing interests and de
plan.
nying
discovery requests here at issue.
appellants’
took
dis-
district court
*5
The
motions under submission.
covery
3. Duress Defense.
motions
responded to these
government
Appellant
indicated to the
Johnson
camera,
court, in
with
provided the
contemplated present
government that he
concerning
security-sensitive information
escape charge.
ing a duress defense to the
security procedures and
of Prison
Bureau
pre
limine to
government
The
moved in
government
The
informant
information.
defense unless Johnson could
clude the
requests
infor-
opposed appellants’
for
showing
a
make a minimal
of
valid
prison security mea-
mant information and
considering Johnson’s of
defense.2 After
district court found that
sures. The
granted the
proof, the district court
fers of
security-sen-
information and the
informant
government’s motion in limine.
escape prevention
information about
sitive
sufficiently
material to
measures were
proof
of
that his offers
Johnson contends
putting in-
appellants’ case to warrant
dispute
factual
sufficient to raise a
were
security
jeopar-
in
safety
mate
defense, and
to each element of the duress
dy. Appellants contend that
that,
therefore,
defense should have
his
denying
discovery
their
mo-
court erred
trial.
been heard at
tions.
and written of-
Johnson submitted oral
hearing, he
proof.
of
At a
scope
discovery is
fers
within
The
oath,
camera,
that
testified
under
when
district court. We review
discretion of the
initially
participate
discovery ruling
abuse
he
declined
a district court’s
for
planned escape, another inmate threatened
740
Clegg,
of discretion. United States v.
neck and
16,
(9th Cir.1984);
by putting
him
a knife to his
v.
F.2d
18
United States
element of the defense so
appropriate
to rule
standard as to each
It was
for the district court
true,
that,
jury
adequacy
prior
if
finds it to be
it would
defense
a
on the
of a duress
that of
Supreme
an affirmative defense—here
Court stated in United
trial. As the
also,
624,
394, 415,
necessity."
v.
Bailey,
duress or
See
United States
U.S.
100 S.Ct.
444
Peltier,
96,
(9th Cir.1982) (per
637,
(1980), "precisely
F.2d
cu-
because a
693
98
chest. He further stated lated an alternative to the fourth if he refused to drive prisoners Sears told him ment set out in Peltier truck, would Once he be killed. caught escaping. the act of Instead truck, Johnson testified forced inside the demonstrating an effort to return custo gears jam he “tried to on the dy, these defendants would have to show truck, stop running, tried to they intended to surrender had [appellant hit the back Sears] [him] escape succeeded. United States v. get it of the neck ordered [him] McCue, 394, (6th Cir.), 643 F.2d 396 cert. moving now.” denied, 992, 2334, 451 101 U.S. S.Ct. 68 (1981); further testified that when the United States v. Johnson Cald well, (7th stopped Cir.1980), under fire truck was small-arms 625 F.2d 148 glass guards, denied, from the bullets and were 101 U.S. area,
flying everywhere, dust covered the (1981); L.Ed.2d see, away Boomer, no one and he ran from the (10th could Cir.), cert. truck not himself. but ap- Johnson he testified before was L.Ed.2d prehended, a never attained clearly made a sufficient offer safety from which could surrender to concerning the first three Peltier authorities. requirements. respect fourth, With Whether a defendant has made a applied the district court the alternative showing threshold as to each element of i.e., requirement, that he show intention question the duress defense is law to resubmit to authorities. court con- is reviewed de novo. United States comply cluded that Johnson failed Contento-Pachon, requirement. this In alternative its memo- Cir.1984). stated, randum decision the court “[N]otably any absent was statement with To establish a duress respect either to his intention to resubmit prosecution, from confinement prisoner part to authorities or to on must acts establish the existence *6 following requirements: be which inference could drawn that disagree he had so intended.” We 1. That the and fear threat the which with the court’s conclusion. After exam- threat caused were immediate and ining proof, the offers of giving and full or bodily inju- involved death serious statements, credence to Johnson’s as did ry; court, we find that Johnson well-grounded;
2. That the fear was complied sufficiently with the alternative to oppor- 3. That there was no reasonable requirement. Peltier’s fourth tunity escape to avoid the threat- harm; ened proof of offers contain a Johnson’s 4. That the defendant submitted to showing to sufficient of his intent surren proper attaining authorities after a der to authorities had the succeeded safety. of present to him enable to a duress defense Peltier, United States v. 693 F.2d 98 at trial. Johnson’s oral and written offers curiam). Cir.1982) (per proof support orig his assertions he inally want participate did not to In as present, cases such where so, doing and was caught threatened into defendants were the act of stop by jamming that he tried escaping signif to large and were not at for a time, gears during period attempt, icant the fourth Peltier requirement that once the to inapplicable. stopped is truck ran Defendants they cannot in show have turned them himself. These assertions raise they opportunity selves since had did to no ferences that Johnson not intend do so. Consequently, courts have formu- to surrender to intended any posi- escapees, when he reached a than initially other safety. capture. spite tion of We therefore find resisted In of numerous proof warnings by offer of regarding Johnson made a sufficient district court insufficiency present proof, defense at a enable him a duress produce any Johnson failed to evidence that trial.3 he intended to resubmit to the authorities successfully escaped. had he Request Represent Him- Johnson’s 4.
self. government On March filed limine regarding motion possible Appellant Johnson dis- claims that presentation any of a duress by trict violated Amendment court his Sixth defendants. None the defendants right self-representation when it denied responded to the April motion. On appear attorney his own demand ruling district court issued a tentative in conjunction with his retained counsel. specifically which noted absence of primarily request purpose His was for the showing that defendants intended sur- making statement relevant to his du- render once free of the threat of death or defense, which permit- ress the trial court bodily argument serious harm. After on ted him to make in camera. the tentative ruling granted the court A criminal defendant not does subject motion to further right have an absolute serve as co-coun submissions Johnson. Halbert, sel. April On 1984Johnson made an offer (9th Cir.1981) curiam). (per proof regarding defense. On hybrid representation, Whether to allow April 1984 the district court advised where accused assumes some of Johnson that it still considered the offer of functions, lawyer’s dis within sound insufficient, proof supple- but that further judge. See United States cretion of the mental materials would be considered. On Kimmel, (9th Cir.1982). 4,May supplemental Johnson filed a Here, did the district court abuse proof. argument offer of Further was denying discretion in Johnson’s motion for 7,May heard on district court hybrid representation. the hearing by informing started in part, Affirmed in part, reversed and and his' counsel that Johnson’s offer of proceedings remanded further in ac- proof still was insufficient as to Johnson’s cordance opinion. with this intent to resubmit to the John- authorities. supported by son’s offer of was HALL, CYNTHIA HOLCOMB Circuit Sears’ counsel’s offer that Sears would tes- Judge, concurring part dissenting tify that Sears threatened Johnson before *7 part: agreed participate Johnson in escape to the
I concur in the majority’s analysis attempt. of the specifically The district court in- outrageous government conduct, discovery quired testimony whether Sears’ would re- request, representation issues. I dis- attempted escape late to conduct after the sent, however, majority’s from analysis responded the failed. Sear’s counsel that the of testimony the duress issue. would claim Johnson’s firing that the continued after truck the Lynn Morris Johnson par- claims that he stopped had may and that Johnson have ticipated escape in the unsuccessful at- running been to himself. tempt history under duress. has Johnson a of participation May 17, in at- escape unsuccessful On 1984 given Johnson was an tempts. captured opportunity supplement Johnson was to further further garbage escape from in proof through the truck used the of on the duress defense assertion, Contrary prove to the dissent’s the court’s nizes that evidence relevant to one ele- opinion may does eliminate the intent element of the ment of duress defense also be relevant recog- opinion simply prove the duress defense. Our a to different element. 1390 departure Johnson testified that as his initial and that testimony. an indis-
camera
escape
pensable
he
participated
he
because
of such an offer
element
is tes-
knife,
a
he
tried
timony
was threatened with
of a
fide effort
bona
to surrender
of the
gears
during
truck
jamto
custody
or return
as soon
to
as the
driving,
to continue
escape but was forced
necessity
claimed
or
duress
had
lost
force,
after
and that
the conditions
(footnote omitted)
coercive
escape
during
attempt
were
stalled
By establishing
requirement
an absolute
the truck in
such that he ran from
fear for
escapee
resubmit
to authorities
safety.
upon reaching
position
safety, Bailey
a
Conspicuously absent
from Johnson’s
recognizes
relationship
between the du-
proof,
Johnson’s
two written offers
testi-
ress
defense and
mens rea element
proof, and the offer of
monial offer of
prison escape
escape
offenses. Because
is
proof through
is
Sear’s counsel
state-
offense,
413-14,
continuing
at
a
id.
intended to resubmit
ment that Johnson
636-37,
prisoner
S.Ct. at
who is forced
escape
had the
been successful.
escape against
by
his will
threats
advantage
violence and then takes
of his
agree
majority’s
I
with the
character
large
situation
at
guilty
to remain
is
require
three Peltier
ization of the first
escape
prisoner
as the
in-
same
who
ments,
majority’s
conclusion
escape
along.
tended to
all
See United
has made a sufficient offer
Woodring,
States v.
464 F.2d
I
agree
as to these elements.
also
(10th Cir.1972)(prisoner
taken
adoption
abduction
majority’s
with the
of the alterna
return);
then failed to
for unsuccessful
Chandler
escape
tive fourth element
cf.
States,
(9th
McCue,
F.2d
United
907-08
cases. See United States v.
(6th
denied, Cir.1967)(intoxication
Cir.),
escape
defense to
un-
F.2d
recap-
992, 101
prisoners
tenable where
were not
451 U.S.
Intent to authorities resubmit is an large remain at had the succeeded. of the essential element duress defense applied Bailey Those courts which have continuing of the cases because na- recognized cases have unsuccessful ture of the offense. In United the intent to to the authorities resubmit 394, 412-13, Bailey, indispensable element duress de 624, 635-36, (1980), McCue, 395-96; fense. F.2d at *8 Supreme stated: Court Caldwell, 144,
[Sjeveral denied, lead us considerations to con- cert. U.S. that, clude to No order be entitled to an necessity great instruction on or a matter the evidence of how threats charged, prisoner, or escapee against defense to the crime an violence the duress justifying go jury pris must first evidence issue should to the if the not showing custody continued absence from as well oner does not make a threshold custody have had claimed intent to that would returned resubmit authorities escape been successful. where arrangements defendant had made water, food, to have guns maps provid correctly majority The notes that John- ed escape); for his use after United minimum cf. showing make a as to son must Garza, However, requirements. all four Peltier Cir.1981), majority then eliminates intent to (1982) (success L.Ed.2d requirement from this case. The resubmit escape finding ful case claimed intent to majority points testimony to Johnson’s resubmit to the future participating in he was threatened into greeting inconsistent gun with hostile escape, jammed gears against police capture). fire at time The during escape, truck and that he majority fails to address ran from protect the truck to himself. The assertions that fled further from majority then concludes that these asser- any truck than the other escapees, tions that Johnson “raise did inferences initially that Johnson capture. resisted escape not intend to he intended to notably Also absent from the record is surrender authorities when he evidence that Johnson indicated an intent safety.” (Emphasis reached a flight to surrender added.) during upon cap or. ture. majority ignores The the fact that John- The district finding
son never court was correct in claimed an intent to resubmit to that Johnson failed spite specific present any authorities in of two state- evidence ments his intent to the district court his offer of resubmit authorities had respect. escape was insufficient in this been I The successful. would af- intent to resubmit to authorities is indis- firm.
pensable continuing because of the nature It pre- offense. cannot be
sumed against from the evidence threats defendant, or evidence which indi- unwilling partic-
cates the defendant’s ipation in a desire to failing.
himself once the defendant must showing make threshold custody that he would have returned had COMPANY, INC., BEVLES majority’s been successful. The Plaintiff-Appellant, inference of an intent resubmit to au- thorities on the this case facts of is incon- al., TEAMSTERS LOCAL et importance sistent with the of this element Defendants-Appellees. inquiry. in the duress When the defendant requisite has not claimed that he had the 84-6076, 84-6312. Nos. authorities, intent to resubmit to we should Appeals, States Court not take it on supply ourselves to such an Ninth Circuit. intent. Argued Sept. Even if Submitted Johnson had claimed an intent to authorities, resubmit to the I would not 17, 1986. Decided June accept majority’s conclusion that current record is sufficient such
a claim. Where the evidence before the
district court is inconsistent with a claimed resubmit,
intent to the district court need present jury. the duress issue to the Trapnell, 1030 (disregarding 638 F.2d at