Petition — Bryan v. United States

RECEIVED

IN THE JUN 61979

SUPREME COURT OF THE UNITED STATES OFFICE OF THE CLERK

SUPREME COURT, U.S.

—. — ee

78-6798

OCTOBER TERM, 1978

NO.

RICHARD HENRY BRYAN,

Petitioner

versus

UNITED STATES OF AMERICA,

Respondent

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES SUPREME COURT

IN FORMA PAUPERIS

Federal Defender Program, Inc. Janet F. Perlman

101 Marietta Tower, Suite 3612 Attorney for Petitioner

Atlanta, Georgia 30303 Richard Henry Bryan

(404) 688-7530

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978

i 7Q=64 98 RECEIVED |

> 1979

RICHARD HENRY BRYAN, JUN 6

£ OF THE CLERK

Petitioner, pope COURT, U.S.

———e

versus

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

Petitioner, Richard Henry Bryan, respectfully prays for

leave to file the attached Petition for Writ of Certiorari to

the United States Supreme Court without prepayment of costs and

to proceed in forma pauperis pursuant to Rule 53 of the Supreme

Court of the United States. This motion is made pursuant to

Title 28, United States Code, Section 1915 and Title 18, United

States Code, Section 3006A(d) (6).

In support of this motion, Petitioner shows the

following:

1) Petitioner is a person for whom counsel was

appointed in this case by the United States Magistrate for the

Northern District of Georgia pursuant to Title 18, United States

Code, Section 3006A;

2) Petitioner is a person for whom counsel was

appointed in this case by the United States District Court for

the Northern District of Georgia to pursue an appeal to the Fifth

Circuit Court of Appeals pursuant to Title 18, United States Code,

Section 3006A; and

3). Petitioner remains indigent and has advised counsel

in writing, pursuant to Local Rule 7 of the Fifth Circuit Court

of hanks, of its desire that a Petition for Writ of Certiorari

be filed.

Respectfully Submitted,

/

J F. Per n

ttorney for Petitioner

Richard Henry Bryan

Federal Defender Program, Inc.

101 Martetta Tower, Suite 3612

Atlanta, Georgia 30303

OF COUNSEL:

(404) 688-7530

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1978 RECEIVED

- JUN 6 1979

OFFICE OF THE CLERK

SUPREME COURT, U.S.

RICHARD HENRY BRYAN,

Petitioner,

versus or

78-679

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF THE UNITED STATES

IN FORMA PAUPERIS

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals for the

Fifth Circuit entered in the above-titled case on March 23, 1979.

CITATION TO OPINION BELOW

United States v. Bryan, 591 F.2d 1161 (1979).

JURISDICTION

The judgment of the Court of Appeals for the Fifth

Circuit was entered on March 23, 1979. The jurisdiction of

this Court is invoked pursuant to Title 28, United States Code,

Section 1254(1). Petitioner's Motion for Rehearing was denied

on May 4, 1979,

QUESTIONS PRESENTED

I. Whether the trial court committed reversible error

by wholly disallowing Petitioner's duress/necessity defense to

the escape charged, which defense was grounded upon Petitioner

being the victim of homosexual assaults while an inmate at the

United States Penitentiary in Atlanta, Georgia, and which assaults

posed a continuing threat at the time of Petitioner's escape.

II. Whether the trial court committed reversible error

in disallowing Petitioner evidence of his state of mind and

intent, after the government had “opened the door" and placed

in issue Petitioner's state of mind and intent by one witness'

testimony of his state of mind and intent and a second witness'

testimony that Petitioner had assumed a false name and had hone

scabs on each fingertip, which evidence raised the issue, and

where the court charged on specific intent as an element to be

proved beyond a reasonable doubt.

III. Whether the trial court committed reversible error

by refusing to suppress as impeaching evidence, pursuant to Rule

609{a) of the Federal Rules of Evidence, this Petitioner's prior

escape, bank robbery, voluntary manslaughter and murder convic-

tions and thereby effectively preventing the Petitioner from

testifying in his own behalf.

IV. Whether the trial court committed reversible error

in charging the jury to consider the extent to which the testimony

of witnesses was supported or contradicted by each other when

the Petitioner did not testify himself and did not put on any

evidence in the case.

V. Whether the trial court committed reversible error

by denying Petitioner's Motion fcr Mistrial when the government's

witness testified to Petitioner's post arrest silence, which

testimony violated Petitioner's constitutional right to remain

silent as guaranteed by the Fi=th Amendment and which testimony

SO prejudiced Petitioner as to violate due process of law.

STATEMENT OF THE CASE

This criminal action was brought under a one-count

indictment charging the Petitioner, Richard Henry Bryan, with

unlawfully escaping on July 10, 1976 from Georgia Baptist

Hospital in Atlanta, Georgia, where Petitioner had been trans-

ferred for medical treatment on or about July 6, 1976 while

committed to the custody of the Attorney General, tn violation

of Title 18, United States Code, Section 75l(a). (R. Vol. Ze

P- 1). Petitioner pled not guilty to the indictment at his

arraignment hearing on March 2, 1978, (R. Vol. I, p. 3).

Petitioner sought to present a duress/necessity defense

to the escape charged, said defense based on Petitioner's fear of

homosexual attacks perpetrated upon him at the United States

Penitentiary in Atlanta, Georgia. (R. Vol. I, p. 47-54, 67-73).

Petitioner procured, pursuant to Rule 17(b) of the Federal Rules

of Criminal Procedure, subpoenas and subpoenas duces tecum upon

various individuals in support of the duress/necessity defense.

(R. Vol. I, p. 44-45). Petitioner also presented to the

Honorable William C. O'Kelley, United States District Court Judge

for the Northern District of Georgia, numerous writs of habeas

corpus ad testificandum to procure the presence of witnesses who

were incarcerated in federal institutions and who were necessary

to support such a defense. At the court's request (R. Vol. I,

p. 47, 82), Petitioner filed a brief concerning the duress or

necessity defense, the purpose of which was to present to the

district court the evidence and authority supporting his defense

in order to procure these necessary witnesses. (R. Vol. I, Pp.

47-54).

Thereafter, and in response to Petitioner's brief con-

cerning the duress or necessity defense, the government filed a

motion to quash subpoenas and to disallow Petitioner's defense

of duress or necessity. (R. Vol. I, p. 60-66). Petitioner then

filed his formal offer of proof with respect to Petitioner's

duress defense. (R. Vol. I, p. 67-73). Judge O'’Kelley granted

the government's motion and disallowed Petitioner's duress or

necessity defense. (R. Vol. I, p. 82-85).

The case came on for trial before a jury before the

Honorable William C, O'Kelley in the United States District

Court for the Northern District of Georgia on June 5, 1978 and

June 6, 1978, (R. Vol. II, p. 2, 4). Petitioner was found

guilty by the jury. (R. Vol. I, p. 87; Vol. II, p. 215). On

July 21, 1978, Petitioner was sentenced by Judge O'Kelley for a

period of five (5) years, said sentence to commence upon the

expiration of, or the legal release from, the federal sentence

the Petitioner is now serving. (R. Vol, I, p. 88).

A Notice of Appeal was filed on behalf of Petitioner

on July 27, 1978, and the court entered an order allowing the

appeal to proceed: in’ forma’ pauperi - (R, Vol. I, p. 89).

The Fifth Circuit affirmed the conviction.

Petitioner's theory of the case was grounded solely

on his proposed defense that his escape was a direct result of

Petitioner's fear of being returned to the Atlanta Federal

Penitentiary where he had been repeatedly and seriously homo-

sexually attacked by other inmates. Such attacks were a continuing

threat to Petitioner if he returned to the Atlanta Penitentiary.

In attempting to procure the attendance of necessary

witnesses for Petitioner's duress or necessity defense,

Petitioner, as directed by the trial court, submitted a specific,

written offer of proof (R. vol. I, Pp. 67-73) which set out in

detail the evidence Petitioner expected to produce with respect

to his defense. Petitioner's offer of proof would have produced

evidence tending to prove that Petitioner was faced with

specific threats of forcible sexual attacks and possibly

substantial bodily injury in the immediate future. These

assaults could be verified by eye witness testimony to the

assaults and testimony of admissions made by the assaulting

inmates making it clear that such assaults would continue,

Petitioner's evidence would show that the prison authorities

were generally unable and unwilling to control homosexual

assaults at the Atlanta Penitentiary and that Petitioner's

specific complaint to a guard resulted in his being advised

that he should arm himself with a knife to fend off such

attacks. Petitioner would show that in his circumstances court

action was not a viable alternative because of the delays

inherent in administrative exhaustion, and such administrative

Procedures dictate placement in administrative detention with

the concommitant certainty of retaliation.

And lastly, Petitioner would show that at the time of

his departure from the hospital he fully expected to be returned

to the United States Penitentiary in Atlanta as soon as his

medical treatment was completed and would further show that

upon being arrested some six (6) months later, he was immediately

returned to the United States Penitentiary in Atlanta.

Petitioner knew that upon his arrest or his turning himself in,

he would be immediately returned to the Atlanta Penitentiary.

Because of his knowledge that he would be returned there,

Petitioner did not turn himself in.

On December 30, 1976, Petitioner was taken into federal

custody in Chatsworth, Georgia as an escapee. (R. Vol. II, p.

144, 152-153), and as he knew would happen, Petitioner was

immediately returned to the United States Penitentiary in

Atlanta on January 4, 1977. (R. Vol. II, p. 142).

The trial court disallowed Petitioner the opportunity

to present his sole defense, rejecting the duress/necessity

defense as a matter of law. (R. Vol. I, p. 82-85). As the trial

proceeded, the government, during its case-in-chief called

Brenda Tomason who testified as to statements made by the

Petitioner concerning Petitioner's plans for escape, Through

these statements, the government thus elicited testimony

describing Petitioner's state of mind, presumably offered to

satisfy the government's burden of proving that Petitioner's

escape was done willfully and with the specific intent to do

something the law forbids, that is with bad purpose either to

disobey or disregard the law, which elements were charged to the

jury (R. Vol. II, p. 208-209), went unobjected to by the govern-

ment (R. Vol. II, p. 211), and which therefore became the law of

the case. The government then proceeded with its case-in-chief

by calling Harold Poe, a Special Agent with the Federal Bureau

of Investigation, to testify that Petitioner told the arresting

authorities that his name was Rodney B. Brown. (R. Vol. II, p.

151-153). The government further solicited from Poe that he had

noticed something unusual about Petitioner's hands, "on the

middle of each finger and each thumb was a scab, a fresh -- it

looked like a burn, as if a burn scab, right in the middle of

each finger and each thumb". (R. Vol. II, p. 152).

Petitioner then requested permission to put on the

evidence previously offered in conjunction with the duress

defense, but not on the basis of presenting that defense; rather,

that by the introduction of this evidence offered solely for the

purpose of showing Petitioner's state of mind, the government had

“opened up the door to the question of what was in petitioner's

mind, his state of knowledge and intent", (R. Vol. II, p. 156-

158), as well as to provide Petitioner an opportunity to explain

his statements. (R. Vol. II, p. 169). Petitioner further posited

that the government offered the evidence to show Petitioner's

"bad intent", "evil intent" in order to satisfy the government's

burden on intent and Petitioner sought to present his evidence

that his was an innocent intent to evade homosexual attacks.

(R. Vol. II, p. 158-159, 169, 208-209). Judge O'Kelley denied

Petitioner's motion to present his evidence. (R. Vol. II, p. 159).

Thereafter, upon defense counsel's inquiry into why Petitioner

could not be called to explain his state of mind at the time of

the escape, the court stated:

I am not prohibiting the defendant from taking the

stand. I have never indicated I would prevent him

from taking the stand. I refuse to bring these other

witnesses you tendered. (R. Vol. II, p. 170).

So, while it is clear that Petitioner himself would

be allowed to testify to his state of mind, and explain the

statements or admissions which the government introduced,

corroborating witnesses on his behalf were disallowed. However,

Petitioner was effectively prevented from taking the stand on

his behalf because of Judge O'Kelley"s denial of his motion to

suppress evidence of the Petitioner's prior escape, bank robbery,

voluntary manslaugliter and murder convictions as impeaching

evidence pursuant to Rule 609(aj of the Pederal Rules of

Evidence, (R. Vol. II, p, 178).

In order to avoid the presentation of any evidence

concerning the bank robbery conviction, Petitioner's conviction

of that charge was stipulated. (R. Vol. I, p. 10-12, 27-29, 86).

Moreover, neither bank robbery, voluntary manslaughter, murder

or escape necessarily involve dishonesty in the sense that they

necessarily implied a tendency toward falseness or the lack of

believability under oath. Nevertheless, Judge O'Kelley ruled

that said convictions were probative on the issue of credibility

outweighed the potential for unfair prejudice. (R, Vol. II, p.

178-179). As a result of the refusal to suppress said convic-

tions, Petitioner was unable to take the stand, Because of the

severe prejudicial effect which would have resulted therefrom

even with a cautionary instruction,

During Agent Poe's direct government testimony,

Petitioner's exercise of his right to remain silent was thrust

before the jury. Agent Poe initially testified that Petitioner

would say "nothing". (R. Vol. II, p. 145). Petitioner objected

and moved for a mistrial which was denied. (R. Vol. It, p. 145,

149). When the testimony resumed, Agent Poe, despite the court's

cautionary instruction (R. Vol. II, p. 150), once again made it

clear to the jury that Petitioner did not speak with Poe as

“quested (R. Vol. II, p. 151-155), thus again high-lighting

etiticner "Ss exercise of his right to remain silent.

Durthg~the-eourt 's general instructions concerning the

jury's consideration of the testimony of witnesses, the court

instructed the jury that in determining the believability of

witnesses, to consider the relation each witness may have to

either side and the ". . . extent to which, if at all, each

witness is either supported or contradicted by other evidence in.

the case". (R. Vol. II, p. 206). Petitioner specifically

excepted to this instruction on the basis that it "places a

burden upon the defendant, an implication that the defendant

should have called evidence to contradict what the government

said or shoulé have contradicted it in some way; that by not

contradicting it, it bolsters the government's case .. ." in

a case where the defendant neither puts on any evidence in the

case nor takes the stand. (R. Vol. II, p. 212).

REASONS FOR GRANTING WRIT

I. TRIAL COURT'S REFUSAL TO ALLOW PETITIONER'S DURESS /NECESSITY

DEFENSE AS A MATTER OF LAW.

Petitioner sought to present a duress defense based on

fears of homosexual assaults perpetrated upon him while an inmate

at the United States Penitentiary in Atlanta, Georgia. The trial

court disallowed the defense holding:

Because defendant's offer of proof of his defense

of alleged duress or necessity fails to include

evidence that would explain his absence from custody

for a period of six months, his duress defense must

be rejected as a matter of law. (R. Vol. I, pv. 84).

The trial court's ruling was erroneous in the following respects:

(A) Petitioner's duress defense should have been allowed under

general duress defense standards and Petitioner's continued

absence from custody for six months was a factual issue for the

jury to consider in the validity of the defense; (B) Even if the

five-pronged standard established in People v. Lovercamp, 483 Ca.

App.3d 823, 118 Ca. Rptr. 110 (1974), for the presentation of a

duress defense to an escape is appropriate, Petitioner's offer of

proof satisfied that test; and (C) Even if the five-pronged

standard of Lovercamp is an appropriate standard by which to

assess a duress defense in escape cases, it is inappropriate in

the case sub judice.

(A) The general defense of duress, coercion or com-

pulsion has long been recognized as a defense in the federal

courts to charges of criminal activity. Tomoya Kawakita v.

United States, 343 U.S. 717, 735, 72 S.Ct. 950, 961 (1952);

United States v. Stiglets, 463 F.2d 242 (5th Cir. 1972).

Whiie the presentation of a duress defense grounded on

the fear of homosexual assault has not been specifically addressed

in the Fifth Circuit, the propriety of presenting a duress defense

to an escape charge has been recognized. See United States v.

Chapman, 455 F,2d 746 (5th Cir. 1972); United States v. Davis,

546 F.2d 583 (Sth Cir, 1977).

In 1974 and 1975, the Supreme Courts of Michigan and

California came down with opinions which sought to establish

guidelines for the presentation of a defense of coercion or

necessity in a case tn which an escaping prisoner contends that

his escape was a result of homosexual attacks or the threats of

homosexual attacks. In People v. Lovercamp,: supra, the court

established a five-pronged test for the presentation of a duress

defense to an escape:

1, The prisoner is faced with a specific threat

of death, forcible sexual attack or substantial

bodily injury in the immediate future;

2. There is no time for a complaint to the

authorities or there exists a history of futile

complaints which make any result from such complaints

tllusory;

3. There is no time or opportunity to resort

to tHe court;

4. There is no evidence of force or violence

used toward prison personnel or other "innocent*®

persons in the escape; and

5. The prisoner immediately reports to the

proper authorities when he has obtained a position

of safety from the immediate threat. At p. 115.

While the Lovercamp test has been adopted by some state supreme

courts, as well as by the Ninth Circuit, See, for example,

State v. Horn, 566 F.2d 1378 (Hawaii 1977); United States v.

Michelson, 559 F.2d 567 (9th Cir. 1977), other courts have

declined the Opportunity to adopt this test. In Chapman, supra,

the availability of the duress defense was judged by the

traditional duress defense, not by a separate set of standards

as imposed by Lovercamp. In Chapman, supra, defendant claimed

that he was forced by threats of great bodily harm made by other

prisoners to join in the escape, and that his continued absence

after the initial escape was induced by fear of great bodily

harm from the jailers where he expected to be returned. In

holding that Chapman could present his duress defense, the court

noted ". . . Appellant's claim that his continued absence from

lawful custody was involuntary depends largely if not entirely

upon the jury’s assessment of his credibility when he claimed

that he had a terror of being brutalized by . . . deputies should

he turn himself in". Chapman, supra, at 750. Thus, the fact

that he did not immediately report once he achieved a position of

Safety was a fact issue for the jury to consider upon his validly

presented duress defense. In People v. Luther, 394 Mich. 619,

232 NW2d 184 (S.Ct. Mich. 1975), the Supreme Court also refused

to adopt the Lovercamp test, noting that while the five conditions

there might be "competent evidence* with respect to the defense,

the court concluded:

A Defendant successfully raises the defense of

duress when he presents evidence, as here, from which

a jury could conclude:

(A) the threatening conduct was sufficient to

create in the mind of a reasonable person the fear

of death or serious bodily harm;

(B) the conduct in fact caused such fear of death

or serious bodily harm in the mind of the defendant;

(C]) the the fear of duress was operating upon

the mind of the defendant at the time of the alleged

act; and

(D). the defendant committed the act to avoid the

threatened harm. At p. 187,

The court heli the duress defense, when evidencing the above

alements to Be "a question for the jury", id at 186-187, and

evidence of faiiure to immediately report, as probative evidence

with respect to elements (C) and (D). This analysis has been

employed by other state courts, who rely on the traditional

notions of duress rather than Placing specific conditions on the

defense in an escape case. See, e.g., Pittman v. Commonwealth,

512 SW2d 488 (Ky. App. 1974).

Petitioner's offer of proof clearly satisifies the

four-pronged test of Luther, such being nothing more than the

traditional requirements of a duress defense. And, as in United

States v. Chapman, Supra, at 750, Appellant's continued absence

from lawful custody was a fact for the jury to consider as to

the properly presented defense and is not a legal matter to be

used to deny Petitioner's presentation of his defense as was

done here. The five-pronged test established in Lovercamp is,

therefore, an inappropriate standard by which to judge Petitioner's

Proposed duress defense,

(B) Even if the five-pronged standard established by

People v. Lovercamp, Supra; United States v. Michelson, supra, is

an appropriate test by which Petitioner’s proposed duress defense

should have been judged, Petitioner satisfied those requirements

sufficiently enough to authorize its presentation.

Lovercamp requires a defendant to immediately report

only when he has “attained a position of safety from the

immediate threat". Id, at p. 115. Petitioner's offer of proof

(R. Vol. I, p. 47-53, 67-73) evidenced that if he complained of

the assaults, he would be placed in administrative detention

where sexual assaults also occurred and where the assaulter is

also h.used pending a hearing on Petitioner's complaint (R. Vol.

I, Pp. 69-71); that at the time he Slipped out of the hospital

window he knew he would be taken back to the Atlanta Penitentiary

where he was facing further assaults (R. Vol. I, p. 72); that

after his escape Petitioner knew that if he turned himself in he

would immediately be sent back to the United States Penitentiary,

Atlanta (R. Vol. I, p. 72); that Petitioner did not turn himself

in because of his knowledge that he would be sent back to

Atlanta; and that Petitioner, arrested six months later, was

immediately returned to Atlanta. (R. Vol. I, P. 72; Vol. II,

Pp. 142).

we

Petitioner asserts that given the fact that he knew he

would be immediately returned to the United States Penitentiary

in Atlanta upon turning himself in, Petitioner had not as yet

attained a position of safety. Since Lovercamp requires

Petitioner to immediately report only after obtaining a position

of safety from the immediate threat by turning himself in,

Petitioner would have defeated the very purpose of his depar-

ture, i.e. to avoid further homosexual attacks.

Therefore, Petitioner's offer of proof was sufficient,

at least to allow the introduction of evidence concerning the

homosexual attacks against him and the submission of the

defense to the jury.

(C) Assuming, arguendo, that the five-pronged test of

Lovercamp must be met in order to authorize the presentation of

the duress defense, the requirement of "immediately reporting”

there established is wholly inappropriate in the case sub judice.

The duress defense in escape cases was expressly

recognized by the Ninth Circuit in United States v. Michelson,

supra. That court imposed, as did Lovercamp, the requirement

that the escapee report to proper authorities immediately after

attaining a position of safety. Id, at 570. This return

requirement is grounded on the theory that the escape in

question is a continuing offense as the Michelson court explained:

Although duress may excuse the inmate's departure

it does not absolve his continued absence from custody.

In other words, while coercion may shield the escapee

from the imposition of additional punishment, it does

not commute the sentence previously imposed. Thus,

while the Court recognizes the availability of the

duress defense to the crime of escape . . . the Court

also recognizes that duress exonerates only the

dc-parture from custody and not the continued absence.

id, at 570.

However, the notion of a continuing offense is not the

only means by which an escape may be effectuated. An escape can

be and acst often is accomplished at the moment of departure

without reference to the subsequent formation of a defendant's

intent in failing to return to custody. Where such an escape is

sought to be proven, and the notion of a continuing offense is

not, it is inappropriate to use the return requirement analysis

of the Ninth Circuit in considering the duress defense.

This very issue -- whether or not a jury should be

allowed to consider a duress defense in the absence of the one

special requirement that an escapee report, has been answered

in the affirmative in United States v. Bailey, (Case no. 77-1404,

D.C. Circuit Court, decided July 12, 1978). Here the court made

clear that this return requirement is grounded on the notion of

escape as a continuing offense and that where this theory is not

reflected in the indictment or in the trial court's charge to

the jury, application of the return requirement is inappropriate.

The Bailey court held that where appellants had been

charged with escaping on or about August 26, 1976, a date certain

and where the court's instructions, rather than explaining a

"continuing offense" concept to the jury, emphasized the notion

that the appellant left on August 26, that this was therefore not

a case where the jury was considering whether a defendant escaped

by failing to return.

In effect, the trial court denied A llant's

to have a jury consider duress Geteune to the Ah ig

with which they had been charged (escaping on August

26} because the court found that they would in any

event be guilty of an offense under a theo (failure

to return) that was never presented either to

appellants or to the - We cannot sanction such

sae oe aagrant ° Bea rg constitutional

u ai. I _ 7

pe oe Se ry Id, at 25-26. (Emphasis in

In the case sub judice, Petitioner was charged with

escaping on or about July 10, 1976 (R. Vol. I, p. 1), and the

court's instructions emphasized that the offense occurred at

this time. (R. Vol. II, p. 204, 208). The "continuing offense"

concept was not placed before the jury in their instructions and

they were not considering whether Petitioner escaped by failing

to return. (R. Vol. II, p. 203-211). The court's denial of

Petitioner's duress defense was reversible error denying his

constitutional right to a jury trial.

II. DENIAL OF PETITIONER'S EVIDENCE WHICH WENT TO INTENT ISSUE

AND TO WHICH GOVERNMENT HAD "OPENED THE DOOR".

The government introduced during their case-in-chief,

several statements made by Petitioner concerning his plans for

escape (R. Vol. II, p. 99-101, 107-108, 110), testimony that

Petitioner was using an alias (R. Vol. II, p. 151-153), and

testimony that Petitioner had scabs on each finger and thumb

(R. Vol. II, p. 152), thereby "opening the door" to Petitioner's

state of mind and intent. When Petitioner sought to introduce

evidence to explain the statements and his intent, as raised by

the government, the court refused it. (R. Vol. II, p. 159}.

It is today universally recognized that the fact of an

accused's . . . . concealment, assumption of a false name and

related conduct are . . . evidence of consciousness of guilt and

thus of guilt itself. United States v. Ballard, 423 F.2d 127,

133 (Sth Cir. 1970). In an escape case, evidence such as use of

a false name is evidence of an intent not to return to federal

custody. United States v. Chapman, supra. When evidence which

places in issue Petitioner's state of mind or intent is intro-

duced, Petitioner must then be given an opportunity to present

evidence concerning what motivated such conduct and is entitled

to a jury charge encompassing such explanation for jury considera-

tion of it. See, United States v. Meyers, 550 F.2d 1036 (5th

Cir. 1977).

Having placed in issue Petitioner's state of mind and

intent, admission of Petitioner's evidence, being that contained

in his offer of proof (R. Vol. I, p. 67-73), was clearly

authorized to prevent prejudice. See United States v. Winston,

447 F.2d 1236 (D.C. Cir. 1971). While the trial court has broad

discretion when ruling on the relevance of proffered evidence,

it is imperative that on any given issue the same standard be

applied to both parties. United States v. Parker, 447 F.2d 826

(7th Cir, 1971), Where, as here, the government was given

enough latitude to introduce evidence on Petitioner's intent,

the court applied: a narrower standard to Petitioner's attempt

to make a fair response to their assertions. - See Parker, id,

at 832. .

The court instructed the jury that Petitioner was

charged with a willful escape. (R. Vol. II, p. 208). These

instructions went unobjected to (R. Vol. II, p. 211] and thus

specific intent became a necessary element for conviction

-—

pursuant to the law of the case doctrine. United States v. Spletzer,

535 F.2d 950 (5th Cir. 1976). In recognition of this, the pro-

secution offered its evidence to carry its burden in proving the

requisite intent. Although Petitionre's specific intent being

placed in issue mandates that he be allowed to present his

evidence on his intent, the court denied Petitioner's motion to

present such evidence. (R. Vol. II, p. 159, 169, 170). This

refusal denied Petitioner highly relevant testimony on an element

of the offense and denied Petitioner's constitutional rights to

due process of law and a fair trial and his right to a jury trial,

4

III. FAILURE TO SUPPRESS CONVICTIONS OF DEFENDANT

The most crucial issue in this case was the Petitioner's

state of mind and intent in escaping, Although Petitioner's

testimony on this point would have been the most direct,

Petitioner was in effect prevented from taking the stand in his

own defense by the refusal of Judge O'Kelley to suppress the

Petitioner's prior bank robbery, manslaughter, murder and

escape convictions, (R. Vol, II, p. 178). The trial court,

pursuant to Rule 609 of the Federal Rules of Evidence, ruled

that such convictions would be admissible, if offered, solely

for the purpose of "attacking the credibility of a witness".

However, Rule 609(a) goes on to provide that even if a conviction

is offered for the limited purpose of challenging credibility it

must either be a conviction involving "dishonesty or false

statement" or be a felony conviction concerning which the court

has determined that the probative value of admitting the con-

viction outweighs the unfair prejudicial effect to the defendant.

We are here concerned with the second test laid out in Rule 609(a),

where if the conviction does not necessarily involve dishonesty

or false statement, then the court must specifically find that

its probative value on the issue of credibility outweights the

potential for unfair prejudice.

Only convictions which clearly involve "dishonesty or

false statement" will be automatically admissible against the

defendant. United States v. Smith, 551 F.2d 348 (D.C. Cir. 1976);

United States v. Jackson, 405 F.Supp. 938 (E.D.N.Y, 1975).

Clearly, neither bank robbery, manslaughter nor escape involves

false statement or "dishonesty" as that word was intended by

Congress. As stated in the Conference Committee Report:

By the phrase “dishonesty and false statement" the

Conference means crime such as perjury or subordination

of perjury, false statement, criminal fraud,

embezzlement or false pretense, or any other offense

in the nature of crimen falsi, the commission of

which involves some element of deceit, untruthfulness,

or falsification bearing on the accused's propensity

to testify truthfully. U. S. Code Cong. Admin. News,

pp. 7098, 7103.

Thus, Rule 609(a)(2) would not authorize the admission of those

convictions. The question then becomes whether or not the

convictions are admissible under the other prong of 609 (a) (1)

as felonies for which the court has determined that the probative

value of admitting the evidence outweighs its prejudicial effect

to the defendant.

It must be remembered that the convictions are being

offered solely on the issue of the truthfulness of Petitioner's

testimony. There is not a single element of any of these

convictions which require any showing or lack of truthfulness

in the Petitioner. A conviction for an assaultive crime such

as manslaughter does not prove that the Petitioner is dishonest,

United States v, Jackson, supra, nor does a robbery conviction

necessarily show dishonesty. United States v. Smith, supra.

See also Government of Virgin Islands v. Toto, 529 F.2d 278

(3rd Cir. 1976); Government of Virgin Islands v. Testamark, 528

P.2d 742 (3rd Cir. 1976). In the context of credibility, all

of these crimes are "honest" crimes, since they do not involve

any sort of false statement or stealth, such as embezzlement

or fraud.

It is this distinction between crimes which necessarily

involve “dishonesty” and crimes which do not with which the

court should concern itself in making the delicate balance

between the probative value of the conviction and its prejudicial

effect as required by Rule 609(a) (2), since the conviction is

being offered only on the issue of the credibility of Petitioner's

testimony. Judge O'Kelley never comes to grip with this issue,

but instead rules on the "old" "pre-Federal Rules of Evidence"

and speaks in terms of "moral turpitude". (R. Vol, II, p. 179).

He fails, therefore, to make even this initial determination as

to the probative value, if any, of the evidence. Since the

required balancing of Rule 609(a) (1) was never performed by the

trial court the motion to suppress was improperly denied.

Furthermore, Judge O'’Kelley failed to deal with the

potential prejudicial effect of the convictions. The judge not

only ignored the great pains the Petitioner had gone to to

prevent at least his bank robbery conviction from being brought

out, by stipulating to his conviction (R. Vol. I, p. 10-12, 27-

29, 86), but did not consider that the court's prior ruling

denied Petitioner any other witnesses save himself.

Given Petitioner's stipulation, under this Court's

decision in United States v. Spletzer, supra, it would have been

reversible error for the trial court to have allowed the govern-

ment to prove the bank robbery conviction. In Spletzer, the

Court notes the serious prejudicial effect of a conviction

such as bank robbery and holds that this unfair prejudicial

effect substantially outweighed any value of the evidence,

In sum, Judge O'’Kelley failed not only in not con-

sidering the limited probative value of the conviction, but

also failed to properly weigh the prejudicial effect as required

by Rule 609(a)(1). The decision of Judge O’Kelley in refusing

to suppress the convictions substantially prejudiced Petitioner's

rights in this case and therefore constituted reversible error.

IV. CHARGE WITH RESPECT TO CREDIBILITY OF WITNESSES.

In the portion of the trial judge's jury instructions

concerning witnesses, the trial court states that in regard to

determining the credibility of witnesses the jury should con-

sider "the extent to which, if at all, each witness is either

supported or contradicted by other evidence in the case". (R,

Vol. II, p. 206). The Petitioner specifically excepted to this

instruction on the basis that where Petitioner presents no

evidence, “it places a burden upon the defendant to call

witnesses to contradict and bolster (its case), and puts an

idea in the jury's mind that Petitioner should have called

evidence to contradict what the government said or should have

contradicted it in some way". (R. Vol. II, p. 212).

The language used by Judge O'Kelley is the same

language as is included in the recommended instruction in

Federal Jury Practice and Instructions, 3rd Ed. Devitt and Blackmar,

Section 17.01. Such language might not be exceptional in a case

in which Petitioner takes the stand or offers any evidence.

However, as noted above, since Petitioner was effectively

deprived of his right to testify in his own behalf and he was

not allowed to call any witnesses, Petitioner was placed ina

position where it was impossible for him to specifically

"contradict" the government's witnesses. However, under the

Fifth Amendment to the Constitution, Petitioner is not required

to take the stand and specifically contradict the government's

evidence, since Petitioner is presumed innocent and the govern-

ment is required to prove Petitioner guilty beyond a reasonable

doubt. An instruction telling the jury to consider the degree

to which testimony is “supported or contradicted", has the same

danger as the old “every witness is presumed to speak the truth"

instruction which Devitt and Blackmar no longer include in

Section 17,01, See Federal Jury Practice and Instructions,

3rd Ed. Section 17,01, Notes. See also Cupp v. Naughten, 411

U.S. 141, 94 S.Ct. 396 (1973). ‘The danger is that the instruction

places a burden on Petitioner to put on evidence to somehow

"contradict" the government's witnesses. Petitioner is in fact

compelled to testify, since by not "contradicting" the government

witnesses, he runs the risk that in conformity with the trial

court's instructions their testimony will be conferred with

credibility.

Although admittedly in Cupp _v. Naughten, supra, the

“every witness speaks the truth" instruction was not held to

constitute a constitutional violation under the Fourteenth

Amendment, the "support or contradict” language in the charge

given in this case did substantially affect Petitioner's rights

and thus constituted reversible error. The Sixth Circuit has

held subsequent to Cupp that the giving of the "speak the truth”

instruction over timely objection is reversible error, United

States v, Maselli, 534 F.2d 1197 (6th Cir. 1976). In the con-

text of this case, where Petitioner presented no evidence, the

giving of the "support or contradict" instruction was similarly

erroneous and calls for a reversal.

V. DENIAL OF PETITIONER'S MOTION FOR MISTRIAL WHERE PETITIONER'S

POST-TRIAL SILENCE WAS HIGH-LIGHTED.

Petitioner's post-arrest silence was high-lighted to

the jury. (R. Vol. II, p. 144-145, 153, 189). ‘The evidence

came in when FBI Agent Harold J. Poe responded that Petitioner

said "nothing" when the prosecutor asked him "what did he tell

you?” (R. Vol. II, Pp. 144-145), Even after Petitioner's motion

for mistrial, which was denied and the court's cautionary

instruction (R. Vol. II, p. 145, 149-150), Poe persisted by

further revealing Petitioner's decision not to talk to Poe about

the matter. The prosecutor, in his closing argument, then

recalled to the jury Petitioner's choice to remain silent when

he said "nothing further happens that day", (R. Vol. II, p. 189),

The analysis given to testimony concerning post-arrest

silence depends upon an assessment of the probative value of

the silence and the damage, which such testimony concerning his

silence, does to a defendant's defense. The fact of Petitioner's

silence, here, lacked any significant probative value, See

United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133 (1975). ‘the

prejudicial impact of the silence testimony was great under the

circumstances of this case, because Petitioner, who was denied

presenting any witnesses on his duress defense and on the issue

of intent, had succeeded in drawing the inference, during the

cross-examination of Brenda Tomason, that in some manner

Petitioner's escape was related to the problems at the Atlanta

Penitentiary. (R. Vol. II, p- 99-101, 107, 110). ‘The silence

testimony was used in a manner which damaged the limited defense

which Petitioner had succeeded in raising. ‘United States v.

Impson, 531 F.2d 274 (5th Cir. 1976), This evidence came in

on the government's case-in-chief and was high-lighted by the

prosecutor in his closing argument, (R, Vol, II, p. 189).

Under these circumstances, Bringing to light Petitioner's post-

CONCLUSION

arrest silence constituted reversible error.

Por the above-mentioned reasons, a Writ of Certiorari

should issue to review the judgment of the Fifth Circuit Court

of Appeals,

Respectfully Submitted,

PF. or

orney for Petitioner

ard Henry Bryan

OF COUNSEL:

Federal Defender Program, Inc,

101 Marietta Tower, Suite 3612

Atlanta, Georgia 30303

(404) 688-7530

eh) ees oe

United States Court of Appeals U-50.0. 0220

MAY 1.8 ii"

UNITED STATES OF AMERICA,

RICHARD HENRY BRYAN,

FOR THE FIFTH CIRCUIT

October Term, 19

AY D5 ey

DEN H. CARTER, Clerk

a

78-5489

D. C. DOCKET NO. CR-78-32A

Plaintiff-Appellee,

Defendant~-Appelilant.

Appeal from the United States District Court for the

Northern District of Georgia

Before GODBOLD, SIMPSON and RONEY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the Northern District

of Georgia, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here ordered and adjudged

by this Court that the conviction of the District Court in this

cause be, and the same is hereby affirmed.

ISSUED AS MANDATE:

March 23, 1979

; FILED IN CREA 'S C¥YICE

AD A he PF Gg ttETE, THIS

Bean H ter, Clork

Deonty Clerk

-

A (rus vupr

Ty dks Bovtsas Bo WRU WORT

Clerk, U. o, Gouss of Appeals, Fifth cprouit

7 ~ 4

Cprside AMoucb —

‘= Bopaty MAY 14 1979

Gam Kr tac. Saab *t eek

‘e

UNITED STATES v. BRYAN 3706

UNITED STATES of America,

Plaintiff-Appellee,

> gp en 7

Richard Henry BRYAN,

Defendant-Appeltant.

No. 78-5489.

United States Court of Appeals,

Fifth Circuit.

March 23, 1979.

Defendant was convicted before the

United States District Court for the

Northern District of Georgia at Atlanta,

William C. O'Kelley, J., of escape, and he

appealed. The Court of Appeals held

that defendant, who was in position of

safety at hospital when he escaped, who

was not faced with specific threat, forci-

ble sexual attack or substantial bodily

injury in immediate future, who had am-

ple opportunity to complain, and who did

not immediately report to authorities

once he was out of reach of alleged dan-

gers, could not rely on defense of duress

or necessity.

Affirmed.

1. Eocape o=6

Theory of defense of duress or ne-

ceasity to charge of escape is that out-

side physical forces so powerfully influ-

ence a defendant that his actions cannot

be considered voluntary; once he has at-

tained position of safety, however, his

actions can no longer be considered in-

voluntary.

2. Eecape e=6

Defendant, who was in position of

safety at hospital when he escaped from

and

custody of the Attorney General, who

was not faced with specific threat, forci-

ble sexual attack or substantial bodily

injury in immediate future, who had am-

ple opportunity at hospital to complain

to authorities, who showed no history of

having made unanswered complaints on

prior occasions, and who did not immedi-

ately report to authorities once he was

out of reach of alleged dangers but re-

mained at large for six months before he

was arrested and detained, could not rely

on defense of duress or necessity. 18

U.S.C.A. § 751(a).

3. Witnesses ¢=337(5)

In prosecution for escape, it was

within trial court’s discretion to permit

cross-examination as to past convictions

for purpose of impeaching defendant, if

he took the stand.

4. Criminal Law @393(1)

Charge that jury should consider

“the extent to which, if at all, each wit-

ness is either supported or contradicted

by other evidence in the case” did not

place burden on defendant to contradict

Government's witnesses, and thus de-

prive him of his Fifth Amendment

rights, but, rather, simply directed jury's

attention to totality of the evidence.

U.S.C.A.Const. Amend. 5.

5. Criminal Law @=393(1)

Where government agent testified

that when he went to the jail after de-

fendant’s apprehension, defendant came

to cell door when another name was

called but said nothing, agent's response

“Nothing” in answer to question “What

did he tell you?” did not violate defend-

ant’s constitutional right to remain si-

lent.

Key Number

Synopess, Syliah Classification

COPYRIGHT @ 1979, by WEST PUBLISHING CO

The Synopses, Sylisbi and Key Number Classifi-

cation constitute nw part of the opinion of the court.

aa we

3707 UNITED STATES v. BRYAN

Appeal from the United States Dis-

trict Court for the Northern District of

Georgia.

Before GODBOI.D, SIMPSON and

RONEY, Circuit Judges.

PER CURIAM:

Defendant appeals his jury conviction

for escape from the custody of the At-

torney General in violation of 18 U.S.

C.A. § 751(a). While serving a 22-year

sentence for bank robbery, defendant es-

caped from a hospital where he had been

temporarily housed for medical treat-

ment, after which he was to be returned

to the Atlanta Federal Penitentiary.

Asserting duress or necessity as a de-

fense, defendant claimed his escape was

a direct result of his fear of being re-

turned to the penitentiary where he al-

legedly had been and would be homosex-

ually attacked by other inmates. De-

fendant argues the trial court erred

when it: rejected that defense as a mat-

ter of law; refused to issue writs of

habeas corpus ad testificandum to secure

inmate witnesses to testify to assaults at

the penitentiary; refused to prohibit dis-

closure of defendant’s past convictions if

he took the stand; charged the jury in-

correctly regarding credibility of wit-

nesses; and denied a mistrial when the

prosecutor elicited a comment concerning

defendant's post-arrest silence. Finding

no merit in defendant’s arguments, we

affirm.

With the assistance of a hospital work-

er defendant fled from the hospital and

remained at large for six months before

he was arrested and detained in a county

jail in connection with a murder. He

was subsequently returned to federal au-

thorities.

In response to the Government's mo-

tion to disallow defendant's proffered

de ase of duress or necessity and to

quash certain subpoenas, the district

court ruled defendant's duress defense

unavailable as a matter of law since de-

fendant had absented himself from cus-

tody for a period of six months. The

district court correctly relied on the rea-

soning in United States v. Michelson, 559

F.2d 567 (9th Cir. 1977), and quoted the

following:

[A]n escape will not be excused by rea-

son of duress if the escapee fails to

submit to proper authorities immedi-

ately after attaining a position of safe-

ty. The inmate’s failure to submit to

proper authorities following the al-

legedly coerced escape amounts to an

unexcused commission of the crime of

escape. Therefore, when an escapee

fails to submit to proper authorities,

the asserted duress defense must be

rejected because as a matter of law it

does not negate the continued absence

from custody.

United States v. Michelson, supra at 570.

(1] The theory of such a defense is

that outside physical forces so powerful-

ly influence a defendant that his actions

cannot be considered voluntary. Once he

has attained a position of safety, how-

ever, his actions can no longer be con-

sidered involuntary.

Although defendant relies on the test

set forth in People v. Lovercamp, 43 Cal.

App.3d 823, 832, 118 Cal.Rotr. 110, 115

(1974), he even fails to com, y with vir-

tually all of the Lovercamp require-

ments. The court in Lovercamp ruled

duress could constitute a defense where:

(1) The prisoner is faced with a spe-

cifie threat of death, forcible sexual

attack or substantial bodily injury in

the immediate future;

(2) There is no time for a complaint

to the authorities or there exists a his-

UNITED STATES v. BRYAN 3700

secure

tory of futile complaints which make

any result from such complaints illuso-

ry;

(3) There is no time or opportunity

to resort to the court;

(4) There is no evidence of force or

violence used towards prison personnel

or other “innocent” persons in the es-

cape; and

(5) The prisoner immediately reports

to the proper authorities when he has

attained a position of safety from the

immediate threat.

[2] In this case, defendant was in a

position of safety at the hospital when

he escaped, he was not faced with a spe-

cific threat, forcible sexual attack or

substantial bodily injury in the immedi-

ate future, he had ample opportunity at

the hospital to complain to authorities

and to petition tie court, he showed no

history of having made unanswered com-

plaints on prior occasions to those au-

thorities, and he did not immediately re-

port to authorities once he was out of

reach of the alleged dangers.

The other cases relied on by defendant

are of no support to his duress argu-

ment. They involve substantially differ-

ent facts and circumstances and do not

apply here. See, e. g., United States v.

Bailey, 190 U.S.App.D.C. 142, 585 F.2d

1087 (1978), petition for cert. filed, 47

U.S.L.W. 3487 (Dec. 18, 1978, No. 78-

990); United States v. Davis, 546 F.2d

583 (5th Cir.), cert. denied, 431 U.S. 906,

97 S.Ct. 1701, 52 L.Ed.2d 391 (1977);

United States v. Harp, 536 F.2d 601 (5th

Cir. 1976); United States v. Chapman,

455 F.2d 746 (5th Cir. 1972).

The court correctly determined there

was no factual basis for defendant to

raise a duress or necessity defense.

This ruling controls the decision as to

the district court’s refusal to issue writs

habeas corpus ad testificandum to

the presence of inmate witneanses at triai.

The prison conditions ahout which de-

fendant’'s witnesses could testify, and his

state of mind resulting therefrom, can

he assumed, but defendant's failure to

authorities during the six-month period

he was at large defeat his defense.

within the trial court’s discretion to

mit cross-examination as to defendant's

past convictions for the purpose of

impeachment, if defendant took the

stand.

jury's attention to the totality of the

evidence in the cas: and committed no

reversible error.

[5] Defendant contends

ment improy verly commented

cidd

ell

pelt

il

He

|

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