# Petition — Bryan v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 444 U.S. 1071

## Text

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

|

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0481%3A1. Public record. Not legal advice.