OpenJurist

876 F2d 897 United States v. Schumaker

876 F.2d 897

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

UNITED STATES of America, Plaintiff-Appellee,
v.
Carl Urban SCHUMAKER, Defendant-Appellant.

No. 88-1335.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 6, 1989.
Decided June 9, 1989.

Before POOLE, REINHARDT and O'SCANNLAIN, Circuit Judges.

1

MEMORANDUM*

2

Carl Schumaker appeals from his conviction for possession of a destructive device in violation of 26 U.S.C. Sec. 5861(d). Schumaker had planned to assert the defense of duress. At trial, the district court excluded evidence of Schumaker's proposed theory of duress, but did permit Schumaker to prove a more narrow version of the defense. The district court also denied Schumaker's motion to suppress evidence of the statements which he made to two FBI agents. Schumaker assigns error to the district court's exclusion of evidence of duress and its denial of Schumaker's motion to suppress.

3

We affirm.

BACKGROUND

4

On January 30, 1987, Carl Schumaker was found collapsed over the wheel of his car in the parking lot of the Veterans Administration ("VA") Medical Center in Martinez, California. Schumaker was removed from his car and was transported by wheelchair to the hospital emergency room.

5

While Schumaker was in the emergency room, Joseph Berg, a VA Police Officer, discovered that Schumaker's car was illegally parked. Berg went to the emergency room to obtain the keys to Schumaker's car. Schumaker gave his car keys to Officer Berg and informed Berg that there was $20,000 in a briefcase lying partially open on the back seat of the car. Schumaker requested that Berg close the briefcase and lock up the car.

6

Berg entered Schumaker's car and found a briefcase lying on the back seat, but did not see any money inside. Berg searched through other items which were located in the car and discovered a blue gym bag. The gym bag contained a device which appeared to be a bomb. Berg informed the VA police chief who, in turn, notified the local police, the FBI and a Navy explosive ordnance team. The area was evacuated while the naval team successfully deactivated the bomb.

7

Later that afternoon, Schumaker was transferred to the Contra Costa County Hospital where he was committed for a 72-hour period pursuant to California Welfare and Institutions Code Sec. 5150.1 Schumaker was diagnosed as suffering from acute amphetamine withdrawal and was administered Haldol, an anti-psychotic medication, during his period of confinement.

8

On January 31, FBI Special Agents Bennett Cale and Chuck Lattig interviewed Schumaker at the county hospital. The agents' report stated that Schumaker informed them that he had been the target of several bombing attacks. Schumaker explained that the bomb which was found in his car at the VA hospital had been placed underneath his car about a week earlier. According to the agents, Schumaker stated that he disarmed the bomb and placed it in his car to show it to his father-in-law. Schumaker was en route to his father-in-law's residence when his physical ailments forced him to stop at the VA hospital.

9

Schumaker does not recall making these statements to the FBI; instead, he offers an alternative version of the facts. According to Schumaker, he found the bomb the same morning that he entered the VA hospital. Schumaker put the bomb in his car to implicate the person responsible for the bombing attacks and to protect the children who play in the area where the bomb had been placed.

10

On November 3, 1987, Schumaker was indicted by a Federal Grand Jury on one count of possessing a destructive device in violation of 26 U.S.C. Sec. 5861(d). Prior to trial, Schumaker moved to suppress the statements that he had made to the FBI agents. In response, the government agreed not to elicit testimony concerning the statements in its case-in-chief, but reserved the right to impeach Schumaker with the statements. Schumaker's motion was denied without prejudice on April 19, 1988. On April 27, 1988, Schumaker renewed the motion to suppress the statements and requested that the court conduct an evidentiary hearing prior to jury selection. On the same day, the court denied Schumaker's request for an evidentiary hearing.

11

Trial commenced on April 28, 1988. On the first day of trial, Schumaker made a formal offer of proof regarding the legal and factual bases for a duress theory of defense. Schumaker contended that he possessed the bomb as a means of ending the ongoing threat to his life. Because Schumaker was the target of several attempts on his life, he claimed that he took the bomb in order to preserve it as evidence against the perpetrator of the attacks. By producing evidence of a bombing, Schumaker explained that he could have the perpetrator arrested and could thereby end the threat to his life. Schumaker was prepared to call several witnesses who would testify that he had been the target of bombing attacks.

12

The district court prohibited Schumaker from calling witnesses in support of this theory. However, the court did permit Schumaker to prove a more limited theory of duress--that his diminished physical condition on January 30 caused him to believe that his life was in danger. Schumaker testified on his own behalf in support of this theory and also elicited the testimony of Dr. Fred Rosenthal regarding Schumaker's physical and mental condition on January 30. At the close of trial, the court instructed the jury on the theory of duress.

13

The jury returned a guilty verdict and the district judge imposed a sentence of seven years. Schumaker now appeals, claiming that the district court erred in excluding evidence relevant to his duress defense. Schumaker also claims that the district court erroneously permitted the government to elicit testimony regarding his statements to the FBI agents.

ISSUES

14

I. Did the district court err in excluding evidence relating to Schumaker's duress theory of defense?

15

II. Did the district court err in permitting the government to introduce evidence of Schumaker's statements to the FBI agents?

DISCUSSION

I. Evidence of Duress

16

To establish a prima facie case of duress, a defendant must show that: (1) he acted under an immediate and illegal threat of death or serious bodily injury; (2) his fear that the threat would be carried out was well-grounded; and (3) there was no reasonable opportunity to avoid or escape the threatened harm. United States v. Kinslow, 860 F.2d 963, 965-66 (9th Cir.1988) (citation omitted). The district court's conclusion as to whether a defendant has made a threshold showing of each element of the duress defense is reviewed de novo as a question of law. United States v. Williams, 791 F.2d 1383, 1388 (9th Cir.), cert. denied, 479 U.S. 869 (1986).

17

The district court properly excluded evidence of Schumaker's duress defense. Even if we accept Schumaker's rendition of the facts concerning his initial possession of the bomb,2 he has failed to establish a prima facie case of duress because he was presented with a reasonable and obvious means of escaping the threat to his life. Schumaker testified that he took possession of the bomb in order to preserve evidence against the perpetrator of the previous bombing attacks. Although this course of action might have ultimately led to the arrest and conviction of the perpetrator, thereby ending the threat to Schumaker's life, Schumaker was presented with reasonable alternatives to taking possession of the bomb.

18

The most obvious alternative course of action for Schumaker would have been to inform the police that a bomb was located underneath his car. By choosing this alternative, Schumaker would have preserved the evidence against his attacker as well as avoided the risk of possessing a live bomb. As a second alternative, Schumaker could have merely fled the vicinity of his car once he discovered the bomb. By doing so, Schumaker might not have preserved the evidence, but he would have avoided the immediate threat of death or serious bodily injury.

19

Because Schumaker was presented with reasonable opportunities to escape the threat to his life, his theory of duress is deficient as a matter of law. The district court therefore properly excluded Schumaker's evidence of duress.

II. Schumaker's Statements to the FBI Agents

20

Schumaker contends that the district court erred in permitting the government to elicit testimony concerning his statements to the FBI agents. Because Schumaker was confined to the hospital and was under the influence of an anti-psychotic drug, he argues that his statements were involuntary and therefore inadmissible. This court reviews de novo a district court's ruling on the voluntariness of a statement. United States v. Eccles, 850 F.2d 1357, 1361 (9th Cir.1988).

21

Schumaker relies on Blackburn v. Alabama, 361 U.S. 199 (1960), and Townsend v. Sain, 372 U.S. 293 (1963) for the proposition that to be admissible, "an individual's statement must be the product of a rational intellect and a free will." Opening Brief at 17. Under this reading of Blackburn and Townsend, Schumaker's statements would be involuntary because the influence of Haldol deprived Schumaker of his "free will" in making the statements.

22

Schumaker's interpretation of Blackburn and Townsend is foreclosed by the Supreme Court's decision in Colorado v. Connelly, 479 U.S. 157 (1986). In Connelly, the Court held that "coercive police activity is a necessary predicate to the finding that a confession is not 'voluntary' within the meaning of the Due Process Clause". Id. at 167. Connelly did not purport to limit either Blackburn or Townsend, noting that "the integral element of police overreaching [was] present in both cases." Id. at 164.

23

Under Connelly, Schumaker's statements were not involuntary. There is no evidence in the record that the FBI agents employed coercive tactics, a predicate to a finding of involuntariness. Schumaker initially entered the hospital on his own accord. The FBI agents did not participate in the decision to confine Schumaker for a 72-hour period or to treat Schumaker with Haldol. The FBI agents did interview Schumaker during his period of confinement, but did not intimidate, trick or otherwise coerce Schumaker into providing his statements. The only evidence presented at trial indicated that the interview lasted approximately 45 minutes and was terminated by Schumaker. Absent any showing of coercive police activity, Schumaker's statements to the FBI agents cannot be considered to be involuntary.

24

Schumaker also argues that the district court erred in failing to conduct an evidentiary hearing concerning the voluntariness of the statements that he made to the FBI agents. Because Schumaker's statements were voluntary under Connelly, the district court's refusal to conduct an evidentiary hearing, even if erroneous, was of no consequence to Schumaker. As a result, Fed.R.Crim.P. 52(a) requires that the district court's "error" be disregarded.

25

Even if Schumaker's statements were involuntary, the district court did not abuse its discretion by failing to conduct an evidentiary hearing. 18 U.S.C. Sec. 3501(a) provides that a district court must conduct an evidentiary hearing regarding the voluntariness of a confession. However, a court need not conduct an evidentiary hearing if the person who made the statements was not under arrest or other detention. 18 U.S.C. Sec. 3501(d); United States v. Poschwatta, 829 F.2d 1477, 1482 (9th Cir.1987), cert. denied, 108 S.Ct. 1024 (1988). Although Schumaker was confined to the hospital at the time of his confession, he was neither under arrest nor detention. See United States v. Martin, 781 F.2d 671, 673 (9th Cir.1985). Accordingly, the district court was not required to conduct an evidentiary hearing.

26

AFFIRMED.

*

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

1

California Welfare and Institutions Code Sec. 5150 provides, in part, that a person who is a danger to himself or to others, upon the direction of an attending physician, may be placed in a county health facility for a 72-hour period of treatment and evaluation

2

At trial, three alternate versions of Schumaker's initial receipt of the bomb were presented. Officer Berg testified that Schumaker stated that he found the bomb underneath his car two days before he entered the VA hospital. Schumaker testified that he discovered the bomb on the same day that he entered the hospital. FBI Agent Cale testified that Schumaker stated that he found the bomb one week prior to entering the hospital