UNITED STATES COURT OF APPEALS
Filed 2/7/96
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 95-1140
v. D. Colorado
JAMES WESLEY CHAPMAN, (D.C. No. 94-CR-267-S)
Defendant - Appellant.
ORDER AND JUDGMENT*
Before ANDERSON, BARRETT, and LOGAN, Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. This cause is therefore ordered
submitted without oral argument.
James Wesley Chapman, appearing pro se, appeals from his conviction and 41
month sentence for attempted escape from a Bureau of Prisons Institution, in violation of
18 U.S.C. § 751(a). We affirm.
*
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
BACKGROUND
Mr. Chapman was convicted and sentenced to imprisonment for conspiracy to
manufacture methamphetamine with intent to distribute, possession of methamphetamine
with intent to distribute, manufacture and attempted manufacture of methamphetamine,
and aiding and abetting, all in violation of various federal laws. His conviction was
affirmed by the Ninth Circuit Court of Appeals in an unpublished opinion, and the
Supreme Court denied his petition for certiorari. United States v. Chapman, No.
91-50724, 1992 WL 379409 (9th Cir. 1992), cert. denied, 114 S. Ct. 222 (1993). Mr.
Chapman has not filed any habeas petitions.
While incarcerated at the Federal Correctional Institution at Florence, Colorado
Mr. Chapman attempted to escape on May 12, 1994. There appears to be no dispute
about the facts surrounding the escape attempt. The escape attempt failed, and Mr.
Chapman was subsequently indicted for one count of attempted escape.
There followed a series of motions filed by Mr. Chapman, sometimes proceeding
pro se and sometimes represented by counsel. Several of them related to a claimed defect
in the composition of the master jury wheel from which Mr. Chapman’s grand jury and
petit jury were drawn. Another defendant in another case, whose jury was drawn from
the same master wheel as Mr. Chapman, had made the same arguments relating to the jury
wheel to a different district court judge, who had already heard arguments on the matter.
United States v. Bailey, 862 F. Supp. 277 (D. Colo. 1994), aff’d in part, rev’d in part, No.
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95-1004, ___ F.3d ___ (10th Cir., Feb. 2, 1996). Mr. Chapman incorporated the Bailey
case arguments in his own motions.
The district court heard argument on Mr. Chapman’s various motions at a January
9, 1995, hearing. The court first addressed Mr. Chapman’s motions concerning the jury
wheel. Mr. Chapman argued that there were some errors and omissions in the Bailey
hearing, and he sought appointment of a statistician and a private investigator. The court
took the jury wheel motions under advisement. The court then addressed Mr. Chapman’s
motions to dismiss the indictment because his escape attempt was justified by the doctrine
of necessity or, alternatively, to permit him to argue necessity as a defense. The court
ruled that Mr. Chapman was not entitled to the defense of necessity and therefore denied
his motions. The court granted Mr. Chapman’s Brady motions for discovery of material
evidence, particularly relating to any deals or inducements made to government witnesses,
both in this case and in prior cases.
The court issued a memorandum opinion and order on the jury wheel issues,
ultimately concluding that any errors in the master jury wheel did not constitute a
“substantial failure to comply” with the Jury Selection and Service Act, 28 U.S.C.
§§ 1861-1869. It denied all of Mr. Chapman’s motions relating to the jury wheel.
Mr. Chapman thereafter proceeded to trial represented by counsel. The jury found
him guilty of attempted escape, and he was sentenced to 41 months imprisonment, to run
consecutively to his term for the drug violations. He appeals, arguing: (1) the district
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court erred in denying his motion to dismiss the indictment because his escape attempt
was legally justified under the doctrine of necessity; (2) the district court erred in denying
his motion seeking permission to present necessity as an affirmative defense; (3) the
district court erred in denying him access to the master jury list and in denying him a
hearing in which to challenge the composition of the jury list; and (4) the prosecution
failed to disclose to him evidence which he could have used to impeach government
witnesses.
DISCUSSION
I. Necessity Defense:
Mr. Chapman argues that the district court erred in denying his motion to dismiss
the indictment on the ground of necessity, and in denying his motion seeking permission
to present necessity as an affirmative defense. We review the denial of both motions for
abuse of discretion. United States v. Meraz-Valeta, 26 F.3d 992, 995-96 (10th Cir. 1994);
see also United States v. Seward, 687 F.2d 1270, 1276 (10th Cir. 1982) (en banc)
(reviewing denial of defense of necessity for abuse of discretion), cert. denied, 459 U.S.
1147 (1983); United States v. Kingston, 971 F.2d 481, 490 (10th Cir. 1992) (reviewing
denial of motion to dismiss indictment for abuse of discretion). We hold that the district
court did not abuse its discretion in the denial of either motion.
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Mr. Chapman argues that, because he believes his underlying drug convictions
were fatally flawed, and his appeals from them were unsuccessful, necessity compelled
his escape from what he views is an unlawful confinement. Other than his direct appeal
to the Ninth Circuit, and his unsuccessful petition for certiorari to the United States
Supreme Court, he concedes he has pursued no other legal challenges to his convictions.
As we have previously stated:
a defendant may successfully use a defense of necessity to excuse an
otherwise illegal act if (1) there is no legal alternative to violating the law,
(2) the harm to be prevented is imminent, and (3) a direct, causal
relationship is reasonably anticipated to exist between defendant’s action
and the avoidance of harm.
Meraz-Valeta, 26 F.3d at 995. The Supreme Court has stated in a case, like this one,
involving necessity as a defense to a charge of prison escape, that “one principle remains
constant: if there was a reasonable, legal alternative to violating the law, ‘a chance both to
refuse to do the criminal act and also to avoid the threatened harm,’ the defense [of
necessity] will fail.” United States v. Bailey, 444 U.S. 394, 410 (1980) (internal citation
omitted).
In this case, there were “reasonable, legal alternative[s] to violating the law.” Id.
For example, Mr. Chapman could have pursued a 28 U.S.C. § 2255 action, if he believed
his underlying convictions were fatally flawed. In any event, Mr. Chapman was
incarcerated pursuant to a valid conviction at the time of his escape attempt. His failure
to obtain the relief he seeks by the usual, legal avenues of appeal and collateral review
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does not justify his attempted escape, on the ground of necessity or any other theory. See
United States v. Roy, 830 F.2d 628, 638 (7th Cir. 1987) (“[A]cquittal on the charges for
which the defendant was held in custody at the time of the escape is not a defense to the
escape charge under 18 U.S.C. § 751(a).”), cert. denied, 484 U.S. 1068 (1988); United
States v. Allen, 432 F.2d 939, 940 (10th Cir. 1970) (per curiam) (“[N]either the regularity
of [a defendant’s] arrest nor the propriety of his confinement can be tested by an act of
escape.”). The district court did not err in denying his motion to dismiss the indictment or
his motion to present the defense of necessity.
II. Jury Wheel issues:
Mr. Chapman also argues the district court erred in denying him access to the
master jury wheel from which his jury was selected and in denying him a hearing in
which to challenge the composition of the jury wheel. Both the grand jury which indicted
Mr. Chapman on the escape charge, and the jury which convicted him on that charge,
were selected from the Denver Division master jury wheel compiled in October 1993.
The selection and composition of that master jury wheel were challenged in the Bailey
case, on the ground that an undisputed error by the clerk who compiled the jury wheel
caused the jury wheel to be in violation of the Jury Selection and Service Act of 1968, 28
U.S.C. §§ 1861-1869. After conducting a hearing and taking extensive testimony and
evidence, the district court in Bailey held that the errors “were technical in nature and did
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not constitute a substantial failure to comply with the Jury Selection Act.” Bailey, 862 F.
Supp. at 285. We affirmed that conclusion, stating that “the clerk’s errors in determining
the number of registered voters for several counties in the Colorado district did not
amount to a substantial failure to comply with the provisions of the Jury Selection Act.”
Bailey, __ F.3d at ___.
Mr. Chapman relied heavily on the defendant’s allegations in Bailey in support of
his challenge to the same jury wheel in this case. In the January 9, 1995, hearing on his
various motions relating to the jury wheel, Mr. Chapman attempted to argue that he had
some objections to the jury wheel which were not addressed in Bailey. However, we
agree with the district court’s observation that Mr. Chapman “offered no specific proof,
but merely stated his vague and conclusory allegations of other possible errors in the
master jury wheel.” Mem. Op. and Order at 2, R. Vol. I at Tab 22. Our opinion in Bailey
conclusively resolves the issue of whether the particular master jury wheel from which
Mr. Chapman’s juries were selected violated the Jury Selection Act. We follow Bailey’s
conclusion that it did not, and Mr. Chapman has presented no reason why that conclusion
should not also resolve his jury wheel arguments, without the necessity of further
hearings or further argument. We therefore affirm the district court’s denial of Mr.
Chapman’s motions relating to the master jury wheel.
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III. Brady violation:
Mr. Chapman’s final argument involves an alleged violation by the government of
its duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose material evidence
favorable to the accused. We review de novo claimed Brady violations. United States v.
DeLuna, 10 F.3d 1529, 1534 (10th Cir. 1993).
At trial, a number of other inmates testified for the government about Mr.
Chapman’s actions in connection with the escape attempt. They also testified that they
had been offered no promises of favors or compensation by the government in exchange
for their testimony. Mr. Chapman asks us to “take judicial notice that the government’s
witnesses, after testifying at trial that they’d indeed received no promises of favors or
compensation from the government in exchange for their giving testimony in this trial,
received ‘protective order’ transfers . . . to select camps in California, Oregon, Nevada
and or Arizona.” Appellant’s Br. at 19. These transfers apparently took place one month
after Mr. Chapman’s trial.
“‘[T]o establish a Brady violation, the defense must prove that: (1) the prosecution
suppressed the evidence; (2) the evidence would have been favorable to the accused; and
(3) the suppressed evidence is material.’” DeLuna, 10 F.3d at 1534 (quoting United
States v. Wolf, 839 F.2d 1387, 1391 (10th Cir.), cert. denied, 488 U.S. 923 (1988)). The
materiality requirement is met “only if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been
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different. A ‘reasonable probability’ is a probability sufficient to undermine confidence
in the outcome.’” United States v. Bagley, 473 U.S. 667, 682 (1985).
Beyond his conclusory allegation, Mr. Chapman presents no evidence that the
government suppressed any evidence of any deals or promises. Further, we agree with
the government that, even were we to find that evidence was not disclosed, such evidence
is not material, because there is no reasonable probability that disclosure would have
caused a different result in the proceeding. The evidence against Mr. Chapman was
strong and unchallenged. Mr. Chapman himself does not argue that he is in fact innocent
of the crime for which he was convicted. Any additional impeachment value from
disclosure of these alleged promises of favorable treatment would not have altered the
outcome of the proceeding.1
1
As the government points out, most of the government witnesses were questioned
about any promises or inducements offered in exchange for their testimony, and they
testified that they were actually reluctant to testify, because of a fear of being considered
a government informant in prison. This testimony does nothing to strengthen Mr.
Chapman’s conclusory allegation that the witnesses’ subsequent transfers indicate that the
government offered them secret deals in advance in exchange for their testimony. Indeed,
that testimony is more consistent with the conclusion that the witnesses’ fears proved
true, and they were transferred from the facility in which Mr. Chapman resided to protect
them from retaliation for their testimony against him.
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For the foregoing reasons, Mr. Chapman’s conviction and sentence are
AFFIRMED.2 The mandate shall issue forthwith.
ENTERED FOR THE COURT
Stephen H. Anderson
Circuit Judge
2
Mr. Chapman has filed motions seeking to supplement his opening brief with a
description of and reference to a supplemental appendix and to file a supplemental
appendix. Those motions have been referred to this panel. We grant the motions.
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