Appeal from the United States District Court for the Eastern District of Illinois. East St. Louis Division. No Cr-77-05008-01-E -- James L. Foreman, Judge .
Before Fairchild, Chief Judge, Swygert, Circuit Judge, and Jameson, Senior District Judge.*fn*
Lawrence Daniel Caldwell has appealed his conviction of unlawful attempt to escape from the United States Penitentiary at Marion, Illinois, in violation of 18 U.S.C. § 751(a).*fn1 We affirm.
Caldwell was indicted on March 30, 1977. Larry O. Baker was appointed to represent him. At trial Caldwell was permitted to act as co-counsel. He made his own opening statement, cross-examined Government witnesses, examined his own witness on direct examination, and made his own closing argument.
On appeal Baker filed a brief on Caldwell's behalf on October 13, 1977, and the Government filed its answer brief on November 11, 1977. In a letter dated December 15, 1977, Caldwell informed the court that he did not consider the brief filed by Baker a valid document because he had never authorized its filing.
Baker had withdrawn as counsel for Caldwell on October 13, 1977, the day the brief was filed. Caldwell later obtained other counsel for this appeal. They filed a supplemental brief on November 13, 1978. The Government filed its supplemental brief on January 2, 1979, and appellant filed a reply brief on February 1, 1979.
Oral argument was presented on April 9, 1979. On March 19, 1979 the Supreme Court had granted certiorari in United States v. Bailey, 190 U.S. App. D.C. 142, 585 F.2d 1087 (D.C.Cir.1978), one of the cases upon which appellant relied. An order was entered on May 31, 1979, holding this appeal under advisement until decision by the Supreme Court in United States v. Bailey. Bailey was decided by the Supreme Court on January 21, 1980, 444 U.S. 394, 100 S. Ct. 624, 62 L. Ed. 2d 575. Both parties filed supplemental briefs following the decision in Bailey.
At the time of the alleged offense, January 1, 1977, Caldwell had been incarcerated at the Marion Penitentiary for approximately four years. He had previously been confined at the United States Penitentiary in Leavenworth, Kansas, and the District of Columbia jail, following his conviction in the District of Columbia of felony murder.
In February, 1976, Caldwell was an eyewitness to a murder within the prison, where he saw an inmate stab another inmate. He testified that he was contacted by friends of both the assailant and the victim and threatened with death by each group if he failed to cooperate.
On January 1, 1977, eleven months after he had witnessed the murder, Caldwell attempted to escape. He obtained a hacksaw and sawed through a metal window bar in the kitchen where he had worked for over a year. After going out the window he climbed up to the roof and across to the loading dock. A guard spotted movement over the kitchen and dining room area and fired a warning shot and then fired two shots at the suspect. When Caldwell was apprehended he had a buckshot wound and had with him a deck of Tarot cards, radio, food, maps, and a small amount of change.
Caldwell testified that believing he was threatened with death, he felt he had these options: (1) to arm and defend himself, but this would be futile; (2) report the incident, but if he did so, he would be stigmatized as an informer and to be protected would be placed in a segregation unit, which would mean solitary confinement; and (3) escape from the penitentiary and remain free.
Appellant contends that (1) the district court erred in failing to instruct the jury on the defense of duress; (2) the court erred in admitting into evidence and submitting to the jury an exhibit which referred to the defendant's convictions with excerpts underlined in red ink; and (3) appellant ...