Appeal from the United States District Court for the Southern District of California. D.C. No. CR-89-0075-E-02. D.C. No. CR-89-0075-01-E. William B. Enright, District Judge, Presiding.
Before: Arthur L. Alarcon, William A. Norris and Charles Wiggins, Circuit Judges. Opinion by Judge Wiggins; Concurrence by Judge Norris.
Larry Wayne LaFleur appeals from a jury verdict finding him guilty of first degree murder under 18 U.S.C. § 1111(a), and from the life sentence he received pursuant to 18 U.S.C. § 1111(b). LaFleur contends that 1) the district court improperly refused to instruct the jury on voluntary manslaughter, 2) the district court erred in denying his motion for a new trial based on jury misconduct, and 3) the life sentence he received is unconstitutional. Nick Michael Holm appeals from the sentence imposed by the district court after he pleaded guilty to murder under § 1111(a) and was sentenced to life in prison pursuant to § 1111(b). Holm joins LaFleur's argument that the life sentence imposed pursuant to § 1111(b) is unconstitutional. This court has jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
On January 10, 1989, Otto Bloomquist, an eighty-two-year-old man, drove with his wife to a shopping mall in Carlsbad, California, to have lunch. Bloomquist, who had approximately $300 in cash in his possession, waited in his car while his wife entered the mall to shop before lunch. The appellants, Larry LaFleur and Nick Holm, approached Bloomquist's car and, each displaying the gun he was carrying, forced Bloomquist to relinquish control of the vehicle. With LaFleur driving and Holm keeping Bloomquist at gun point, the car left the parking lot.
LaFleur drove the car to a remote area known as De Luz Canyon, which is part of the Camp Pendleton military base. After exiting the car, the three men walked down a deserted path and LaFleur and Holm killed Bloomquist by shooting him several times. It is undisputed that both men shot Bloomquist. LaFleur fired the first several shots, and then Holm shot Bloomquist in the back and head. However, there was conflicting testimony regarding the specific circumstances surrounding the shooting of Bloomquist. Each appellant claims both that the other initiated the killing, and that he committed the crime only under duress, alleging that the other forced him at gunpoint to shoot Bloomquist.
LaFleur and Holm were indicted on January 26, 1989 for a host of counts encompassing the murder, kidnapping, and robbery of Bloomquist. The district court granted a defense motion to have the trials of LaFleur and Holm severed. LaFleur's trial began on June 20, 1989. The next day, Holm entered a guilty plea to premeditated murder, and the remaining charges against him were dropped. LaFleur's trial ended on July 7, 1989 when the jury returned a guilty verdict on all counts. He was convicted of premeditated murder, felony murder, conspiracy to kidnap, kidnapping, robbery, use of a firearm during murder, use of a firearm during kidnapping, and use of a firearm during robbery. Both men were sentenced pursuant to 18 U.S.C. § 1111(b) to life in prison for the murder of Bloomquist. In addition, LaFleur received sentences for his other crimes.
On July 14, 1989, one of the LaFleur jurors, Kimberly Tucker, contacted district court Judge Enright and informed him that she and one other juror had learned of Holm's guilty plea during the trial. Based on this information, LaFleur filed a motion for a new trial. The district court held an evidentiary hearing and, after receiving testimony from the jurors, denied the motion.
A. Voluntary Manslaughter Jury Instruction
Appellant LaFleur contends that the district court erred by refusing to instruct the jury on voluntary manslaughter.*fn1 LaFleur argued at trial that he participated in the murder only as a result of duress inflicted by Holm, who allegedly held LaFleur at gunpoint and forced him to shoot Bloomquist. LaFleur contends that such duress legally mitigates murder to voluntary manslaughter, and that he was therefore entitled to a voluntary manslaughter instruction.*fn2 The Ninth Circuit has not yet resolved the issue of whether a district court's decision not to instruct a jury on the defendant's theory of the case is reviewed de novo or for an abuse of discretion. United States v. Whitehead, 896 F.2d 432, 434 (9th Cir.), cert. denied, 112 L. Ed. 2d 306, 111 S. Ct. 342 (1990). Compare United States v. Wagner, 834 F.2d 1474, 1486 (9th Cir. 1987) (de novo) with United States v. Busby, 780 F.2d 804, 806 (9th Cir. 1986) (abuse of discretion). In this case the district court refused the instruction after concluding that duress was not "a legal excuse for the crime of premeditated murder." We are, therefore, confronted with a legal question: whether or not duress is a valid defense to murder under 18 U.S.C. § 1111(a) such that it mitigates murder to voluntary manslaughter. This is an issue of first impression, and our review is de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.), cert. denied, 469 U.S. 824, 83 L. Ed. 2d 46, 105 S. Ct. 101 (1984) (legal questions reviewed de novo).
When a defendant commits a criminal act under the direct threat of another person, he commits the crime under duress. The duress defense, which provides the defendant a legal excuse for the commission of the criminal act, is based on the rationale that a person, when confronted with two evils, should not be punished for engaging in the lesser of the evils.*fn3 LaFave and Scott aptly describe the defense as follows:
One who, under the pressure of an unlawful threat from another human being to harm him . . ., commits what would otherwise be a crime may, under some circumstances, be justified in doing what he did and thus not be guilty of the crime in question . . . . The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Nor is it that the defendant has not engaged in a voluntary act. Rather it is that, even though he has done the act the crime requires and has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is justified because he has thereby avoided a harm of greater magnitude.
LaFave & Scott, Substantive Criminal Law § 5.3 (1986) (footnotes omitted).
The "choice of evils" rationale for the duress defense is strained when a defendant is confronted with taking the life of an innocent third person in the face of a threat on his own life. The choice of evils rationale necessarily presumes that the threatened harm to the defendant is greater than the resulting harm from the defendant's commission of the crime. When the defendant commits murder under duress, the resulting harm - i.e. the death of an innocent person - is at least as great as the threatened harm - i.e. the death of the defendant. For this reason, the common law rejected duress as a defense to murder. See LaFave & Scott § 5.3 ("Duress cannot justify the intentional killing of . . . an innocent third person."); 40 Am. Jur. 2d, Homicide § 119 (1968); 40 C.J.S. Homicide § 113 (1944); 4 W. Blackstone, Commentaries 30; Witkin, Cal. Crim. 231(b); United States v. Mitchell, 725 F.2d 832, 835 n.4 (2nd Cir. 1983); Arp v. State, 97 Ala. 5, 12 So. 301 (1893).
Our review of state law indicates that the majority of states considering the issue has adopted the common law rule. See, e.g., Ariz. Rev. Stat. Ann. § 13-412(C); Colo. Rev. Stat. § 18-1-708; Ga. Code Ann. § 16-3-26; Ind. Code § 35-41-3-8; Kan. Stat. Ann. § 21-3209; La. Rev. Stat. Ann. § 14:18(6); Me. Rev. Stat. Ann. tit. 17-A, § 103-A; Mo. Rev. Stat. § 562.071; Or. Rev. Stat. § 161.270; Wash. Rev. Code § 9A.16.060;*fn4; Tully v. State, 730 P.2d 1206, 1208 (Okla. Crim. 1986); People v. Feldmann, 181 Mich. App. 523, 449 N.W.2d 692, 697 (1989); State v. Robinson, 294 S.C. 120, 363 S.E.2d 104, 104 (1987); People v. Dittis, 157 Mich. App. 38, 403 N.W.2d 94, 95 (1987); State v. Vines, 317 N.C. 242, 253, 345 S.E.2d 169, 175 (1986); State v. Finnell, 101 N.M. 732, 737, 688 P.2d 769, 774, cert. denied, 469 U.S. 918, 83 L. Ed. 2d 232, 105 S. Ct. 297 (1984).
In support of his argument that he was entitled to a manslaughter instruction, LaFleur relies on United States v. Alexander, 695 F.2d 398 (9th Cir. 1982), cert. denied, 462 U.S. 1108, 77 L. Ed. 2d 1337, 103 S. Ct. 2458 (1983), in which the district court had read the following instruction: "Acts causing death but committed under duress and without malice aforethought may constitute voluntary manslaughter." Id. at 401. The issue in Alexander was the conflict between that instruction and one stating: "Coercion or duress may provide a legal excuse for the crime of robbery. It is not a legal excuse for the crime of murder." This court, on appeal, specifically refused to reach the question of whether the voluntary manslaughter instruction was properly given. Instead, the court decided the issue on harmless error grounds. Id. (court finding that a jury's guilty verdict on felony murder indicated that jury did not believe a duress/coercion defense, and that therefore any conflict between the instructions was harmless). Therefore, Alexander does not support LaFleur.
We are persuaded that duress is not a valid defense to § 1111(a) first degree murder. We believe that, consistent with the common law rule, a defendant should not be excused from taking the life of an innocent third person because of the threat of harm to himself. This, however, does not directly answer the question before us. LaFleur argues essentially that, even if duress is not a complete defense to § 1111(a) murder, it can act to mitigate murder to voluntary manslaughter.*fn5 We have found no compelling authority for LaFleur's proposition, and, after careful consideration, we reject it. We hold that duress cannot legally mitigate murder to manslaughter. The same rationale which dictates that duress is not a complete defense to murder demands that duress not be used by a defendant to mitigate the intentional killing of an innocent third person. Therefore, the district court did not err in denying LaFleur's request for a manslaughter instruction.
LaFleur contends that the district court erred in denying his motion for a new trial. He argues that he was prejudiced by the fact that two jurors learned of Holm's guilty plea during the course of his trial. A district court's denial of a motion for a new trial is reviewed for an abuse of discretion. United States v. Endicott, 869 F.2d 452, 457 (9th Cir. 1989). Although we review alleged juror misconduct independently, we accord "substantial weight" to the district court's conclusion as to the effect of the misconduct. United States v. Madrid, 842 F.2d 1090, 1092 (9th Cir.), cert. denied, 488 U.S. 912, 102 L. Ed. 2d 257, 109 S. Ct. 269 (1988); United States v. Bagnariol, 665 F.2d 877, 885 (9th Cir.), cert. denied, 456 U.S. 962, 102 S. Ct. 2040, 72 L. Ed. 2d 487 (1982).
The record indicates that juror Gary Casarez learned, outside the proceedings, that appellant Holm had pleaded guilty to the murder of Bloomquist. He conveyed that fact to a second juror, Kimberly Tucker. Neither juror informed the court of their knowledge of Holm's plea during the trial. Instead, Tucker contacted Judge Enright after the trial. The district court held an evidentiary hearing and heard testimony from Casarez, Tucker, and the jury foreman. After hearing the evidence, the court denied LaFleur's motion for a new trial.
The information acquired by Casarez and Tucker is extraneous information,*fn6 and LaFleur is therefore entitled to a new trial if we find a "reasonable possibility" that the evidence could have affected the verdict. United States v. Maree, 934 F.2d 196, 201 (9th Cir. 1991) (quoting Madrid, 842 F.2d at 1093-94). The district court found that there was no reasonable possibility that the juror's extraneous knowledge affected the verdict against LaFleur. We take guidance from two decisions of the Seventh Circuit. In United States v. Weisman, 736 F.2d 421 (7th Cir.), cert. denied, 469 U.S. 983, 83 L. Ed. 2d 324, 105 S. Ct. 390 (1984), the court addressed a situation in which jurors learned of a codefendant's guilty plea. Although noting that "a codefendant's guilty plea . . . might be prejudicial under some circumstances," the court found that there was no reasonable possibility that the juror knowledge of the plea affected the verdict. Id. at 424. The court reasoned that the appellant's theory of defense was "not inconsistent" with the codefendant's guilty plea. Id. Similarly, in United States v. Bruscino, 687 F.2d 938 (7th Cir. 1982), cert. denied, 459 U.S. 1211, 103 S. Ct. 1205, 75 L. Ed. 2d 446 and 459 U.S. 1228, 103 S. Ct. 1235, 75 L. Ed. 2d 468 (1983), the court held that the appellants were not entitled to a new trial where jurors had learned of codefendants' guilty pleas. The court reasoned that, because the appellants' theory of the crime was that the codefendants had committed it, the appellants could not possibly be harmed by the jurors' knowledge of the pleas. Id. at 942.
We agree with the reasoning of the Seventh Circuit and hold that there was no reasonable possibility that the jurors' extraneous knowledge affected the verdict against LaFleur. It is undisputed that both LaFleur and Holm shot Bloomquist. Because LaFleur's trial defense was that Holm had forced him to participate in the murder, Holm's guilty plea was fully consistent with LaFleur's defense. Indeed, if the information had any effect on the jurors, it would have supported LaFleur's claims. The district court, therefore, did not abuse its discretion in denying LaFleur's motion for a new trial.
Appellants LaFleur and Holm
Appellants LaFleur and Holm appeal the life sentences they received pursuant to 18 U.S.C. § 1111(b) for the first degree murder of Bloomquist. In sentencing the appellants, the district court determined that § 1111(b) mandates life in prison without the possibility of release. Therefore, the court concluded that it had no discretion to sentence the appellants to any sentence other than life. On appeal, the appellants argue primarily that a mandatory life sentence without the possibility of release is unconstitutional.
Our analysis of the legality of the sentences imposed on the appellants, however, must begin at a level prior to any constitutional challenge. Analyzing the language of § 1111(b), we must determine whether the district court correctly determined that the statute mandates a life sentence without the possibility of release for defendants convicted of first degree murder. As this is an issue of statutory interpretation, our review is de novo. United States v. Valencia-Roldan, 893 F.2d 1080, 1082 (9th Cir.), cert. denied, 495 U.S. 935, 110 S. Ct. 2181, 109 L. Ed. 2d 509 (1990). Then, ...