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UNITED STATES V. BAILEY, 444 U. S. 394 (1980)
U.S. Supreme Court
United States v. Bailey, 444 U.S. 394 (1980)
United States v. Bailey
Argued November 7, 1979
Decided January 21, 1980
444 U.S. 394
Upon being apprehended after their escape from the District of Columbia jail, respondents were indicted for violating 18 U.S.C. § 751(a), which governs escape from federal custody. At the trial of respondents Cooley, Bailey, and Walker, the District Court, after respondents had adduced evidence of conditions in the jail and their reasons for not returning to custody, rejected their proffered jury instruction on duress as a defense, ruling that they had failed as a matter of law to present evidence sufficient to support such a defense because they had not turned themselves in after they had escaped the allegedly coercive conditions, and, after receiving instructions to disregard the evidence of the jail conditions, the jury convicted respondents of violating § 751(a). At respondent Cogdell's trial, the District Court ruled that, absent testimony of what he did between the time of his escape and his apprehension, he could not present evidence of conditions at the jail, and he was also convicted by the jury of violating § 751(a). The Court of Appeals reversed each respondent's conviction and remanded for new trials, holding that the District Court should have allowed the respective juries to consider the evidence of coercive conditions at the jail in determining whether respondents had formulated the requisite intent to sustain a conviction under § 751(a), which required the prosecution to prove that a particular defendant left federal custody voluntarily, without permission, and "with an intent to avoid confinement," an escapee not acting with the requisite intent if he escaped in order to avoid "non-confinement conditions" as opposed to "normal aspects of confinement.'" The court further held that, since respondents had been indicted for fleeing and escaping on or about a certain date, and not for leaving and staying away from custody, and since the jury instructions gave the impression that respondents were being tried only for leaving the jail on a certain date, and not for failing to return at some later date, neither respondents nor the juries were acquainted with the proposition that the escapes in question were continuing
offenses, an omission which constituted a violation of respondents' right to a jury trial.
1. The prosecution fulfills its burden under § 751(a) if it demonstrates that an escapee knew his actions would result in his leaving physical confinement without permission. Nothing in § 751(a)'s language or legislative history indicates that Congress intended to require such a heightened standard of culpability or such a narrow definition of confinement as the Court of Appeals required. Pp. 444 U. S. 403-409.
2. In order to be entitled to an instruction on duress or necessity as a defense to a charge of escape, an escapee must first offer evidence justifying his continued absence from custody as well as his initial departure, and an indispensable element of such an offer is testimony of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. On the record here, such evidence and testimony were lacking, and hence respondents were not entitled to any instruction on duress or necessity. Pp. 444 U. S. 409-415.
(a) Escape from federal custody as defined in § 751(a) is a continuing offense, and an escapee can be held liable for failure to return to custody as well as for his initial departure. Pp. 444 U. S. 413-414.
(b) But there was no significant "variance" in the indictments here merely because respondents were not indicted under a theory of escape as a continuing offense and because the District Court did not explain such theory to the juries. The indictments, which tracked closely § 751(a)'s language, were sufficient under the standard deeming an indictment sufficient
"if it, first, contains the elements of the offense charged and fairly informs the defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense,"
Hamling v. United States, 418 U. S. 87, 418 U. S. 117. And it was unnecessary for the District Court to elaborate for the juries' benefit on the continuing nature of the charged offense where the evidence failed as a matter of law in a crucial particular to reach the minimum threshold that would have required an instruction on respondents' theory of the case generally. Pp. 444 U. S. 414-415.
3. If an affirmative defense consists of several elements and testimony supporting one element is, as here, insufficient to sustain it even if believed, the trial court and jury need not be burdened with testimony supporting other elements of the defense. If it were held that the juries in these cases should have been subjected to a potpourri of evidence as to the jail conditions even though a critical element of the proffered defense of duress or necessity was absent, every trial
under § 751(a) would be converted into a hearing on the current state of the federal penal system. Pp. 444 U. S. 416-417.
190 U.S.App.D.C. 142, 685 .2d 1087, and 190 U.S.App.D.C. 185, 585 F.2d 1130, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and STEWART, WHITE, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 444 U. S. 417. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 444 U. S. 419. MARSHALL, J., took no part in the consideration or decision of the cases.
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