United States v. James A. Saettele ( 1978 )

LAY, Circuit Judge.

James A. Saettele was convicted in a bench trial on two counts of conspiracy and of knowingly receiving, concealing, storing and selling stolen goods moving in interstate commerce in violation of 18 U.S.C. §§ 371, 2315 (1976).¹ On appeal he contends that his motion for judgment of acquittal should have been granted because the evidence clearly established that he was acting under duress. Saettele also contends that the district court erred in refusing to grant immunity to two defense witnesses whose testimony he claimed would verify his defense of duress. We affirm.

The indictment returned against Saettele alleged that he, in conspiracy with Joseph McGirr and Thomas Sargis, had received and attempted to sell approximately 200 pieces of stolen jewelry. McGirr, testifying under a grant of immunity from prosecution, was the Government’s key witness at trial. He related that on February 5, 1976, he, Thomas Sargis and Russell Briddle broke into the apartment of a jewelry dealer in Miami Beach, Florida, and stole approximately 200 pieces of jewelry. In an attempt to sell the jewelry the three men went to St. Louis where they were introduced to Saettele by Marshall Chappel, a part-time jeweler and acquaintance of Saet-tele.

McGirr testified that Saettele liked the jewelry but did not have enough money to purchase it. At a second meeting, however, Saettele informed McGirr, Sargis and Chap-pel that he thought he could get the money to purchase the jewelry. He gave McGirr and Sargis $4,000 in cash, the title to two automobiles, and a diamond ring, and in return he received bracelets worth about $40,000.

After an unsuccessful trip to Miami for the purpose of borrowing money from another jewelry dealer, Saettele met again with McGirr and Sargis. McGirr stated that at this meeting an agreement was reached in which Saettele would sell the jewelry on consignment. Under the terms of the deal, Saettele would take most of the jewelry for a $10,000 down payment and would pay an additional $40,000 for it as he sold it. McGirr and Sargis returned the car titles and diamond ring to Saettele but kept the $4,000 cash. Saettele apparently used the car titles to obtain a $6,000 loan, which he gave to McGirr and Sargis to complete the $10,000 down payment. At this point Saettele received substantially all of the jewelry.

Subsequent to the exchange, FBI agents contacted Saettele concerning the stolen jewelry. During the interview, Saettele denied knowing Sargis and McGirr. After-wards, he located Sargis and returned all the unsold jewelry. The jewelry remained in Sargis’ possession until his arrest in St. Louis on June 1, 1976.

At trial Saettele based his defense on his claim that he had been coerced into going along with the fencing operation because of threats made against the lives of himself and his family. He testified that when Marshall Chappel first contacted him about the jewelry, Chappel told him that the jewelry came from a retired jeweler who wanted to sell his collection. When Saettele later met with McGirr and Sargis in March 1976, he began to suspect that the jewelry was stolen and tried to leave. He was stopped by McGirr, who told him the jewelry was “hot” and threatened to kill Saettele and his family if he tried to back out of the transaction or go to the police. Both McGirr and Sargis were armed with guns.

In May 1976, when subpoenaed to testify before the grand jury, Saettele rejected a government offer of immunity and refused to testify on fifth amendment grounds. At trial he explained that he refused the offer of immunity because he feared McGirr and Sargis would harm him or his family if he testified.

Saettele’s wife corroborated his story. She testified that when Saettele told her of his involvement, she suggested that he go to the police. She further testified that Saettele replied that he could not because McGirr and Sargis had threatened to kill him and his family if he said anything about the stolen jewelry. The Government also stipulated that two other witnesses, a friend of Mrs. Saettele’s and Mrs. Saettele’s mother, would testify that Mrs. Saettele had related to them that McGirr and Sargis had threatened to kill her husband and the rest of his family if he told anyone about the stolen jewelry.

Saettele also called Thomas Sargis and Marshall Chappel as witnesses on his behalf. Both men were present in the courtroom, Chappel under subpoena and Sargis under a writ of habeas corpus ad testificandum. When Chappel was called to the stand, the prosecutor informed the court that Chappel might refuse to testify on fifth amendment grounds. A bench conference disclosed that the prosecutor had, until the prior evening, been prepared to grant Chappel immunity in order to secure his testimony as a government witness. Although time constraints prevented the prosecutor from obtaining a formal grant of immunity under 18 U.S.C. §§ 6002, 6003 (1976), Chappel agreed to testify if he received a letter from the acting United States attorney declining prosecution. That evening, however, Chappel made statements supporting Saettele’s duress contentions. The prosecutor informed Saettele’s counsel of these statements, decided not to call Chappel as a witness, and withdrew the offer of immunity.

As anticipated, both Chappel and Sargis asserted their fifth amendment privilege and refused to testify. Saettele made a motion to compel the testimony of the witnesses and asked the court either to grant them immunity or to compel the Government to seek immunity for them. In support of this motion, Saettele introduced a stipulation that an attorney associated with his trial counsel would, if called to the stand, testify that he had interviewed Sar-gis and Chappel and both had told him that they had threatened Saettele with death if he did not go through with the fencing scheme.

The district court denied Saettele’s motion, ruling that it did not have inherent power to grant witnesses immunity when the Government did not apply for it. Saet-tele thereupon made a motion to strike McGirr’s testimony and a motion to dismiss the prosecution because of the unfairness of the Government’s refusal to grant immunity to his witnesses. The district court denied both motions and subsequently found Saettele guilty.

Saettele argues that the evidence presented in support of his asserted defense of duress requires a judgment of acquittal. We disagree. In order to successfully raise the defense of duress a defendant in a criminal case must show a reasonable fear of death or serious bodily injury and the absence of a reasonable opportunity to escape or ■ avoid the threatened danger.² United States v. Gordon, 526 F.2d 406, 407 (9th Cir. 1975). See United States v. Hearst, 563 F.2d 1331, 1335 n.l (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Michelson, 559 F.2d 567, 569 (9th Cir. 1977); United States v. Patrick, 542 F.2d 381, 386 (7th Cir. 1976), cert. denied, 430 U.S. 931,97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).

Assuming arguendo that the evidence presented was sufficient to establish a reasonable apprehension of injury, nothing in the record suggests that Saettele made any attempt to escape or avoid the threatened danger or was prevented from doing so at any time. In fact Saettele’s testimony establishes the opposite.

Saettele testified that he .first received the threat in early March 1976. Saettele then testified that the day after receiving the threat he flew alone to Miami. Following his return he informed his wife, who suggested that he go to the police. In addition Saettele stated that after his interview with the FBI, his contacts with McGirr and Sargis were “off and on.” In sum nothing in the record supports any claim that the threat of injury was immediate. See United States v. Patrick, 542 F.2d 381, 386-88 (7th Cir. 1976), cert. denied, 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (1977).

Our disposition of this issue renders it unnecessary for us to determine whether or not the district court erred in denying Saet-tele’s motions concerning immunity for Sar-gis and Chappel. Even assuming Sargis and Chappel would have corroborated Saet-tele’s testimony³ we agree with the district court that “it is clear that defendant had many opportunities to escape and thus, the defense of duress is not available.” Saet-tele’s own testimony negates the element of inescapability.

The judgment of conviction is affirmed.

1 . Saettele was sentenced to serve concurrent terms of three years imprisonment on each count.

2 . The classic definition of duress is contained in Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935):

Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion .

3 . This is a large assumption. Both Sargis and Chappel previously had informed the prosecution that neither Saettele nor his family were threatened or forced to buy any jewelry.