NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0032n.06 Filed: January 12, 2005
Case No. 03-5735
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN ROGER CLAYTON WHITE, ) DISTRICT OF KENTUCKY ) ) Defendant-Appellant. ) ) __________________________________________
BEFORE: SILER, BATCHELDER, and ROGERS, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Roger Clayton White [“White”] appeals his
conviction under 18 U.S.C. §§2113(a) & (d) of bank robbery by force, violence and intimidation and
his conviction under 18 U.S.C. §922(k) of possessing a firearm with the manufacturer’s serial
number obliterated. White argues that his conviction must be reversed because the district court
erred in refusing to instruct the jury on the defense of duress. White also challenges the
constitutionality of his sentence under the United States Sentencing Guidelines in light of the
Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). Because White had
opportunities to extricate himself from the robbery and did not do so, we find that he was not entitled
to a jury instruction on duress. In light of this court’s en banc decision in United States v. Koch, 383
F.3d 436 (6th Cir. 2004), we find White’s Blakely argument unfounded. We therefore affirm
White’s conviction and sentence. On April 17, 2002, White’s brother Jeffrey White [“Jeffrey”] and Jeffrey’s friend Laurie Ann
Fischer [“Fischer”], robbed the Maysville Security Bank & Trust Company at gunpoint. White
acted as the getaway driver, waiting outside the bank in the adjoining parking lot of the Best
Western Hotel in a white car that he had rented for the robbery, armed with a 9mm rifle. Fischer
and Jeffrey escaped in White’s rented car with over $100,000 in cash.
Shortly after driving Jeffrey and Fischer away from the bank, White encountered police
officers in a police cruiser. White later testified that he “was going to stop,” but Jeffrey pointed a
gun at him and told him to “[m]ove it.” A high speed chase ensued, ending when White crashed his
car into a roadblock, and the car burst into flames. Jeffrey committed suicide in the car. White got
out of the car and walked over to Maysville Police Detective Justin Horch, who testified at trial that
after he read White his Miranda rights, White said, “Boy, that was stupid. Boy, that was stupid . .
. . How much time am I going to get?” Det. Horch also testified that White said he hit the roadblock
in an attempt to kill himself. White did not tell Det. Horch that he had been threatened in any way
or induced to participate in the criminal venture.
Two weeks later, FBI agent Brian Smith [“Smith”] interviewed White, who was
accompanied by counsel. Smith testified that White said Jeffrey had threatened him while they were
driving to the bank to commit the robbery, saying, “if you leave us in the bank you’re a dead man.”
Smith testified that White did not mention any other threats.
At trial, White claimed that he became involved in the bank robbery because Jeffrey and
Fischer had threatened to kill him or members of his family, or to have them killed by a mafia-
connected friend, if he did not participate. White admitted, however, that the evening before the
robbery he was permitted to leave the hotel room by himself in order to make a phone call, the
2 morning of the robbery he checked out of the hotel and went to get coffee by himself, and he had
dropped Jeffrey and Fischer off a block from the bank and was alone during the entire time the
robbery was being committed, and could have contacted the police at any of those times.
Fischer testified at trial that White wanted to participate in the robbery because he was
between $14,000 and $16,000 in arrears in child support payments—a figure corroborated by an
appropriate state official at trial—and he was at risk of jail time if he did not pay the debt
immediately. According to Fischer, White drew a map of the interior of the bank in mid-March,
participated in the planning of the robbery during the week prior to its execution, rented the white
car used for the robbery from Quality Leasing in Portsmouth, Ohio, on April 15, 2002, and the day
before the robbery, rented a room for the three of them at a Ramada Inn near the bank. Fischer
testified that on that evening, White was away from them for about an hour to make a phone call and
to get something to eat from Wendy’s, and on the morning of the robbery, White checked out of the
hotel and went for coffee by himself. Finally, Fischer testified that while she and Jeffrey were
putting on their disguises in the hotel room, White left the hotel in order to survey the activity at the
police station.
At the conclusion of the trial, White requested that the jury be instructed on the defense of
duress. Judge Bunning denied the request, finding as a matter of law that “the defendant has failed
to establish an entitlement to a duress instruction because he has failed to prove . . . that he had no
opportunity to avoid the danger and that he surrendered once the threat abated.” The jury found
White guilty of armed bank robbery and possessing a firearm with obliterated serial numbers, and
White was sentenced to 264 months’ imprisonment on the bank robbery count and a concurrent 60
months on the firearm count. White timely appealed.
3 A district court judge’s refusal to give requested jury instructions is reversible error only if
“(1) the instructions are correct statements of the law; (2) the instructions are not substantially
covered by other delivered charges; and (3) the failure to give the instruction impairs the defendant’s
theory of the case.” United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993). A defendant
requesting an instruction “has a preliminary burden to introduce some evidence to trigger
consideration of the defense, although that burden is not a heavy one . . . .” United States v. Riffe,
28 F.3d 565, 569 (6th Cir. 1994). “Although a jury instruction should not be given if it lacks
evidentiary support or is based upon mere suspicion or speculation, so long as there is even weak
supporting evidence, [a] trial court commits reversible error in a criminal case when it fails to give
an adequate presentation of a theory of defense.” Newcomb, 6 F.3d at 1132 (internal quotations and
citations omitted).
In Riffe, we reviewed the five factors adopted by this circuit in United States v. Singleton,
902 F.2d 471 (6th Cir. 1990), that control whether a district court judge should instruct a jury on a
duress defense. In particular, we discussed the third factor, which requires that the defendant show
“that [he] had no reasonable, legal alternative to violating the law, a chance both to refuse to do the
criminal act and also to avoid the threatened harm.” Riffe, 28 F.3d at 569 (quoting Newcomb, 6 F.3d
at 1134-35) (emphasis omitted).
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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 05a0032n.06 Filed: January 12, 2005
Case No. 03-5735
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, ) ) Plaintiff-Appellee, ) ) ON APPEAL FROM THE v. ) UNITED STATES DISTRICT ) COURT FOR THE EASTERN ROGER CLAYTON WHITE, ) DISTRICT OF KENTUCKY ) ) Defendant-Appellant. ) ) __________________________________________
BEFORE: SILER, BATCHELDER, and ROGERS, Circuit Judges.
ALICE M. BATCHELDER, Circuit Judge. Roger Clayton White [“White”] appeals his
conviction under 18 U.S.C. §§2113(a) & (d) of bank robbery by force, violence and intimidation and
his conviction under 18 U.S.C. §922(k) of possessing a firearm with the manufacturer’s serial
number obliterated. White argues that his conviction must be reversed because the district court
erred in refusing to instruct the jury on the defense of duress. White also challenges the
constitutionality of his sentence under the United States Sentencing Guidelines in light of the
Supreme Court’s decision in Blakely v. Washington, 124 S.Ct. 2531 (2004). Because White had
opportunities to extricate himself from the robbery and did not do so, we find that he was not entitled
to a jury instruction on duress. In light of this court’s en banc decision in United States v. Koch, 383
F.3d 436 (6th Cir. 2004), we find White’s Blakely argument unfounded. We therefore affirm
White’s conviction and sentence. On April 17, 2002, White’s brother Jeffrey White [“Jeffrey”] and Jeffrey’s friend Laurie Ann
Fischer [“Fischer”], robbed the Maysville Security Bank & Trust Company at gunpoint. White
acted as the getaway driver, waiting outside the bank in the adjoining parking lot of the Best
Western Hotel in a white car that he had rented for the robbery, armed with a 9mm rifle. Fischer
and Jeffrey escaped in White’s rented car with over $100,000 in cash.
Shortly after driving Jeffrey and Fischer away from the bank, White encountered police
officers in a police cruiser. White later testified that he “was going to stop,” but Jeffrey pointed a
gun at him and told him to “[m]ove it.” A high speed chase ensued, ending when White crashed his
car into a roadblock, and the car burst into flames. Jeffrey committed suicide in the car. White got
out of the car and walked over to Maysville Police Detective Justin Horch, who testified at trial that
after he read White his Miranda rights, White said, “Boy, that was stupid. Boy, that was stupid . .
. . How much time am I going to get?” Det. Horch also testified that White said he hit the roadblock
in an attempt to kill himself. White did not tell Det. Horch that he had been threatened in any way
or induced to participate in the criminal venture.
Two weeks later, FBI agent Brian Smith [“Smith”] interviewed White, who was
accompanied by counsel. Smith testified that White said Jeffrey had threatened him while they were
driving to the bank to commit the robbery, saying, “if you leave us in the bank you’re a dead man.”
Smith testified that White did not mention any other threats.
At trial, White claimed that he became involved in the bank robbery because Jeffrey and
Fischer had threatened to kill him or members of his family, or to have them killed by a mafia-
connected friend, if he did not participate. White admitted, however, that the evening before the
robbery he was permitted to leave the hotel room by himself in order to make a phone call, the
2 morning of the robbery he checked out of the hotel and went to get coffee by himself, and he had
dropped Jeffrey and Fischer off a block from the bank and was alone during the entire time the
robbery was being committed, and could have contacted the police at any of those times.
Fischer testified at trial that White wanted to participate in the robbery because he was
between $14,000 and $16,000 in arrears in child support payments—a figure corroborated by an
appropriate state official at trial—and he was at risk of jail time if he did not pay the debt
immediately. According to Fischer, White drew a map of the interior of the bank in mid-March,
participated in the planning of the robbery during the week prior to its execution, rented the white
car used for the robbery from Quality Leasing in Portsmouth, Ohio, on April 15, 2002, and the day
before the robbery, rented a room for the three of them at a Ramada Inn near the bank. Fischer
testified that on that evening, White was away from them for about an hour to make a phone call and
to get something to eat from Wendy’s, and on the morning of the robbery, White checked out of the
hotel and went for coffee by himself. Finally, Fischer testified that while she and Jeffrey were
putting on their disguises in the hotel room, White left the hotel in order to survey the activity at the
police station.
At the conclusion of the trial, White requested that the jury be instructed on the defense of
duress. Judge Bunning denied the request, finding as a matter of law that “the defendant has failed
to establish an entitlement to a duress instruction because he has failed to prove . . . that he had no
opportunity to avoid the danger and that he surrendered once the threat abated.” The jury found
White guilty of armed bank robbery and possessing a firearm with obliterated serial numbers, and
White was sentenced to 264 months’ imprisonment on the bank robbery count and a concurrent 60
months on the firearm count. White timely appealed.
3 A district court judge’s refusal to give requested jury instructions is reversible error only if
“(1) the instructions are correct statements of the law; (2) the instructions are not substantially
covered by other delivered charges; and (3) the failure to give the instruction impairs the defendant’s
theory of the case.” United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir. 1993). A defendant
requesting an instruction “has a preliminary burden to introduce some evidence to trigger
consideration of the defense, although that burden is not a heavy one . . . .” United States v. Riffe,
28 F.3d 565, 569 (6th Cir. 1994). “Although a jury instruction should not be given if it lacks
evidentiary support or is based upon mere suspicion or speculation, so long as there is even weak
supporting evidence, [a] trial court commits reversible error in a criminal case when it fails to give
an adequate presentation of a theory of defense.” Newcomb, 6 F.3d at 1132 (internal quotations and
citations omitted).
In Riffe, we reviewed the five factors adopted by this circuit in United States v. Singleton,
902 F.2d 471 (6th Cir. 1990), that control whether a district court judge should instruct a jury on a
duress defense. In particular, we discussed the third factor, which requires that the defendant show
“that [he] had no reasonable, legal alternative to violating the law, a chance both to refuse to do the
criminal act and also to avoid the threatened harm.” Riffe, 28 F.3d at 569 (quoting Newcomb, 6 F.3d
at 1134-35) (emphasis omitted). In Newcomb, we recognized Singleton’s point that “the keystone
of the analysis is that the defendant must have no alternative–either before or during the event–to
avoid violating the law.” Newcomb, 6 F.3d at 1135 (quoting Singleton, 902 F.2d at 473).
The record here demonstrates that White had a reasonable, legal alternative to participating
in the robbery. The district court rightly noted that “there was no proof that [White] was in the
constant company of his alleged coercers, Jeffrey White and Laurie Fischer, in the days, weeks and
4 hours prior to the robbery.” Indeed, White admitted that he was alone at least twice on the morning
of the robbery, and for some period on the evening before the robbery. Notably, his stated reason
for having been allowed to leave the hotel room on the evening before the robbery was to make a
phone call, which would seem to have been the ideal opportunity to make contact with the police,
had he been of a mind to.
Not only did White have the opportunity to contact the police, evidence suggests contacting
the police would have alleviated any threat of death or serious bodily injury to White or his family.
The evidence supported a concrete fear of death or injury only from Jeffrey or Fischer. Once
arrested, Jeffrey and Fischer could not have harmed White or his family. The record contains no
evidence, other than White’s own speculation, that there was a mafia-connected individual who
would in any way harm White or his family. We find no error in the district court’s conclusion that
White was not entitled to a jury instruction on duress.
White also submitted a supplemental brief challenging the constitutionality of his sentencing
under the Sentencing Guidelines in light of the decision in Blakely v. Washington, 124 S.Ct. 2531
(2004). This court sitting en banc has declined to find that the Sentencing Guidelines violate the
Constitution. See United States v. Koch, 383 F.3d 436 (6th Cir. 2004). Accordingly, we find no
merit to this claim.
For the foregoing reasons, we AFFIRM White’s conviction and sentence.