concurring in part and dissenting in part:

I concur in the majority’s analysis of the outrageous government conduct, discovery request, and representation issues. I dissent, however, from the majority’s analysis of the duress issue.

Morris Lynn Johnson claims that he participated in the unsuccessful escape attempt under duress. Johnson has a history of participation in unsuccessful escape attempts. Johnson was captured further from the garbage truck used in the escape than any of the other escapees, and initially resisted capture. In spite of numerous warnings by the district court regarding the insufficiency of his offer of proof, Johnson failed to produce any evidence that he intended to resubmit to the authorities had he successfully escaped.

On March 16, 1984 the government filed a motion in limine regarding the possible presentation of a duress defense by any of the defendants. None of the defendants responded to the motion. On April 2, 1984 the district court issued a tentative ruling which specifically noted the absence of any showing that defendants intended to surrender once free of the threat of death or serious bodily harm. After argument on the tentative ruling the court granted the government’s motion subject to further submissions by Johnson.

On April 12, 1984 Johnson made an offer of proof regarding the duress defense. On April 30, 1984 the district court advised Johnson that it still considered the offer of proof insufficient, but that further supplemental materials would be considered. On May 4, 1984 Johnson filed a supplemental offer of proof. Further argument was heard on May 7, 1984. The district court started the hearing by informing Johnson and his' counsel that Johnson’s offer of proof was still insufficient as to Johnson’s intent to resubmit to the authorities. Johnson’s offer of proof was supported by Sears’ counsel’s offer that Sears would testify that Sears threatened Johnson before Johnson agreed to participate in the escape attempt. The district court specifically inquired whether Sears’ testimony would relate to conduct after the attempted escape failed. Sear’s counsel responded that the testimony would support Johnson’s claim that the firing continued after the truck had stopped and that Johnson may have been running to protect himself.

On May 17, 1984 Johnson was given an opportunity to further supplement his offer of proof on the duress defense through in *1390 camera testimony. Johnson testified that he participated in the escape because he was threatened with a knife, that he tried to jam the gears of the truck during the escape but was forced to continue driving, and that the conditions after the truck stalled during the escape attempt were such that he ran from the truck in fear for his safety.

Conspicuously absent from Johnson’s two written offers of proof, Johnson’s testimonial offer of proof, and the offer of proof through Sear’s counsel is any statement that Johnson intended to resubmit to authorities had the escape been successful.

I agree with the majority’s characterization of the first three Peltier requirements, and with the majority’s conclusion that Johnson has made a sufficient offer of proof as to these elements. I also agree with the majority’s adoption of the alternative fourth element for unsuccessful escape cases. See United States v. McCue, 643 F.2d 394, 395-96 (6th Cir.), cert. denied, 451 U.S. 992 , 101 S.Ct. 2334 , 68 L.Ed.2d 853 (1981); United States v. Trapnell, 638 F.2d 1016, 1030 (7th Cir.1980). Under this approach an escapee who does not reach a position of safety must demonstrate that he intended to resubmit to authorities had the escape succeeded. McCue, 643 F.2d at 396 ; Trapnell, 638 F.2d at 1030 . The problem with the majority’s opinion is that the majority infers an intent to resubmit from evidence which goes to other elements of the duress defense thereby eliminating the intent to resubmit element from the duress defense.

Intent to resubmit to authorities is an essential element of the duress defense in escape cases because of the continuing nature of the escape offense. In United States v. Bailey, 444 U.S. 394, 412-13 , 100 S.Ct. 624, 635-36 , 62 L.Ed.2d 575 (1980), the Supreme Court stated:

By establishing an absolute requirement that the escapee resubmit to authorities upon reaching a position of safety, Bailey recognizes the relationship between the duress defense and the mens rea element of prison escape offenses. Because escape is a continuing offense, id. at 413-14 , 101 S.Ct. at 636-37, the prisoner who is forced to escape against his will by threats or violence and then takes advantage of his situation to remain at large is guilty of escape the same as the prisoner who intended to escape all along. See United States v. Woodring, 464 F.2d 1248, 1250 (10th Cir.1972) (prisoner taken by abduction then failed to return); cf. Chandler v. United States, 378 F.2d 906, 907-08 (9th Cir.1967) (intoxication defense to escape untenable where prisoners were not recaptured until after intoxication had ceased). The duress defense is available only when it negates the mens rea element of the escape offense during and after the physical departure from prison.

The intent to resubmit element serves the same purpose in an unsuccessful escape as the requirement that the prisoner actually resubmit to authorities serves in a successful escape. The duress defense is available only if the prisoner claims that he lacked the intent to escape when the escape took place and that he lacked the intent to remain at large had the escape succeeded. Those courts which have applied Bailey in unsuccessful escape cases have recognized the intent to resubmit to the authorities as an indispensable element of the duress defense. McCue, 643 F.2d at 395-96 ; United States v. Caldwell, 625 F.2d 144, 147-48 (7th Cir.1980), cert. denied, 450 U.S. 1002 , 101 S.Ct. 1712 , 68 L.Ed.2d 205 (1981). No matter how great the evidence of threats or violence against the prisoner, the duress issue should not go to the jury if the prisoner does not make a threshold showing *1391 that he would have returned to custody had the escape been successful.

The majority correctly notes that Johnson must make a minimum showing as to all four Peltier requirements. However, the majority then eliminates the intent to resubmit requirement from this case. The majority points to Johnson’s testimony that he was threatened into participating in the escape, that he jammed the gears of the truck during the escape, and that he only ran from the truck to protect himself. The majority then concludes that these assertions “raise inferences that Johnson did not intend to escape and that he intended to surrender to prison authorities when he reached a position of safety.” (Emphasis added.)

The majority ignores the fact that Johnson never claimed an intent to resubmit to authorities in spite of two specific statements by the district court that his offer of proof was insufficient in this respect. The intent to resubmit to authorities is indispensable because of the continuing nature of an escape offense. It cannot be presumed from the evidence of threats against the defendant, or from evidence which indicates the defendant’s unwilling participation in the escape or a desire to protect himself once the escape is failing. The defendant must make a threshold showing that he would have returned to custody had the escape been successful. The majority’s inference of an intent to resubmit to authorities on the facts of this case is inconsistent with the importance of this element in the duress inquiry. When the defendant has not claimed that he had the requisite intent to resubmit to authorities, we should not take it on ourselves to supply such an intent.

Even if Johnson had claimed an intent to resubmit to the authorities, I would not accept the majority’s conclusion that the current record is sufficient to support such a claim. Where the evidence before the district court is inconsistent with a claimed intent to resubmit, the district court need not present the duress issue to the jury. Trapnell, 638 F.2d at 1030 (disregarding claimed intent to resubmit to authorities where defendant had made arrangements to have water, food, guns and maps provided for his use after escape); cf. United States v. Garza, 664 F.2d 135, 142 (7th Cir.1981), cert. denied, 455 U.S. 993 , 102 S.Ct. 1620 , 71 L.Ed.2d 854 (1982) (successful escape case finding claimed intent to resubmit to the authorities in the future inconsistent with hostile greeting and gunfire against police at time of capture). The majority fails to address the government’s assertions that Johnson fled further from the truck than any of the other escapees, and that Johnson initially resisted capture. Also notably absent from the record is any evidence that Johnson indicated an intent to surrender during his flight or. upon capture.

The district court was correct in finding that Johnson failed to present any evidence of his intent to resubmit to authorities had the escape been successful. I would affirm.