United States v. Samantha D. Lopez Ronald J. McIntosh

885 F.2d 1428 UNITED STATES of America, Plaintiff-Appellee, v. Samantha D. LOPEZ; Ronald J. McIntosh, Defendants-Appellants. Nos. 87-1213, 87-1214. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 12, 1988. Decided Sept. 15, 1989. Geoffrey Hansen, Asst. Public Defender, San Francisco, Cal., for defendant-appellant Lopez. Judd C. Iversen, Claire Leary, San Francisco, Cal., for defendant-appellant McIntosh. Joseph P. Russoniello, U.S. Atty., Mark N. Zanides, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Northern District of California. Before CHOY, SNEED and HUG, Circuit Judges. HUG, Circuit Judge: 1 On November 5, 1986, Ronald J. McIntosh landed a helicopter on the grounds of the Federal Correctional Institution at Pleasanton ("FCI Pleasanton") in order to effect the escape of his girlfriend, Samantha D. Lopez. Although the escape was initially successful, the two were apprehended ten days later near Sacramento. As a result of this incident, Lopez was convicted of escaping from federal custody, and McIntosh was convicted of aiding Lopez' escape, air piracy, and using a gun in the…

On November 5, 1986, Ronald J. McIntosh landed a helicopter on the grounds of the Federal Correctional Institution at Pleasanton (“FCI Pleasanton”) in order to effect the escape of his girlfriend, Samantha D. Lopez. Although the escape was initially successful, the two were apprehended ten days later near Sacramento. As a result of this incident, Lopez was convicted of escaping from federal custody, and McIntosh was convicted of aiding Lopez’ escape, air piracy, and using a gun in the commission of air piracy. Both Lopez and McIntosh asserted the defense of necessity at trial. On appeal, they contend that the district court’s jury instructions concerning that defense were erroneous. McIntosh also argues that an instruction on lesser included offenses should have been given and that error was committed in limiting the scope of cross-examination of a witness. We unanimously affirm all convictions except McIntosh’s conviction for aiding escape. The majority of the panel affirms that conviction. In section II B of this opinion, we all find the instructions on the necessity defense were erroneous. Judge Hug, in this opinion, concludes the error is not harmless. However, in the…

concurring in part and delivering the opinion of the court in part:

We readily concur in the court’s opinion in all respects save the reversal of McIntosh’s conviction for aiding escape.

*1439 We acknowledge that our decision in United States v. Vowiell, 869 F.2d 1264, 1268-69 (9th Cir.1989), rendered erroneous the fourth element of the jury instruction applicable to the charge of aiding the escape of Lopez. We would hold, however, that the error was harmless.

The missing element in the charge, designed to fix the elements of McIntosh’s necessity defense, is the requirement that McIntosh continued to assist Lopez during the entire period of her escape. Put another way, the charge failed to indicate that if Lopez failed to make a bona fide good faith effort to surrender to authorities after she reached a position of safety, McIntosh must be found to have assisted her in this failure. That is, the fourth element properly should have read:

The record contains not a shred of evidence suggesting that McIntosh disassociated himself in any way from the failure of Lopez to make a good faith effort to surrender after reaching safety. Moreover, it was found by the jury that Lopez did so…