United States v. Robin Lippitt

MEMORANDUM **

Defendant-Appellant Robin Wade Lip-pitt, an inmate in the United States Penitentiary at Lompoc, appeals his conviction for assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113 (a)(6). We have jurisdiction pursuant to 28 U.S.C. § 1291 . Lippitt contends that the district court erred by preventing him from presenting a duress defense. Because Lip-pitt’s pretrial proffer failed to establish a prima facie case of duress, we conclude that the district court did not err in precluding him from presenting a duress defense. Thus, we affirm Lippitt’s conviction.

Lippitt and his co-defendant Phillip Matthews were charged with assault resulting in serious bodily injury, in violation of 18 U.S.C. § 113 (a)(6). This charge arose from Lippitt and Matthews’s attack and beating of another inmate, B.S. Lippitt provided notice of his intent to present a duress defense at trial. He contended that a “prison code” among convicts required him to assault B.S., as a child sex offender, or be assaulted himself. In response, the government filed a motion in limine to preclude Lippitt from presenting evidence of a duress defense. Following a hearing, the district court…

dissenting:

I respectfully dissent. Defendant Robin Wade Lippitt should be allowed to present his duress defense to a jury because he established a “threshold showing” as to each element of that defense. United States v. Williams, 791 F.2d 1383, 1388 (9th. Cir.1986). In his declaration opposing the government’s motion for summary judgment, Lippitt alleged evidentiary facts indicating: “(1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) lack of reasonable opportunity to escape the threatened harm.” United States v. Ibarra-Pino, 657 F.3d 1000, 1004 (9th Cir.2011). The majority concludes that Lippitt in his declaration did not make a prima facie showing of duress because he had a reasonable opportunity to escape the threatened harm by asking prison officials to place him in protective custody. I disagree.

A jury could conclude that prison officials orchestrated Lippitt’s assault on the victim, and thus that Lippitt could not reasonably escape the threatened harm by requesting that the same prison officials place him in protective custody. In his declaration, Lippitt stated that officials initially placed…

FILED

NOT FOR PUBLICATION NOV 08 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 11-50194

Plaintiff - Appellee, D.C. No. 2:09-cr-00131-GAF-

v.

MEMORANDUM *

ROBIN WADE LIPPITT,

Defendant - Appellant.

Appeal from the United States District Court for the Central District of California Gary A. Feess, District Judge, Presiding

Argued and Submitted October 9, 2012 Pasadena, California

Before: PREGERSON, W. FLETCHER, Circuit Judges, and BENNETT, District Judge.**

Defendant-Appellant Robin Wade Lippitt, an inmate in the United States

Penitentiary at Lompoc, appeals his conviction for assault resulting in serious

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Mark W. Bennett, District Judge for the Northern District of Iowa, sitting by designation. bodily injury, in violation of 18 U.S.C. § 113(a)(6). We have jurisdiction

pursuant to 28 U.S.C. § 1291. Lippitt contends that the district court erred…