                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION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


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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.


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       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


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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.




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