                                                                           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                              NOT FOR PUBLICATION                           NOV 08 2012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-1

 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 by

preventing him from presenting a duress defense. Because Lippitt’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 granted the government’s motion in limine.

Lippitt then entered a conditional plea of guilty to the charge in the indictment and

this appeal followed.

       A defendant is not entitled to present a duress defense at trial unless the

defendant has made a prima facie showing of duress in a pretrial offer of proof.

See United States v. Ibarra-Pino, 657 F.3d 1000, 1004 (9th Cir. 2011); United


                                           2
States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008). To establish the

defense, a defendant must show: (1) an immediate threat of death or serious bodily

injury; (2) a well-grounded fear that the threat will be carried out; and (3) no

reasonable opportunity to escape the threatened harm. Ibarra-Pino, 657 F.3d at

1004 (9th Cir. 2011); United States v. Houston, 648 F.3d 806, 816 (9th Cir. 2011).

Whether a defendant has made a prima facie showing of each element of the duress

defense is a question of law reviewed de novo. United States v. Chi Tong Kuok,

671 F.3d 931, 947 (9th Cir. 2012); Ibarra-Pino, 657 F.3d at 1003. The district

court found Lippitt failed to satisfy any of the elements of this defense.

      Lippitt failed to produce sufficient evidence that he lacked a reasonable

opportunity to escape the threatened harm. Although Lippett may have reasonably

feared that he would be assaulted by other inmates if he did not assault B.S.,

Lippitt has failed to show that he had no reasonable opportunity to escape that

assault. He could have sought help from prison administration officials including

placement in protective custody, or a transfer to another correctional facility. He

has argued to us that protective custody would have been so burdensome that he

was justified in assaulting B.S. instead of seeking such custody. Our precedent

forecloses that argument. See United States v. Wood, 566 F.2d 1108, 1109 (9th

Cir. 1977) (“Assuming the truth of every bit of the proffered evidence, transfer out


                                           3
of the prison or into protective custody within the prison would have dispelled any

immediacy of an anticipated attack.”); see also Houston, 648 F.3d at 816. Because

Lippitt failed to establish a prima facie showing that he lacked a reasonable

opportunity to escape the threatened harm, we need not discuss the other elements

of duress. United States v. Moreno, 102 F.3d 994, 998 (9th Cir. 1996).

      Accordingly, we find the district court did not err in precluding Lippitt from

presenting the defense of duress.

      AFFIRMED .




                                          4
                                                                               FILED
                                                                                NOV 08 2012

                                                                           MOLLY C. DWYER, CLERK
USA v. Lippitt, 11-50194                                                     U .S. C O U R T OF APPE ALS




Pregerson, Circuit Judge, 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 the victim, Brian Sims, in
Lippitt’s cell despite knowing that Sims was convicted of child pornography and

that Lippitt had previously assaulted a child molester in prison. Next, Lippitt was

shown a copy of Sim’s sentencing report which confirmed that Sims had been

convicted of a sexual offense involving children. Inmates do not have access to

these records, but Lippitt states that previously he had seen prison officials provide

other inmates with such records to trigger an assault. Even after moving Sims out

of Lippitt’s cell, officials kept Sims in the general population despite knowing that

inmates convicted of crimes involving child pornography are vulnerable to attack.

      Lippitt did not need to seek help from prison officials he alleges were

corrupt to preserve his duress defense. See United States v. Contento-Pachon, 723

F.2d 691, 694 (9th Cir. 1984) (defendant not required to seek help from arguably

corrupt police to preserve duress defense); see also United States v. Riffe, 28 F.3d

565, 570 (6th Cir. 1994) abrogated on other grounds, Dixon v. United States, 548

U.S. 1 (2006) (defendant not required to seek help from arguably corrupt prison

guards to preserve duress defense). Prison officials’ complicity in Lippitt’s assault

distinguishes Lippitt’s case from United States v. Wood, 566 F.2d 1108, 1109 (9th

Cir. 1977). This complicity also establishes Lippitt’s right to argue to the jury that

prison officials’ encouragement of the assault prevented him from seeking their

protection.


                                           2
