                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                   December 30, 2011
                                 TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                       Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                        No. 10-8096
 v.                                           (D.C. No. 2:09-CR-00129-ABJ-1)
                                                          (D. Wyo.)
 JEFFERY WAYNE DOLES,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *

Before LUCERO, SEYMOUR and EBEL, Circuit Judges.



      Mr. Jeffery Doles appeals his conviction after a jury trial of failing to

report for the execution of a criminal sentence in violation of 18 U.S.C.

§§ 3146(a)(2) and (b)(A)(iii). Mr. Doles had been previously convicted for

knowingly and unlawfully selling drug paraphernalia. He was given a voluntary

surrender date but he fled to Mexico instead of reporting to the Bureau of Prisons,


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
leading to his conviction in this case. We affirm.

      Mr. Doles first contends the district court improperly excluded evidence

that would have been material to an affirmative defense of medical necessity for

failing to report. The medical issues arose out of a 1996 car accident in which

Mr. Doles was seriously injured. As a result, he is paralyzed from the chest down

and takes numerous medications for pain and discomfort. Mr. Doles claims the

following excluded evidence would have supported a necessity defense: (1)

evidence about his physical condition, (2) evidence about his state of mind

concerning his physical condition, (3) and evidence about his fears of receiving

inadequate care in prison. “We review the district court’s decision to admit or

exclude evidence for an abuse of discretion.” United States v. Lopez-Medina, 596

F.3d 716, 737 (10th Cir. 2010) (internal quotation marks omitted).

      Mr. Doles’s argument assumes that a federal common law defense of

necessity exists. “‘Even though the Supreme Court has called it ‘an open

question whether federal courts ever have authority to recognize a necessity

defense not provided by statute,’ . . . this Court has recognized a common law

defense of necessity.” United States v. Patton, 451 F.3d 615, 637 (10th Cir.

2006) (quoting United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483,

490 (2001)). We will therefore assume that a federal necessity defense exists.

See id. at 638.

      We have recognized three “traditional common law requirements of the

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necessity defense: (1) there is no legal alternative to violating the law, (2) the

harm to be prevented is imminent, and (3) a direct, causal relationship is

reasonably anticipated to exist between the defendant’s action and the avoidance

of harm.” Id. (internal quotation marks omitted). The imminent harm that the

defendant sought to prevent must have involved a “real risk of death or serious

bodily injury.” United States v. Al-Rekabi, 454 F.3d 1113, 1125 (10th Cir. 2006).

      “A criminal defendant is entitled to an instruction on his theory of defense

provided that theory is supported by some evidence and the law.” Id. at 1121

(internal quotation marks omitted). “For the purposes of determining the

sufficiency of the evidence to raise the jury issue, the testimony most favorable to

the defendant should be accepted.” Id. (internal quotation marks omitted). But

the “defendant must produce evidence of each element [of the necessity defense]

sufficient to warrant its consideration by the jury.” Id. at 1122.

      It is clear from the record that Mr. Doles did not, and could not have,

proffered sufficient evidence to establish the second element of his medical

necessity defense – the requirement of showing imminent harm. The district

court presiding over the underlying conviction for which Mr. Doles was required

to report to prison held several hearings because the court was concerned with

whether Mr. Doles’s physical condition could be adequately addressed in prison.

In the interim, the court granted Mr. Doles’s request for bond so he could remain

in the care of his private physicians. At a hearing held on November 24, 2008,

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the court informed Mr. Doles that he would be designated to serve his sentence at

the Federal Medical Center in Rochester, Minnesota, where he would receive

excellent medical care from the Mayo Clinic. 1 In so doing, the court relied on a

letter from the Bureau of Prisons acknowledging Mr. Doles’s serious medical

issues and stating the Bureau would be able to provide the care he required.

      Based on this information, the court told Mr. Doles there was no longer an

issue regarding danger to his health pending appeal. Accordingly, the court

denied Mr. Doles’s request for continuation of bail pending appeal. But it agreed

that Mr. Doles could remain on bail until he was required to report to the Bureau

of Prisons in Rochester on December 15. The court did so based on Mr. Doles’s

assurance that he could get himself to Rochester by the set date.

      Given this record, it is clear that Mr. Doles was not faced with an imminent

harm involving a “real risk of death or serious bodily injury” when he chose not

to report to prison. Al-Rekabi, 454 F.3d at 1125. Consequently, he was not

entitled to raise a defense of medical necessity. See id. at 1121. In the absence

of this affirmative defense, the evidence Mr. Doles sought to introduce was

irrelevant to the case and the district court did not abuse its discretion in

excluding it.

      Mr. Doles also contends the district court committed reversible error when


      1
        We grant the government’s motion to supplement the record with a
transcript of the November 24, 2008 hearing.

                                          -4-
it refused to give a separate instruction on the affirmative defense of good faith.

The first instruction proposed by Mr. Doles defined the word “willfully” as

meaning that “the defendant committed the act voluntarily and with the purposes

of violating the law, and not by mistake, accident, or in good faith.” Aplt. Br. at

7. The court thought this instruction was vague and subject to misunderstanding.

Instead the court gave the following instruction: “The term ‘willfully’ means the

defendant committed the act voluntarily and with the purpose of violating a

known legal duty.” Rec., vol. I at 284. The second instruction Mr. Doles

proposed stated:

      Defendant Doles, moreover, contends that he is not guilty of the
      crime charged because he believed that in Good Faith that the [sic]
      did not have to appear to Surrender because of a Good Faith belief
      that he was not obligated to because he was improperly and illegally
      tried.

Aplt. Br. at 7 (alteration in original). In refusing this instruction, the district

court said that it was misleading, and that if this kind of defense had general

application it would mean that “no one would have to appear to serve their

sentence once they appealed.” Rec., vol. III at 375.

      In support of his good faith defense, Mr. Doles provided a lengthy offer of

proof at trial, stating he believed that his underlying federal conviction was

illegal, he could not adequately challenge his conviction within the legal system,

and his only chance was to leave the country so that he could make a

documentary film through which he could point out the illegality of his conviction

                                           -5-
to the public. The district court precluded most of this evidence as irrelevant

except for Mr. Doles’s statement that he chose not to report to Rochester because

he disagreed with what had happened to him in the prosecution of the underlying

criminal action. However, the district court subsequently allowed Mr. Doles to

testify that he went to Mexico because he thought his conviction for selling drug

paraphernalia was illegal, he made a documentary about the illegality of his

conviction, and he believed he acted in good faith when he went to Mexico

because he thought his action was justified.

      As we have noted, “[a] criminal defendant is entitled to an instruction on

his theory of defense provided that theory is supported by some evidence and the

law. ” Al-Rekabi, 454 F.3d at 1121 (internal quotation marks omitted). “We

respect the trial judge’s role as gatekeeper, reviewing such decisions for an abuse

of discretion.” Id. at 1123. “As a general rule . . . ignorance of the law is no

excuse—one is guilty of the crime if she intends to engage in the conduct that is

prohibited by the criminal statute.” United States v. Platte, 401 F.3d 1176, 1183-

84 (10th Cir. 2005); see also 1 Wayne R. LaFave, Substantive Criminal Law

§ 5.6(a) at 395, § 5.6(d) at 406-07 (2d ed. 2003). The crime of failure to report

required the jury to find that Mr. Doles was convicted of a crime and sentenced to

prison, that he was released on bond on condition that he surrender on December

15, 2008, at the Bureau of Prisons’ Federal Medical Center in Rochester,

Minnesota, and that he thereafter willfully failed to surrender.

                                          -6-
      Mr. Doles was not entitled to a good faith defense instruction because he

did not demonstrate how his belief in the illegality of his underlying federal

conviction negated his willful and voluntary decision not to report to the Bureau

of Prisons as ordered. As we held in Platte, where defendants argued their

actions were legally justified due to their belief that missile site operations

violated international law, the district court did not err in refusing to give a good

faith instruction because the defendants did not show how their beliefs negated

the fact “that they willfully injured national-defense materials (or premises) or

acted with intent to interfere with national defense.” Id. at 1185. Mr. Doles was

obligated to raise issues regarding the legality of his conviction in his direct

appeal. His belief that he had been illegally convicted did not excuse him from

reporting to serve his sentence.

      Because Mr. Doles was not entitled to a good faith defense instruction, the

district court did not abuse its discretion when it excluded the evidence which Mr.

Doles argued was material to this defense. In the absence of this affirmative

defense, the evidence was irrelevant to this case. Cf. United States v. Doles, 335

F. App’x 736, 738-39 (10th Cir. 2009) (unpublished) (explaining in Mr. Doles’s

direct appeal that the district court “did not abuse its discretion in excluding

evidence about Mr. Doles’s acquittal on similar charges in state court,” even

though Mr. Doles “contend[ed] that his state-court acquittal demonstrate[d] that

he did not have the necessary mens rea to commit the federal crimes”).

                                          -7-
      Finally, Mr. Doles contends the district court committed reversible error

when it denied his motion for a mistrial based on jury misconduct during jury

deliberations without investigating the circumstances that led to his motion. The

events leading up to Mr. Doles’s motion were as follows. The jury was dismissed

to begin its deliberations at 10:29 a.m. About an hour later, the jury asked

whether it could view transcripts of Mr. Doles’s testimony. While the district

court was discussing the jury’s request with the parties, the jurors indicated they

wanted to go to lunch. The district court told the courtroom deputy to dismiss the

jury for lunch. Thereafter, the court decided to deny the jury’s request for the

transcript and instead to instruct them to rely on their memories of Mr. Doles’s

testimony. When the court reconvened at 2:32 p.m., it informed the parties the

jury had reached a verdict without receiving the answer to its request, which had

not been delivered to them. After the jury returned a guilty verdict, Mr. Doles’s

attorney moved for a mistrial, pointing out that while the jury had asked whether

it could view transcripts of Mr. Doles’s testimony, “before the question was

answered the jury came back with a verdict.” Aplt. Br. at 9. In his motion, he

asserted that Mr. Doles’s constitutional right to due process had been violated.

The motion was denied.

      On appeal, Mr. Doles contends the court should have questioned the jurors

to determine whether improper deliberations had taken place outside of the jury

room before denying Mr. Doles’s motion for a mistrial. Indeed, Mr. Doles

                                         -8-
contends the district court should have presumed that improper deliberations were

likely, given that the jurors seemingly needed a response to their request for Mr.

Doles’s transcripts in order to continue deliberations. This presumption, he

argues, could only be rebutted by questioning the jurors to ensure no misconduct

had occurred.

       We ordinarily review for abuse of discretion the denial of a motion for

mistrial based on juror misconduct. United States v. Lawrence, 405 F.3d 888, 903

(10th Cir. 2005). Because Mr. Doles did not specifically argue below that his

motion for a mistrial was based on juror misconduct, however, the parties agree

that we review the denial for plain error. See Fed. R. Crim. P. 52(b). To

establish plain error, Mr. Doles “must demonstrate the district court (1)

committed error, (2) the error was plain, and (3) the plain error affected his

substantial rights.” United States v. Cordery, 656 F.3d 1103, 1105 (10th Cir.

2011). “If these factors are met, we may exercise discretion to correct the error if

(4) it seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. In this case, we find no error that can reasonably be described

as plain.

      “Absent evidence to the contrary, it is presumed that juries follow the trial

court’s instructions.” United States v. Santiago, 977 F.2d 517, 520 (10th Cir.

1992). After closing arguments and just before jury deliberations began, the

district court instructed the jury to confine its deliberations to the jury room and

                                           -9-
specifically not to discuss the case on breaks or during lunch. In light of this

clear instruction not to deliberate outside of the jury room, it was not plain error

for the district court to assume the jurors did not do so during lunch. Moreover, it

was not unreasonable for the district court to conclude in this uncomplicated case

that the jury was able to resolve its deliberations without reviewing the transcript

it had requested.

      For the foregoing reasons, we AFFIRM.


                                        ENTERED FOR THE COURT


                                        Stephanie K. Seymour
                                        Circuit Judge




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