Unpublished Disposition, 935 F.2d 275 (9th Cir. 1991)

MEMORANDUM^* 

Ida Patrice Robinson appeals the denial of her motion to vacate sentence claiming that, due to ineffective assistance of counsel, an affirmative defense to her crime was overlooked. We AFFIRM.

In 1972, Robinson participated in hijacking to Havana, Cuba a domestic airlines flight. The hijacking was apparently orchestrated by her companion, Allen Gordon Sims. Upon her return to the United States fifteen years later, she was arrested on the one-count indictment for air piracy returned against her in 1972. Following her plea of not guilty, she waived her right to trial by jury and to special findings of fact.

Evidence adduced at trial showed that, once Sims began the hijacking, Robinson produced a handgun which she held on crew member Cheryl Taylor. There was testimony that Robinson used forceful and threatening language to both crew and passengers. While Sims "covered" the cockpit, Robinson remained in the plane's rear section "walking back and forth in the aft lounge, keeping an eye on the passengers...." After passengers were let off, and the plane refueled, Robinson moved to the front of the plane. While there, according to evidence at trial, she ordered at gunpoint one flight attendant to feed her infant son, and another to crochet her infant a hat. Her demeanor was described as "all business," "straight-faced, steely-eyed," and "definitely in control."

The plane, whose flight had begun in Sacramento and had let off passengers and refueled in Los Angeles, was ordered by Sims to land in Tampa, Florida for another refueling. While stopped in Tampa, Robinson chanted a revolutionary slogan to Taylor, and said she wanted to go to Cuba where she would be treated equally. Also while in Tampa, Robinson ordered the flight attendants to hand over their money, and she personally removed clothing from the carry-on luggage left behind by the released passengers. Once Robinson and Sims arrived in Havana, the crew and airplane were permitted to return to Miami.

Robinson's own testimony indicated that, while she knew Sims boarded the plane with a weapon, her first inkling of his plan only became apparent once they boarded the plane at its stopover in San Francisco. She claimed he told her, " 'When I get up ... you have to watch the other one [flight attendant], otherwise we are all going to crash.' " She claimed she felt compelled to go along with him for fear of what he might do. She claimed not to remember using forceful language or ordering the flight attendants around at gunpoint, although she did admit to having never indicated hesitation and to having failed to attempt to dissuade Sims from the hijacking.

In her one-day bench trial, Robinson presented a duress defense, essentially contending that she was coerced by her fear of what Sims might do.¹  She was convicted of air piracy and sentenced to the twenty-year statutory minimum term.

In her motion to vacate, Robinson contended that, by failing to recognize the applicability of the necessity defense and therefore deciding to seek a bench trial in hope the court would convict on a lesser-included offense, her trial counsel rendered ineffective assistance. The district court denied the motion reasoning that:

[A]ll the facts have been presented to this Court, so I had in mind all of the defenses that [Robinson] ha [d], all factual defenses, and her defense basically was that she was trying to save the plane. That was the defense. I didn't buy it because I don't think she was.

Robinson appeals the district court's denial of her motion to vacate. Because her attorney's failure to invoke the necessity defense caused her to waive her right to a jury trial, she contends that the case should be remanded for a jury trial pursuant to which that defense may now be presented.² 

To establish ineffective assistance of counsel a defendant must prove: (1) that counsel's performance was deficient; and (2) that counsel's performance prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). The parties squabble over whether the failure to assert the necessity defense constituted deficient performance. We need not enter this fray, for regardless of our conclusion there, it is quite clear that no prejudice inhered in trial counsel's failure to present a necessity defense.

We have noted that the distinction between the defense of duress, which was raised at trial, and necessity, which was not, is blurred. See United States v. Contento-Pachon, 723 F.2d 691, 695 (9th Cir. 1984).³  Here, the evidence introduced in support of a duress defense was affirmatively rejected by the district court. As the court explained during the Sec. 2255 hearing, " [Robinson's] defense ... that she was trying to save the plane" was not believable.

While Robinson now contends that the court should have had the elements of the necessity defense formally before it, this is insufficient to justify a new trial. First, the judge expressly stated that he had in mind all factual defenses when he found Robinson guilty. Second, Robinson explicitly presented the court with a duress defense which was supported by most of those facts which would have supported a necessity defense.⁴  Third, the court made clear that it did not believe that Robinson was trying to save the plane. Whether necessity or duress was the appropriate defense, its successful invocation depended completely upon Robinson's credibility. But the court quite clearly expressed its belief that she was a willing and knowing accomplice. There was ample evidence to support such a conclusion.⁵ 

Furthermore, Robinson implies that the court failed to find duress because it did not believe she or her child had been threatened by Sims, but that a jury, focusing instead on a necessity defense in which fear for oneself is not a factor, may well have believed the defense. We find this position untenable. If she were to be believed, Robinson and her child would have been considered imperiled if, as she testified, she feared that the plane might crash. In any case, Robinson's failure to convince the court that fear for anyone underlay her complicity undermines any necessity defense as convincingly as it negated duress. In sum, we conclude that the result in this case would have been the same even had counsel expressly argued a necessity defense.

To the extent that Robinson also mounts an ineffective assistance counsel claim independent of the failure to raise the necessity defense, based on counsel's advice that she waive her right to trial by jury, we similarly reject it. Robinson, whose burden it is to prove ineffective assistance, has cited no case, nor have we found any, for the proposition that such advice falls below reasonable standards of competence. Nor has she shown that trial by judge, as opposed to jury, constitutes prejudice.

CONCLUSION

Finding no prejudice from counsel's failure explicitly to raise the necessity defense, and finding no support for the proposition that advising a defendant to waive trial by jury constitutes ineffective assistance, we AFFIRM.