RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0195p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DEREK ALBERT CAPOZZI,

Defendant-Appellant.

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No. 12-6169

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:10-cr-00041-1—Joseph M. Hood, District Judge.

Decided and Filed: July 26, 2013 

Before: MOORE, KETHLEDGE, and STRANCH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Stephen D. Milner, Lexington, Kentucky, for Appellant. Charles P.

Wisdom, Jr., Jordi de Llano, UNITED STATES ATTORNEY’S OFFICE, Lexington,

Kentucky, for Appellee. Derek A. Capozzi, Florence, Colorado, pro se.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Defendant-Appellant Derek Capozzi

(“Capozzi”) pleaded guilty and was convicted of escaping from federal custody. He

appeals his conviction and sentence, raising three issues. First, he argues that the district

court erred by refusing to allow him to present an affirmative defense of necessity; he

claims that escape was his only option to avoid imminent, serious injury from a heart

condition. Second, Capozzi contends that the district court abused its discretion by

declaring a mistrial based on jury deadlock. He argues that his reprosecution violated

the Double Jeopardy Clause because there was no manifest necessity to declare a

1
No. 12-6169 USA v. Capozzi Page 2

mistrial. Finally, Capozzi challenges his fifty-one-month sentence, arguing that he was

entitled to an additional reduction under the Sentencing Guidelines for acceptance of

responsibility. We reject Capozzi’s arguments and, therefore, AFFIRM his conviction

and sentence.

I. BACKGROUND

On April 1, 2010, Capozzi, a federal prisoner serving a sentence in a federal

prison in Pennsylvania, was transported by the U.S. Marshals Service pursuant to an Ex

Parte Order and Writ of Habeas Corpus Ad Testificandum to London, Kentucky, in order

to permit him to testify in a federal criminal trial. R. 81 (Ex Parte Order at 1) (Page ID

#241). Capozzi was held at the Grayson County Detention Center in Leitchfield,

Kentucky (“GCDC”), which had a contract with the federal government to house federal

inmates. R. 115 (Trial Tr. at 4–5) (Page ID #454–55).

On April 15, 2010, while Capozzi was being transported in a van by GCDC

personnel to an airport in Lexington, Kentucky, Capozzi “rolled out of the back of th[e]

van” and fled on foot. R. 114 (Hr’g Tr. at 11) (Page ID #434); see R. 115 (Trial Tr. at

8–13) (Page ID #458–63). The GCDC personnel then immediately stopped the van and

pursued Capozzi, firing shots. R. 114 (Hr’g Tr. at 11) (Page ID #434); see R. 58 (Mem.

in Supp. of the Defense of Duress at 4) (Page ID #153). On April 17, 2010, law

enforcement agents discovered Capozzi hiding underneath tree limbs, dirt, and leaves

in a wooded area. R. 115 (Trial Tr. at 93) (Page ID #543). He was then returned to

federal custody.

Subsequently, Capozzi was indicted on a charge of escaping from federal custody

in violation of 18 U.S.C. § 751(a). R. 1 (Indict. at 1–2) (Page ID #1–2). Prior to trial,

Capozzi moved to present a defense of necessity to the jury, arguing that his escape was

justified because he faced an imminent risk of death or serious bodily injury as a result

of “post-traumatic arteriovenous fistula” originating from a chest stabbing in 2008.

R. 58 (Mem. in Supp. of the Defense of Duress at 2) (Page ID #151). Capozzi asserts

that “he believed that his escape at that moment was his only chance at saving his own
No. 12-6169 USA v. Capozzi Page 3

life.” Id. at 3 (Page ID #152). After a hearing on the issue, the district court denied

Capozzi’s motion, finding that Capozzi had not made a prima facie showing of each of

the elements of the defense. R. 72 (Dist. Ct. Op. at 2) (Page ID #214). As a result, the

district court precluded Capozzi from presenting his necessity defense to the jury and

refused to give a jury instruction on the defense.

Although the trial spanned three days, the jury heard less than three hours of

presentations, including both witness examinations and opening and closing arguments.

R. 85 (Dist. Ct. Op. at 2) (Page ID #277). Following an hour and a half of deliberations,

the jury sent a note to the district judge asking for a copy of the transcript of the

testimony of the last witness as well as a copy of defense counsel’s closing argument.

R. 117 (Trial Tr. at 198–99) (Page ID #648–49). The district court informed the jury that

no transcripts were available. After an additional hour and a half of deliberations, the

jury submitted another note stating that “without a transcript of today’s final witness, the

jury cannot come to a decision.” Id. at 201 (Page ID #651).

The district court then gave the jury a supplemental instruction designed for

instances in which the jury appears to be deadlocked, to which neither party objected.

See id. at 201–05 (Page ID #651–55). After approximately two more hours of

deliberation, the jury submitted a note stating: “[A]fter continued respectful

deliberation, the jury has not reached a verdict.” Id. at 207 (Page ID #657). The district

court concluded that the jury was “hopelessly deadlocked.” Id. The district court then

brought the jury back into the courtroom and asked each juror whether he or she

believed that further negotiations would enable the jury to reach a unanimous verdict.

All jurors responded that they did not believe further negotiations would facilitate a

unanimous decision. Id. at 212–14 (Page ID #662–64). Following these responses, the

district court, over Capozzi’s objection, declared a mistrial on the ground that the jury

was deadlocked. See R. 85 (Dist. Ct. Op.) (Page ID #276–78).

A retrial was scheduled, but Capozzi subsequently decided to plead guilty. See

R. 150 (Crim. Minutes—Arraignment and Plea) (Page ID #809). At sentencing, the

government objected to the U.S. Probation Office’s recommendation of a three-level
No. 12-6169 USA v. Capozzi Page 4

1

The parties and the district court use both the term “duress” and the term “necessity” to describe

the defense at issue. See, e.g., R. 72 (Dist. Ct. Op. at 1 n.1) (Page ID #213). We agree with the district

court that the relevant analyses for the defenses are the same, compare United States v. Ridner, 512 F.3d

846, 850 (6th Cir. 2008) (describing standard to evaluate whether defendant is entitled to present defense

of necessity), with United States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005) (using the same standard

for duress defense), and thus “the inconsistencies in terminology are inconsequential.” United States v.

Clark, 485 F. App’x 816, 818 n.1 (6th Cir. 2012).

reduction for acceptance of responsibility. The government explained that it was not

moving for a third-level reduction under U.S.S.G. § 3E1.1(b) because “Capozzi did not

accept responsibility until after we had tried this matter one time, [and] expended

substantial resources to do that.” R. 172 (Sent. Hr’g Tr. at 3) (Page ID #916). The

district court found that because the government did not move for a reduction under

§ 3E1.1(b), Capozzi was entitled only to a two-level reduction for acceptance of

responsibility. Id. at 4 (Page ID #917). The district court sentenced Capozzi to fifty-one

months of imprisonment, the top of his Guidelines range. R. 166 (Judgment at 2) (Page

ID #872). This appeal followed.

II. ANALYSIS

A. Necessity Defense

Capozzi first challenges the district court’s denial of his request to offer evidence

of an affirmative defense of necessity and its refusal to instruct the jury regarding the

defense.1 “We review a district court’s decisions concerning whether to give a particular

jury instruction for abuse of discretion.” United States v. Sloan, 401 F. App’x 66, 68

(6th Cir. 2010). “An abuse of discretion will not be found if the jury instructions as a

whole . . . adequately informed the jury of the relevant considerations and provided a

basis in law for aiding the jury in reaching its decision.” United States v. Anderson,

605 F.3d 404, 411 (6th Cir. 2010) (internal quotation marks omitted). However, we

review de novo the question of law whether a defendant has established a prima facie

case of necessity. United States v. Ridner, 512 F.3d 846, 849 (6th Cir. 2008).

“‘In a criminal case it is reversible error for a trial Judge to refuse to present

adequately a defendant’s theory of defense.’” United States v. Johnson, 416 F.3d 464,

467 (6th Cir. 2005) (quoting United States v. Garner, 529 F.2d 962, 970 (6th Cir. 1976)).
No. 12-6169 USA v. Capozzi Page 5

In order for a defendant to be entitled to present a defense to the jury, “it is essential that

the testimony given or proffered meet a minimum standard as to each element of the

defense so that, if a jury finds it to be true, it would support an affirmative defense.”

United States v. Bailey, 444 U.S. 394, 415 (1980). Thus, a trial judge has a “duty to

require a prima facie showing by the defendant that he can produce evidence on each of

the elements of the defense.” Johnson, 416 F.3d at 468. “The defendant’s preliminary

burden is not a heavy one and is met even where there is weak supporting evidence.”

Ridner, 512 F.3d at 849 (internal quotation marks omitted). To establish a prima facie

case, the defendant must present some evidence that could support each of the following

elements:

“(1) that defendant was under an unlawful and present, imminent, and

impending threat of such a nature as to induce a well-grounded

apprehension of death or serious bodily injury;

(2) that the defendant had not recklessly or negligently placed himself in

a situation in which it was probable that he would be forced to choose the

criminal conduct;

(3) that the defendant 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;

(4) that a direct causal relationship may be reasonably anticipated

between the criminal action taken and the avoidance of the threatened

harm; [and]

(5) that defendant did not maintain the illegal conduct any longer than

absolutely necessary.”

United States v. Shemami, 425 F. App’x 425, 427 (6th Cir. 2011) (quoting Johnson,

416 F.3d at 468). If the evidence Capozzi presented at the pretrial hearing was

“insufficient as a matter of law to support” a defense of necessity, then the district court

properly excluded the evidence. Johnson, 416 F.3d at 468.

In this case, we agree with the district court that Capozzi did not establish a

prima facie case for his necessity defense. Even assuming, as did the district court, that

Capozzi made a prima facie showing that he reasonably believed he was under an

imminent and impending threat of serious injury from his heart condition, he failed to

present evidence to establish a prima facie case for several of the other elements of the
No. 12-6169 USA v. Capozzi Page 6

defense. Capozzi presented no evidence that he had no reasonable, legal alternative to

violating the law. Specifically, although Capozzi was transferred to the detention center

on April 1, 2010, there is no evidence that he reported any serious medical needs to the

prison’s staff in the two weeks prior to his escape. R. 59 (Resp. to Def.’s Mem. in Supp.

of Duress Defense at 1–2) (Page ID #155–56); see United States v. Lizalde, 38 F. App’x

657, 660 (2d Cir. 2002) (finding insufficient evidence to present duress defense when

defendant “was interviewed by law enforcement officials several times during the period

of the alleged duress” but “told them nothing of the alleged threats”).

Capozzi contends that he filed many requests and grievances with prison officials

asking for treatment for his heart condition. He asserts that although he was “continually

told that he was going to be treated,” he never received the proper care. Appellant Br.

at 10. He argues that under these circumstances he had no reason to believe that he

could obtain the proper medical treatment through the prison system, and thus he had no

choice but to escape. However, if he had received a promise of treatment, as the district

court noted, this could have been the basis for a further grievance, an expedited

administrative action, or a petition for a writ of mandamus. R. 72 (Dist. Ct. Op. at 9 n.5)

(Page ID #221). We agree with the district court that Capozzi did not present any

evidence from which a jury could conclude that he had no legal alternatives to escape.

Further, Capozzi did not make a prima facie showing that he believed that

escaping would help him get medical attention or that he continued the criminal conduct

only as long as was absolutely necessary. As the district court explained:

[T]here has been no indication that [Capozzi] sought out locations where

he might seek medical care or any avowal that he looked for a hospital,

doctor’s office, or other facility where he might seek medical treatment

in the area . . . . There is no indication that he attempted to telephone

anyone for aid or asked someone in person for assistance in finding

medical care—or that he even thought about doing so.

Id. at 10 (Page ID #222). On appeal, Capozzi argues that the reason he did not seek

medical aid immediately was because he feared being shot at by law enforcement agents.

Appellant Br. at 11. However, this argument does not help explain why Capozzi thought
No. 12-6169 USA v. Capozzi Page 7

escaping would facilitate his receipt of medical care. Because Capozzi failed to present

any evidence that would tend to show that he sought out treatment for his medical

condition or that he anticipated that he would be able to get treatment by escaping, he

failed to make a prima facie showing that he reasonably anticipated there would be a

direct causal relationship between his escape and resolving his heart problems or that he

remained a fugitive only for as long as was absolutely necessary. Accordingly, because

Capozzi failed to present evidence of every element of the necessity defense, the district

court did not err by refusing to permit Capozzi to present the defense to the jury.

Because Capozzi did not establish a prima facie case for the necessity defense,

the district court did not abuse its discretion by failing to instruct the jury regarding the

defense. “A court is not required to instruct the jury on a defense the theory of which

is not even supported by the testimony of the defendant.” United States v. Stapleton, 297

F. App’x 413, 423 (6th Cir. 2008); see Sloan, 401 F. App’x at 70 (“Because the district

court did not err in finding that Sloan failed to establish a prima facie case of

justification, there was no abuse of discretion in its determination that Sloan was not

entitled to the requested jury instruction.”).

B. Mistrial as a Result of Deadlocked Jury

Capozzi’s second contention on appeal is that a mistrial based on jury deadlock

was not warranted based on the circumstances of his trial. He further contends that

permitting reprosecution violated his rights under the Double Jeopardy Clause. “The

Double Jeopardy Clause of the Fifth Amendment protects a criminal defendant from

repeated prosecutions for the same offense.” Oregon v. Kennedy, 456 U.S. 667, 671

(1982) (footnote omitted). However, “the Clause does not guarantee that the state’s

interest in enforcing the criminal laws against a defendant will be vindicated in a single

trial.” Phillips v. Court of Common Pleas, Hamilton Cnty., 668 F.3d 804, 811 (6th Cir.

2012). Indeed, the Supreme Court has held that “retrial is not automatically barred when

a criminal proceeding is terminated without finally resolving the merits of the charges

against the accused.” Arizona v. Washington, 434 U.S. 497, 505 (1978). The Double

Jeopardy Clause is not triggered when the district court grants a mistrial due to
No. 12-6169 USA v. Capozzi Page 8

“‘manifest necessity,’” even when the defendant has not asked for a mistrial. Daniels

v. Burke, 83 F.3d 760, 763 (6th Cir. 1996) (quoting Richardson v. United States, 468

U.S. 317, 323–24 (1984)).

The standard of manifest necessity cannot “be applied mechanically or without

attention to the particular problem confronting the trial judge.” Washington, 434 U.S.

at 506. The Supreme Court in Washington “established a ‘sliding scale of scrutiny’ for

determining whether manifest necessity existed.” Colvin v. Sheets, 598 F.3d 242, 253

(6th Cir. 2010). As we have explained: “The strictest scrutiny applies when the mistrial

is based on prosecutorial or judicial misconduct. At the other end, great deference or

special respect is due when the mistrial is based on a deadlocked jury.” Id. (internal

quotation marks and citations omitted).

A deadlocked jury “has long been considered the ‘classic basis’ establishing

[manifest] necessity” justifying a mistrial. Blueford v. Arkansas, 132 S. Ct. 2044, 2052

(2012) (quoting Washington, 434 U.S. at 509). As a result, “a trial court’s declaration

of a mistrial following a hung jury is not an event that terminates the original jeopardy

to which [a defendant] was subjected.” Richardson, 468 U.S. at 326. “A trial judge’s

decision to declare a mistrial when he considers the jury to be deadlocked is accorded

great deference by a reviewing court since the trial court is in the best position to assess

whether the jury can reach a just verdict if it continues to deliberate.” United States v.

Ford (In re Ford), 987 F.2d 334, 339 (6th Cir. 1992); see United States v. Stevens, 177

F.3d 579, 583 (6th Cir. 1999). To determine whether a district court abused its

discretion by declaring a mistrial, we consider the following factors:

(1) a timely objection by the defendant, (2) the jury’s collective opinion

that it cannot agree on a verdict, (3) the length of the jury deliberations,

(4) the length of the trial, (5) the complexity of the issues presented to the

jury, (6) any proper communication which the judge has with the jury,

(7) the effects of possible exhaustion and the impact which coercion of

further deliberations might have on the verdict, and (8) the trial judge’s

belief that additional prosecutions will result in continued hung juries.

In re Ford, 987 F.2d at 339.
No. 12-6169 USA v. Capozzi Page 9

In this case, the district court acted within its discretion when it declared a

mistrial. The jury deliberated for five hours, while the testimony and arguments at trial

lasted for a total of only three hours. See R. 85 (Dist. Ct. Op. at 2) (Page ID #277). The

district court explained that these lengthy deliberations (given the comparatively short

length of the trial) occurred in the context of a trial for an escape violation, which

“should be [a] simple affair[] . . . . [as] [t]he key elements are capable of objective

demonstration.” Bailey, 444 U.S. at 417. The district court gave the jury an Allen

charge in the exact language of the Sixth Circuit Pattern Jury Instruction, which we not

only have approved, but for which we have expressed a “strong preference.” United

States v. Clinton, 338 F.3d 483, 488 (6th Cir. 2003); see R. 83 (Suppl. Jury Instruction)

(Page ID #267). The district court also asked each juror individually whether he or she

believed that further deliberations might lead to a unanimous decision. Every juror

responded that he or she did not believe further deliberations would help facilitate a

verdict. Under these circumstances, especially given the deference afforded to district

courts in this context, we conclude that the district court did not abuse its discretion in

finding that the jury was deadlocked and declaring a mistrial accordingly. Because the

jury was deadlocked, a mistrial was manifestly necessary, and thus the Double Jeopardy

Clause did not bar reprosecution of Capozzi.

Capozzi further argues that a variety of errors by the district court and the

government during trial caused the jury to be deadlocked, and that as a result, there was

no manifest necessity permitting the district court to declare the mistrial. These

purported errors include the government’s delayed disclosure of evidence relating to the

contract between the federal government and GCDC, the district court’s failure to give

a jury instruction relating to United States v. McCue, 643 F.2d 394 (6th Cir. 1981), and

that the government’s proof at trial resulted in an impermissible variance from the

indictment. We reject this approach, because “the double jeopardy clause does not

require ‘manifest necessity’ for the events that triggered the mistrial; manifest necessity

for the mistrial itself will ordinarily permit a second trial.” United States v. Buljubasic,

808 F.2d 1260, 1265 (7th Cir. 1987); see also United States v. Goland, 897 F.2d 405,

410 (9th Cir. 1990). Given that Capozzi has not alleged “bad faith conduct by the trial
No. 12-6169 USA v. Capozzi Page 10

2

Because we have already permitted Capozzi to file a pro se brief in this appeal and have

considered the arguments contained therein, we deny as unnecessary Capozzi’s motion to strike portions

of the appellate brief filed by his counsel.

judge,” his argument that trial errors “contributed to the evident manifest necessity for

mistrial . . . . is an insufficient basis to challenge the exercise of the trial judge’s

discretion in finding the jury deadlocked.” United States v. Simpson, 94 F.3d 1373, 1378

(10th Cir. 1996). The fact that the jury in Capozzi’s first trial was genuinely deadlocked

created a manifest necessity justifying a mistrial.

This rationale also disposes of the argument raised in Capozzi’s pro se brief on

appeal. Capozzi argues that had the district court given a jury instruction relating to

United States v. McCue, the jury would not have been deadlocked, and thus there would

have been no manifest necessity to declare a mistrial. See Pro Se Br. at 8–10. This

argument effectively asserts that there was no manifest necessity for the events that

caused the jury to become deadlocked. But, as we explained, the Double Jeopardy

Clause does not require manifest necessity for the events triggering the jury to become

deadlocked in order to permit reprosecution. See Buljubasic, 808 F.2d at 1265. Setting

aside this response, we doubt that a jury instruction based on McCue—an instruction that

Capozzi did not request at trial—would have aided Capozzi’s defense: McCue held that

as a matter of law, a defendant is in federal custody for purposes of § 751(a) when he is

being transported pursuant to a writ of habeas corpus ad testificandum. 643 F.3d at 395.

An instruction based on McCue would have led the jury to conclude that the federalcustody element of the § 751(a) charge, the only element contested by Capozzi at trial,

was established. Thus, we are not persuaded by Capozzi’s pro se brief that the district

court’s grant of a mistrial was an abuse of discretion.2

C. Sentence

Finally, Capozzi challenges the imposition of his fifty-one-month sentence,

arguing that he is entitled to an additional reduction in his offense level under § 3E1.1(b)

of the Sentencing Guidelines. Although he frames his argument in terms of procedural

reasonableness, see Appellant Br. at 25, his sole challenge to his sentence raises a
No. 12-6169 USA v. Capozzi Page 11

question of the proper interpretation of the Guidelines. We will therefore construe his

argument as raising a legal question about the interpretation of the Guidelines, which we

review de novo. United States v. Robertson, 260 F.3d 500, 506 (6th Cir. 2001). We

review the district court’s findings of facts relating to sentencing for clear error. See id.

Capozzi contends that because he pleaded guilty, he was entitled to the one-level

reduction in his offense level for acceptance of responsibility contemplated in U.S.S.G.

§ 3E1.1(b). See Appellant Br. at 25. Under § 3E1.1(a) of the Sentencing Guidelines, a

defendant may receive a two-level decrease in his offense level if he “clearly

demonstrates acceptance of responsibility.” U.S.S.G. § 3E1.1(a). Under § 3E1.1(b), the

defendant may receive an additional one-level decrease if:

the defendant qualifies for a decrease under subsection (a), the offense

level determined prior to the operation of subsection (a) is level 16 or

greater, and upon motion of the government stating that the defendant

has assisted authorities in the investigation or prosecution of his own

misconduct by timely notifying authorities of his intention to enter a plea

of guilty, thereby permitting the government to avoid preparing for trial

and permitting the government and the court to allocate their resources

efficiently.

Id. § 3E1.1(b). A reduction under subsection (b) “is permitted only if the government

moves for it in a motion.” United States v. Collins, 683 F.3d 697, 704 (6th Cir. 2012).

“[T]he government may refuse to move for the third-level reduction so long as the

government’s reason for refusal is not based upon a constitutionally impermissible factor

and is not arbitrary.” United States v. Coleman, 627 F.3d 205, 215 (6th Cir. 2010); see

United States v. Lapsins, 570 F.3d 758, 769 (6th Cir. 2009). The government’s interests

in “avoiding trial preparation and in the efficient allocation of government resources”

legitimately may justify its decision not to move for a reduction under § 3E1.1(b).

Collins, 683 F.3d at 707.

We reject Capozzi’s argument that he is entitled to the § 3E1.1(b) reduction.

There is no evidence that the government’s decision was arbitrary or based on an

unconstitutional motive, such as religion, race, or sex. Rather, the government’s

decision was based on the fact that Capozzi did not plead guilty until after the
No. 12-6169 USA v. Capozzi Page 12

government already had expended resources on litigating a trial. The government

reasonably declined to move for the additional one-level decrease in the offense level

for acceptance of responsibility when Capozzi denied responsibility until after a mistrial

was declared following the completion of a full trial. Because the government did not

move for the reduction under § 3E1.1(b), Capozzi was not eligible for the additional onelevel reduction for acceptance of responsibility. See Collins, 683 F.3d at 704.

Accordingly, we reject Capozzi’s challenge to his sentence.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the decision of the district court.