Unpublished Disposition, 877 F.2d 65 (9th Cir. 1989)

MEMORANDUM

Hanson appeals from his judgment of conviction on three counts: manufacture of methamphetamine, manufacture of phenol 2 propane (P2P), and conspiracy to manufacture methamphetamine and P2 P. 21 U.S.C. §§ 841(a) (1) & 846. Hanson contends that there was insufficient evidence to support his conviction, and that he was denied a fair trial because he arrived at the courthouse 30 minutes late. The district court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm Hanson's convictions, but vacate the imposition of special assessments pursuant to 18 U.S.C. § 3013.

At trial, Hanson admitted that he aided in the manufacture of methamphetamine and P2P, a precursor to methamphetamine, but asserted that he did so because he was under duress. The trial testimony conflicted regarding Hanson's involvement. Apparently believing the government's version, the jury convicted Hanson of all counts.

Hanson first contends that there was insufficient evidence to support his conviction because the government failed to prove the absence of duress beyond a reasonable doubt. This contention lacks merit. Once a criminal defendant satisfies his burden of production with respect to the affirmative defense of duress, entitling him to a jury instruction, the burden of proof shifts to the prosecution to prove absence of duress beyond a reasonable doubt. United States v. Hearst, 563 F.2d 1331, 1335-36 & n. 2 (9th Cir. 1977), cert. denied, 435 U.S. 1000 (1978); see also United States v. Gonsalves, 675 F.2d 1050, 1053-54 (9th Cir.), cert. denied, 459 U.S. 837 (1982). The jury was instructed on the defense of duress. We review the sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original).

The duress defense includes the following elements: the defendant was presented with (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. United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984), cert. denied, 474 U.S. 837 (1985); United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984) (Contento-Pachon) . The question of duress is one of fact that is generally left to the jury. Contento-Pachon, 723 F.2d at 693.

Although Hanson produced evidence that he "cooked" the methamphetamine because of threats directed at his wife, his son, and himself, there was also evidence that Hanson was a willing participant in the offenses. Bozanko, an unindicted coconspirator, testified that he observed Hanson with coconspirator Harris and that Harris did not appear to intimidate or threaten Hanson. Moreover, Bozanko testified that when the manufacturing process was completed, Hanson left with the methamphetamine without Harris. This testimony supports an inference regarding the lack of an immediate threat.

Bozanko also testified that there were periods of time when Harris left the residence and Hanson remained there alone, apparently free to leave. More significantly, Hanson's own testimony indicated that there were periods of time during which he could have made a telephone call or escaped from the apartment. This evidence supports an inference that Hanson had a reasonable opportunity to escape. Thus, there was evidence that indicated a lack of duress, and there was also substantial evidence to support Hanson's conviction. There is no basis to reverse the jury's apparent finding that Harris was a voluntary participant in the offenses.

Hanson next contends that his late arrival at trial, which was witnessed by the jury, denied him a fair trial. We review de novo the issue whether a defendant's right to a fair trial is violated because of jury prejudice. See United States v. Halliburton, 870 F.2d 557, 558 (9th Cir. 1989) (Halliburton) .

On the first day of trial, the United States Marshals neglected to bring Hanson to court on time. He arrived 30 minutes late, after the prospective jurors from which the jury was chosen had already been brought into court. When Hanson arrived, the court apologized for the delay and instructed the prospective jurors that the delay had been caused by government personnel and that it was not the fault of the defendant.

Subsequently, Hanson's counsel made an unambiguous objection to the delay caused by the Marshals, but did not move for a mistrial.

No case has been cited to us addressing the issue of whether the defendant's late arrival in court can so prejudice a jury as to deny the defendant a fair trial. However, there is authority regarding defendants who are viewed by the jury in custody, or wearing handcuffs or shackles. See, e.g., id. at 559-62; United States v. Steel, 759 F.2d 706, 710 (9th Cir. 1985). The question in these cases is whether the jury's knowledge that the defendant is in custody or under restraint is inherently prejudicial and, if not, whether the defendant has made an affirmative showing of prejudice. Halliburton, 870 F.2d at 559-60. We have held that the brief viewing of a defendant in handcuffs or surrounded by marshals is not inherently prejudicial. Id. at 560-61. Similarly, we do not believe that the short period of tardiness here resulted in inherent prejudice to the defendant.

Absent inherent prejudice, the defendant bears the burden of showing that he was actually prejudiced. See id. at 559-60. No such showing was made here. Counsel did not even request voir dire of the jury regarding any possible prejudice resulting from Hanson's late arrival.

Moreover, the record indicates that Hanson likely suffered no prejudice whatsoever. Hanson himself later testified that he had been in custody since his arrest. Thus, any inference drawn by the jury from Hanson's tardiness that he was being held in custody would have been supplied by Hanson's own admission. See Corley v. Cardwell, 544 F.2d 349, 352 & n. 1 (9th Cir. 1976), cert. denied, 429 U.S. 1048 (1977).

In addition, the judge promptly instructed the prospective jurors that the delay was the fault of government personnel. Thus, the court's instructions regarding fault combined with the jury's knowledge that Hanson was in custody sufficed to cure any possible jury prejudice stemming from Hanson's tardiness. Cf. Halliburton, 870 F.2d at 562.

Hanson was not denied a fair trial. See id. at 560-62. We therefore affirm his convictions.

The district court ordered Hanson to pay a special assessment of $50.00 on each count pursuant to 18 U.S.C. § 3013. In United States v. Munoz-Flores, 863 F.2d 654 (9th Cir. 1988), we recently held that section 3013 was passed in violation of the origination clause of the United States Constitution. Therefore, we vacate the special assessments imposed on Hanson. See United States v. Anguiano, No. 87-5319, slip op. 4777, 4791 (9th Cir. May 5, 1989).

AFFIRMED IN PART, VACATED IN PART.

Note: This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Ninth Circuit Rule 36-3.