Unpublished Disposition, 878 F.2d 387 (9th Cir. 1989)

MEMORANDUM^* 

Orlando Pierce appeals his conviction, following a jury trial, for importation of heroin and possession of heroin with intent to distribute.

Pierce was arrested in the Seattle-Tacoma International Airport carrying two and a half kilograms of heroin in smuggling corsets under his suit. There was evidence that Pierce, in response to questioning, made inconsistent and evasive statements regarding the source of the drugs.

At trial, Pierce was permitted to put on his own testimony to the effect that he had been forced to carry the drugs because of threats to himself and his family. However, the district court denied his request for an instruction to the jury on the defense of duress, holding that the threshold requirements for such a defense had not been met. The principal issue in this appeal is whether the district court erred in that regard.

Whether a defendant has made a threshold showing as to each element of the defense of duress is a question of law reviewed de novo. United States v. Williams, 791 F.2d 1383, 1388 (9th Cir.), cert. denied, 479 U.S. 869 (1986). To establish a defense of duress the defendant must show: (1) immediate threat of death or grave bodily harm; (2) well-grounded fear that the threat will be carried out; and (3) no reasonable opportunity to escape. United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984) (citing United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984)), cert. denied, 474 U.S. 837 (1985).

In this case, the issue is whether the third element of the duress defense has been satisfied. Pierce relies upon our holding in Contento-Pachon that the defendant may assert a duress defense if "there is a triable issue of fact whether he took the opportunity to escape the threatened harm by submitting to authorities at the first reasonable opportunity." Contento-Pachon, 723 F.2d at 695. In Contento-Pachon the appellant submitted to a stomach X-ray as soon as he came into the presence of American narcotics agents after arriving in this country. Here, however, Pierce had numerous opportunities to escape, warn or submit to authorities, and he never cooperated. His attempts at deceiving American customs agents with his various stories are inconsistent with the behavior of a person attempting to surrender to authorities. The district court was correct in holding that there was no triable issue. Indeed, Pierce was fortunate to get his version of the facts before the jury at all, since if the evidence is insufficient as a matter of law to support a duress defense, the trial court should exclude the evidence. See, e.g., id. at 693.

Pierce also challenges the district court's refusal to approve subpoenas for out of district witnesses and the court's refusal to authorize a continuance to take foreign depositions. No abuse of the district court's discretion with regard to these matters has been shown. Some of the witnesses Pierce sought to subpoena would have testified to Pierce's general reputation for opposition to the use of drugs. Such character evidence would have done little to show that Pierce's conduct on this occasion was coerced. Pierce also sought to show that someone other than he had purchased his airline ticket, arranged for the oversized suit to be made, and paid for his hotel room. These, however, were not material issues of disputed fact.

Similarly, the district court's exclusion of testimony that Pierce sent friends and relatives to drug rehabilitation programs was not an abuse of discretion. That information would not have related to any essential element of the crimes with which Pierce was charged. The exclusion of DEA agents' opinions about the dangerous nature of drug dealers was also not an abuse of discretion. There was no evidence that these opinions were ever communicated to Pierce. See United States v. McPartlin, 595 F.2d 1321, 1338 (7th Cir.), cert. denied, 444 U.S. 833 (1979); Pregeant v. Pan American World Airways, Inc., 762 F.2d 1245, 1249 (5th Cir. 1985).

Further, the district court did not abuse its discretion when it admitted evidence of Pierce's failure to file certain tax returns, because this evidence tended to negate Pierce's testimony that he had earned income sufficient to require the filing of such returns during the years in question. The evidence was therefore relevant to whether Pierce had a pecuniary motive to import heroin. See United States v. Oliphant, 525 F.2d 505, 507 (9th Cir. 1975), cert. denied, 424 U.S. 972 (1976); United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987).

In addition, Pierce claims as prejudicial error the cumulative effect of a variety of other evidentiary rulings based upon hearsay and relevance. These rulings included exclusion of evidence of alleged conspirator Van Newkirk wielding a knife, telephone conversations Pierce had with his brother-in-law Ollie Johnson and Ollie Johnson's mother, Johnson's Australian export business, the Hong Kong police investigation, and inclusion of witness Mascero's testimony concerning a syringe inside Pierce's luggage. None of these challenges, either singly or cumulatively, have any merit.

There was no prejudicial prosecutorial misconduct during closing argument.

Pierce has commendably withdrawn any contention that the district court erred in preventing the defense from examining Detective Jensen on the basis of an allegedly prior inconsistent statement. There was no inconsistency.

AFFIRMED.