United States of America, Plaintiff-appellee, v. Brian Crum, Defendant-appellant.united States of America, Plaintiff-appellee, v. Douglas Alan Crum, Defendant-appellant.united States of America, Plaintiff-appellee, v. Roger Blane Crum, Defendant-appellant, 892 F.2d 1047 (9th Cir. 1989)

Before CYNTHIA HOLCOMB HALL, BRUNETTI and NOONAN, Circuit Judges

MEMORANDUM^** 

OVERVIEW

On February 12, 1988 Border Patrol agents stopped two motorhomes as they were traveling east towards Pena Blanca Lake on Ruby Road in Arizona. Brian Crum, Roger Crum, Douglas Crum, Judy Evans and two juveniles were in the motorhomes, which contained over 1300 pounds of marijuana. The Crum brothers were indicted on several counts, including possession of marijuana and possession with intent to distribute.

Agent Hinds testified that Ruby Road begins at Interstate Highway 19 and runs west just north of the United States/Mexico border. The road goes to Pena Blanca Lake. A few miles west of the lake, Ruby Road intersects with Summit Motor Way. Summit Way is a narrow dirt road that leads to the border. The Border Patrol has seismic sensors along horse trials that are adjacent to Summit Way. The Patrol uses these sensors to detect horse and human traffic on the trials, which have been used as a smuggling route in the past.

On February 11, the sensors on the trial activated at 8:30 p.m., indicating something traveling on the trail northbound. Approximately three hours later, the sensors went off in a southbound direction. Agent Hinds testified this lead him to believe someone had traveled north into the U.S. then come back south.

At 8:30 p.m., a number of border patrol agents went out to investigate but found nothing. At 4:30 a.m., Larry Hinds, a border patrol agent with nineteen years of experience, went to investigate the area of the sensors. He found northbound and southbound horse tracks and fresh manure on the trail. Agent Hinds followed the tracks to a deep canyon that led to an area near Ruby Road. He did not follow the tracks through the canyon. He stopped about a mile from Ruby Road. He testified that the horses could have gone anywhere in the canyon but also said that a logical place for the horses to leave the canyon would be an area at Ruby Road. He observed two motorhomes parked close to the area where the canyon came out at Ruby Road.

The areas where the motorhomes were parked was not a designated campground but people are allowed to park there. There is a designated campground with facilities three miles away at Pena Blanca Lake. Agent Hinds noticed the motorhomes were parked on an angle, rather than leveled out as is usual. Also, he observed the motorhomes did not have any camping or other equipment attached to the motorhomes, which he said was also unusual. These observations were made from the lights of Agent Hinds' car while driving by the campground.

Agent Hinds then returned to his office and held a meeting. He arranged for several agents to position themselves along Ruby Road and apparently told them to look for the motorhomes to stop them. At 7:05 a.m., Agent Schneider radioed he had spotted the motorhomes traveling east. At this time, it was first light which meant the motorhomes had broken camp in the darkness. Agent Schneider observed the vehicles were traveling in tandem, a common practice in drug smuggling operations. Agent Schneider also stated the people in the motorhomes looked back at him as they passed, and were younger than the typical motorhome user. Another agent observed the occupants looked nervous and "uptight." The agents then stopped the motorhomes.

At trial, Brian Crum testified that none of the other defendants knew that marijuana was going to be delivered to the motorhome that night. He testified that he told his brothers they were going on a family camping trip. Roger also testified to that effect. Roger further said that he learned of the marijuana deal only when it was delivered and placed in the RV he was driving. Roger allowed the drugs to be placed in his RV because he was afraid the Mexicans delivering the drugs would kill them if the deal was aborted. The Mexicans were armed. Roger testified he only planned to drive the RV to the Lake Pena area, where he would get help. Roger also said he did not leave because he was afraid the Mexicans were keeping them under surveillance and would kill them if something went wrong. Brian had told Roger to walk away if he could, which Roger took to mean he would be shot if he tried.

Brian was not old enough to rent the RV's. Roger had rented the RV for Brian. Roger had also rented similar RV's for Brian on three previous occasions. Each time, Roger signed the rental form as the person responsible for the RV and Brian paid for the RV's in cash.

Doug Crum did not discover the marijuana deal until the next morning, according to Brian's testimony. Doug was passed out drunk at the time of the delivery. Brian said that Doug was upset when he discovered the drugs but finally agreed to drive the motorhome after Brian told Doug he was afraid they would be killed if the drugs weren't delivered. Doug planned to drive to the highway where Doug and his girlfriend would then get out and hitchhike to Phoenix. Based on this testimony, Doug requested a jury instruction on the defenses of duress and necessity, which the court refused to give. Roger requested only a duress instruction, which was also denied. Both men appeal this denial.

During the trial, the district court limited testimony regarding Roger's organic brain problem. In August of 1985, Roger Crum suffered from a brain cyst that was treated by the implantation of a shunt. Because of this brain abnormality, a psychiatrist examined Roger prior to trial. Based on the doctor's testimony, the court determined that Roger was competent to stand trial. Roger never sought to introduce expert testimony regarding his brain disorder. He asked the court to explain the defendant's mental condition to the jury. The court refused. The court had earlier granted the government's in limine motion to exclude testimony from Roger Crum's relatives regarding the effect of Roger's brain cyst on his actions because the family was not competent to testify on that subject. Roger appeals this ruling.

ANALYSIS

The district court's denial of the Crum's motion to suppress the marijuana found in the motorhomes was correct. Police officers may make a warrantless, investigatory stop of a moving vehicle, consistent with the Fourth Amendment, if they are aware of specific, articulable facts that lead to a reasonable or founded suspicion that criminal activity is afoot. United States v. Robert L., 874 F.2d 701, 703 (9th Cir. 1989). In evaluating the legality of the stop, the totality of the circumstances is taken into account. United States v. Ramirez-Sandoval, 872 F.2d 1392, 1395 (9th Cir. 1989). The totality of the circumstances includes looking at the modes of operation of certain criminals, including inferences and deductions that may be apparent to trained law enforcement agents. Id.

Only the facts known by the agents at the time the agents physically signaled the RV's to stop are to be considered in making this determination. See Robert L., 874 F.2d at 704, n. 2; United States v. Magana, 797 F.2d 777, 780 (9th Cir. 1986). These facts, as set out in the overview section, establish that the agents had a reasonable suspicion of criminal activity to stop the motorhomes.

The judge did not err in refusing both Roger and Doug Crum's request for a jury instruction on the defense of duress. A defendant is not entitled to a jury instruction on duress unless he establishes a prima facie case of the elements of the defense. United States v. Beltran-Rios, 878 F.2d 1208, 1213 (9th Cir. 1989). The elements of duress are: (1) an immediate threat of death or serious bodily harm; (2) a well-grounded fear that that threat will be carried out; and (3) lack of a reasonable opportunity to escape the harm. Beltran-Rios, 878 F.2d at 1213.

Neither Doug nor Roger Crum can establish a prima facie case of duress. First, there was no evidence that the Mexicans who delivered the marijuana made any explicit threat of death or serious injury against Roger, Doug or Brian. Secondly, there was no evidence that either Roger or Doug had a well-grounded fear that any threat would be carried out. See United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984), cert. denied, 474 U.S. 837 (1985); United States v. Shapiro, 669 F.2d 593, 596-97 (9th Cir. 1981). Lastly, both defendants had a reasonable opportunity to escape. Both could have refused to drive the motorhomes and walked the three miles to the established campground at Lake Pena Blanca. There was no evidence presented that escape was not possible except the Crums' unfounded belief that they were being watched, which is insufficient to establish duress. See Shapiro, 669 F.2d 593, 596-97, fn. 3 (no duress shown where nobody around to enforce alleged threats).

United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), does not change this result. The court in Contento-Pachon found the defendant was entitled to a duress instruction because specific, immediate threats were made against his family. Id. at 694. Doug and Roger Crum presented no evidence of specific, immediate threats. Agent Hinds' testimony that Mexican drug smugglers are armed and will kill does not constitute evidence of specific, immediate threats.

The trial judge correctly refused to issue an instruction on the necessity defense for Doug Crum. The necessity defense may be available when a person is faced with a choice of two evils and then must decide to commit the crime or an alternative act that constitutes a greater evil. Contento-Pachon, 723 F.2d at 695. However, the necessity defense was not available to Doug Crum because the coercion that forced Doug to choose between two evils resulted from human, not physical, forces, and Doug was not acting for the general welfare by smuggling drugs. Id.

The trial court's exclusion of testimony from Roger Crum's family regarding his mental condition did not violate his Sixth Amendment right to due process.¹  A trial court's refusal to allow experts to testify about the defendant's mental condition in order to establish the defendant lacked the capacity to form the intent required for the charged crime violates the Sixth Amendment. United States v. Brawner, 471 F.2d 969, 973 (D.C. Cir. 1972); Hughes v. Matthews, 576 F.2d 1250 (7th Cir. 1978), cert. dismissed; Israel v. Hughes, 439 U.S. 801 (1978); United States v. McBride, 786 F.2d 45 (2nd Cir. 1986).

These cases establish no due process violation here because Roger sought to have his family, not experts, testify. He offered no evidence that his family members were qualified to give an opinion on the effect his brain disorder had on his ability to form the intent required for conspiracy.

Brian Crum's knowledge of Roger's brain disorder was relevant to Roger's defense. Roger did present his defense theory that Brian knew of Roger's medical problem. The information kept from the jury was the specific nature of Roger's medical problem, about which Brian was not competent to testify. The judge did not abuse his discretion in keeping this evidence out.

AFFIRMED.