Unpublished Disposition, 932 F.2d 973 (9th Cir. 1991)

No. 89-50692.

United States Court of Appeals, Ninth Circuit.

Before CANBY and RYMER, Circuit Judges and LEVI, District Judge.^** 

MEMORANDUM^*** 

Nicholas Pizzale appeals his conviction after jury trial on one count of conspiracy to manufacture counterfeit and forged securities, 18 U.S.C. § 371, 513. We affirm the conviction.

FACTUAL BACKGROUND

Pizzale was convicted of conspiring to manufacture counterfeit American Express traveler's checks. Pizzale was the printer, and co-defendant Wicks employed him to forge the traveler's checks. For an anticipated reward, defendants intended to turn the checks over to American Express on the representation that the forged checks were genuine checks taken in a robbery.

Pizzale and Wicks together purchased supplies for the project and rented a print shop which they could use at night. As the printer for the project, Pizzale mixed inks to obtain the correct blue color on American Express checks, printed the colored dot background pattern of the checks on thousands of sheets of paper, secured equipment and attempted to gather other more specialized equipment.

When the print shop owner discovered defendants printing American Express checks, he informed authorities and acted as a confidential informant. The print shop owner recorded a conversation with Pizzale in which, despite his complaints about not being paid enough to do the job, Pizzale stated, "I will print the thing. I will go the whole nine yards."

In support of a duress defense, Pizzale testified that on unspecified dates during the project, he saw Wicks point a gun at co-conspirator Armstrong, and later Wicks pointed a gun at Pizzale in the presence of Pizzale's girlfriend. Pizzale also testified that he was afraid Wicks would tell a Ms. Jones of Pizzale's current whereabouts and that she would try to harm him or his family.¹  Pizzale further testified that he did not notify authorities because he believed that a co-conspirator worked for the FBI and had already contacted the authorities.

THE DURESS INSTRUCTION

The primary issue on appeal is whether Pizzale presented sufficient evidence to require the court to instruct the jury on duress. The district court's rejection of the duress instruction is a question of law which this court reviews de novo. United States v. Williams, 791 F.2d 1383, 1388 (9th Cir.), cert. denied, 479 U.S. 869 (1986). If the evidence is insufficient as a matter of law, the court may refuse to instruct the jury on duress. United States v. Karr, 742 F.2d 493, 497 (9th Cir. 1984).

The defendant must present sufficient evidence to raise a triable issue of fact for each element of that defense, before an instruction on duress must be given. United States v. Charmley, 764 F.2d 675, 676 (9th Cir. 1985). The elements of duress are: (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 the threatened harm. Id.

Fear alone does not make a prima facie case of duress. United States v. Jennell, 749 F.2d 1302, 1305-6 (9th Cir. 1984). Pizzale failed to adduce sufficient evidence of both the immediacy of the threat and the absence of a reasonable opportunity to escape the threatened harm to entitle him to the duress instruction. In Karr, the court found threats of harm by a co-conspirator against defendant, his daughter and mother, including testimony by the defendant's daughter that she was threatened with a gun were not sufficiently immediate to require a jury instruction on duress. 742 F.2d at 497. Pizzale's evidence of the threatened harm is less compelling than that offered in Karr. The court in Karr also noted that the defendant "passed up many opportunities to escape and never notified the authorities of the threats." Id. The same observation applies in this case.

Defendant relies on United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984), to support his claim that his evidence establishes a prima facie case of duress. Contento-Pachon, however, does not control in the circumstances of this case. In Contento-Pachon, the defendant was approached by one Jorge to transport cocaine to the United States. On defendant's refusal, Jorge then, on multiple occasions, mentioned personal facts about defendant and his family that defendant had never told him and stated that if defendant did not cooperate, his wife and child would die. Faced with these threats, defendant agreed to transport the cocaine. Id. at 694. Moreover, defendant was told that he would be watched at all times, and if he failed to do as he was told his family would die. To the contrary in this case, Pizzale, apparently escaped whatever threat he perceived and ceased participation in the project altogether.²  See United States v. Jennell, 749 F.2d 1302, 1306 (9th Cir. 1984) (insufficient evidence of the threat of immediate harm when the defendant was expelled from the organization after failing to properly perform his role, and no harm came to him or his family). Finally, the supposed threats in this case were vague and rested on Pizzale's subjective belief. The alleged threats here lack the specificity, immediacy, and directness of the threats made in Contento-Pachon. The district court, therefore, properly refused to instruct the jury on the duress defense.

SUFFICIENCY OF THE EVIDENCE

Defendant next contends that the evidence on which the conspiracy conviction was based was legally insufficient. The evidence supporting a jury verdict is legally insufficient if no rational trier of fact, viewing the facts in the light most favorable to the government, could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

In this case, Pizzale acknowledges that he knew of Wick's purpose in printing the checks, but claims he did not know that the purpose was illegal and that, therefore he lacked the intent necessary to commit the underlying substantive crime. Viewing the evidence in the light most favorable to the government, the trier of fact could reasonably have believed that Pizzale knew the plan to print and turn in American Express traveler's checks that were "lost in a robbery" for a reward was illegal, and that he ceased participation not because he learned of the illegality of the plan, but because he was afraid he would not be paid properly. Resolution of both of these issues turned on the credibility of the witnesses, which is an exclusive function of the jury. The reviewing court assumes the jury resolved all issues consistent with their verdict. United States v. Toomey, 764 F.2d 678, 681 (9th Cir. 1985), cert. denied, 106 S. Ct. 828 (1986). The evidence was sufficient to establish the elements of conspiracy to manufacture counterfeit securities beyond a reasonable doubt.

AFFIRMED.