Unpublished Disposition, 867 F.2d 614 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 867 F.2d 614 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Esther HERNANDEZ, Defendant-Appellant.

No. 88-3066.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 26, 1989.Decided Jan. 30, 1989.

Before HUG, SCHROEDER and LEAVY, Circuit Judges.


MEMORANDUM** 

Esther Hernandez appeals her conviction for distribution of cocaine in violation of 21 U.S.C. 841(a) (1). Hernandez contends that there was insufficient evidence of the absence of duress to support the jury verdict, and thus insufficient evidence to support her conviction. We review the sufficiency of the evidence by determining whether, viewing the evidence in the light most favorable to the government, a rational trier of fact could have found the accused guilty beyond a reasonable doubt. United States v. Dadanian, 818 F.2d 1443, 1446 (9th Cir. 1987).

The three elements of a duress defense are: (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. See United States v. Charmley, 764 F.2d 675, 676 (9th Cir. 1985). Hernandez failed to establish a single element of the defense, and hence her contention that there was insufficient evidence of absence of duress fails.

At trial, although Hernandez testified that her boyfriend threatened to kill her if she told anyone that he was dealing in drugs, she did not testify that he threatened her in any way regarding her willingness to participate in a drug transaction. Further, a Government narcotics investigator testified that during the transaction Hernandez indicated that her boyfriend was not present. Hence the evidence does not indicate that Hernandez experienced an immediate threat, nor does it indicate that she was coerced into taking part in a narcotics transaction. See United States v. Atencio, 586 F.2d 744, 746 (9th Cir. 1978) (elements of duress defense not met in cocaine sale conviction although evidence that someone took a shot at defendant, since no evidence that he was not in danger for some other reason unrelated to crime for which convicted).

Moreover, the government agent testified that in the course of the drug transaction, Hernandez followed the agents into a bedroom and locked the door behind her before beginning the sale, that she tied a knot on the bag of cocaine, that her hands were steady, and that she appeared calm during the transaction. Thus, the evidence fails to indicate a well-grounded fear that the threat would be carried out. See United States v. Hernandez, 608 F.2d 741, 750 (9th Cir. 1979) (duress defense failed although defendant received note threatening consequences if he refused to participate in heroin distribution when evidence did not establish the existence of a well-grounded fear).

Finally, the government agent testified that there was a telephone at Hernandez's residence and that she came outside of her residence and motioned for him to come inside just prior to the transaction. Thus, the evidence shows that Hernandez had a reasonable opportunity to escape. See United States v. Shapiro, 669 F.2d 593, 596-97 (9th Cir. 1982) (duress defense failed where defendant lived in a building with a working telephone and she went outside alone to confer with agents). There was sufficient evidence to convict Hernandez of cocaine distribution. See Charmley, 764 F.2d at 676.

AFFIRMED.

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The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3