Unpublished Disposition, 923 F.2d 863 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 923 F.2d 863 (9th Cir. 1989)

UNITED STATES of America, Plaintiff-Appellee,v.Pablo ALDANA-MEDINA, Defendant-Appellant.

No. 90-50158.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 7, 1991.* Decided Jan. 16, 1991.

Before ALARCON, WILLIAM A. NORRIS and WIGGINS, Circuit Judges.


MEMORANDUM** 

Defendant Aldana-Medina appeals the district court's order granting the government's motion in limine to preclude him from presenting a defense of duress on one count of attempted extortion and four counts of mailing threatening letters. Because we agree with the district court that appellant failed to make a threshold showing as to each element of the defense, we affirm the order granting the government's motion.

We review de novo a district court's decision as to the legal sufficiency of a proffered duress defense. United States v. Charmley, 764 F.2d 675, 676 (9th Cir. 1985).

In order to rely on a duress defense, a defendant must establish a prima facie case that:

1. He committed the crime charged because of an immediate threat of death or serious bodily harm;

2. He had a well-grounded fear that the threat would be carried out; and

3. There was no reasonable opportunity to escape or avoid the threatened harm.

United States v. Gordon, 526 F.2d 406, 407 (9th Cir. 1975).1  If the defendant fails to make a threshold showing as to each element of the defense, the jury should not be burdened with hearing the defense. United States v. Bailey, 444 U.S. 394, 416 (1980) (discussing duress defense).

Without commenting on the first two requirements, we hold that appellant failed to make a threshold showing that he fulfilled the third prong of the Gordon test; i.e., that he did not have a reasonable opportunity to escape or avoid the threatened harm. Appellant claims that five armed men approached him four times within a five-week period, and on each occasion forced him to write one of the threatening letters. However, as appellee points out, each visit from the purported coercers lasted for only a brief period during a five-week span. Thus, as the district court found, appellant had "a clear opportunity to go to the police ... tremendous opportunity--I mean lots of opportunity to go to the police." Transcript of December 7, 1989 Hearing, at 4, Excerpts of Record ("ER") 51.

Appellant's citations to United States v. Shapiro, 669 F.2d 593 (9th Cir. 1982) and United States v. Contento-Pachon, 723 F.2d 691 (9th Cir.), cert. denied, 473 U.S. 837 (1984), are off-target. In Shapiro, we held that defendant's proffer of evidence was insufficient as a matter of law to show that she had no opportunity to escape, on facts far more sympathetic to the duress claim than ours. The defendant in Shapiro offered to prove, inter alia, that her husband had told her that their lives were in danger from the undercover officers on the street next to their apartment (who at the time were thought to be co-conspirators in a drug transaction), and that "there was no opportunity to escape because of the lateness of the hour and the fact that [the purported drug traffickers] were outside and downstairs and she didn't know quite what to do." 669 F.2d at 596. In Contento-Pachon, we held that defendant had made a threshold showing of a duress defense in a case where defendant offered to prove, inter alia, that he was under constant surveillance by agents of his coercers, and that the police officials in Colombia had been bribed, thus offering him no opportunity to contact legitimate law enforcement authorities. 723 F.2d at 694-95.

By contrast, here appellant's own offer of proof describes periods of up to several days in which nothing unusual happened to him. See Appellant's Response to Government Motion in Limine ("Appellant's Response") at 10-14, ER 6, 15-19. Indeed, he explicitly stated that after he was forced to write the first letter his coercers fled together, and that " [he] went to work the next day and everything was fine." Appellant's Response, at 12, ER at 17. Appellant's offer of proof in no way shows the inability to escape suggested even by that in Shapiro, much less Contento-Pachon.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

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

 1

The Ninth Circuit has sometimes recognized a fourth element, seemingly closely related to the third; namely, that a defendant must submit to proper authorities after attaining a position of safety. See United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984). We do not reach the issue of the applicability of this potential fourth requirement, as we conclude that appellant did not satisfy at least one of the three requirements indisputably required to establish the duress defense