Unpublished Disposition, 925 F.2d 1471 (9th Cir. 1990)

MEMORANDUM^* 

The duress instruction correctly stated the three elements of the defense. However, the district court added a fourth element: "Even if these three elements are shown to exist the defendant, [sic] must further show that he submitted to the proper authorities after attaining a position of safety." R.T. 5/2/90, at 217-18. Adding surrender as a fourth element was improper and constitutes reversible error.

In crimes such as prison escape, where evasion of law enforcement authorities constitutes an element of the crime charged, surrender is properly a fourth element of the defense. United States v. Contento-Pachon, 723 F.2d 691, 694-95 (9th Cir. 1984). However, where the elements of the crime charged do not include continuing separation from authorities, surrender is merely a factor the jury may consider in determining whether the defendant ceased to commit the crime at the first reasonable opportunity. United States v. Beltran-Rios, 878 F.2d 1208, 1214 (1989) (drug smuggling). This is the case where the crime is aiding and abetting a bank robbery.¹ 

Since we reverse the conviction because the duress instruction improperly made surrender an element of the defense, we need not address defendant's argument that the district court committed plain error by misstating the burden of proof. For the same reason, we need not reach defendant's argument that the trial court improperly provided the jury with extrinsic evidence after it began deliberating.

REVERSED.