United States District Court, D. Arizona
REPORT & RECOMMENDATION
CHARLES R. PYLE, Magistrate Judge.
Defendant, who is representing himself with the assistance of advisory counsel, has filed a Motion for Duress Instruction (Doc. 33) and the Government has filed a Response (Doc. 48). Defendant's Motion came on for hearing on April 23, 2014 where Defendant testified on his own behalf and no other evidence was presented. A transcript (Doc. 46) of the evidentiary hearing is forwarded to the District Court together with this Report and Recommendation. For the following reasons, the Magistrate Judge recommends that the District Court, after its independent review, grant Defendant's Motion (Doc. 33).
Defendant is charged with attempted illegal re-entry on or about December 12, 2013 at the port of entry in Nogales, Arizona, in violation of 8 U.S.C. § 1326, enhanced by 8 U.S.C. § 1326(b)(2). (Doc. 9). The Indictment alleges that Defendant was removed from the United States through Nogales, Arizona, on December 11, 2013, and the following day, December 12, 2013, he attempted to re-enter the United States at the Nogales port of entry. Defendant contends that he attempted to re-enter the United States under duress. He seeks to present a duress defense at trial and requests that the Court instruct the jury on duress. (Doc. 33).
Generally, "[a] defendant is entitled to instructions relating to a defense theory for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Burt, 410 F.3d 1100, 1103 (9th Cir. 2005) (citation omitted). "A mere scintilla of evidence supporting a defendant's theory, however, is not sufficient to warrant a defense instruction." Id.
"A defendant is not entitled to present a duress defense at trial or receive a jury instruction on duress unless the defendant makes a prima facie showing of duress in a pretrial offer of proof, [ United States v. Vasquez-Landaver, 527 F.3d [798, ]... 802 [(9th Cir. 2008)]... or in evidence presented at trial, United States v. Jennell, 749 F.2d 1302, 1305 (9th Cir.1984)." United States v. Ibarra-Pino, 657 F.3d 1000, 1004 (9th Cir. 2011). To state "a prima facie showing for a duress defense or a jury instruction, a defendant must establish: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) lack of a reasonable opportunity to escape the threatened harm.'" Id. (quoting Vasquez-Landaver, 527 F.3d at 802).
Defendant testified that in the summer of 2013, in Nogales, Sonora, he told teenagers whom he saw running errands for the drug cartels that "it wasn't the way to go, ... for them... to look for a better way to life." (Tr. at pp. 8-9). The "mafia didn't take me kindly, me giving that kind of advice to these kids. So they start, first, threatening me. Then one night, on the - I think it was July, the last day of July to August 1st, they pick me up, took me to a... house, to security house. They beat me down. After they did that, they took me to the border and they told me it was better off for me to leave Nogales-Nogales Sonora, or else I will be killed." ( Id. at p. 9). Upon crossing into the United States, Defendant told his "side of the story" to Customs and Border Protections ("CBP") officers. ( Id. ). He was referred to ICE Florence and he began to seek asylum based on his experience with the mafia, whom he also referred to as "sicarios". ( Id. ). After several months, Defendant's request for asylum was denied due to his criminal history and he was ultimately deported through the Nogales port of entry on December 11, 2013. ( Id. at pp. 10, 14-16).
Upon arrival in Nogales, Sonora, on December 11, 2013, Defendant walked to his sister's home in the morning hours. ( Id. at pp. 10, 16-17, 24; see also id. at pp. 18-19 (Defendant was at his sister's until approximately 6:15 p.m.)). "That afternoon, the same people, they had threatened me and beat me down on - on that prior time, they were already, you know, there going around.... I'm a human. You know, I fear for my life.... " ( Id. at p. 11). The men drove by Defendant's sister's home in late model trucks at approximately sometime between 3:00 and 4:30 that afternoon. ( Id. at pp. 19). Defendant, who remained in the "front of the house", heard the men's voices "making terrible threats... like you better leave, punk.... " and "[y]ou better... get out of town." ( Id. at pp. 20-21). Defendant testified that he had seen the men before and although he did not know their names, he knew their nicknames. ( Id. at p. 20). Defendant testified that the men had weapons. ( Id. at p. 13).
When Defendant was asked how the men would have known he was at his sister's home, he responded that he had made inquiries during the day with friends and family about his situation. ( Id. at p. 19). "I don't know if one of the neighbors is going [sic] and tell them that I was around, or I don't know how they got the word that I was back there." ( Id. at p. 21; see also id. at p. 22 (Defendant did not see the men between the time he left the port of entry and arrived at his sister's home)).
At about 6:15 p.m., Defendant left his sister's to go to the home of his friend, where he spent the night in a car. (Tr. at pp. 18-19, 21-22). The next morning, Defendant rode the bus to "a couple of... parks" where he considered what he should do. ( Id. a p. 23; see also p. 27). "I used the day to analyze myself, if I have other avenues to choose.... I was fear [sic] for my life to go to the only family that knows me, my sister [sic] house, because I have fear for my life. I knew that I could not get there in the daytime.... I didn't have no - no other means available to me." ( Id. at p. 27). Defendant had "no money to travel south or to leave the city... I don't have... immediate family that can take me nowhere or provide me with a means for me to leave, or to go hide somewhere.... [T]he only thing that I had was to come back and seek custody, some kind of custody in this country." ( Id. at p. 13; see also id. at p. 26). Defendant further stated: "I have no means to leave the country - the city, I mean, to go nowhere because I didn't - I mean, Nogales is not like the United States where you can find help. I mean, if I went around to the police, it is more likely than not that they would have turned me over to the same people that was [sic] after me. That's the reason I - I could not go to the police and request help from them." ( Id. at p. 26). Defendant "didn't see no other means.... My intention was never to reenter.... " ( Id. ).
After making up his mind, Defendant left the park and proceeded directly to the Nogales port of entry. ( Id. at p. 11). Defendant told the officers he was on "federal probation.... I seek custody, some type of custody, rather than just being directed to go back to Nogales on that same night." ( Id. ). Defendant testified that CBP Supervisor Meza knew him and was going to direct him to asylum proceedings, but Defendant thought there was no sense in that given his prior denial of asylum. ( Id. ). He was told: "you have to tell me that you don't fear going back to Mexico tonight. I said, well, if that's what it takes, I don't fear going back to Mexico." ( Id. ). Defendant also testified that after being "bombarded with thousands of questions... " by six different officers, he was tired and "I'm just going to say what [they] want to hear, .... The only thing I didn't wanted [sic] was to be forced to be returned to Mexico on that same day." ( Id. at p. 12).
When Defendant was asked whether he gave the name "Corbaruvias (phonetic)", when he arrived at the port of entry on December 12th, he responded: "No. That name pop out when they fingerprint me.... They ask me, have you used this name before, I said yes, that's my a/k/a, one of my a/k/a's." ( Id. at p. 22).
The government argues that Defendant failed to satisfy the first and third elements necessary for the duress defense. The government contends that Defendant has failed to establish an immediate threat of harm because his testimony was that he was threatened at his sister's on December 11th, but he did not present evidence of threats on December 1th, the day he presented at the port of entry. (Doc. 48, p. 4). Thus, according to the government, Defendant failed to show that the threat of harm he faced was present, immediate, or impending. ( Id. (citing United States v. Contento-Pachon, 723 F.2d 691, 694 (9th Cir. 1984)). In assessing the first factor, the Ninth Circuit has looked for "evidence of a figurative gun to [the defendant's]... head compelling his illegal entry." Vasquez-Landaver, 527 F.3d at 802 (citations omitted). "Our case law makes it clear that to be immediate, a threat must be specific: A veiled threat of future unspecified harm will not satisfy this requirement.'... Put simply, vague and undetailed threats will not suffice." United States v. Kuok, 671 F.3d 931, 948 (9th Cir. 2012) (quoting Contento-Pachon, 723 at 694).
Had the only time these men threatened Defendant been on December 11th, then there is a good argument that the threat made on that date that he had better leave town portended some future harm as opposed to the specific, immediate harm required for the duress defense. However, in this case, Defendant testified that he recognized the men who threatened him on December 11th as the "same people... " (Tr. at p. 11) who had picked him up and beat him before taking him to the port of entry in the summer of 2013 telling him that "it was better off for me to leave... Nogales, Sonora, or else I will be killed." ( Id. at p. 9). Upon the very same day of his return to Mexico on December 11th, the same men tracked Defendant to his sister's home and warned Defendant that he had ...