United States District Court, D. Arizona
Honorable Jennifer G. Zipps, United States District Judge.
before the Court are: (1) Defendant's Motion to Present
Duress Defense and Jury Instruction (Doc. 39); (2) the
Government's Motion in Limine to Preclude Duress Defense
and Jury Instruction (Doc. 33); and (3) the Government's
Motion in Limine to preclude Dr. Barillas's Expert
Testimony (Doc. 52). On March 21, 2018, an evidentiary
hearing, which included testimony from Peter Chalk, Ph.D.,
and Hector F. Barillas, Ph.D., was held on the pending
matters. (Doc. 72.) At the pretrial conference on April 16,
2018, the parties answered questions from the Court and
presented additional argument regarding the pending matters.
For the following reasons, the Court will: (1) grant in part
Defendant's Motion to Present Duress Defense and Jury
Instruction; (2) deny in part the Government's Motion in
Limine to Preclude Duress Defense and Jury Instruction; and
(3) grant in part and deny in part the Government's
Motion in Limine to Preclude Dr. Barillas's expert
13, 2017, Defendant drove a commercial truck from Mexico into
the United States through the Mariposa Port of Entry. During
a secondary inspection, agents discovered 6, 230.9 kilograms
of marijuana located within boxes placed on top of pallets,
underneath bell peppers. Defendant is charged with conspiracy
to possess marijuana with intent to distribute and possession
of marijuana with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), and 846,
and conspiracy to import marijuana, and importation of
marijuana in violation of 21 U.S.C. §§ 952(a),
960(a)(1), and (b)(1)(G).
the post-arrest interview, Defendant told agents about the
events giving rise to his duress defense. Defendant has
submitted a proffer of duress. (Doc. 39 at 4-8.)
Defendant's proffer consists of “information
provided to case agents during his post-arrest interview and
statements provided to defense counsel in the course of
representation.” (Id. at 4.) If the court
considers Defendant's duress defense as a matter of law,
it “must accept [his] proffer as true in its
entirety.” United States v. Chi Tong Kuok, 671
F.3d 931, 947 (9th Cir. 2012).
Defendant's Proffer of Duress
owns a commercial truck and trailer. (Doc. 39 at 4.)
For about the past 23 years or so, he has had a visa to enter
the United States to deliver commercial goods and he has
regularly entered the United States for his work.
days before his arrest, Defendant entered into a contract to
transport bell peppers which he picked up in Los Mochis,
Sinaloa, the day before his arrest. (Id.)
Thereafter, he made various stops in Mexico at highway toll
locations and a checkpoint where the bell peppers were
unloaded and subjected to drug-sniffing dogs. (Id.)
evening before his arrest, when Defendant was near Magdalena,
Sonora, he pulled off of the shoulder of the road to relieve
himself and check his rig. (Id.) Two cars pulled up,
a man removed Defendant from his truck and pointed a gun
against Defendant's back. (Id. at 4-5.)
Defendant observed several men with guns. (Id.
(citing Doc. 39, Ex. A at 25, 26).) Defendant was shoved into
one of the cars. (Id. at 4.) He was placed face down
on the floor of the car, just in front of the rear seats.
(Id. at 5.) Due to his position, he could not see
how many people were involved in the kidnapping.
(Id. (citing Doc. 39, Ex. A at 24).)
told Defendant that they needed his truck and if he did not
agree to do what they wanted him to do, they would kill him.
(Id.) One of the men drove away in Defendant's
truck while the others remained with him in the car.
(Id.) While in the car, Defendant was so scared, he
was shaking. (Id.) (citing Doc. 39, Ex. A at 53).)
does not know how long he was held in the car. (Id.)
Defendant explained during the post-arrest interview:
“‘I don't think anybody . . . keeps track of
the time when they're in a, in a situation like this . .
. . It seems like an eternity. It seems like a second, I
don't know . . . .'” (Id. quoting Doc.
39, Ex. A at 45).) While Defendant was being held, one of the
men took his wallet and cell phone. (Id.)
Defendant's truck was returned, one of the men told him:
“‘For me to do my whole route like normal and if
I said something they were going to kill me.'”
(Id. (quoting Doc. 39, Ex. A at 27).) Defendant was
also told that if he did not follow the men's orders,
they would “‘end'” his family.
(Id.) The men returned Defendant's wallet to
him, but kept his cell phone. (Id. at 5-6.) Because
Defendant's license, bearing his address, and other
personal items were in his wallet, he believed that the men
had more than enough information to find him and hurt him or
his family. (Id. at 6.)
the men did not tell Defendant what they were doing with his
truck, he assumed “‘that they stuck drugs in
it.'” (Id. at 6 (quoting Doc. 39, Ex. A at
28).) The men told him to “‘Get outta here.