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United States v. Valencia-Lopez

United States District Court, D. Arizona

April 18, 2018

United States of America, Plaintiff,
v.
Enrique Valencia-Lopez, Defendant.

          ORDER

          Honorable Jennifer G. Zipps, United States District Judge.

         Pending 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 testimony.

         Background

         On May 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).

         Duress Defense

         During 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).

         1. Defendant's Proffer of Duress

         Defendant 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. (Id.)

         Several 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.)

         The 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).)

         The men 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).)

         Defendant 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.)

         When 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.)

         Although 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. ...


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