United States v. Cristopher Ibarra-Pino

When asserting a duress defense, a defendant’s failure to offer evidence that he or she could not have safely contacted law enforcement authorities goes to the third element of the defense, a reasonable opportunity to escape the threatened harm, and a lack of a prima facie showing precludes the defense and the jury instruction.

Ibarra-Pino attempted to drive a vehicle concealing 69 kilograms of marijuana into the United States from Mexico. Inspection officers found the marijuana, and Ibarra eventually told ICE agents that men threatened to kill him and his family unless he drove the vehicle across the border. Ibarra was charged with and convicted of importation and possession of marijuana under 21 U.S.C. §§ 952 and 960, and 21 U.S.C. § 841(a)(1). Ibarra’s appeal asserted that the district court erred by precluding his duress defense and by refusing a duress jury instruction. The Ninth Circuit found that the district court erred by ruling that Ibarra’s failure to take the opportunity to surrender to authorities at the border prevented him from satisfying the first element of a duress defense, the threat of immediate harm. The Court held that failure to contact or surrender to authorities goes instead to the third element, a reasonable opportunity to escape the threatened harm. Relying on Moreno, the Court found that Ibarra presented no evidence that there were no reasonable means to escape the harm in the time between the threat and the arrest including fleeing, contacting authorities before he crossed the border, or notifying them at the border crossing. Therefore, Ibarra failed to make a prima facie showing of all three elements of a duress defense and was not entitled to present the defense or receive a jury instruction. AFFIRMED.