                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                    F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                                    October 3, 2003
                        FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                              No. 02-51143


                      UNITED STATES OF AMERICA,

                                                    Plaintiff-Appellee,

                                 versus

                      CYNTHIA ANNETTE THOMPSON,

                                                   Defendant-Appellant.


          Appeal from the United States District Court
                for the Western District of Texas
                           (02-CR-236)


Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Appellant Cynthia Annette Thompson (“Thompson”) was found

guilty of violating 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii), for

possession of more than 100 kilograms of marijuana with intent to

distribute.    The district court sentenced Thompson to 60 months’

imprisonment   and   four   years’   supervised   release,    and    ordered

Thompson to pay a $100 special assessment.            At the close of

evidence, Thompson requested a jury instruction on the defense of

justification, which the district court refused.             Thompson now


     *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
appeals this refusal as harmful error.     Because the district court

did not abuse its discretion in refusing the requested instruction,

we AFFIRM the decision below.

                              BACKGROUND

     On January 14, 2002, at about 6:45 a.m., a blue Chevrolet

Caprice Classic entered the Fabens port of entry east of El Paso,

Texas, located across the Rio Grande from the village of Caseta,

Mexico.    Immigration and Customs Inspector Ferlin Smith (“Smith”),

who was stationed at the primary inspection lane, questioned the

driver about the car’s ownership. The driver replied that a friend

had loaned him the vehicle.      In response to Smith’s questions

regarding citizenship, the driver presented his resident alien

card.     Smith then questioned Thompson, the only passenger in the

car, about her citizenship.    She declared she was an American and

presented her Kansas Driver’s License.         When asked about her

purpose for going to Mexico, Thompson replied that she went there

to party and that the driver, whom she did not know, was just

giving her a ride back.

     Smith then escorted the vehicle to the secondary area for a

more thorough inspection.      Nothing was found, and the car was

cleared.    After the second inspection, the car proceeded onto the

seldom-used Lower Island Road leading to a levee of the Rio Grande

instead of taking the typical route.       The Lower Island Road is a

route known to be used for picking up illegal aliens or drugs.



                                  2
Smith contacted the Border Patrol to keep a lookout for the

Caprice.

     There were three agents already stationed in the levee area

due to earlier sensor activity.       Agent Antonio Butron (“Butron”)

was stationed a half mile or so from the sensor activity, while

Agent Melissa Herrera (“Herrera”) and another agent were stationed

closer to the levee.     Later that morning, the agents received a

radio-dispatch indicating a suspicious vehicle, described as a blue

Caprice with two occupants.      From a tower, Herrera spotted the

Caprice “slow rolling” westbound on the Lower Island Road. The car

then turned south onto a dirt road.      Herrera then saw the vehicle

stop, and a group of people loaded large bundles into the trunk and

backseat of the car.    The driver got out of the car and, with the

other individuals who had loaded it, ran south to the levee.      The

car then began traveling in the direction from which it came.

     Herrera advised the other agents of what she observed, and

soon thereafter, Butron intercepted the slow-moving car on the dirt

road.   He gestured for the vehicle to stop, and it did.     Thompson

was the driver, and no one else was in the car.     Butron approached

and asked Thompson to lower her window and turn off the engine.

Thompson asked, “What’s wrong, Officer?” without lowering the

window.    Butron asked Thompson to state her citizenship, which she

did, and she showed her Kansas Driver’s License after finally

lowering the window.    Butron detected a strong odor of marijuana.

He then asked if the vehicle belonged to her, and Thompson replied

                                  3
no, it belonged to a friend.

     Butron asked Thompson if she knew what was inside the car, and

she said she did not know.     Thompson went on to describe how the

man who had been driving had left her while people began loading

bags into the car.     She stated that she was scared and that she

felt she could do nothing but drive off.    Thompson never admitted

to knowing that there was marijuana in the car, and by all

accounts, appeared not to know what was going on.

     The vehicle was found to contain approximately 325 pounds of

marijuana, and Thompson was arrested and taken into custody by the

Border Patrol.    At the Fabens station, Thompson was interrogated

first by Herrera and then by DEA Agents Caesar Hernandez and Jason

Hoff.    Thompson agreed to waive her Miranda rights and gave the

following explanation of events.

     Thompson stated that she was a waitress at an El Paso Red

Lobster, where on suggestion of bartender Manny Vaquera, she

befriended a man sitting at the bar.      She knew him as “Jesus.”1

After her shift ended at about 11:30 p.m. on January 13, Thompson

went to the Airway Pub with some coworkers, where she had a few

drinks and then went home at about 2:00 a.m.        Later, Thompson

received a call from Jesus, who asked her about going to a party.

She said “sure” and was picked up by Jesus and Vaquera.        They

revealed the party was in Mexico, and Vaquera drove all three of


     1
         “Jesus’s” actual name is Luis Buendia.

                                   4
them to Juarez.    In Juarez, Jesus took over the driving and drove

to a house where they met some people.

     Once at the party, Thompson noticed the party consisted of

only men and was winding down, so she asked to be taken home.

Vaquera told her he was staying at the party, and Jesus said

another man was going to give her a ride back to the United States.

Thompson did not know this man and had problems communicating with

him in English.    Vaquera then gave her a cell phone preprogrammed

with a number that she was to call him if she needed.

     The rest of Thompson’s account closely reflects the facts

already outlined above.    In addition, she stated the cell phone

Vaquera had given her rang after she and the driver left the point

of entry, and she answered it.   It was Vaquera, but after he asked

where she was and she replied she did not know except that she saw

the Martinez Ranch sign, the signal broke up.        Thompson also

testified that after the men had thrown the bundles into and then

run from the car (including the driver), she received another call

on the phone.     A voice she assumed to be Vaquera’s told her to

drive to the stop sign and that he could see her.     She began to

drive, and Butron intercepted her before she reached that stop

sign.

     Thompson was indicted on four counts: (1) conspiracy to import

more than 100 kilograms of marijuana under 21 U.S.C. §§ 952(a),

960(a)(1), and 960(b)(2)(g); (2) importation of more than 100

kilograms of marijuana under 21 U.S.C. §§ 952(a), 960(a)(1), and

                                  5
960(b)(2)(g); (3) conspiracy to possess with intent to deliver more

than 100 kilograms of marijuana under 21 U.S.C. § 841(a)(1) and

841(b)(1)(B)(vii); and (4) possession with intent to distribute

more than 100 kilograms of marijuana under 21 U.S.C. § 841(a)(1)

and 841(b)(1)(B)(vii).       Her first trial ended in a mistrial.        At

her second trial, Thompson moved for a judgment of acquittal both

at the close of the Government’s case and at the close of the

evidence.    The district court granted the motion as to the second

count (importation).        At the close of the evidence, Thompson

requested a jury instruction as to the defense of justification,

duress, or coercion.      The district court refused this instruction,

and the jury returned a guilty verdict only as to the fourth count

(possession).

                                DISCUSSION

Whether the district court abused its discretion in refusing
Thompson’s requested jury instruction.

     A district judge has broad discretion in formulating the jury

charge so long as the charge accurately reflects the law and the

facts of the case.      United States v. Allred, 867 F.2d 856, 868 (5th

Cir. 1989) (citation omitted).       The given charge is considered as

a whole, in the full context of the trial.              Id. (citing United

States v. Chavis, 772 F.2d 100, 108 (5th Cir. 1985)).           A district

court acts properly if it declines to give a requested jury

instruction because it “incorrectly states the law, is without

foundation   in   the    evidence,   or   is   stated   elsewhere   in   the

                                     6
instructions."      Id. (quoting United States v. Robinson, 700 F.2d

205, 211 (5th Cir. 1983)).          Thus, we review a district court’s

refusal to       submit   a   requested   jury   instruction   for   abuse    of

discretion.      United States v. Posada-Rios, 158 F.3d 832, 875 (5th

Cir. 1998).

     The instruction requested by Thompson did adequately reflect

what a jury must find by a preponderance of the evidence to acquit

a defendant on the affirmative defense of justification.             See     Id.

at 873.       Also, such instruction was not otherwise covered in the

jury charge.       Thompson’s requested instruction included the four

required elements of justification:

     (1)      The defendant was under an unlawful present,
              imminent, and impending threat of such a nature as
              to induce a well-grounded fear of death or bodily
              injury to herself [or to a family member]; and
     (2)      The defendant had not recklessly or negligently
              placed herself in a situation in which it was
              probable that she would be forced to choose the
              criminal conduct; and
     (3)      The defendant had no reasonable legal alternative
              to violating the law, that is, she had no
              reasonable opportunity to avoid the threatened
              harm; and
     (4)      A   reasonable  person   would  believe   that  by
              committing the criminal action she would directly
              avoid the threatened harm.2



          2
          The authority for Thompson’s requested justification
instruction was Fifth Circuit Pattern Jury Instruction 1.36 (2001
ed.). As more consistently reflected in our case law, the wording
of the fourth element is “that a direct causal relationship may be
reasonably anticipated between the [criminal] action taken and the
avoidance of the [threatened] harm.” Posada-Rios, 158 F.3d at 873
(quoting United States v. Harper, 802 F.2d 115, 117 (5th Cir.
1986)).

                                    7
Since justification is an affirmative defense, a defendant must

present evidence of each of the four elements before the defense

may be presented to the jury.          Id. In determining whether a

defendant has made a threshold showing of each of the elements of

a defense, a court must objectively evaluate the facts presented by

the defendant.   Id.

     Relying on United States v. Cordova-Larios, 907 F.2d 40, 42

(5th Cir. 1990), Thompson argues that an accused is entitled to

have the jury instructed on a defense theory for which there is

“any foundation in the evidence.”      However, this contention is not

a completely accurate statement of the law.      This “foundation” is

not set on the ground floor, at the “merest scintilla” benchmark.

See United States v. Branch, 91 F.3d 699, 713 (5th Cir. 1996)

(noting such minimal showing does not warrant an affirmative

defense instruction).    Such evidentiary foundation is set and met

at a higher level:     “[I]n order for a defendant to be entitled to

an instruction, any evidence in support of a defensive theory must

be sufficient for a reasonable jury to rule in favor of the

defendant on that theory.”     United States v. Stone, 960 F.2d 426,

432 (5th Cir. 1992) (internal quotes and citation omitted).        In

other words, a district court may properly refuse to give a

requested instruction that lacks a sufficient enough foundation in

the evidence.    See Branch, 91 F.3d at 713.

      Here, the district court considered Thompson’s requested


                                   8
justification instruction and its required elements in light of the

evidence presented in the course of the trial.   Upon doing so, the

district court made the determination that it did not “find any

evidence as to one or more of those elements.”   That is, the lower

court refused the instruction because Thompson had failed to

present any sufficient evidence for a reasonable jury to find that

she was justified in her criminal behavior and thus should be found

not guilty.

     An objective analysis of Thompson’s evidence persuades us that

Thompson failed to present sufficient evidence as to one or more

elements of the justification defense. As to the first element, we

have noted that the threat faced by a defendant must arise out of

“a real emergency leaving no time to pursue any legal alternative.”

Posada-Rios, 158 F.3d at 874.     Thompson cited several facts she

believes sufficiently show that she objectively and reasonably

feared imminent harm.   She noted that she was on a levee of the Rio

Grande, near a dirt road; she was not sure of her location; she

knew of no store or gas station close by; the levee was a dangerous

place; there were several men “lurking” who had an interest in the

bundles placed in the car; and she was afraid to get out of the

car. However, there is no evidence that either the driver, the men

on the levee, or the voice on the phone physically or verbally

threatened to harm her or forced her to do anything.          Also,

Thompson never specified precisely what she feared would happen to



                                 9
her if she did try to exit the car.         There is no evidence that she

felt any immediate threat that the “lurking” men would kill her or

physically hurt her in any way; in fact, the evidence indicates

that all of them ran away from the car after they had filled it

with the marijuana bundles.          No “real emergency” threatened her

life or person, and fear alone is not sufficient evidence of a

“present, imminent, and impending threat.”              The district court's

implied finding that Thompson did not face such a threat is not an

abuse of discretion.

     As the Government did not contest on appeal that Thompson did

not provide     sufficient     evidence    as   to   the   second   element    of

justification, we need not discuss it.

     To meet the third element, a defendant must show that she “had

actually tried the alternative or had no time to try it, or that a

history of futile attempts revealed the illusionary benefit of the

alternative.”       Id. (quoting Harper, 802 F.2d at 118).              If the

situation     allowed    the    defendant       to     select    from   several

alternatives, including noncriminal ones, the defense fails.                  Id.

(citation omitted). Here, Thompson claimed there was no reasonable

alternative    to   driving    the   Caprice    (and    thus    possessing    the

marijuana) because she is a young woman who was stranded in an

unfamiliar place near several men engaged in the drug trade.

However, the evidence does not rule out that reasonable noncriminal

alternatives did exist.         Thompson did not attempt to refuse to


                                      10
drive the car, nor did she use the cell phone she had been given to

dial “911" or another number for emergency assistance, or the

number Vaquera had preprogrammed.3   Plus, Thompson testified the

sun was up and it was light outside at the time, so another

reasonable alternative would be to exit the car and walk to the

nearby stop sign and attempt to summon assistance.      Again, the

evidence indicates the men had run away from the car so they could

not be preventing her exit. Nothing in the record indicates either

that Thompson tried any of these alternatives to driving away in

the marijuana-laden car or that any of these alternatives was

foreclosed to her.     The district court's implied finding that

Thompson had untried, reasonable, legal alternatives available is

not an abuse of discretion.

     As for the fourth element, Thompson claimed the direct causal

relationship was satisfied because her criminal act of driving the

car and thus possessing the marijuana was a reasonable way to avoid

the threatened harm.   Thompson argued that driving the car meant

she could get away from the men who had loaded the bundles, reduce

the imminent threat, and take some time to calm down.     However,

again, Thompson presented no evidence that the men were pursuing


     3
       There is some evidence in the record that Thompson did try
to press a button on the phone. After this attempt, though, she
made no further attempts to call out. Her testimony indicates that
the phone was not locked, meaning no pin number or code had to be
entered before an outgoing call could be made. And at about 7:26
a.m. that same morning, the Border Patrol successfully made an
outgoing call after they had confiscated the phone.

                                11
her or the car, or that she actually had no time to calm down and

think about what she should do before driving the car.                Also, a

direct causal link between clearly criminal behavior and avoidance

of threatened harm is a stretch to show where, as here, the

defendant’s evidence does not sufficiently indicate any threat of

harm existed.    The district court's implied finding that there was

no   direct   causal   relationship     between    the   possession   of   the

marijuana and any threat to Thompson is not an abuse of discretion.

                                 CONCLUSION

      Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the district court did not abuse its discretion in

refusing to     instruct   the   jury   on   the   affirmative   defense    of

justification.    Therefore, we AFFIRM the decision of the district

court.

AFFIRMED.




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