                                                                          FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                                      PUBLISH                         June 17, 2019

                    UNITED STATES COURT OF APPEALS                Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

              Plaintiff - Appellee,
 v.                                                     No. 18-6130
 JOSE LUIS ELISEO ARIAS-
 QUIJADA, a/k/a/ Jose Mendoza,

              Defendant - Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. NO. 5:17-CR-00263-M-1)


Submitted on the briefs: *

William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Defendant-Appellant.

Robert J. Troester, First Assistant U.S. Attorney, and William E. Farrior,
Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.


Before HARTZ, MURPHY, and CARSON, Circuit Judges.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
MURPHY, Circuit Judge.


I.    Introduction

      Defendant-Appellant Jose Luis Eliseo Arias-Quijada entered a conditional

guilty plea to illegal reentry into the United States, in violation of 8 U.S.C.

§ 1326. He reserved the right to appeal the district court’s denial of his Motion to

Assert a Defense of Duress. In this appeal, Arias-Quijada challenges the denial of

his motion, arguing he presented sufficient evidence to create a triable issue on

the affirmative defense of duress. He specifically contests the district court’s

conclusion that he failed to make a bona fide effort to surrender to immigration

authorities once the alleged duress lost its coercive force. See United States v.

Portillo-Vega, 478 F.3d 1194, 1201 (10th Cir. 2007).

      Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the

district court’s order denying Arias-Quijada’s motion.

II.   Background

      Arias-Quijada is a citizen of El Salvador. He was removed from the United

States by order of an immigration judge in 2005 and again in 2014. In late 2017,

Arias-Quijada was taken into custody by immigration officers in Oklahoma City,

Oklahoma. A search of government records revealed he had not received

permission to reenter the United States.




                                           -2-
      Arias-Quijada sought a pretrial ruling on the admissibility of evidence to

substantiate his assertion he illegally reentered the United States only because of

duress. Arias-Quijada proffered facts and supporting documents detailing his

interactions with the Mara Salvatrucha (MS-13) gang and the 18th Street (Barrio

18) gang in El Salvador during his adolescent years. He alleged both gangs

attempted to recruit him and he was tortured by the Barrio 18 gang when he was

fifteen years old. Arias-Quijada also proffered details about a serious assault

perpetrated on him by MS-13 gang members after he was removed to El Salvador

in 2014.

      In its response to Arias-Quijada’s pretrial motion, the government argued

he could not meet his burden of proving a defense of duress. It asserted

Arias-Quijada was notified of his rights regarding fear of persecution when he

was removed in 2005 and it proffered evidence showing he was informed of the

process for requesting and obtaining permission to lawfully reenter the United

States. Exhibits to the government’s response also showed that Arias-Quijada

was given a list of free legal service providers when he was removed in 2005 and

2014. The government advised the district court that its records indicated

Arias-Quijada never attempted to obtain permission to reenter the country, never

advised immigration officials of his presence, and never formally sought asylum

in the United States. As to the elements of a duress defense, the government

argued Arias-Quijada’s proposed evidence was insufficient to satisfy the elements

                                         -3-
of a duress defense. Specifically, it asserted Arias-Quijada failed to meet his

burden of showing he had no legal alternative to entering the United States

unlawfully because he could have migrated to other countries, attempted to

reenter the United States legally, or submitted to U.S. immigration officials and

reported the alleged threats once they were no longer imminent. The government

also argued Arias-Quijada could not show a well-grounded fear of imminent harm

because his allegations involved threats of bodily harm that occurred three years

prior to his apprehension. Thus, they were too remote to satisfy the imminence

requirement. Finally, the government argued Arias-Quijada could not show his

continuing violation of U.S. immigration laws was either necessary to avoid the

acute harm he faced in El Salvador or to forgo actions to mitigate his illegal

reentry.

      The district court denied Arias-Quijada’s motion to assert a defense of

duress. The court concluded Arias-Quijada did not meet his burden of proving a

duress defense by a preponderance of the evidence because he did not show he

made a “bona fide effort to surrender as soon as the duress lost its coercive

force.” Instead, he remained undetected in the United States from the time of his

illegal reentry in 2014 until he was apprehended in 2017.




                                         -4-
III.   Discussion

       “The duress defense . . . may excuse conduct that would otherwise be

punishable, but the existence of duress normally does not controvert any of the

elements of the offense itself.” Dixon v. United States, 548 U.S. 1, 6 (2006). A

defendant, however, does not have an absolute right to present a duress defense to

the jury. Portillo-Vega, 478 F.3d at 1200-01 (holding that to be entitled to

present a duress defense to the jury, a defendant must proffer legally sufficient

evidence as to each element of the defense). Here, the district court required

Arias-Quijada to make a pretrial evidentiary proffer. In reviewing whether the

proffer was sufficient to establish the affirmative defense of duress, this court

“respect[s] the trial judge’s role as gatekeeper and review[s] the denial of a duress

defense for abuse of discretion.” United States v. Dixon, 901 F.3d 1170, 1176

(10th Cir. 2018) (quotation omitted). This standard involves a determination of

whether the district court “based its ruling on an erroneous view of the law or on

a clearly erroneous assessment of the evidence.” Id. (quotation omitted). “[T]he

question of whether there is sufficient evidence to constitute a triable issue of the

defense is a question of law.” Id. (quotation and alterations omitted).

       “A duress defense requires the establishment of three elements: (1) an

immediate threat of death or serious bodily injury, (2) a well-grounded fear that

the threat will be carried out, and (3) no reasonable opportunity to escape the

threatened harm.” Portillo-Vega, 478 F.3d at 1197 (quotation omitted). The

                                         -5-
defendant bears the burden of proving duress, Dixon, 548 U.S. at 15, and must

meet his threshold burden on each of the three elements of the defense. United

States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990). If the evidence is insufficient

as to even one element, “the trial court and jury need not be burdened with

testimony supporting other elements of the defense.” Portillo-Vega, 478 F.3d at

1198 (quotation omitted).

      Because the matter before this court involves the continuing offense of

illegal reentry, Arias-Quijada must also “proffer evidence of a bona fide effort to

surrender as soon as the claimed duress . . . lost its coercive force.” Id. at 1201

(quotation and alteration omitted). Thus, a defendant who commits a continuing

offense must either make a bona fide effort to surrender to law enforcement

officials once the alleged duress ends or establish that the duress defense elements

were satisfied throughout the entirety of his criminal conduct. If the alleged

duress loses its “coercive force” at any time before the defendant surrenders or is

apprehended, he is not entitled to present the duress defense to the jury.

      Arias-Quijada does not dispute that the criminal activity in which he

engaged continued throughout the three-year period he resided in the United

States illegally. It is also undisputed that Arias-Quijada failed to make a bona

fide effort to surrender. He attempts to excuse that failure by arguing the alleged

duress that initially prompted him to reenter the United States did not abate

during the entirety of his undetected presence here because he reasonably

                                          -6-
believed he would be immediately returned to El Salvador if he surrendered. In

other words, Arias-Quijada asserts that making a bona fide effort to surrender

would rekindle the threatened harm rather than provide him with a reasonable

opportunity to escape it. While certainly a novel explanation of why all the

elements of the duress defense were satisfied during the three years Arias-Quijada

resided in the United States, this argument is unconvincing. Arias-Quijada’s

subjective belief that he would be immediately returned to El Salvador if he

surrendered has no evidentiary basis in the record.

      Arias-Quijada asserts that the fact he was indicted for illegal reentry in this

matter is evidence from which a jury could conclude he would have been denied

asylum if he had surrendered voluntarily. It is not. Arias-Quijada was arrested

and charged with illegal reentry in this matter because he entered the United

States without permission; at no point did he formally apply for asylum or

otherwise seek to enter legally. Thus, his indictment in this matter is no

indication of whether a formal application for asylum—if he had made one at any

time during the course of his illegal conduct—would have been denied.

Accordingly, Arias-Quijada has not identified any evidence from which a jury

could determine he acted reasonably by failing to surrender to law enforcement




                                         -7-
officials either at the time of his illegal reentry or during the three-year period

between his reentry and his arrest. 1

IV.   Conclusion

      A defendant is entitled to present the duress defense only when the “theory

is supported by some evidence and the law.” United States v. Al–Rekabi, 454

F.3d 1113, 1121 (10th Cir. 2006) (quotations omitted). Because Arias-Quijada

committed a continuing crime and did not surrender to law enforcement, he was

required to proffer evidence that he had a well-grounded fear of an immediate

threat of death or serious bodily injury during the entirety of the three years he

remained in the United States illegally. See Portillo-Vega, 478 F.3d at 1197-98

(“A defendant must carry his burden on each of the elements . . . .”). He failed to

meet this burden. Accordingly, the district court did not abuse its discretion when

it refused to allow him to present the defense.

      The order of the district court denying Arias-Quijada’s motion to present a

duress defense is affirmed.




      1
        This is not to say that a defendant who previously applied for and was
denied asylum is entitled to present the duress defense to the jury. The defendant
must still carry his burden on each of the elements of the defense. United States
v. Scott, 901 F.2d 871, 873 (10th Cir. 1990).

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