     Case: 19-11104      Document: 00515527175         Page: 1    Date Filed: 08/14/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit

                                                                                  FILED
                                    No. 19-11104                            August 14, 2020
                                  Summary Calendar
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

HEATH JAYDEL BREWER,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:19-CR-38-1


Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Heath Jaydel Brewer appeals his jury-trial convictions for making a false
statement and obstructing justice in connection with his execution of a
jailhouse affidavit attesting that his prior statements incriminating Alfred
Sanchez, Jr. were untrue. Brewer asserts that the district court erroneously
refused his request for a jury instruction on the affirmative defense of duress.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-11104    Document: 00515527175     Page: 2   Date Filed: 08/14/2020


                                 No. 19-11104

      To raise an issue of duress for consideration by the jury, a defendant
must present evidence of the following four elements: (1) that he “was under
an unlawful and present, imminent, and impending threat of such a nature as
to induce a well-grounded apprehension of death or serious body injury”;
(2) that he “had not recklessly or negligently placed himself in a situation in
which it was probable that he would be forced to choose the criminal conduct”;
(3) that he “had no reasonable legal alternative to violating the law,” that is,
no chance “to refuse to do the criminal act and also to avoid the threatened
harm”; and (4) that there was “a direct causal relationship . . . between the
criminal action taken and the avoidance of the threatened harm.” United
States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (internal quotation
marks, brackets, and citations omitted). In determining whether the necessary
showing has been made, a court “must objectively evaluate the facts presented
by the defendant.” Id.
      The parties dispute whether Brewer made the necessary showing with
respect to the first and third elements of the duress defense. Even when
considered in the light most favorable to him, see United States v. Giraldi,
86 F.3d 1368, 1376 (5th Cir. 1996), Brewer’s testimony fails to indicate that he
was under an implicit or explicit threat of immediate violence at the moment
he signed the false affidavit. See United States v. Harper, 802 F.2d 115, 118
(5th Cir. 1986). While Brewer related in his testimony his subjective fear for
his life, he failed to offer evidence objectively supporting an immediate mortal
fear, such as a contemporaneous verbal threat or the exhibition of a weapon.
See Posada-Rios, 158 F.3d at 873. Thus, Brewer has not made a threshold
showing that he faced a real and imminent emergency sufficient to induce a
well-grounded fear of death or serious bodily injury. See id. at 873-74.




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    Case: 19-11104     Document: 00515527175     Page: 3    Date Filed: 08/14/2020


                                  No. 19-11104

      Brewer has likewise failed to point to objective evidence showing that he
was unable to pursue a legal alternative to participating in the criminal
activity involving the false affidavit. See id. Brewer testified that he could
have reported his alleged fear of Sanchez to a jail guard, via an available
computer text messaging program, or by calling a dedicated hotline, but he did
not. Significantly, Brewer testified that, during his sentencing hearing two
days after the affidavit incident, he did not advise the judge of threats relating
to his cooperation or that he had been forced to sign a false statement, even
though he admitted that he had the opportunity to say whatever he wanted.
Brewer did tell his lawyer at sentencing “that something was going on” with
Sanchez, which resulted in Brewer being moved from the jail unit a week later.
This sequence of events suggests that there were in fact available legal
alternatives that Brewer could have utilized to remove himself from Sanchez’s
reach either before he was forced to sign the false statement or soon afterward
when he could have disavowed the statement and thereby ended his
participation in the criminal act. See id.
      In light of the foregoing, the district court did not abuse its discretion in
denying Brewer’s request for a jury instruction on the affirmative defense of
duress. See United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994). The
judgment of the district court is AFFIRMED.




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