     Case: 13-31056       Document: 00512664976         Page: 1     Date Filed: 06/16/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                     No. 13-31056                                 FILED
                                   Summary Calendar                           June 16, 2014
                                                                             Lyle W. Cayce
                                                                                  Clerk
UNITED STATES OF AMERICA,

                                                  Plaintiff - Appellee

v.

PAL SAT,

                                                  Defendant - Appellant


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:12-CR-342-1


Before BARKSDALE, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Pal Sat was convicted by a jury on two counts of failure to depart
pursuant to a lawful order of removal, in violation of 8 U.S.C. § 1253(a)(1)(C).
He challenges his conviction on two grounds: sufficiency of his affirmative
defense (duress); and claimed improper comments by the Government during
closing argument.




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
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                                 No. 13-31056

      Regarding his duress defense, Sat contends the district court erred by
denying his motions for judgment of acquittal. We review de novo, determining
whether “a rational trier of fact could have found that the evidence established
the essential elements of the offense beyond a reasonable doubt”. United States
v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000).
      At trial, Sat relied on the affirmative defense of duress, which requires
a defendant to show: he was under an unlawful, imminent, and impending
threat that would induce a well-grounded fear of death or serious bodily injury;
he had not recklessly or negligently placed himself in that situation; he had no
legal and reasonable alternative to violating the law; and it was reasonable to
anticipate the criminal actions would avoid the possible harm. United States
v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998). Defendant bears the burden
of proving each of these elements by a preponderance of the evidence. Dixon
v. United States, 548 U.S. 1, 17 (2006).
      Sat prevented his removal by refusing, in Alexandria, Louisiana, to
board a flight to India on 12 September and 16 October 2012. Sat’s duress
defense was based on his testimony that, if he returned to India, he would be
attacked and probably killed. However, a defendant claiming duress must
prove the existence of “a real emergency leaving no time to pursue any legal
alternative” or an “absolute and uncontrollable necessity” at the time he
committed the offense. Posada-Rios, 158 F.3d at 874 (citation and internal
quotation marks omitted); see also United States v. Harper, 802 F.2d 115, 118
(5th Cir. 1986). Because Sat’s criminal actions occurred at the airport in
Alexandria, Louisiana, a rational jury could have found any future harm in
India would not constitute the requisite imminent and impending threat at the
time of his criminal conduct. See, e.g., Harper, 802 F.2d at 118 (finding “no




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                                  No. 13-31056

evidence [Appellant] was in danger of imminent bodily harm at the moment he
[committed the offense]”).
      Regarding the Government’s closing argument, Sat contends it
suggested improperly to the jury that it should defer to the prior conclusion of
an immigration judge who had considered and rejected Sat’s evidence
regarding his fear of returning to India. In reviewing properly preserved
claims of misconduct during closing arguments, we engage in a two-step
analysis. United States v. McCann, 613 F.3d 486, 494 (5th Cir. 2010). We first
determine whether the remark was improper; if it was, we then review
whether the remark affected defendant’s substantial rights. Id. In evaluating
the effect on substantial rights, we consider “(1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary instructions given, and
(3) the strength of the evidence of the defendant’s guilt”. Id. at 496 (internal
quotations marks and citation omitted).
      As Sat concedes, because he did not object on this basis in district court,
our review is only for plain error. Under the plain-error standard, Sat must
show a forfeited clear or obvious error that affected his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). If he shows such reversible
plain error, we have the discretion to correct the error, but should do so only if
it seriously affects the fairness, integrity, or public reputation of the
proceedings. Id.
      In closing, the Government compared the objective standard for fear in
the context of receiving asylum with the standard for duress, and stated:
            The government would remind you that an asylum
            officer already reviewed the defendant’s request for
            asylum. Even though the defendant claims that he had
            nothing to do with that paperwork, that request has
            already been reviewed. That request was denied. A
            hearing was held, and the defendant didn't show up.


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                                 No. 13-31056


The Government’s statement is supported by the record and factually correct:
Sat filed an asylum request; it was denied by an “asylum officer”; and Sat failed
to appear for a subsequent hearing.
      Even assuming arguendo the closing-argument statement was improper,
it did not affect Sat’s substantial rights.    The factually-correct statement
comprised only a brief part of the Government’s argument. See, e.g., United
States v. Delgado, 672 F.3d 320, 337–38 (5th Cir 2012) (en banc) (“[A] single
statement at closing will rarely justify reversal”.). And, the court instructed
the jury that the statements of the attorneys were not evidence. See McCann,
613 F.3d at 497 (noting even generic cautionary instructions have a “minor
mitigating effect” on improper, prejudicial statements by a prosecutor).
      Finally, even if the jurors thought Sat should have been granted asylum,
this was not the issue before them; as discussed above, a rational jury could
have found that, even if he legitimately feared harm in India, Sat had failed to
establish an imminent threat of harm at the time of his criminal activity. In
short, Sat cannot establish reversible plain error.
      AFFIRMED.




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