     Case: 12-50136       Document: 00512303042         Page: 1     Date Filed: 07/10/2013




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

                                                                            FILED
                                                                            July 10, 2013

                                       No. 12-50136                        Lyle W. Cayce
                                                                                Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee
v.

HERMES FIDELINA MORAZAN-ALVAREZ,
also known as Claudia Fidelina Morazan-Alvarez,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Western District of Texas


Before JOLLY, DAVIS and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Hermes Fidelina Morazan-Alvarez appeals her
conviction for unlawfully transporting an illegal alien for commercial advantage
and private financial gain in violation of 8 U.S.C. § 1324. She argues that the
district court improperly excluded expert testimony related to her post-traumatic
stress disorder that was proffered to establish that she did not commit the
offense voluntarily and did not have the requisite mental state for the charged
offense. Because the proffered testimony was not admissible to establish 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                  No. 12-50136

to negate voluntary participation in the criminal conduct, the district court did
not abuse its discretion by excluding the evidence.
                                       I.
      Morazan-Alvarez was charged by indictment with two counts of unlawfully
transporting an illegal alien for commercial advantage and private financial gain
(Counts One and Two), and one count of conspiracy to transport illegal aliens
(Count Three). Following a trial, the jury found Morazan-Alvarez not guilty of
Counts One and Three and convicted her of Count Two. She was sentenced to
thirty-six months of imprisonment and a three-year term of supervised release.
She timely appealed.
      Before trial, Morazan-Alvarez gave notice of her intent to proffer a defense
of duress and to offer evidence, including expert testimony, establishing that she
was a victim of physical and sexual abuse and suffered from post-traumatic
stress disorder (PTSD).
Pretrial Motion in Limine
      The Government filed a pretrial motion in limine seeking to exclude any
evidence that Morazan-Alvarez was sexually abused while she lived in her
native country of Honduras. The Government argued that the evidence was not
relevant to whether she had the requisite mental state for the charged offenses.
The Government also moved to exclude any evidence pertaining to “a defense
of duress, necessity, or justification” unless Morazan-Alvarez successfully made
a prima facie showing to support the defense. Morazan-Alvarez filed a response.
      At a pretrial hearing, Morazan-Alvarez contended that evidence that she
experienced sexual assault and domestic violence more than six years before the
charged offenses was relevant to the issue of “voluntariness.” Morazan-Alvarez
alleged that the other participants in the alleged conspiracy exploited her mental
weakness and PTSD to have her transport illegal aliens. She urged that she was
manipulated into committing the offenses involuntarily.

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                                   No. 12-50136

        The district court excluded the proposed expert testimony that Morazan-
Alvarez suffered from PTSD, ruling that the condition was not relevant to a
duress defense. The court also ruled that the expert testimony could not be
offered to show that Morazan-Alvarez did not voluntarily commit the offenses
because it found no case law to support a conclusion that PTSD is relevant to the
question of voluntariness.
Trial
        The following evidence was presented at trial. On March 9, 2011, United
States Border Patrol Agent Lorenzo Perez was patrolling an area near La Pryor,
Texas, and saw three individuals traveling in the front seat of an extended cab
truck that seemed to be heavily weighted. Perez, who was stationed near a stop
sign, noted that the truck “kind of came to a slow roll and then took off again,
kind of in a hurry to kind of get out of [ ] sight.” Perez later directed the truck
to pull over. Perez approached the passenger side and, as he looked into the bed
of the truck, “saw two individuals, one underneath the carpet and one just laying
down [in the bed].”
        Ten people were found in the truck: three passengers in the front seat, two
persons in the bed, and five individuals “laying down in the backseat area.”
Morazan-Alvarez was seated in the front of the truck along with Valente
Hernandez-Escobar,1 the driver and owner of the truck, and a female passenger,
Dayna Morgado-Castro.        Perez concluded that “[he] had a possible alien
smuggling load.”
        Hernandez-Escobar testified that Morazan-Alvarez, whom he knew from
living in Austin and with whom he had a romantic relationship, “asked [him] to
help her out with some relatives that . . . were coming to San Antonio.”
Hernandez-Escobar agreed “out of the kindness of [his] heart.” They met at

        1
        Hernandez-Escobar, a codefendant in the case, pleaded guilty to conspiracy to
transport illegal aliens; in his plea agreement, he agreed to cooperate and testify.

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Morazan-Alvarez’s apartment on March 8, 2011, and left Austin near midnight.
Morazan-Alvarez – who had a “pen written map” directing them to the pick up
location where an individual named Miguel would be waiting – spoke on her
phone during the trip and appeared to be receiving directions. After arriving at
the pick up location, Morazan-Alvarez exited the truck, and “a lot of people”
entered. Hernandez-Escobar asked her what was going on, and Morazan-
Alvarez replied “that there were some people and that [he] was going to get some
profit” – i.e., $1,500 – for transporting the people in his truck.
      Hernandez-Escobar stated that he was “tricked” by Morazan-Alvarez into
participating and agreed to continue because “[he] didn’t trust her,” and felt
“obligated to take the people.” He noted that he was not told before the trip that
he would be transporting illegal aliens. Hernandez-Escobar gave a statement
to agents after his apprehension in which he stated that Morazan-Alvarez had
revealed to him “exactly what [he] [was] supposed to be doing.” Hernandez-
Escobar later explained that he meant that he was told about the purpose of the
trip “[w]hen they were at the place where [they] picked up the people.”
      Morgado-Castro testified that she traveled from Mexico with a group that
intended to enter the United States. She recounted how the group crossed into
the United States. She noted that three people were always up-front and
appeared to be the guides. After a few days of traveling, the group stopped to
await transportation. Morgado-Castro stated that no member of the group
declared that they belonged to the Los Zetas gang. Morgado-Castro also did not
observe any member of the group issue threats to any other person.
      Morgado-Castro recalled that the group was informed when the truck had
arrived and were instructed to run to the vehicle. Morgado-Castro, who arrived
at the truck nearly five minutes after the other group members, was directed
into the front seat by Hernandez-Escobar and Morazan-Alvarez. After the truck
began to move, Morgado-Castro asked for water. Morazan-Alvarez, who was

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“very kind” and did not appear to be agitated, offered a soda and stated that
“everything was going to be fine.” Morgado-Castro noted that Morazan-Alvarez,
who told the group members to “put [their] heads down” as the truck moved
along, stated “[w]e are caught” when the truck was apprehended.
       Miguel Santiago-Lopez2 testified that a person in Austin named Chaman
called him and advised him that there was a group of people to transport from
Mexico to the United States. Santiago-Lopez guided the group across the border.
Santiago-Lopez testified that he talked with Chaman during the trip on a phone
that Chaman had provided. Santiago-Lopez asserted that during the trip he
found a jacket bearing the Ferrari logo, which is a symbol that is associated with
Los Zetas. Santiago-Lopez denied that the jacket was his or that he was
affiliated with Los Zetas.
       Santiago-Lopez stated that he never communicated with anyone in the
truck but rather talked exclusively with Chaman. Santiago-Lopez did not know
if Morazan-Alvarez was associated with Chaman.3 When the truck arrived,
Hernandez-Escobar and Morazan-Alvarez opened the doors and told the group
to “hurry up and get in.” Santiago-Lopez got into the bed of the truck. After the
group was apprehended, Santiago-Lopez gave a statement in which he denied
being the guide. He stated that he was dishonest with agents because he was
afraid and believed that he would be allowed to return to Mexico if he minimized
his role.
       United States Border Patrol Agent Colin McAllister testified that he took
a statement from Morazan-Alvarez, which was transcribed and later signed by



       2
          Santiago-Lopez, a codefendant in the case, pleaded guilty to conspiracy to transport
illegal aliens; in his plea agreement, he agreed to cooperate and testify.
       3
         The phone number associated with Chaman was saved in Santiago-Lopez’s and
Hernandez-Escobar’s phones and was not in Morazan-Alvarez’s phone. Hernandez-Escobar
denied talking to Chaman.

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her. McAllister was aided by other agents with superior Spanish language
skills. In her statement, Morazan-Alvarez disclosed the following: she received
a phone call from an unknown person telling her that he would pay her to “pick
up [ ] [his] mother near the border or at the border and that she was to ride with
a third party to . . . go do that.” The person directed her to ride in a red truck
with Hernandez-Escobar, whom Morazan-Alvarez casually knew from Austin.
She did not know anything about the man who called her or the woman that she
was to pick up, including, inter alia, whether she was an illegal alien. Morazan-
Alvarez “did it because she was scared.”
      Morazan-Alvarez drove with Hernandez-Escobar to the border area. She
then “received another phone call from the man” informing her that “things had
changed and she was no longer suppose[d] to pick up his mother, but instead
was to pickup this group of people.” They drove to the area where they had been
told to go, “[a]nd the people . . . came out of the brush and got into the truck.”
Morazan-Alvarez asserted that a guide with the group, who said he was a
member of Los Zetas, threatened to kill her if she said anything. Agents did not
find any information to support that the guide identified by Morazan-Alvarez
belonged to Los Zetas.
      After further questioning, Morazan-Alvarez, who was crying and agitated
throughout the interview, altered her version of the events. She stated that
Hernandez-Escobar “quarterback[ed] the whole thing” and that it was his
mother that they were going to pick up.           Morazan-Alvarez stated that
Hernandez-Escobar promised to pay her for riding with him. When questioned
about the inconsistencies in her stories, she “just kind of continued to say that
it was . . . [Hernandez-Escobar’s] idea and that she had gone along to get paid.”
Morazan-Alvarez stated that Hernandez-Escobar “was a known smuggler” and
that she “could take [agents] to his house in Austin where he ha[d] as many as



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                                 No. 12-50136

40 illegal aliens stashed. And that he gets paid something like $4,000 per person
to smuggle illegal aliens.”
      Morazan-Alvarez proffered to the district court the following proposed
expert testimony from Dr. Betsy Bouton-Puentes, Ph.D., a licensed psychological
associate and counselor. Dr. Bouton-Puentes evaluated Morazan-Alvarez during
her pretrial detention. Morazan-Alvarez “cr[ied] and express[ed] emotions of
sadness and distress throughout the interview process.” Morazan-Alvarez, while
“amicable and in control,” became upset and began to cry “[w]hen speaking of
how she experienced abuse or how much she missed her family.” She was
“especially animated when describing her involvement with the people who
arranged the crime for which she is [ ] incarcerated.” Morazan-Alvarez, who
began to take medication for anxiety while she was detained for a previous
offense, “did not receive help for many years despite [ ] traumatic experience[s]
of abuse and sexual assault.” After she was released from her prior detention
in January 2010, Morazan-Alvarez once again was threatened and went to live
in a domestic violence shelter, where she received counseling. She reported that
she “cries much of the time and cannot sleep at night because she sees the people
who raped her.”
      Cognitive and neuropsychological tests indicated that Morazan-Alvarez
suffered from cognitive abnormalities and that “a neuropsychological assessment
[was] warranted to access the extent and severity of her brain impairment and
[to] rule out a diagnosis of cognizant disorder.” Further psychological tests
suggested that Morazan-Alvarez suffered from, inter alia, PTSD. Dr. Bouton-
Puentes concluded that “[c]onsideration should be given to the effects of
[Morazan-Alvarez’s] chronic abuse as this impacts her judgment and behavior
with regard to her involvement in the incident offense.” Dr. Bouton-Puentes
indicated that when Morazan-Alvarez is threatened, “she is the first to comply
due to overwhelming fear experienced from past experiences.”

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                                              II.
       This court reviews a district court’s exclusion of expert testimony for abuse
of discretion. United States v. Ogle, 328 F.3d 182, 188 (5th Cir. 2003). The
district court’s ruling will not be disturbed unless it is manifestly erroneous. Id.
If this court concludes that the district court abused its discretion, it then
considers “whether the error was harmless, affirming the judgment unless the
ruling affected a substantial right of the complaining party.” United States v.
Tucker, 345 F.3d 320, 326 (5th Cir. 2003) (internal quotation marks and citation
omitted). In the criminal context, the necessary inquiry is “whether the trier of
fact would have found the defendant guilty beyond a reasonable doubt with the
additional evidence asserted.” Id. at 27 (citation omitted).
       To prove a violation of transporting an illegal alien under §
1324(a)(1)(A)(ii), the Government must show that: “(1) an alien entered or
remained in the United States in violation of the law, (2) [the defendant]
transported the alien within the United States with intent to further the alien’s
unlawful presence, and (3) [the defendant] knew or recklessly disregarded the
fact that the alien was in the country in violation of the law.” United States v.
Nolasco-Rosas, 286 F.3d 762, 765 (5th Cir. 2002). Morazan-Alvarez asserts that
the proposed expert testimony regarding her PTSD and its effect on the
voluntariness of her acts was admissible to negate the criminal intent required
by the statute of conviction.           She argues that the testimony would have
supported her defense that she did not voluntarily participate in the offense and
did so only because she was vulnerable to the threats that she alleges were made
against her.4


       4
         We do not address the response raised by the government that the type of testimony
proffered by the defendant is only admissible, if at all, to negate a specific intent element of
the crime as this argument was not raised by the defendant and is unnecessary to the
disposition of this case. See United States v. Herbst, 460 F. App’x 387, 394, n.2 (5th Cir. 2012)
(citing cases and noting that this circuit has not decided the question).

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                                  No. 12-50136

      Without characterizing it as such, the defendant’s “voluntariness”
argument, in effect, challenges the district court’s denial of the requested
instruction on duress.
      The duress defense is a common law concept that federal criminal
      law has incorporated. United States v. Bailey, 444 U.S. 394, 409-10,
      100 S. Ct. 624, 634, 62 L. Ed. 2d 575 (1980). Under this defense,
      otherwise criminal behavior may be excused under narrow
      circumstances. To succeed with this defense, the defendant must
      show [inter alia]:

      1. that the defendant 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 bodily injury;
United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994).
      This defense cannot apply to Morazan-Alvarez because whether a fear is
well-grounded is assessed on the impact of the threat to a reasonable person , i.e.
“that a person of reasonable firmness in his [or her] situation would have been
unable to resist.” Id. Because the test is an objective one, this court has held
that evidence that the defendant is suffering from battered woman syndrome is
inherently subjective and therefore inadmissable as irrelevant to the defense of
duress. Id. at 176. We see little distinction between Willis’s evidence of battered
woman syndrome and Morazan-Alvarez’s evidence of PTSD.                It would be
anomalous to bar such evidence to establish duress and then allow it in the back
door to negate the voluntariness component of general intent.
      Further, the defendant is attempting to raise the type of legal excuse that
Congress sought to exclude when it “deleted the ‘volitional prong’ of the
commonly accepted Model Penal Code approach which had permitted acquittal
if the defendant ‘as a result of mental disease or defect . . . lacks substantial
capacity . . . to conform his conduct to the requirements of the law.’” United
States v. Eff, 524 F.3d 712, 719 (5th Cir. 2008) (quoting United States v. Pohlot,
827 F.2d 889, 896 (3d Cir. 1987)). Congress intended to preclude defenses that

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                                       No. 12-50136

“permit exoneration or mitigation of an offense because of a defendant’s
supposed psychiatric compulsion or inability or failure to engage in normal
reflection.” Id., quoting Pohlot, 827 F.2d at 890. Morazan-Alvarez’s compliance
with threats due to PTSD falls squarely within the type of mental defect that is
no longer an acceptable defense to volitional action.
       In addition, the district court found that the defendant had failed to
present a sufficient evidentiary foundation of an imminent and impending threat
as is required to support a duress instruction.5 After a review of the record, we
agree. According to the district court,
       The best that could be shown with any kind of evidentiary
       foundation or underpinning was that individuals traveling in the
       small group, one of them, was affiliated with the Zetas Cartel.
       And that the defendant said that she was threatened by this
       person. This is insufficient to establish a well-founded fear of
       immediate harm.
The district court relied on United States v. Constante, 380 F. App’x. 440 (5th
Cir. 2010), which held that verbal threats, unaccompanied by a threat with a
gun or a knife, were insufficient to establish a risk of immediate harm. As
pointed out by the district court,
       Likewise, in the present case there is no evidence to suggest that
       the defendant was ever threatened with a weapon or given any
       reason to viably believe that a person in the group had the
       capacity to harm the defendant. And when you couple this with
       the fact that the person who supposedly threatened the defendant
       ended up in the bed of the pickup truck while she was in the cab
       of the truck there is no way we could get into any kind of
       impending actual threat.




       5
         The district court decides as a matter of law whether the evidence submitted raises
a factual question for the jury. United States v. Branch, 91 F.3d 699, 713 (5th Cir. 1996)
(“[T]he district court is not required to put the case to the jury on a basis that essentially
indulges and even encourages speculations.”)

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                                 No. 12-50136

      Also, as pointed out by the district court, according to Morazan-
Alvarez’s own statement, Morazan-Alvarez was willing to accompany
Hernandez-Escobar to the border area in the middle of the night to pick up a
woman whom she identified first as the mother of an unknown person and
later as the mother of Hernandez-Escobar. No alleged threat or fear was
experienced until they reached the pick up location. In short, the record does
not support a conclusion that Morazan-Alvarez was credibly threatened prior
to the time she embarked on the trip to the border and committed to engage
in the conduct underlying her offense of conviction.
      Also, the record belies Morazan-Alvarez’s argument that she did not
have the requisite intent to voluntarily participate in this offense. The
evidence strongly supported testimony that Morazan-Alvarez orchestrated
the pick up of the illegal aliens and intended for the aliens’ passage to be
successful. According to Hernandez-Escobar, Morazan-Alvarez arranged the
transportation scheme, promised to compensate him for driving his vehicle to
secure the aliens, communicated with other participants in the operation to
ensure that the pick up was completed, and directed him to the pick up
location. Evidence corroborating this testimony revealed that, on the night of
the transportation, twenty-three calls were exchanged between Morazan-
Alvarez’s phone and an unidentified number in Austin, i.e., the alleged
headquarters of the operation. Moreover, there was testimony that Morazan-
Alvarez, who asserted that she was paid for her role in the enterprise,
exhibited an interest in the transportation of the aliens and commanded the
aliens to enable its successful completion; the evidence showed that Morazan-
Alvarez opened the doors at the pick up location and directed the group to get
into the truck, reassured the aliens of the likely success of the operation, and
directed the aliens to “put [their] heads down” to avoid detection.



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      Finally, Morazan-Alvarez’s conduct after agents stopped the truck was
consistent with the fact that she had guilty knowledge. Morgado-Castro
testified that Morazan-Alvarez stated “[w]e are caught” when the truck was
apprehended, and her inconsistent statements to agents regarding the offense
suggest that she sought to conceal or obscure her role. Her statement also
reflected her awareness of the purpose of the trip to the border area; she told
agents that Hernandez-Escobar “was a known smuggler” and that she “could
take [agents] to his house in Austin where he ha[d] as many as 40 illegal
aliens stashed. And that he gets paid something like $4,000 per person to
smuggle illegal aliens.”
                                      III.
      For the foregoing reasons, we find that the district court did not abuse
its discretion by excluding Morazan-Alvarez’s proffered expert testimony.
AFFIRMED.




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