                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
           ___________

           No. 07-2395
           ___________

United States of America,              *
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Lorena Andrade-Rodriguez,              *
                                       *
              Appellant.               *
           ___________
                                           Appeal from the United States
           No. 07-2439                     District Court for the
           ___________                     Southern District of Iowa.

United States of America,              * [PUBLISHED]
                                       *
              Appellee,                *
                                       *
      v.                               *
                                       *
Norma Gonzalez-Hernandez,              *
                                       *
              Appellant.               *
                                  ___________

                             Submitted: February 12, 2008
                                Filed: June 26, 2008
                                 ___________

Before WOLLMAN, JOHN R. GIBSON, and SHEPHERD, Circuit Judges.
                          ___________
PER CURIAM.

      Lorena Andrade-Rodriguez and Norma Gonzalez-Hernandez (appellants) were
convicted of falsely claiming citizenship in violation of 18 U.S.C. § 1015(e); using
fraudulently obtained and false identification documents in violation of 18 U.S.C. §
1546(a), (b)(1); falsely representing a social security number in violation of 42 U.S.C.
§ 408(a)(7)(B); and aggravated identity theft in violation of 18 U.S.C. § 1028A. They
appeal from their convictions, arguing that the district courts1 erred by excluding
testimony from their immigration expert that was the basis for a necessity defense.
Although the appellants were tried separately, we have consolidated their cases on
appeal because they present the same issue and a common factual background. We
affirm.

                                           I.

       Immigration officials came into contact with the appellants pursuant to
enforcement actions at the Swift Meat Packing Plant in Marshalltown, Iowa. Both
were using aliases in their employment at Swift. Andrade-Rodriguez identified
herself as Cynthia Flores, a United States citizen, and presented a Missouri
identification card and a Social Security card in that name to verify her eligibility to
work in the United States on Federal Form I-9. Gonzalez-Hernandez identified herself
as Sarina Benavides, a United States citizen, and presented a Minnesota identification
card and a Social Security card in that name to satisfy that requirement. The
appellants’ photographs were affixed to the identification cards, and the numbers on
the identification cards and the Social Security cards corresponded with one another.
Swift issued the appellants employee identification cards and employee numbers
under their aliases.


      1
        The Honorable Charles R. Wolle and The Honorable James E. Gritzner,
United States District Judges for the Southern District of Iowa. (Judge Wolle presided
in No. 07-2395. Judge Gritzner presided in No. 07-2439.)

                                          -2-
      The appellants proposed to call an immigration expert to testify regarding
immigration issues that the appellants claimed would provide the basis for a necessity
defense. Pursuant to the government’s motions in limine and after considering the
appellants’ offers of proof at their respective pretrial conferences, the district courts
excluded the testimony.

                                           II.

      Although we have reviewed the exclusion of testimony intended to establish an
affirmative defense for abuse of discretion, see United States v. Luker, 395 F.3d 830,
832 (8th Cir. 2005), the district courts in the instant cases implicitly based their
decisions on the legal insufficiency of the appellants’ necessity defenses.
Accordingly, our review is de novo. United States v. Jankowski, 194 F.3d 878, 882
& n.2 (8th Cir. 1999).

      The appellants do not argue that this court has ever recognized a necessity
defense to the charges of which they were convicted. We need not decide whether
such a defense would ever be proper with respect to such charges because the
appellants failed to establish the requirements for such a defense in their cases.

     A necessity/justification defense generally requires proof of the following four
elements:

      (1) that 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, (2) that defendant 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
      defendant had no reasonable, legal alternative to violating the law, a
      chance both to refuse to do the criminal act and also to avoid the
      threatened harm, and (4) that a direct causal relationship may be


                                          -3-
      reasonably anticipated between the criminal action taken and the
      avoidance of the threatened harm.

Luker, 395 F.3d at 832-33 (alterations in original omitted); see also United States v.
Gamboa, 439 F.3d 796, 816 (8th Cir. 2006) (quoting Jankowski, 194 F.3d at 883);
United States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005); United States v. Lomax,
87 F.3d 959, 961 (8th Cir. 1996). The appellants argue that their expert’s testimony
would have explained to the jury that the appellants found it necessary to break the
law because they needed to support themselves in the United States in order to benefit
from immigration laws that required illegal entrants to remain in the country while
their visa applications were pending. Because the appellants’ offers of proof did not
even attempt to establish the element of “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,” to say nothing of the other required elements of a necessity
defense, we conclude that the district courts did not err by excluding the proffered
testimony. See United States v. Polanco-Gomez, 841 F.2d 235, 238 (8th Cir. 1988).

      The judgments are affirmed.
                     ______________________________




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