     Case: 13-50923     Document: 00512898518         Page: 1    Date Filed: 01/12/2015




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT

                                                                        United States Court of Appeals

                                     No. 13-50923
                                                                                 Fifth Circuit

                                                                               FILED
                                                                        January 12, 2015
UNITED STATES OF AMERICA,                                                 Lyle W. Cayce
                                                                               Clerk
             Plaintiff – Appellee,

v.

PAOLO MARTIN RAMIREZ-CHAVEZ,

             Defendant – Appellant.




                  Appeal from the United States District Court
                       for the Western District of Texas
                            USDC No. 2:13-CR-490-1


Before STEWART, Chief Judge, and BARKSDALE and GRAVES, Circuit
Judges.
PER CURIAM: ∗
      Defendant-Appellant Paolo Martin Ramirez-Chavez (Ramirez) was
convicted of illegal reentry and argues on appeal that the district court erred
by excluding evidence supporting his duress defense at trial. We disagree and
AFFIRM the district court’s grant of the motion in limine.


      ∗
       Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
      be published and is not precedent except under the limited circumstances set forth in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. 13-50923
                     I.     Factual and Procedural History
      Ramirez was convicted after a jury trial of illegal reentry into the United
States. Prior to trial, the Government filed a motion in limine seeking to
exclude, inter alia, evidence that Ramirez was acting under duress when he
reentered the United States. The Government argued that Ramirez could not
make a threshold showing of all of the elements of a duress defense, and
therefore, any evidence of duress should be excluded. Ramirez opposed the
Government’s motion, asserting that he gave timely notice of his intent to raise
a duress defense, that the circumstances surrounding his reentry into the
United States show that he had no other reasonable legal alternative to
violating the law, and that this court has not addressed whether a district court
may exclude at trial evidence of a duress defense.
      The district court took up the motion just prior to trial. According to
defense counsel’s proffer, Ramirez hired Christian Ortiz to transport him from
Nicaragua into the United States. Ortiz and another smuggler successfully
smuggled Ramirez into the United States. Ramirez was later apprehended by
border patrol officers and removed from this country. Thereafter, Ramirez
contacted Ortiz and again requested that Ortiz smuggle him into the United
States.   The second trip was also successful; however, Ortiz was later
apprehended and returned to Nicaragua.
      Ramirez requested Ortiz’s help a third time, and on that trip, they took
a different route than the two previous trips. Upon their arrival in Piedras
Negras, Mexico, another smuggler met Ramirez at a bus station and informed
Ramirez that he was making arrangements to bring Ramirez across the border.
The smuggler asked for $1,500. Ramirez called his wife, and she agreed to
send the payment. The smuggler then took Ramirez to a house and placed him
in a room with two other men; they were guarded by three men armed with
automatic rifles and a pistol. The next morning, the smuggler demanded that
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                                 No. 13-50923
Ramirez pay an additional $2,000 to $3,000. A captor then beat Ramirez below
his knees and in his kidneys with a board that measured three feet long by
one-half inch thick. The smuggler told Ramirez that he would not be released
until his wife paid the demand. The beatings continued for seven days, and
the captors photographed Ramirez and emailed the pictures to his wife. On
the seventh day, Ramirez was alone in the house and escaped through an
unlocked door. After running for several minutes, Ramirez flagged down a taxi
and asked the driver to take him to the border. The driver dropped off Ramirez
near the Rio Grande, and he waded across the river and entered the United
States. About 10 to 20 minutes later, Ramirez encountered border patrol
officers. He ran from them but was apprehended and taken into custody.
      With respect to the duress defense, Ramirez asserted that he had no
reason to anticipate that he would be kidnapped and tortured because he had
used the same smuggler twice before without any complications. Ramirez
asserted that there were no reasonable legal alternatives because he was
unfamiliar with the area, and he was unsure whether he was being pursued.
In his mind, the only reasonable thing to do was to go the border. Ramirez
argued that he was in immediate danger because he had been held for a week,
and he had been beaten. Ramirez also believed that his captors would come
after him because they wanted to be paid.
      The Government argued that Ramirez had not set forth any evidence
satisfying the elements of a duress defense because he recklessly or negligently
put himself in the situation to be kidnapped by hiring a smuggler to smuggle
him into the United States and because he had reasonable legal alternatives
to illegally entering this country, such as going to the police or a bus station.
The Government also argued that Ramirez had not shown that he was in
immediate danger because at the time that he entered the U.S., he was not
being pursued by his captors.
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                                 No. 13-50923
      The district court stated, the “big problem here for your client is that he
runs out, he composes himself, a taxi comes along, he gets in the tax[i].” The
court stated that thereafter, Ramirez could have asked the driver to take him
to the Mexican police or to U.S. officials at the border crossing, but instead he
opted to swim across the Rio Grande.
      In its written order granting the Government’s motion in limine, the
district court noted that Ramirez had not cited any precedent foreclosing the
court’s pretrial review of a duress defense and that the overwhelming majority
of federal courts of appeals have permitted pretrial review of a defendant’s
evidence relating to a defense of duress. The district court opined that pretrial
review of the duress defense would prevent juror confusion that could result
from the introduction of irrelevant and prejudicial evidence.
      Next, the district court found that Ramirez could not satisfy all the
elements of the duress defense.     In particular, the court determined that
Ramirez could not show that he was faced with a present, imminent, and
impending threat of such a nature as to induce a well-grounded apprehension
of death and serious injury because, after he was safe in the taxi, he could have
asked the driver to take him anywhere in the city. Ramirez’s captors were not
in hot pursuit because he had slipped away from the house unnoticed. The
court found that Ramirez made a conscious decision to go to the border instead
of pursuing other courses of action, such as asking the driver to take him to
the police or to the legal border crossing where he could have sought refuge,
and that he crossed the border without anyone pursuing him.
      The court also determined that Ramirez had failed to show 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 because he
hired the smugglers to help him commit the crime of illegal reentry. In other


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                                   No. 13-50923
words, because Ramirez hired the smugglers for an illegal purpose, he
negligently placed himself in a dangerous situation.
      Additionally, the court found that Ramirez had failed to establish that
he had no reasonable legal alternative to violating the law. Specifically, once
Ramirez reached the taxi, several reasonable legal alternatives were available
to him. Instead, he made the conscious decision to cross the border without
reporting to authorities.    Because Ramirez provided insufficient evidence
supporting his duress defense, the court concluded that his defense failed as a
matter of law. Thus, the motion in limine was granted, and the duress defense
was not presented to the jury.
      The jury found Ramirez guilty as charged, and the district court
sentenced him to 11 months in prison. This timely appeal followed.
                                 II.   Discussion
         a. Standard of Review
      The legal sufficiency of a proffered defense is a question of law and is
reviewed de novo. United States v. Lee, 208 F. App’x 352, 353 (5th Cir. 2006)
(per curiam); accord United States v. Johnson, 416 F.3d 464, 468 (6th Cir.
2005); United States v. Tokash, 282 F.3d 962, 967 (7th Cir. 2002); United States
v. Moreno, 102 F.3d 994, 997 (9th Cir. 1996). Further, in order to present a
duress defense to the jury, the defendant “must present evidence of each of the
elements of the defense” and must do so by a preponderance of the evidence.
United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (citing United
States v. Bailey, 444 U.S. 394, 415 (1980)); Dixon v. United States, 548 U.S. 1,
17 (2006).
         b. Applicable Law
      The affirmative defense of duress requires the defendant to show (1) that
he was under an unlawful, present, imminent, and impending threat that
would induce “a well-grounded apprehension of death or serious bodily injury,”
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                                 No. 13-50923
(2) that he had not recklessly or negligently placed himself in the situation at
issue, (3) that he had no legal and reasonable alternative to violating the law,
and (4) that it was reasonable to anticipate that the avoidance of harm directly
caused the criminal action. Posada-Rios, 158 F.3d at 873.
         c. Analysis
      Because Ramirez, on appeal, abandons his argument that the district
court may not exclude inadmissible evidence prior to trial and concedes that
Federal Rule of Evidence 104 may permit such an exclusion under certain
circumstances, we will not address this issue. However, we affirm the decision
granting the motion in limine for the same reasons as the district court, as
Ramirez did not present sufficient evidence to prove the first three elements of
the duress defense.
      With respect to the first element, the district court determined that
Ramirez had not shown that an imminent threat existed. We agree. Ramirez
was required to show a “present, imminent, or impending” threat arising from
“a real emergency leaving no time to pursue any legal alternative” or an
“absolute and uncontrollable necessity” at the time that he committed the
offense. Id. at 873–74 (internal quotation marks and citation omitted). Fear
of future harm does not satisfy the present, imminent, and impending threat
requirement. United States v. Harvey, 897 F.2d 1300, 1305 (5th Cir. 1990),
overruled on other grounds by United States v. Lambert, 984 F.2d 658 (5th Cir.
1993) (en banc). The defendant must produce evidence that he “was in danger
of imminent bodily harm at the moment he [committed the offense].” United
States v. Harper, 802 F.2d 115, 118 (5th Cir. 1986) (emphasis added).
      In the instant case, the district court correctly found that no “imminent
threat” existed. See Posada-Rios, 158 F.3d at 874. Ramirez had escaped his
captors—he slipped away from the house unnoticed—and they were not in hot
pursuit at the time that he crossed the river and illegally entered the United
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                                 No. 13-50923
States. As such, Ramirez failed to show that a “real emergency” existed at the
time that he waded across the Rio Grande and has failed to present sufficient
evidence to satisfy this element of a duress defense. See id.
      Likewise, we agree that Ramirez cannot show that he did not negligently
place himself in this situation. See id. at 873.   As the district court found,
Ramirez traveled from Nicaragua to Piedras Negras and became involved with
smugglers only to commit the crime of illegal reentry. It is immaterial that
Ramirez had hired the same smuggler on two prior occasions without
complications, as he nevertheless hired the smuggler a third time to help him
commit the crime of illegal reentry, thereby placing himself in the situation to
be kidnapped.      His own actions negligently placed him in a dangerous
situation, and thus, Ramirez has not shown sufficient evidence of the second
element. See id.
      We also agree that Ramirez cannot show that he “had no reasonable legal
alternative to violating the law.” Id. (internal quotation marks and citations
omitted). A reasonable legal alternative exists if a defendant has “a chance
both to refuse to do the criminal act and also to avoid the threatened harm.”
Id. To prove that no legal alternatives existed, a defendant “must show that
he actually tried the alternative or had no time to try it, or that a history of
futile attempts revealed the illusionary benefit of the alternative.” Id. at 874
(quoting Harper, 802 F.2d at 118). In the instant case, Ramirez had several
reasonable legal alternatives once he reached the taxi cab. He could have
asked the driver to take him to a police station, a bus station, or even a legal
entry point at the border. Because his captors were not in hot pursuit, Ramirez
had enough time to pursue these reasonable alternatives.
      Ramirez argues that he was unfamiliar with the city but knew that he
was near the border; thus, he asserts that it was reasonable that he asked to
be taken there. However, the taxi driver was likely familiar with the city such
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                                  No. 13-50923
that he could have taken Ramirez to an alternative, safe location. Thus,
Ramirez has not shown sufficient evidence that he attempted a legal
alternative, that there was no time to try an alternative, or that the alternative
was not a viable option. See id. at 874. He therefore fails to prove this element.
      Lastly, contrary to Ramirez’s argument, United States v. Herrara is not
analogous here. 600 F.2d 502 (5th Cir. 1979). In Herrara, the defendant
testified at trial that a party, Escamilla, had threatened her into illegally
transporting aliens. Id. at 504. However, the district court would not allow
her to testify regarding a specific telephone conversation in which Escamilla
threatened Herrara with bodily harm and told her that she had friends who
could carry out the threat. Id. This court found that the district court had
improperly found that the evidence was hearsay and that because the district
court instructed the jury on the duress defense, the jury was entitled to
consider the threatening statements. Id.
      Ramirez’s reliance on Herrara is misplaced. In that case, the issue was
not whether Herrara could present her duress defense to the jury, but rather,
whether alleged hearsay evidence supporting that defense could be presented
to the jury. See id. Additionally, the excluded evidence in Herrara showed
that Escamilla threatened Herrara into committing the underlying offense of
transporting aliens. However, here, the smugglers threatened Ramirez so that
his wife would pay additional money to the kidnappers, not so that he would
commit the crime of illegal reentry. Thus, unlike the threats in Herrara, there
is a more tenuous causal link between the threats and Ramirez’s illegal
conduct.   See Posada-Rios, 158 F.3d at 873 (requiring a direct causal
connection between the avoidance of harm and the criminal actions).
                              III.   Conclusion
      Based on the foregoing, we AFFIRM.


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