United States v. Arthurs

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT

                                 ____________________



        No. 94-1466



                                    UNITED STATES,



                                      Appellee,



                                          v.



                                    LLOYD ARTHURS,



                                Defendant, Appellant.



                                 ____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]
                                               ___________________



                                 ____________________



                                        Before



                                Torruella, Chief Judge,
                                           ___________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                                Lynch, Circuit Judge.
                                       _____________



                                 ____________________



            Ramon  L.  Garay-Medina with  whom Ramon  L.  Garay-Medina was  on
            _______________________            _______________________

        brief for appellant.

            Warren Vazquez,  Assistant United States  Attorney, Guillermo Gil,
            ______________                                      _____________

        United States Attorney, and Nelson Perez-Sosa, Assistant United States
                                    _________________

        Attorney, were on brief for the United States.



                                 ____________________



                                   January 17, 1996

                                 ____________________



CAMPBELL,  Senior   Circuit  Judge.    Defendant-appellant   Lloyd
                       _______________________



        Arthurs  was convicted  of possessing  with the  intent  to distribute



        approximately two kilograms  of cocaine  in violation of  21 U.S.C.   



        841(a)(1),  and importing  cocaine into  the customs territory  of the



        United States  from a place outside thereof, in violation of 21 U.S.C.



           952(a).*  He was  sentenced to sixty-three  months of imprisonment,



        four years  of supervised release, and  a $100 fine.   He appeals from



        the judgment  of conviction,  entered  in the  United States  District



        Court  for  the District  of Puerto  Rico  following a  three-day jury



        trial.


I. Facts
        I. Facts



            Arthurs, a twenty-three  year-old citizen of  Jamaica, was  a crew



        member  aboard the  cruise  ship, Windward.    He worked  two  shifts,



        washing  pots from early morning to late afternoon and cleaning cabins



        in the evenings.  



                            
        ____________________



        * The statutes read in relevant part:



            [I]t shall be  unlawful for any  person knowingly or intentionally

            --

            (1)  to manufacture,  distribute,  or dispense,  or  possess  with

            intent  to  manufacture,  distribute,  or  dispense, a  controlled

            substance. . . .

        21 U.S.C.   841(a).



            It shall be unlawful  to import into the customs territory of  the

            United States from any place outside  thereof. . . any  controlled

            substance. .  .  or  any narcotic  drug [with  certain  exceptions

            inapplicable here].

        21 U.S.C.   952(a).



                                          2



On  December 5,  1993, the  Windward arrived  at the  port of  San



        Juan, having traveled there from the Virgin Islands.  The government's



        evidence, which was largely  uncontested by the defense, was  that the



        Customs Service had caught  defendant with approximately two kilograms



        of  cocaine  as he  was exiting  the ship.    Customs agents  had been



        informed  that persons aboard would attempt  to smuggle narcotics into



        San Juan and were inspecting disembarking passengers and crew members.



        An agent noticed that Arthurs appeared bulky in the mid-section.  Upon



        secondary  inspection,  six packages  of  cocaine  were found  loosely



        concealed under Arthurs' clothing.



            The defense's  case was  provided principally  by defendant's  own



        testimony.  Because Arthurs raises a duress claim, infra, we summarize
                                                           _____



        the testimony he provided in support of that claim, testimony that the



        government disputes.  Arthurs stated that  at the time of his  arrest,



        he had been  leaving the ship in  order to return two videotapes  to a



        video club where he had rented them a week earlier.  The passageway of



        the  ship led  to  the upper  level of  a pier.   There,  according to



        defendant, a stranger pulled him into a public bathroom, where another



        man was  waiting.  No one  else was inside.   Defendant testified that



        the men pushed him up against a wall and "demand[ed] I take come [sic]



        some packages out to the street, and the only way could get out of the



        bathroom is to cooperate with them or I would  be a dead man.  And the



        gentleman was very angry, the one was in the bathroom was very angry."



        Two  packages  were placed  loosely around  his  waist, and  four were



        placed in his pockets.  Defendant testified that the men  then let him



                                          3



out of the bathroom, and he did not see them again.



            Defendant, being "very  panic," proceeded  immediately to  Customs



        and "requested search from the Customs  two times."  When told that he



        was under arrest, "I started to give [the officer] my statement and he



        refused, and arrested me . . .  ."  A subsequent search of defendant's



        cabin yielded no other drugs.



            Defendant  raises two  issues  on appeal:  1)  the  district court



        erred  in denying  his request  for a translator  of his  testimony to



        ensure  that the Puerto Rican jury understood his English, spoken with



        a Jamaican accent,  and 2) it erred in refusing as  a matter of law to



        instruct the  jury on a duress  defense.  Defendant  claims that these



        errors  deprived him  of  his constitutional  rights  to due  process,



        adequate  legal representation, a jury trial, and a fair and impartial



        trial.


II. Lack of a Translator of Defendant's Testimony
        II. Lack of a Translator of Defendant's Testimony



            Defendant asserts  on appeal, and the government concedes, that he



        requested a  translator apparently  to translate his  Jamaican English



        into  a form  of English  more easily  understood by  the jury.   This



        request does  not appear on  the record  now before us,  nor does  the



        record  show that the court denied a request  of such a nature.  There



        also  is no  indication in the  record of  a defense  objection to the



        court's alleged refusal to appoint a translator.  Several times during



        the  trial, however, defense counsel referred  to the possibility that


4



the  jury might  have difficulty understanding  defendant's English.**



        On  appeal defense counsel  also suggests that  defendant, who neither



        reads nor writes, did not understand  some of the questions put to him



        when he testified.



            Normally the  absence of any record  of defendant's  request for a



        translator would be  fatal to  the claim on  appeal.***  However,  the



        government conceded at oral argument that such a request was made in a



        chambers  conference.    We  shall, therefore,  consider  the  matter,



        although, as no objection to the  court's refusal to grant the request



        appears ever  to have been made, we review  for plain error only.  See
                                                                           ___



        United States  v. Olano, 113 S. Ct. 1770, 1779 (1993); see also United
        _____________     _____                                ________ ______



        States v. Taylor,  54 F.3d  967, 972-973 (1st  Cir. 1995)  (discussing
        ______    ______



        "raise-or-waive" rule and exception for plain error). 



            The  district  court's   refusal  to  provide  a  translator   for



        defendant's  testimony was not plain  error.  The  district judge, who

                            
        ____________________



        ** For  example, defense counsel  explained in opening  argument, "Mr.

        Lloyd  Arthurs is a Jamaican  National, they speak  English but during

        this trial you will realize that the [sic] their English  is not every

        time  so  easily  understandable."   When  defendant  took  the stand,

        counsel stated,  "I will appreciate that all your answers try to be as

        clear and slow  as possible. .  . .   For the members  of the Jury  to

        clearly understand your testimony."  And in closing arguments, defense

        counsel noted that the jury may have had some difficulty understanding

        defendant's speech, and reiterated key aspects of his testimony.  



        ***  Where a report of  relevant proceedings below  is unavailable, an

        appellant should seek to  supplement the record on appeal  pursuant to

        Fed.R.App.P. 10(c).   Here, given  the government's concession  and in

        the interests of justice -- and given our conclusion that defendant is

        without ultimate  right  to relief  in  any event  -- we  discuss  his

        contention  notwithstanding his  failure to  have utilized  this rule.

        Our doing so should not  be taken as precedent that an  appellant may,

        in other circumstances, ignore Fed.R.App.P. 10(c).



                                          5



heard  the  defendant  speak,  had considerable  discretion  in  these



        circumstances  to   determine  if   Arthurs'  English  testimony   was



        intelligible  to the  jury.   Cf. Gonzalez  v. United States,  33 F.3d
                                      ___ ________     _____________



        1047, 1050-1051 (9th  Cir. 1994);  United States v.  Garcia, 818  F.2d
                                           _____________     ______



        136,  142 (1st  Cir.  1987).****    Defendant's  counsel  at  no  time



        asserted   on  the   trial   record  that   defendant  suffered   from



        comprehension  problems so severe  as to deny  him due  process or the



        right  to a fair and impartial trial.   It appears from our own review



        of  the record that defendant answered for the most part responsively,



        although he occasionally misunderstood  and needed to have  a question



        repeated.  From what we can ascertain, we cannot say that his language



        problems were of  such a magnitude as to  have deprived him of  a fair



        trial.



            The  absence of  an objection  on  this  ground left  the district



        court without notice of any claim that language  difficulties bothered



        defendant to the extent now claimed on appeal.  Had the court been  so



        notified,  it could have made further inquiry and, if necessary, taken



        steps to deal with  the alleged problem.  We cannot  say, on the basis



        of the record now before us, that the court committed  any error, much

                            
        ____________________



        **** Defendant does not  assert that his principal language  was other

        than  English.  The Court  Interpreters Act provides  in relevant part

        that a presiding judicial officer "shall" appoint  an interpreter when

        it determines that  "[a] party  (including a defendant  in a  criminal

        case). .  . (A)  speaks only  or primarily a  language other  than the

        English language. .  . so as to inhibit such  party's comprehension of

        the  proceedings  or  communication  with  counsel  or  the  presiding

        judicial officer, or so  as to inhibit such witness'  comprehension of

        questions  and the  presentation  of such  testimony."   28  U.S.C.   

        1827(d)(1).



                                          6



less one that "seriously  affect[s] the fairness, integrity  or public



        reputation  of judicial  proceedings."   Olano,  113  S. Ct.  at  1779
                                                 _____



        (citation omitted).  


III. Denial of a Jury Instruction on the Duress Defense
        III. Denial of a Jury Instruction on the Duress Defense



            At the  outset, the district court  denied a  government motion in



        limine  to  prevent defendant  from  introducing  evidence of  duress.



        After  the close of evidence, however, the district court did not find



        defendant's  testimony of  duress sufficient  to require  submitting a



        special duress or coercion instruction to the jury, as defense counsel



        had  requested in writing and orally during a pre-charge colloquy with



        the court.  



            Defense counsel did not  thereafter object to the district court's



        omission  of  a duress  instruction from  its  charge before  the jury



        retired to  consider its verdict, as  Rule 30 of the  Federal Rules of



        Criminal  Procedure  directs.*****    Our  precedent  requires  strict



        compliance with this rule:



            "As we have repeatedly held, Fed.R.Crim.P.  30 means what it says.

            A party may  not claim error  in the  judge's charge  to the  jury

            unless that party 'objects' after the  judge gives the charge  but

            before  the 'jury  retires,'  and, when  objecting the  party must

            'stat[e] . . .  distinctly the matter to which that party  objects

            and the grounds of that objection."



        United States v.  O'Connor, 28 F.3d 218, 221  (1st Cir. 1994) (quoting
        _____________     ________

                            
        ____________________



        ***** The  rule provides: "No party may assign as error any portion of

        the charge or  omission therefrom  unless that  party objects  thereto

        before the  jury retires to  consider its verdict,  stating distinctly
        ________________________                            __________________

        the  matter  to  which that  party  objects  and  the grounds  of  the

        objection."  Fed.R.Crim.P. 30 (emphasis supplied).



                                          7



United States v. Wilkinson, 926 F.2d  22, 26 (1st Cir.), cert. denied,
        _____________    _________                               ____________



        501  U.S. 1211 (1991)).   Rule 30  is not satisfied  by counsel's pre-



        charge  colloquy with  the  court or  written  explanation of  grounds



        alone, nor even by  a post-charge attempt to incorporate  by reference



        earlier arguments.   See United States  v. Gabriele, 63 F.3d  61, 66 &
                             ___ _____________     ________



        nn.4,  7 (1st Cir. 1995); Wilkinson, 926  F.3d at 26-27; United States
                                  _________                      _____________



        v. Coady,  809 F.2d 119, 123  (1st Cir. 1987) ("That  counsel may have
           _____



        discoursed  upon the nature  of his theory  at some time  prior to the



        giving  of the charge will  not excuse noncompliance  with the express



        mandates of Rule 30.").  Strict compliance with the  rule "enables the



        trial  judge intelligently to  appraise the soundness  of the position



        asserted,  and if  need be,  correct the  charge to  avoid injustice."



        Coady, 809 F.2d at 123.
        _____



            After  its charge,  the district  court  does  not appear  to have



        affirmatively invited counsel to register any objections they then had



        to the  instructions it had just  given.  However, Rule  30 places the



        burden  of compliance on  the parties.   Cf. id.   Counsel should have
                                                 ___ __



        spoken out,  requesting an opportunity  to register objections  out of



        the jury's hearing.   Absent  a post-charge objection,  we review  the



        district  court's denial of a duress instruction only for plain error.



        See Olano, 113 S. Ct. at 1779; Gabriele, 63 F.3d at 66.  
        ___ _____                      ________



            A  duress defense has  three elements:  1) an  immediate threat of



        serious bodily injury  or death,  2) a well-grounded  belief that  the



        threat will be carried out, and 3) no reasonable opportunity to escape



        or otherwise to  frustrate the threat.   See United States  v. Amparo,
                                                 ___ _____________     ______



                                          8



961 F.2d 288, 291 (1st Cir.), cert. denied, 113 S. Ct. 224 (1992).  
                                      _____ ______



            To  justify  a  duress  instruction,  a  defendant  must   produce



        sufficient evidence to  support a finding of  duress.  See  Mathews v.
                                                               ___  _______



        United States, 485  U.S. 58, 63  (1988) ("As  a general proposition  a
        _____________



        defendant is entitled to  an instruction as to any  recognized defense



        for  which there exists evidence  sufficient for a  reasonable jury to



        find in his  favor.") (citations  omitted); Amparo, 961  F.2d at  291;
                                                    ______



        United States  v. Rodriguez, 858 F.2d 809, 812, 814 (1st Cir. 1988) (a
        _____________     _________



        defendant must  show evidence that  "fairly supports" each  element of



        his  defense, and in making that determination, "the district court is



        not allowed to weigh the evidence, make credibility determinations, or



        resolve conflicts in the proof").  



            When  a predicate warranting  a duress  instruction has been laid,



        the government is saddled with the additional burden of showing beyond



        a  reasonable  doubt that  a defendant's  criminal  acts were  not the



        product of duress.  See Amparo, 961 F.2d at 291.  Here, the government
                            ___ ______



        escaped  this  added  burden,  the  district  court  ruling  that  the



        defendant  did  not  present sufficient  evidence  of  any  element to



        entitle him to submit a duress defense to the jury. 



            In reviewing  the  district court's  determination that  defendant



        did  not  meet his  entry-level burden,  we  examine the  record "most



        charitably to the proponent of  the instruction."  Coady, 809  F.2d at
                                                           _____



        121.  So viewed, the evidence of an immediate threat of serious bodily



        injury or death was that Arthurs  was pulled into a public bathroom on



        the pier and pushed up against a wall, was threatened by two  men (one



                                          9



of whom was "very muscular" and  "very tall"), and felt something like



        a weapon on  his back.  His  fear in these circumstances gave  rise to



        his  alleged well-grounded belief that the threat of serious injury or



        death  would  be carried  out.    His testimony  regarding  a  lack of



        reasonable opportunity  to escape was  that no security  officers were



        present at  the  time in  the  upper pier  area.   To  seek refuge  or



        assistance  by returning to  the ship would have  required him to pass



        the bathroom and the  men who had threatened him.   Instead, defendant



        used  the  elevator next  to the  bathroom  to proceed  immediately to



        Customs on  the lower level.   Defendant testified that  at Customs he



        requested  twice to be searched and attempted to explain his situation



        but was not permitted to do so.



            Assessing the above evidence,  we conclude that the district court



        did not commit plain error in refusing to instruct the jury on duress.



        While defendant may  have been  under an immediate  threat of  serious



        injury in the bathroom,  he testified that  the men released him  from



        there and he did not see them again.  This evidence at most supports a



        lingering threat of future harm.  Cf. United States v. Wells, 773 F.2d
                                          ___ _____________    _____



        230,  232 (8th Cir. 1985) (drug deal participant's fear of future harm



        insufficient  to  show duress);  W. LaFave  &  A. Scott,  Criminal Law



         5.3(b) at  436 (1986) (reciting  general rule that  threatened future



        death  or serious bodily harm  is insufficient for  a duress defense).



        The  evidence of  a  well-grounded belief  that  the threat  would  be



        carried out  is similarly weak,  given defendant's  testimony that  he



        left the bathroom,  boarded the elevator by  himself, and did  not see



                                          10



the men again or know them.  



            Notably,   defendant  did  not  present   evidence  sufficient  to



        convince a reasonable juror of the lack of a reasonable opportunity to



        escape.  In United States v. Bailey, 444 U.S. 394  (1980), the Supreme
                    _____________    ______



        Court stated  that a  duress defense is  unavailable "if  there was  a



        reasonable,  legal alternative to violating the law, 'a chance both to



        refuse to do the criminal act and also to avoid the threatened harm.'"



        Id.  at 410 (citing W. LaFave & A.  Scott, Handbook on Criminal Law at
        ___



        379  (1972)).   Even if  a  return to  the ship  was unreasonable  and



        security officers were unavailable  on the pier, defendant  might have



        discarded the  drugs in  the  elevator or  pulled  them out  from  his



        clothing at  Customs and  proceeded to  exit with  his videos,  as the



        district  court noted  during the pre-charge  conference.   The record



        indicates that defense counsel had  opportunity to answer this concern



        but offered no  further evidence.   Cf. United  States v. Alicea,  837
                                            ___ ______________    ______



        F.2d  103,  106-107  (2d Cir.),  cert.  denied,  488  U.S. 832  (1988)
                                         _____________



        (defendants forced at airport to transport cocaine by threats, a rape,



        and  constant  surveillance  failed  to  show  a  lack  of  reasonable



        opportunity  to escape); United States  v. Mejia, 720  F.2d 1378, 1382
                                 _____________     _____



        (5th Cir.  1983) (defendant  who conceded importation  of cocaine  and



        failed to contact authorities to avoid the threat was  not entitled to



        duress instruction).  The failure to show any one element of duress is



        sufficient to justify denying a request  to submit a defense theory to



        the jury.  See Bailey, 444 U.S. at 416.
                   ___ ______



            That the  evidence fell short  of establishing  duress is  further



                                          11



supported by this  court's decision in  Rhode Island Recreation  Ctr.,
                                                ______________________________



        Inc. v. Aetna Casualty & Sur. Co., 177 F.2d 603 (1st Cir. 1949).  This
        ____    _________________________



        civil  case discussed the duress  defense at length  in considering an



        insurance  policy  that excluded  from coverage  a  loss caused  by an



        employee's fraudulent or criminal acts.  The Supreme Court cited Aetna
                                                                         _____



        approvingly in Bailey, 444 U.S. at 410 n.1, to illustrate the need for
                       ______



        an  accused to show no  reasonable opportunity to  avoid violating the



        law.   Aetna is factually analogous to the claims in the instant case:
               _____



        two  armed strangers ordered appellant's manager into a car, drove him



        to the place of business, instructed him to remove all  the money from



        the safe and meet them shortly afterward or else "they would take care



        of" certain family members, and then  drove away.  See Aetna, 177 F.2d
                                                           ___ _____



        at 604.The  manager  did as  told without  seeking  help from  the few



        employees he saw or by any other means. 



            Applying  the same  elements  of duress  recited above,  the Aetna
                                                                         _____



        court  found the facts insufficient  to indicate that  the manager was



        acting  under duress  or coercion.   The  court pointed  to  the vague



        threat of  future harm, the  poorly-founded fear of  immediate injury,



        and  the reasonable opportunities to avoid the threat and violation of



        the law  while temporarily away from  the strangers.  See  id. at 605-
                                                              ___  ___



        606.    



            In  light of the  above authorities,  the district court's finding



        of insufficient evidence of duress  and consequent refusal to instruct



        the jury  on the defense was clearly not plain error, if error at all,



        under the heightened standard  applicable in plain error review.   See
                                                                           ___



                                          12



Olano, 113 S. Ct. at 1779.  
        _____



            The  district court,  it should  further  be observed,  denied the



        government's early  motion in  limine to  exclude evidence  of duress.



        The jury, therefore,  heard the  essence of Arthurs'  defense and  the



        government's  response.    Cf.  Bailey,   444  U.S.  at  400,  416-417
                                   ___  ______



        (affirming  conviction of a  separately, subsequently  tried defendant



        who  was precluded  from even  introducing evidence  of duress  as his



        former  co-defendants had done).   The district  court also instructed



        the  jury that  the  government had  the burden  of  proving beyond  a



        reasonable  doubt defendant's  specific  intent to  commit the  crimes



        charged.   Cf. United States  v. Sturm,  870 F.2d 769,  777 (1st  Cir.
                   ___ _____________     _____



        1989).  Had the  jury actually believed defendant's testimony  that he



        had been threatened and involuntarily given the drugs in the bathroom,



        it  might,  even  without  further  instruction,  have  entertained  a



        reasonable  doubt as  to whether  the element  of specific  intent was



        satisfied.   Even  more,  had the  jury  believed, as  defendant  also



        testified, that  he  had unavailingly  asked the  Customs officers  to



        search his  effects,  the jury  would have  been free  to entertain  a



        reasonable  doubt  as  to defendant's  intent  to  commit the  charged



        crimes.



            We conclude, in  all the circumstances, that the district  court's



        refusal to instruct on duress was not plain error. 


Affirmed.
        _________


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