United States v. Escobar-Martinez

61 F. App'x 491

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 2003
• Docket: No. 02-50498; D.C. No. CR-02-00879-EFS
• Status: Published

Opinion

MEMORANDUM

**

Jose Escobar-Martinez appeals from his conditional guilty plea conviction and sentence for attempted entry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the district court erred by precluding Escobar-Martinez from presenting a necessity defense. See United States v. Avellano-Rivera, 244 F.3d 1119, 1125 (9th Cir.2001). We affirm.

A defendant must establish the existence of four elements to be entitled to a necessity defense: (1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relationship between his conduct and the harm to be avoided; and (4) that there was no other legal alternative to violating the law. Id. at 1125-26. If the “defendant’s offer of proof is deficient with regard to any of the four elements, the district judge must grant the motion to preclude evidence of necessity.” Id. at 1126 (citation omitted).

The district court properly precluded invocation of a necessity defense because Escobar-Martinez faded to show, among other things, that he was under imminent threat of harm and that there was no legal alternative to his conduct. See id.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.