United States v. Arias-Quijada , 926 F.3d 1257 ( 2019 )

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH June 17, 2019
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 18-6130
JOSE LUIS ELISEO ARIAS-
QUIJADA, a/k/a/ Jose Mendoza,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. NO. 5:17-CR-00263-M-1)
Submitted on the briefs: *
William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma,
for Defendant-Appellant.
Robert J. Troester, First Assistant U.S. Attorney, and William E. Farrior,
Assistant U.S. Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before HARTZ, MURPHY, and CARSON, Circuit Judges.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
MURPHY, Circuit Judge.
I. Introduction
Defendant-Appellant Jose Luis Eliseo Arias-Quijada entered a conditional
guilty plea to illegal reentry into the United States, in violation of 8 U.S.C.
§ 1326. He reserved the right to appeal the district court’s denial of his Motion to
Assert a Defense of Duress. In this appeal, Arias-Quijada challenges the denial of
his motion, arguing he presented sufficient evidence to create a triable issue on
the affirmative defense of duress. He specifically contests the district court’s
conclusion that he failed to make a bona fide effort to surrender to immigration
authorities once the alleged duress lost its coercive force. See United States v.
Portillo-Vega, 478 F.3d 1194, 1201 (10th Cir. 2007).
Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms the
district court’s order denying Arias-Quijada’s motion.
II. Background
Arias-Quijada is a citizen of El Salvador. He was removed from the United
States by order of an immigration judge in 2005 and again in 2014. In late 2017,
Arias-Quijada was taken into custody by immigration officers in Oklahoma City,
Oklahoma. A search of government records revealed he had not received
permission to reenter the United States.
-2-
Arias-Quijada sought a pretrial ruling on the admissibility of evidence to
substantiate his assertion he illegally reentered the United States only because of
duress. Arias-Quijada proffered facts and supporting documents detailing his
interactions with the Mara Salvatrucha (MS-13) gang and the 18th Street (Barrio
18) gang in El Salvador during his adolescent years. He alleged both gangs
attempted to recruit him and he was tortured by the Barrio 18 gang when he was
fifteen years old. Arias-Quijada also proffered details about a serious assault
perpetrated on him by MS-13 gang members after he was removed to El Salvador
in 2014.
In its response to Arias-Quijada’s pretrial motion, the government argued
he could not meet his burden of proving a defense of duress. It asserted
Arias-Quijada was notified of his rights regarding fear of persecution when he
was removed in 2005 and it proffered evidence showing he was informed of the
process for requesting and obtaining permission to lawfully reenter the United
States. Exhibits to the government’s response also showed that Arias-Quijada
was given a list of free legal service providers when he was removed in 2005 and
2014. The government advised the district court that its records indicated
Arias-Quijada never attempted to obtain permission to reenter the country, never
advised immigration officials of his presence, and never formally sought asylum
in the United States. As to the elements of a duress defense, the government
argued Arias-Quijada’s proposed evidence was insufficient to satisfy the elements
-3-
of a duress defense. Specifically, it asserted Arias-Quijada failed to meet his
burden of showing he had no legal alternative to entering the United States
unlawfully because he could have migrated to other countries, attempted to
reenter the United States legally, or submitted to U.S. immigration officials and
reported the alleged threats once they were no longer imminent. The government
also argued Arias-Quijada could not show a well-grounded fear of imminent harm
because his allegations involved threats of bodily harm that occurred three years
prior to his apprehension. Thus, they were too remote to satisfy the imminence
requirement. Finally, the government argued Arias-Quijada could not show his
continuing violation of U.S. immigration laws was either necessary to avoid the
acute harm he faced in El Salvador or to forgo actions to mitigate his illegal
reentry.
The district court denied Arias-Quijada’s motion to assert a defense of
duress. The court concluded Arias-Quijada did not meet his burden of proving a
duress defense by a preponderance of the evidence because he did not show he
made a “bona fide effort to surrender as soon as the duress lost its coercive
force.” Instead, he remained undetected in the United States from the time of his
illegal reentry in 2014 until he was apprehended in 2017.
-4-
III. Discussion
“The duress defense . . . may excuse conduct that would otherwise be
punishable, but the existence of duress normally does not controvert any of the
elements of the offense itself.” Dixon v. United States, 548 U.S. 1, 6 (2006). A
defendant, however, does not have an absolute right to present a duress defense to
the jury. Portillo-Vega, 478 F.3d at 1200-01 (holding that to be entitled to
present a duress defense to the jury, a defendant must proffer legally sufficient
evidence as to each element of the defense). Here, the district court required
Arias-Quijada to make a pretrial evidentiary proffer. In reviewing whether the
proffer was sufficient to establish the affirmative defense of duress, this court
“respect[s] the trial judge’s role as gatekeeper and review[s] the denial of a duress
defense for abuse of discretion.” United States v. Dixon, 901 F.3d 1170, 1176
(10th Cir. 2018) (quotation omitted). This standard involves a determination of
whether the district court “based its ruling on an erroneous view of the law or on
a clearly erroneous assessment of the evidence.” Id. (quotation omitted). “[T]he
question of whether there is sufficient evidence to constitute a triable issue of the
defense is a question of law.” Id. (quotation and alterations omitted).
“A duress defense requires the establishment of three elements: (1) an
immediate threat of death or serious bodily injury, (2) a well-grounded fear that
the threat will be carried out, and (3) no reasonable opportunity to escape the
threatened harm.” Portillo-Vega, 478 F.3d at 1197 (quotation omitted). The
-5-
defendant bears the burden of proving duress, Dixon, 548 U.S. at 15, and must
meet his threshold burden on each of the three elements of the defense. United
States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990). If the evidence is insufficient
as to even one element, “the trial court and jury need not be burdened with
testimony supporting other elements of the defense.” Portillo-Vega, 478 F.3d at
1198 (quotation omitted).
Because the matter before this court involves the continuing offense of
illegal reentry, Arias-Quijada must also “proffer evidence of a bona fide effort to
surrender as soon as the claimed duress . . . lost its coercive force.” Id. at 1201(quotation and alteration omitted). Thus, a defendant who commits a continuing
offense must either make a bona fide effort to surrender to law enforcement
officials once the alleged duress ends or establish that the duress defense elements
were satisfied throughout the entirety of his criminal conduct. If the alleged
duress loses its “coercive force” at any time before the defendant surrenders or is
apprehended, he is not entitled to present the duress defense to the jury.
Arias-Quijada does not dispute that the criminal activity in which he
engaged continued throughout the three-year period he resided in the United
States illegally. It is also undisputed that Arias-Quijada failed to make a bona
fide effort to surrender. He attempts to excuse that failure by arguing the alleged
duress that initially prompted him to reenter the United States did not abate
during the entirety of his undetected presence here because he reasonably
-6-
believed he would be immediately returned to El Salvador if he surrendered. In
other words, Arias-Quijada asserts that making a bona fide effort to surrender
would rekindle the threatened harm rather than provide him with a reasonable
opportunity to escape it. While certainly a novel explanation of why all the
elements of the duress defense were satisfied during the three years Arias-Quijada
resided in the United States, this argument is unconvincing. Arias-Quijada’s
subjective belief that he would be immediately returned to El Salvador if he
surrendered has no evidentiary basis in the record.
Arias-Quijada asserts that the fact he was indicted for illegal reentry in this
matter is evidence from which a jury could conclude he would have been denied
asylum if he had surrendered voluntarily. It is not. Arias-Quijada was arrested
and charged with illegal reentry in this matter because he entered the United
States without permission; at no point did he formally apply for asylum or
otherwise seek to enter legally. Thus, his indictment in this matter is no
indication of whether a formal application for asylum—if he had made one at any
time during the course of his illegal conduct—would have been denied.
Accordingly, Arias-Quijada has not identified any evidence from which a jury
could determine he acted reasonably by failing to surrender to law enforcement
-7-
officials either at the time of his illegal reentry or during the three-year period
between his reentry and his arrest. 1
IV. Conclusion
A defendant is entitled to present the duress defense only when the “theory
is supported by some evidence and the law.” United States v. Al–Rekabi, 454
F.3d 1113, 1121 (10th Cir. 2006) (quotations omitted). Because Arias-Quijada
committed a continuing crime and did not surrender to law enforcement, he was
required to proffer evidence that he had a well-grounded fear of an immediate
threat of death or serious bodily injury during the entirety of the three years he
remained in the United States illegally. See Portillo-Vega, 478 F.3d at 1197-98(“A defendant must carry his burden on each of the elements . . . .”). He failed to
meet this burden. Accordingly, the district court did not abuse its discretion when
it refused to allow him to present the defense.
The order of the district court denying Arias-Quijada’s motion to present a
duress defense is affirmed.
1
This is not to say that a defendant who previously applied for and was
denied asylum is entitled to present the duress defense to the jury. The defendant
must still carry his burden on each of the elements of the defense. United States
v. Scott, 901 F.2d 871, 873 (10th Cir. 1990).
-8-