United States Court of Appeals
For the First Circuit
No. 01-2334
UNITED STATES OF AMERICA,
Appellee,
v.
CESAR ROBERTO CASTRO-GOMEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
Lydia Lizarribar-Masini for appellant.
Thomas F. Klumper, Assistant United States Attorney with whom
H.S. Garcia, United States Attorney and Sonia I. Torres, Assistant
United States Attorney were on brief, for appellee.
February 23, 2004
HOWARD, Circuit Judge. On January 19, 1997, César Castro
Gómez was apprehended several miles off the coast of Puerto Rico
while piloting a boat containing two other passengers and some 762
kilograms of cocaine. A jury subsequently convicted him of
possession, conspiracy to possess with intent to distribute, and
attempted importation of the cocaine -- offenses for which he was
sentenced to concurrent life terms because of his significant
criminal history. In this appeal, the principal issue is whether
the district court erred in declining to instruct the jury to
consider whether Castro unwillingly participated in these crimes
because he was under threats sufficiently grave to ground an
affirmative defense of duress. See, e.g., United States v.
Arthurs, 73 F.3d 444, 448 (1st Cir. 1996) (duress occasioned by "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" can exonerate one from liability for otherwise criminal
conduct).
The district court denied Castro's request for a duress
instruction because it found the evidence insufficient to support
a finding that Castro lacked an opportunity to escape the
threatening situation. See United States v. Bailey, 444 U.S. 394,
415 (1980). We begin our discussion of Castro's challenge to this
ruling by describing the evidence relevant to the putative duress
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defense in the light most favorable to Castro. See Arthurs, 73
F.3d at 448; United States v. Coady, 809 F.2d 119, 122 (1st Cir.
1987). Our review is de novo. See United States v. Maxwell, 254
F.3d 21, 26 (1st Cir. 2001).
In early January 1997, Luis Rafael Santiago Rodríguez was
having trouble securing a captain for the "go-fast" boat that he
hoped to use to retrieve a load of cocaine that was to be dropped
into the sea by his Colombian suppliers. At that time, Castro was
working in a legitimate business for Marcelino Pérez Soto, one of
Santiago's confederates. Knowing that Castro was capable of
driving the go-fast boat skillfully, Santiago had Pérez arrange a
meeting between himself and Castro (as well as Pérez and Raul
Orlando Palacios-Díaz, an intimidating henchman of Santiago's) at
a pizza parlor. At the meeting, Santiago asked Castro to pick up
the load of cocaine for him. Castro, who had served significant
jail time for drug trafficking offenses and was then under
supervised release, refused. Santiago begged Castro to reconsider,
but Castro was adamant.
Within two or three days, Pérez appeared at Castro's
house and told him that Santiago would be along momentarily.
Santiago and Palacios-Díaz arrived a few minutes later. Santiago
told Castro that Castro had to solve his transportation problem.
Castro felt threatened and agreed to get into Santiago's vehicle.
The group drove to Fajardo. On the way, Castro saw that Santiago
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and Palacios-Díaz were armed. Upon arrival in Fajardo, Santiago
told Castro to bring him the load of cocaine or "go to hell." As
he said this, Santiago was touching his gun. Castro understood
Santiago to be making a death threat.
Under the circumstances, Castro saw no alternative but to
comply with Santiago's directive. Castro and the armed Palacios-
Díaz boarded the go-fast boat and headed out towards the designated
drop point, which was approximately 90 miles off the coast of
Puerto Rico. When the boat was some 60 miles out, Castro pretended
that they had arrived at the drop point and began to circle as if
he were waiting for the plane. At nightfall, Castro drove the boat
back to Puerto Rico. The boat was met by a group of men including
an irate Santiago, who had received word from the Colombian pilots
that nobody was at the drop point. After some angry discussion
during which Castro feared that he would be killed, the group
dispersed.
Several days later, on January 18, 1997, Pérez called and
told Castro to meet him at the same pizza parlor where the first
meeting with Santiago had taken place. Castro assumed that the
episode earlier in the week "was over with" and complied. Soon
after Castro's arrival, Santiago and Palacios-Díaz showed up.
Santiago informed Castro in a threatening manner that Castro would
be making another attempt to retrieve the load of cocaine on the
following day. At first, Castro refused, but Santiago and
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Palacios-Díaz soon intimidated him into going along with the plan.
Santiago ordered Palacios-Díaz to stay overnight with Castro at
Castro's house and to make sure that Castro showed up the next day.
The following morning, Santiago picked up Castro and
Palacios-Díaz at Castro's house. Again, the group drove to
Fajardo, where Castro, the armed Palacios-Díaz, and Pérez boarded
the boat and headed out towards the rendezvous point. This time,
the Colombian aircraft spotted the boat and dumped 22 bales of
cocaine into the sea. The group retrieved the bales and began to
make its way back toward Puerto Rico. But the Coast Guard spotted
the vessel, boarded it, discovered the cocaine, and arrested the
vessel's occupants.
Castro contends that the scenario just described could
support a reasonable finding that his presence in the boat was
procured by duress, and that the district court therefore erred in
rejecting his request that the jury be instructed to consider
whether he had established duress as an affirmative defense. As
previously noted, the court predicated its refusal on a
determination that the jury could not reasonably find that Castro
lacked an opportunity to escape Santiago's coercion. See Arthurs,
73 F.3d at 448. Among the evidence on which the court focused in
reaching its determination was Castro's choice to go to the pizza
parlor a second time when Pérez called him:
Also there were opportunities that
[Castro] had not to get involved, at least in
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the second [trip to sea] . . . . [H]e had
experience of what happened in the first [trip
to sea], again the evidence showed that the
same pattern of meetings and conversations
that took place in the first attempt two or
three days earlier was taking place in the
second attempt. For example, he was home
minding his own business, he got called by
Marcelino Pérez and he told him he wanted to
see him at [the pizza parlor]. He could have
said, "I'm not going, what's it for, is
[Santiago] going to be there? I am not going
to do this" and he could have asked Marcelino,
"why do you want to see me? No, I'm not
going. Explain to me on the phone" instead of
submitting himself to a situation where he
could again meet with Santiago.
We see no error in this determination.
In assessing whether a defendant has established
sufficient grounds to mount a duress defense, courts do not examine
the defendant's subjective perceptions about whether the threat was
likely to be acted upon or whether escape was possible. Rather, as
suggested by our use of the qualifiers "well-grounded" and
"reasonable" in describing the elements of the defense, see
Arthurs, 73 F.3d at 448, the inquiry hypothesizes a defendant of
ordinary firmness and judgment and asks what such a defendant was
likely to have experienced or how such a defendant was likely to
have acted, see 1 LaFave & Scott, Substantive Criminal Law § 5.3,
at 619, 621 & n.30.1 (West 1996 & 2003 Supp.). Here, we think the
district court correctly concluded that no person of ordinary
firmness and judgment who wished to escape coercion of the type
that Castro had so recently experienced would have returned to the
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pizza parlor upon Pérez's second summons. In our view, a
reasonable person genuinely wishing to escape the predicament
Castro described would have foreseen the likelihood that the
summons pertained to the as-yet uncompleted importation scheme. He
would not have gone to the pizza parlor, but instead would have
summoned law enforcement officials to protect himself and his
family. See id. at 619 n.33 (collecting cases where a duress
defense was denied because the defendant had an opportunity but
failed to avail himself of government protection); id., 2003 Supp.
at 125 n.33; cf. id. at 622 ("It is . . . generally recognized that
a defendant can lose [a duress] defense by his own fault in getting
into the difficulty. Thus, . . . the duress defense is unavailable
if the defendant recklessly placed himself in a situation in which
it was probable that he would be subjected to duress."). Castro's
failure to do so deprived him of the opportunity to press a duress
defense.
Castro makes three additional arguments that warrant only
a brief word. Castro asserts that the district court erred in
permitting a government witness to testify about the street value
of the cocaine. But the testimony was relevant to, inter alia,
whether Castro might have had a motive other than duress for
participating in the crime. And in any event, the evidence against
Castro was so overwhelming that this testimony was extraordinarily
unlikely to have impacted the jury's deliberations. Castro also
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contends that the court erred in denying his motion to issue a writ
of habeas corpus ad testificandum for Elliot Garcia Agosto, a
contemplated defense witness who was incarcerated at the time of
Castro's trial. The record reveals, however, that the court
allowed Castro's motion on reconsideration. This argument is thus
built on a faulty foundation. Finally, Castro perfunctorily
asserts that, in calculating his criminal history, the court erred
in failing to treat his prior sentences as "related" and thus not
separately countable. Because this argument was not raised below
and is presented on appeal in a sketchy and wholly unsubstantiated
manner, we will not address it. See United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
Affirmed.
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