United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 10-2169
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Jose Mauricio Bonilla-Siciliano, *
*
Appellant. *
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Submitted: January 14, 2011
Filed: July 5, 2011
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Before COLLOTON, GRUENDER, and SHEPHERD, Circuit Judges.
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COLLOTON, Circuit Judge.
Jose Bonilla-Siciliano was convicted of illegal reentry by an alien who was
previously deported, in violation of 8 U.S.C. §§ 1326(a) and (b)(2). The district court1
sentenced him to 70 months’ imprisonment. Bonilla-Siciliano appeals the district
court’s refusal to allow him to present a defense of necessity, and the court’s denial
of his purported request for a continuance. We affirm.
1
The Honorable Fernando J. Gaitan, Jr., Chief Judge, United States District
Court for the Western District of Missouri.
I.
A grand jury charged Bonilla-Siciliano with one count of illegal reentry. Prior
to jury selection, Bonilla-Siciliano advised the court that he wanted to present a
defense that his conduct was justified or excused by necessity. After hearing a
summary of the proposed defense, the court agreed to allow an offer of proof later in
the proceedings. The court noted that the defense did not sound meritorious and likely
would require additional witnesses that had not been noticed for trial. Bonilla-
Siciliano responded: “You have waited 20 months to begin, sir, and now all of a
sudden I don’t have no time to prepare any witnesses and stuff? I think that’s kind of
negligence.” The court stated that any negligence was the result of Bonilla-Siciliano’s
failure to communicate with his lawyer, and then commenced voir dire.
After the government rested its case, Bonilla-Siciliano testified as part of an
offer of proof for the proposed necessity defense. He testified that he faced danger in
El Salvador from the government and gang members because of his tattoos indicating
membership in a gang. He submitted an article from The Washington Post, which
reported that “[f]ormer and current gang members complain that police take them into
custody simply for having tattoos.” He presented documentation showing that he had
attempted to remove the tattoos, but testified that he was unable to do so because of
problems with his skin. Bonilla-Siciliano testified that he could not go elsewhere,
because Canada was not accepting immigrants, and he also faced danger in Mexico,
Guatemala, Columbia, and Venezuela as a result of his tattoos.
The district court concluded that Bonilla-Siciliano had “failed to provide
sufficient facts by a preponderance of the evidence to support the submission of this
defense.” The jury returned a verdict of guilty, and the court sentenced him to 70
months’ imprisonment.
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II.
Bonilla-Siciliano first argues that the district court erred in preventing him from
presenting a defense of necessity. We review de novo whether there was sufficient
evidence to submit a defense of necessity to a jury. United States v. El-Alamin, 574
F.3d 915, 925 (8th Cir. 2009). To establish this defense, Bonilla-Siciliano must show
an “underlying evidentiary foundation” for each of the following elements:
1) [that] he was under an unlawful and present, imminent, and impending
threat of such a nature as to induce a well-grounded apprehension of
death or serious bodily injury; 2) that he had not recklessly or
negligently placed himself in a situation in which it was probable that he
would be forced to commit a criminal act; 3) that he had no reasonable,
legal alternative to violating the law; and 4) that a direct causal
relationship may be reasonably anticipated between the commission of
the criminal act and the avoidance of the threatened harm.
Id. (internal quotation omitted). Although the district court arguably erred by
applying a preponderance of the evidence standard in this inquiry, cf. United States
v. Jankowski, 194 F.3d 878, 882-83 (8th Cir. 1999), we nonetheless affirm, because
Bonilla-Siciliano failed to make a prima facie showing for at least the first and third
elements.
On the first prong, generalized fears are insufficient to establish an imminent
threat of harm; rather, a “defendant must show that a real and specific threat existed.”
United States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005). Because Bonilla-
Siciliano failed to identify any specific threat to his safety, and relied only on a
generalized fear of harm from the government and gang members, he did not make a
prima facie showing on the first element. As to the third element, Bonilla-Siciliano
cannot show that he lacked a reasonable, legal alternative to illegally reentering the
United States, because he did not exclude the option of going to a country other than
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the United States or the handful of others that he stated were dangerous. See United
States v. Polanco-Gomez, 841 F.2d 235, 238 (8th Cir. 1988). For these reasons, the
district court was correct to rule as a matter of law that he was not entitled to present
a necessity defense.
Bonilla-Siciliano next contends that the district court erred in denying his
purported request for a continuance. He asserts that this denial violated his
constitutional rights by interfering with his ability to present a complete defense. A
district court has broad discretion in deciding whether to grant a continuance, and a
constitutional violation occurs only where the court exhibits “an unreasoning and
arbitrary insistence upon expeditiousness in the face of justificable request for delay.”
White v. Lockhart, 857 F.2d 1218, 1220 (8th Cir. 1988) (internal quotations omitted).
To prevail, Bonilla-Siciliano must establish that the court’s decision was “so
egregious that it was fundamentally unfair.” Id. (internal quotations omitted).
Bonilla-Siciliano did not expressly request a continuance. He relies on his
comment on the morning of trial suggesting that the court was negligent in not
allowing him time to prepare witnesses. Assuming for the sake of argument that this
comment should be construed as a motion to continue, the court’s decision to proceed
to trial was not unreasonable or an abuse of discretion. The case had been pending for
many months, and Bonilla-Siciliano had ample time to organize a defense. In the
colloquy on the morning of trial, he identified no potential witnesses or expected
testimony and gave no other reason to justify a delay. The court did allow Bonilla-
Siciliano to make an offer of proof through his own testimony and exhibits. Under
these circumstances, we conclude the court’s conduct was not egregious or
fundamentally unfair.
* * *
The judgment of the district court is affirmed.
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