11‐4900
United States. v. Zayac
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2013
(Argued: March 19, 2014
Final Submission: April 29, 2014
Decided: August 27, 2014)
Docket No. 11‐4900
UNITED STATES OF AMERICA,
Appellee,
v.
ANDREW ZAYAC,
Defendant–Appellant.*
Before: STRAUB, SACK, and LOHIER, Circuit Judges.
The defendant, convicted in the United States
District Court for the District of Connecticut (Janet C.
Hall, Judge) on several counts arising from the
kidnapping, robbery, and murder of a drug dealer,
challenges the sufficiency of the evidence against him,
two evidentiary rulings, and the courtʹs refusal to
instruct the jury regarding the affirmative defense of
duress. Because we conclude that the defendant has
failed to identify any error or abuse of discretion by the
district court, the judgment of the district court is
AFFIRMED.
The Clerk of the Court is respectfully directed to amend
*
the caption as shown.
11‐4900
United States. v. Zayac
ANDREW J. FRISCH (Jeremy B. Sporn, of
counsel), New York, NY, for the Defendant–
Appellant.
MICHAEL J. GUSTAFSON (Sandra S.
Glover, of counsel), Assistant United States
Attorneys, for Deirdre M. Daly, Acting
United States Attorney for the District of
Connecticut, New Haven, CT, for the
Appellee.
SACK, Circuit Judge:
Andrew Zayac was convicted after a jury trial on
several counts arising from his involvement in the
kidnapping, robbery, and murder of a drug dealer.
After rejecting his motion for a new trial and acquittal,
the district court (Janet C. Hall, Judge) sentenced Zayac
principally to two concurrent terms of life
imprisonment. On this appeal, Zayac challenges the
sufficiency of the evidence presented against him as to
several of the counts of conviction, two of the district
courtʹs evidentiary rulings, and the courtʹs refusal to
instruct the jury regarding the affirmative defense of
duress to the kidnapping and robbery charges. Because
we conclude that Zayac has failed to identify any error
in his conviction, we affirm the judgment of the district
court.
BACKGROUND
The evidence presented at trial established that
on the evening of February 8, 2009, Zayac drove from
New Rochelle, New York, to the Bronx to pick up
Edward Rivera, a man from whom Zayac had
previously purchased substantial quantities of
marijuana for resale. Also in the car was Zayacʹs
sometime co‐worker, Heriberto Gonzalez. Zayac would
later tell police that he had agreed with Rivera to
2
11‐4900
United States. v. Zayac
purchase more than $100,000 worth of marijuana on this
occasion.
Rivera left his building to meet the two men,
carrying two duffel bags containing some sixty pounds
of marijuana. After placing the bags in the trunk of
Zayacʹs blue Jeep, Rivera got into the back seat, and the
three men drove away.
At some point thereafter, Rivera was shot twice at
close range as he sat in the Jeep. Zayac and Gonzalez
drove to the Padanaram Reservoir in Danbury,
Connecticut. It was there that Riveraʹs 232‐pound body
was eventually discovered, having apparently been
pushed and dragged to the bottom of a hill, some
distance from the road.
After disposing of the body, Zayac and Gonzalez
drove to the home of Zayacʹs girlfriend in New
Rochelle, where they transferred the drugs to a vehicle
that she leased. The two men then drove the Jeep to
Gonzalezʹs residence in the Bronx, where they picked
up Gonzalezʹs car. Surveillance video obtained from a
nearby oil company showed the Jeep being set on fire
soon afterward, in the early hours of the morning
following the murder. Both Zayac and Gonzalez
suffered severe burns that night. Zayac later instructed
his girlfriend to report the Jeep, which was registered in
her name, stolen and to identify him as ʺKevin Hillʺ in
her communications with police. She did so.
On March 1, 2009, agents of the United States
Drug Enforcement Administration and other federal
law enforcement personnel executed a search warrant at
the home of Zayacʹs parents in Scarsdale, New York. In
the course of the search, agents discovered three large
bags of marijuana concealed behind wall panels, as well
as medical supplies for treating burns and documents
indicating that Zayac had consulted a plastic surgeon.
3
11‐4900
United States. v. Zayac
Zayac and his girlfriend were present at the search. He
agreed to speak with investigators, and was taken to a
local police station for that purpose.
Zayac met with investigators three times in the
days immediately following the search. He met with
them again in December 2010. His account of what
transpired on the night of Riveraʹs murder changed
each time, but he eventually settled on a narrative that
put the blame for Riveraʹs killing and the destruction of
the evidence squarely on Gonzalez.
Although Zayac did not testify at trial, a
government witness recounted the version of events he
gave investigators. Because that account is relevant to
part of our analysis, we briefly recite the pertinent
details. According to Zayac, sometime after Rivera got
into the Jeep, Gonzalez produced a small semiautomatic
handgun from his backpack, along with some zip ties.
Gonzalez then ordered Rivera at gunpoint to put the zip
ties on himself. Moments later, as Zayac drove the
vehicle northward, Gonzalez shot Rivera in the chest.
Gonzalez then told Zayac to be happy it was not him
who was shot. Once near the Padanaram Reservoir in
Danbury, Zayac turned down a secluded road and
stopped on the shoulder. Gonzalez insisted that Zayac
help him pull Riveraʹs body from the car. Zayac told
investigators that he then returned to the driverʹs seat of
the Jeep while Gonzalez disappeared down the
roadside hill with the body for several minutes. When
Gonzalez reappeared, the two men drove back to New
York, where they proceeded to stow the marijuana at
the home of Zayacʹs girlfriend before burning the Jeep.
The Proceedings in the District Court
Zayac was tried before a jury and convicted of
kidnapping, see 18 U.S.C. § 1201(a)(1); felony murder,
see id. §§ 2, 924(c), 924(j)(1) ; robbery, see id. §§ 2,
4
11‐4900
United States. v. Zayac
1951(a); possession of marijuana with intent to
distribute, see id. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(D);
conspiracy to use or possess a firearm in furtherance of
a violent felony or drug crime, see 18 U.S.C. § 924(o);
three counts of destroying or concealing evidence, see id.
§§ 2, 1519; and one count of conspiracy to destroy or
conceal evidence, see id. § 371. Gonzalez was tried
separately.
Zayacʹs defense focused on his attempt to pin
responsibility for the crimes on Gonzalez. To that end,
Zayac sought to enter into evidence an empty holster
and magazine recovered from Gonzalezʹs home during
a consensual search. The defense argued that these
items suggested that Gonzalez may have possessed a
firearm, and that this tended to corroborate Zayacʹs
claim that Gonzalez had killed Rivera. The district
court refused to admit the proffered exhibits on the
grounds that they would invite the jury to draw
speculative inferences.
For its part, the government introduced the
inconsistent statements Zayac had made to
investigators. The defense sought to mitigate the effect
of these inconsistencies by proffering the testimony of
an attorney who had advised Zayac at the time the
statements were made. The court heard the proffered
testimony out of the presence of the jury. Zayacʹs
former attorney recounted that Zayac had apologized to
him for lying to investigators and explained that he had
done so because he feared Gonzalez. The court
concluded that the testimony was irrelevant, and
declined to admit the evidence.
Toward the close of trial, Zayac requested that the
court instruct the jury regarding the affirmative defense
of duress with respect to the kidnapping, robbery, and
destruction of evidence counts. The court declined to
5
11‐4900
United States. v. Zayac
do so, concluding that Zayacʹs defense failed as a matter
of law because no reasonable juror could find that he
lacked a reasonable opportunity to escape during the
course of the criminal conduct.
After trial, Zayac moved for acquittal and a new
trial, which the court denied. On November 22, 2011,
the court sentenced Zayac to concurrent terms of life in
prison on the kidnapping and murder counts, as well as
lesser terms of years on seven other counts. This appeal
followed.
DISCUSSION
The propriety of the district courtʹs refusal to
provide requested jury instructions is a question of law,
which we review de novo. United States v. Nouri, 711
F.3d 129, 143 (2d Cir.), cert. denied, 134 S. Ct. 309 (2013).
We also review challenges to the sufficiency of the
evidence underlying a criminal conviction de novo. E.g.,
United States v. Mi Sun Cho, 713 F.3d 716, 720 (2d Cir.
2013) (per curiam). The district courtʹs decision to
exclude evidence is subject to review for abuse of
discretion. United States v. Kozeny, 667 F.3d 122, 137 (2d
Cir. 2011), cert. denied, 133 S. Ct. 1794 (2013).
I. Sufficiency of the Evidence
We begin with Zayacʹs contentions regarding the
sufficiency of the evidence underlying his convictions
on the kidnapping, robbery, firearms and murder
counts. A defendant ʺchallenging the sufficiency of the
evidence . . . faces an uphill battle, and bears a very
heavy burden.ʺ Mi Sun Cho, 713 F.3d at 720 (internal
quotation marks and ellipsis omitted). Although our
review is de novo, ʺthe evidence must be viewed in the
light most favorable to the government, with all
reasonable inferences drawn in its favor. The question
is not whether this Court believes that the evidence at
6
11‐4900
United States. v. Zayac
trial established guilt beyond a reasonable doubt, but
rather, whether any rational trier of fact could have
found the essential elements of the crime beyond a
reasonable doubt.ʺ Id. (internal quotation marks,
brackets, and citations omitted; emphasis in original);
accord United States v. Howard, 214 F.3d 361, 363 (2d Cir.)
(ʺ[We] resolve all inferences from the evidence and
issues of credibility in favor of the verdict.ʺ), cert. denied,
531 U.S. 909 (2000). Moreover, ʺthe juryʹs verdict may
be based on circumstantial evidence, and the
Government is not required to preclude every
reasonable hypothesis which is consistent with
innocence.ʺ United States v. Ogando, 547 F.3d 102, 107
(2d Cir. 2008) (internal quotation marks and citation
omitted); accord United States v. Glenn, 312 F.3d 58, 64
(2d Cir. 2002) (ʺ[T]he prosecution may prove its case
entirely by circumstantial evidence so long as guilt is
established beyond a reasonable doubt.ʺ).
Zayac claims that his ʺpresence in the Jeep and
his association with Gonzalez, even coupled with his
(just acquired) knowledge of Gonzalezʹs murderous and
felonious intent, is insufficient to show knowing
participation inʺ the kidnapping, robbery, firearms
offenses, and murder. Appellantʹs Br. 38. But the
convictions here did not rest only on evidence of
Zayacʹs presence in the Jeep. The trial record contains
extensive evidence from which the jury could properly
have inferred Zayacʹs knowing participation in these
crimes, including: (a) Zayac appeared to lure Rivera
into a trap by offering to pay an above‐market price for
the marijuana and telling him not to involve any of his
associates in the transaction; (b) Zayac and Gonzalez set
about methodically destroying all evidence of the
murder together and left the marijuana in Zayacʹs hands
for safekeeping; and (c) Zayac actively sought to conceal
his involvement in the crimes, including by instructing
7
11‐4900
United States. v. Zayac
his girlfriend to lie on his behalf and by repeatedly lying
to the government regarding his role. We conclude that
the jury could properly have found that Zayac either
committed the charged offenses himself or that he
ʺjoined [in Gonzalezʹs] specific venture and shared in it,
and that his efforts contributed to its success, or, in
other words . . . that [he otherwise] consciously assisted
the commission of the [charged] crime[s] in some active
way.ʺ Ogando, 547 F.3d at 107 (internal quotation marks
omitted). We therefore reject Zayacʹs contention that
the evidence was insufficient to support his conviction.
II. The District Courtʹs Evidentiary Rulings
We also reject Zayacʹs challenges to the district
courtʹs evidentiary rulings. Under Rule 403 of the
Federal Rules of Evidence, a trial court may refuse to
admit evidence the probative value of which ʺis
substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, [or] misleading the
jury.ʺ Fed. R. Evid. 403. It is well established that ʺso
long as the district court has conscientiously balanced
the proffered evidenceʹs probative value with the risk
for prejudice, its conclusion will be disturbed only if it is
arbitrary or irrational.ʺ United States v. Awadallah, 436
F.3d 125, 131 (2d Cir. 2006).
The record reveals that the court in this case
engaged in just such a conscientious balancing when it
declined to admit the holster and magazine recovered
from Gonzalezʹs house. The district court determined
that this evidence, if introduced, risked leading the jury
to conclude that Gonzalez owned a gun and that this
gun was the murder weapon. This chain of inferences,
the district court found, would have been based on
speculation rather than reasoned deduction from the
evidence, since the holster was empty when it was
recovered, the murder weapon was not found, and
8
11‐4900
United States. v. Zayac
forensic testing had failed to establish with precision
what kind of firearm was used to kill Rivera. In light of
the high risk that the jury would engage in speculation,
the district court concluded that the potential for
prejudice outweighed the probative value of this
evidence. Because we find this determination neither
arbitrary nor irrational, we will not disturb it.
We also reject Zayacʹs challenge to the district
courtʹs refusal to admit testimony of Zayacʹs former
attorney to the effect that Zayac lied to investigators
because he feared retaliation from Gonzalez. This
testimony ordinarily would be inadmissible hearsay.
See Fed. R. Evid. 801(c), 802. In this case, however,
Zayac argued, among other things, that the testimony
was admissible to show his state of mind at the time he
lied to the authorities and thereby to contradict the
inference of guilt which the government sought to elicit
by introducing Zayacʹs false exculpatory statements.
See Fed R. Evid. 401, 803(3).
We need not decide whether the district court
erred by refusing to admit this testimony because any
such error would have been harmless. See, e.g., United
States v. Miller, 626 F.3d 682, 688 (2d Cir. 2010) (ʺ[E]ven
where we conclude that an evidentiary ruling was
manifestly erroneous, we will nonetheless affirm if the
error was harmless—that is, if we can conclude that the
error did not affect substantial rights.ʺ (internal
quotation marks omitted)), cert. denied, 132 S. Ct. 379
(2011); Fed. R. Crim. P. 52(a). ʺUnder harmless error
review, we ask whether we can conclude with fair
assurance that the errors did not substantially influence
the jury.ʺ United States v. Oluwanisola, 605 F.3d 124, 133
(2d Cir. 2010) (internal quotation marks omitted). A
government witness twice told the jury that Zayac had
indicated to investigators that he was afraid of
9
11‐4900
United States. v. Zayac
Gonzalez. Zayacʹs stated fear was therefore in the
record, and his counsel was free to argue that this fear
mitigated any inference of guilt from his inconsistent
statements. We therefore find no error affecting Zayacʹs
substantial rights and no reason to reverse the district
courtʹs determination. See United States v. Gupta, 747
F.3d 111, 133 (2d Cir. 2014) (ʺThe fact that the excluded
statement did no more than confirm undisputed facts
. . . also contributes to our conclusion that, if the
limitation on [witness] testimony was error, the error
was harmless.ʺ (internal quotation marks omitted));
Oluwanisola, 605 F.3d at 134 (stating that, to determine
whether error was harmless, we consider, among other
factors, ʺwhether the excluded material was
cumulativeʺ of other evidence and ʺthe extent to which
the defendant was otherwise permitted to advance the
defenseʺ).
III. Zayacʹs Entitlement to a Duress Instruction
Finally, we consider whether Zayac was entitled
to an instruction on the affirmative defense of duress
with respect to the kidnapping and robbery charges
(Counts One and Four, respectively).1 We will reverse a
conviction on the ground that the district court refused
to give a requested jury instruction ʺonly if the
requested instruction is ʹlegally correct, represents a
theory of defense with basis in the record that would
Although Zayac originally sought the instruction with
1
respect to the destruction of evidence counts (Counts Eight–
Eleven) as well, we consider only those arguments he has
developed on appeal. See Niagara Mohawk Power Corp. v.
Hudson River‐Black River Regulating Dist., 673 F.3d 84, 107 (2d
Cir. 2012) (ʺIt is a settled appellate rule that issues adverted
to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.ʺ (quoting
Tolbert v. Queens Coll., 242 F.3d 58, 75 (2d Cir. 2001))).
10
11‐4900
United States. v. Zayac
lead to acquittal, and the theory is not effectively
presented elsewhere in the charge.ʹʺ United States v.
Kerley, 544 F.3d 172, 177 (2d Cir. 2008) (quoting United
States v. Doyle, 130 F.3d 523, 540 (2d Cir. 1997)), cert.
denied, 555 U.S. 1159 (2009). ʺA defendant is entitled to
an instruction on an affirmative defense only if the
defense has ʹa foundation in the evidence.ʹʺ United States
v. Gonzalez, 407 F.3d 118, 122 (2d Cir. 2005) (quoting
United States v. Podlog, 35 F.3d 699, 704 (2d Cir. 1994)
(internal quotation marks omitted)); accord United States
v. Hurtado, 47 F.3d 577, 584 (2d Cir.) (ʺA defense theory
must be charged so long as it has some foundation in
the proof, no matter how tenuous that defense may
appear to the trial court.ʺ (internal quotation marks
omitted)), cert. denied, 516 U.S. 903 (1995). But ʺ[i]f, after
[a] hearing, the court finds that the defendantʹs
evidence is insufficient as a matter of law to establish
the defense, the court is under no duty to give the
requested jury charge or to allow the defendant to
present the evidence to the jury.ʺ United States v. Paul,
110 F.3d 869, 871 (2d Cir. 1997).
Criminal liability ordinarily requires the
ʺconcurrence of an evil‐meaning mind with an evil‐
doing hand.ʺ Morissette v. United States, 342 U.S. 246,
251 (1952). The affirmative defense of duress excuses
criminal conduct committed under circumstances from
which a jury may infer that the defendantʹs hand was
guided not by evil intent, but by the imminent threat of
grievous bodily harm. The defense does not necessarily
negate mens rea, but it ʺnegates a conclusion of guiltʺ
under the circumstances. Dixon v. United States, 548
U.S. 1, 6–7 (2006) (emphasis added).
A defendant invoking a duress defense must
establish that, at the time of his criminal conduct, (1) he
faced a threat of force (2) ʺsufficient to induce a well‐
11
11‐4900
United States. v. Zayac
founded fear of impending death or serious bodily
injury,ʺ and (3) he lacked a ʺreasonable opportunity to
escape harm other than by engaging in the illegal
activity.ʺ Gonzalez, 407 F.3d at 122. A defendant is
entitled to a jury instruction regarding duress only if he
makes ʺsome showing on each elementʺ of the defense.
Id.; accord United States v. Bakhtiari, 913 F.2d 1053, 1057–
58 (2d Cir. 1990), cert. denied, 499 U.S. 924 (1991). The
district court here denied Zayacʹs requested instruction
on the ground that he failed to make the requisite
showing with respect to the third element, that ʺthe
defendant . . . take reasonable steps to avail himself of [a
reasonable] opportunity [to escape], whether by flight
or by seeking the intervention of the appropriate
authorities.ʺ United States v. Alicea, 837 F.2d 103, 106 (2d
Cir.), cert. denied, 488 U.S. 832 (1988).
The court began by considering the trial
testimony of Special Agent Rodney George of the
United States Drug Enforcement Administration, who
related the statements Zayac had made over the course
of his meetings with investigators. The court focused
on the fourth and final meeting, a proffer session on
December 16, 2010, which Zayac attended with four
defense attorneys. During that meeting, Zayac
described sitting alone in the driverʹs seat of the Jeep for
several minutes as Gonzalez dragged Riveraʹs body out
of sight down a hillside just over a guardrail adjoining
the road. In a prior conversation with investigators,
Zayac indicated that the murder weapon remained with
him in a backpack as he waited for Gonzalez to return.
The district court concluded that these minutes alone in
the car constituted a reasonable opportunity to escape
as a matter of law.
Having concluded that Zayac was presented with
a reasonable opportunity to escape, the court next
12
11‐4900
United States. v. Zayac
considered whether the kidnapping and robbery
offenses were ongoing at the time that opportunity
arose. The court concluded that the charged crimes
were ongoing and, reasoning that Zayac had failed to
avail himself of a reasonable opportunity to escape his
continued participation in these offenses, denied the
duress instruction.
Turning to our de novo review of the courtʹs
rejection of Zayacʹs argument, we begin by agreeing
with the district court that Zayac had, as a matter of
law, a reasonable opportunity to escape the scene while
Gonzalez was engaged in disposing of Riveraʹs body.
Zayacʹs own express recollection placed him alone with
the murder weapon, in the driverʹs seat of a vehicle,
while Gonzalez was out of sight, down a hill, struggling
to dispose of a 232‐pound body. Under the
circumstances, we think that no rational juror could
have found that Zayac lacked a reasonable opportunity
to escape.2
Zayac argues that he was entitled to a duress
instruction if his own direct contribution to the crimes
concluded before the escape opportunity arose. This
Under the law of this Circuit, the ʺreasonablenessʺ of an
2
escape opportunity need not be decided by the jury absent
special circumstances or the presence of a factual issue.
Alicea, 837 F.2d at 106‐07. Nor do we ordinarily consider
whether the defendantʹs fear might have rendered him or
her incapable of appreciating the existence of an objectively
reasonable opportunity to escape. See id.; Gonzalez, 407 F.3d
at 122 (concluding that the defendantʹs subjective belief that
police would not believe her did not excuse failure to seek
police intervention).
13
11‐4900
United States. v. Zayac
argument depends on the assumption that when Zayac
was sitting in the Jeep near the Danbury reservoir
waiting for Gonzalez to dispose of the body, Zayacʹs
own contribution to the kidnapping, the robbery, or
both had ended. We disagree with this premise, and
conclude to the contrary that Zayac was participating in
the crime as an accomplice during the period in which
he had an opportunity to escape.
As we have explained, an element of the duress
defense is the absence of a ʺreasonable opportunity to
escape harm other than by engaging in the illegal
activity.ʺ Gonzalez, 407 F.3d at 122. We do not read our
duress jurisprudence to create a different definition of
ʺengagingʺ in illegal activity for the purposes of a
duress defense from that used to describe the liability of
an ordinary accomplice, aider, or abettor. An
accomplice who sits in a car while his partner in crime
disposes of a body is not ʺdoing nothingʺ in a legal
sense, even if that might be an accurate laypersonʹs
description. Last term, the Supreme Court reiterated
that, ʺ[i]n proscribing aiding and abetting, Congress
used language that ʹcomprehends all assistance
rendered by words, acts, encouragement, support, or
presence . . . ʹ—even if that aid relates to only one (or
some) of a crimeʹs phases or elements.ʺ Rosemond v.
United States, 134 S. Ct. 1240, 1246–47 (2014) (emphasis
added; citation omitted) (quoting Reves v. Ernst &
Young, 507 U.S. 170, 178 (1993)). So long as the
defendant has ʺassistedʺ in any of these ways, he shares
liability for any criminal conduct carried out by his
accomplice with or without his active participation. ʺIt
is inconsequential . . . that his acts did not advance each
element of the offense; all that matters is that they
facilitated one component.ʺ Id. at 1247.
14
11‐4900
United States. v. Zayac
In other words, when an offense is ongoing, a
defendantʹs continued presence at the scene constitutes
ongoing participation absent some fact indicating that
he has disassociated himself from the crime. The
question then, as the district court correctly determined,
is whether the relevant offense was ongoing at the time
the defendantʹs opportunity to escape arose. We
conclude as a legal matter that the violations of both the
kidnapping and robbery statutes were ongoing at the
time Zayac failed to take advantage of a reasonable
opportunity to escape.
Section 1201, the federal kidnapping statute
under which Zayac was charged, criminalizes the
ʺcarr[ying] away and hold[ing]ʺ of a person ʺfor ransom
or reward or otherwise.ʺ 18 U.S.C. § 1201(a). The
Supreme Court has explained that kidnapping under
section 1201 is a ʺunitary crime,ʺ which, ʺonce begun,
does not end until the victim is free.ʺ United States v.
Rodriguez‐Moreno, 526 U.S. 275, 281 (1999); see also
United States v. Seals, 130 F.3d 451, 462 (D.C. Cir. 1997)
(ʺ[T]he crime of kidnapping continues while the victim
remains held and a ransom sought.ʺ) (emphasis in
original); United States v. Godinez, 998 F.2d 471, 473 (7th
Cir. 1993) (noting that the principle ʺ[t]hat kidnapping
is a continuing offense . . . means that the statute of
limitations runs from the release rather than the capture
of the victimʺ); United States v. Garcia, 854 F.2d 340, 344
(9th Cir. 1988) (same).
Contrary to Zayacʹs suggestion, then, the criminal
act of kidnapping was not complete once Rivera was
dead. Nothing in the language of the statute suggests
that Congress intended that a victim be considered
ʺfreeʺ once dead, and the text of the statute implies the
contrary. See 18 U.S.C. § 1201(a)(1) (making clear that
the law applies when a victim is transported across state
15
11‐4900
United States. v. Zayac
lines ʺregardless of whether the person was aliveʺ at the
time). Nor are the evils targeted by the statute—
holding ʺfor ransom or reward or otherwiseʺ—abated
by the victimʹs death.3 Although we do not decide
today precisely when a dead victim ceases to be ʺheldʺ
and the kidnapping offense definitively ends, we think
the earliest the kidnapping of Rivera could have been
complete was at the point when Gonzalez—according
to Zayacʹs version of events—finally abandoned the
body at the bottom of the hillside near the road.4
Because the unlawful holding of the victim was ongoing
at a time when Zayac could reasonably have fled the
scene, he was not entitled to an instruction regarding
the defense of duress as to the kidnapping offense.
Our conclusion is the same with respect to the
robbery count. As this Court has explained, a robbery
involves ʺboth a taking and a carrying away,ʺ so that
the ʺescape phase of a crime is not . . . an event
occurring ʹafter the robberyʹʺ but ʺis part of the robbery.ʺ
United States v. Reid, 517 F.2d 953, 965 (2d Cir. 1975)
(emphasis added) (quoting United States v. Von Roeder,
435 F.2d 1004, 1010 (10th Cir.), vacated on other grounds,
404 U.S. 67 (1971)); see United States v. James, 998 F.2d 74,
80 (2d Cir. 1993) (ʺThe escape phase of the crime of bank
Indeed, the payment of ransom for corpses is an ancient
3
practice. See The Iliad of Homer (Alexander Pope, trans.,
Samuel Johnson, ed. 1779), Book XXIV, ln 169–174 (ʺNo
longer then ([Joveʹs] fury if thou dread)/Detain the relicks of
great Hector dead;/Nor vent on senseless earth thy
vengeance vain:/But yield to ransom and restore the slain.ʺ).
We need not and do not decide whether a victim
4
continues to be ʺheldʺ for ʺransom or reward or otherwiseʺ
if, for example, the victimʹs abandoned remains lie
undiscovered while the perpetrators send ransom notes to
the victimʹs family or await the payment of a ransom.
16
11‐4900
United States. v. Zayac
robbery is part of the ongoing robbery, not an event
occurring after the robbery, for purposes of
characterizing the involvement of a party who
knowingly and willfully joins in the escape phase
only.ʺ). In this case, the escape phase continued at least
until Zayac and Gonzalez returned to New Rochelle,
where they transferred the stolen marijuana to another
vehicle together. See United States v. Grubczak, 793 F.2d
458, 464 (2d Cir. 1986) (robbery continued while
defendant extracted stolen money from stolen armored
car used as getaway vehicle and transferred it to
another vehicle over two hours after the robbery
began); United States v. Willis, 559 F.2d 443, 444 (5th Cir.
1977) (per curiam) (ʺThe crime of larceny obviously
continues as long as the asportation continues and the
original asportation continues at least so long as the
perpetrator of the crime indicates by his actions that he
is dissatisfied with the location of the stolen goods
immediately after the crime . . . .ʺ (quoting United States
v. Barlow, 470 F.2d 1245, 1253 (D.C. Cir. 1972))). We
therefore conclude that Zayac also failed to establish his
entitlement to a duress instruction on the robbery count.
As we have explained, duress ʺnegates a
conclusion of guiltʺ based on a defendantʹs otherwise
culpable conduct. Dixon, 548 U.S. at 7 & n.5 (citing 2
Wayne R. LaFave, Substantive Criminal Law § 9.7(a)
(2003)). In this case, Zayac sat for several minutes,
alone and in possession of a firearm, in the driverʹs seat
of an automobile that had just been the scene of a
kidnapping, robbery, and murder, awaiting the return
of his accomplice, who was out of sight disposing of the
victimʹs body. The law does not recognize a duress
defense in these circumstances, and a defendant in
Zayacʹs position has no right to a jury instruction
suggesting otherwise.
17
11‐4900
United States. v. Zayac
CONCLUSION
For the foregoing reasons, we AFFIRM the
judgment of the district court.
18