FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50341
Plaintiff-Appellee,
v. D.C. No.
3:09-cr-03768-L-1
CHRISTOPHER IBARRA-PINO,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted
June 10, 2011—Pasadena, California
Filed September 20, 2011
Before: Alex Kozinski, Chief Judge, Sandra S. Ikuta,
Circuit Judge, and Susan R. Bolton, District Judge.*
Opinion by Judge Bolton;
Concurrence by Chief Judge Kozinski
*The Honorable Susan R. Bolton, United States District Judge for the
District of Arizona, sitting by designation.
17863
17866 UNITED STATES v. IBARRA-PINO
COUNSEL
Janet C. Tung, Federal Defenders of San Diego, Inc., San
Diego, California, for defendant-appellant Christopher Ibarra-
Pino.
Daniel E. Butcher, Assistant United States Attorney, San
Diego, California, for plaintiff-appellee United States.
OPINION
BOLTON, District Judge:
Christopher Ibarra-Pino (“Ibarra”) appeals from his convic-
tion for importation of marijuana in violation of 21 U.S.C.
§§ 952 and 960, and possession of marijuana in violation of
21 U.S.C. § 841(a)(1). He contends, inter alia, that the district
court erred by preventing him from presenting evidence of
duress at trial and by refusing to give a jury instruction on a
duress defense.1 We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm.
1
Ibarra raises several other issues in this appeal. In this opinion, we
address only Ibarra’s contentions regarding the duress defense. We
address the remaining contentions in a memorandum disposition filed con-
currently with this opinion.
UNITED STATES v. IBARRA-PINO 17867
I.
On September 16, 2009, Ibarra drove a vehicle into the
United States at the Calexico West Port of Entry. At the Port
of Entry’s primary inspection point, Ibarra told the primary
inspection officer that he owned the vehicle and was entering
the United States to see an Army recruiter. A computer alert
on the vehicle indicated that the vehicle might contain illegal
drugs and should be referred to secondary inspection. The pri-
mary inspection officer escorted Ibarra and the vehicle to the
secondary inspection lot and then took Ibarra into the second-
ary inspection office. Officers found 69 kilograms of mari-
juana concealed in the vehicle’s tires and gas tank and in a
manufactured compartment behind the driver’s seat.
Ibarra was placed under arrest and, approximately four
hours after he was stopped at the border, two Immigration and
Customs Enforcement (“ICE”) agents interviewed him. Ini-
tially, Ibarra told the agents that he was entering the United
States in order to work at the Santo Tomas swap meet and
denied knowing that there were any illegal drugs in the vehi-
cle. Following thirty-five to forty-five minutes of questioning,
Ibarra told the agents that he had been forced to drive the
vehicle into the United States by men who threatened to kill
him and his family.
Ibarra was charged with importation of marijuana in viola-
tion of 21 U.S.C. §§ 952 and 960, and possession of mari-
juana in violation of 21 U.S.C. § 841(a)(1). Prior to trial, the
government filed a motion in limine seeking an evidentiary
ruling precluding defense counsel from making any com-
ments or eliciting any testimony relating to a duress defense
unless Ibarra first made a prima facie showing satisfying the
elements of a duress defense. At a March 8, 2010, hearing on
the parties’ motions in limine, the district court requested
additional briefing on the issue of duress and stated that it
would grant the government’s motion to preclude a duress
17868 UNITED STATES v. IBARRA-PINO
defense unless Ibarra could proffer evidence supporting all
elements of a duress defense.
In his supplemental briefing on duress, Ibarra asserted that
his post-arrest statements were sufficient to show that he was
under an immediate threat of harm. Ibarra submitted a tran-
script of his post-arrest interview and an affidavit from his
mother in support of his supplemental briefing. The transcript
contained Ibarra’s post-arrest statements to the ICE agents
that he had been threatened by men who said they would kill
him and his family if he refused to drive the vehicle into the
United States. Ibarra also told the ICE agents that the threats
began approximately one week before his arrest and that the
men knew his wife’s cell phone number. In addition, Ibarra
stated that he was told he would be watched at the border and
that, during both the initial stop at the border and the subse-
quent interview, he was afraid that the men who threatened
him would learn what he was saying and harm him or his
family.
Ibarra also provided an affidavit from his mother, Blanca
Singh, who stated that, upon learning of Ibarra’s arrest, she
went to his apartment in Mexicali and spoke with his wife,
Imelda Vasquez, who was very nervous and upset. According
to the affidavit, Vasquez told Singh that, early in the morning
on the day of Ibarra’s arrest, two armed men came to the
apartment and took Ibarra away. Singh also stated that
Vasquez told her that the same two men previously came to
the apartment and harassed Ibarra, asking for his green card.
At a March 15, 2010, hearing on the parties’ motions in
limine, the district court concluded that Ibarra had failed to
make a prima facie showing of an immediate threat of harm,
as required to present a duress defense, and stated that it
would preclude the defense. Defense counsel opposed the dis-
trict court’s ruling, arguing that precluding the duress defense
would violate Ibarra’s Sixth Amendment right to present a
defense, and clarified that he was not yet requesting a jury
UNITED STATES v. IBARRA-PINO 17869
instruction on duress. The district court then stated that if
Ibarra presented admissible evidence at trial meriting a duress
instruction, the court would consider giving a jury instruction
on duress. When questioned whether it was ruling both that
it would consider a duress instruction following the presenta-
tion of evidence at trial and also that evidence of duress
would be precluded, the district court reiterated that a jury
instruction on duress might be proper if Ibarra presented suffi-
cient evidence of duress and noted that, based on the facts
presented in the pretrial proffer, a duress instruction did not
yet appear to be warranted.
During trial, the district court permitted Ibarra to introduce
evidence of duress. Ibarra elicited testimony from the ICE
agents and interpreters involved in his post-arrest interview
describing the statements he made during the interview. These
witnesses testified that Ibarra told the agents that men threat-
ened to kill him and his family if he refused to drive the vehi-
cle into the United States and that these threats began days
before he drove the vehicle into the United States. The agents
and interpreters also testified that Ibarra stated that he had
been told he would be watched as he crossed the border and
that he was afraid during the post-arrest interview. One of the
interpreters also testified that Ibarra told them that the men
who threatened him had his wife’s phone number.
In addition, Ibarra presented the testimony of his mother,
Blanca Singh. Singh stated that she went to Ibarra’s apartment
following his arrest where she spoke with Ibarra’s wife,
Vasquez, who appeared to be very nervous and upset. In addi-
tion, Singh testified that after speaking with Vasquez about
what happened to Ibarra, she was concerned for Vasquez’s
safety and took Vasquez to her mother’s house. The district
court did not permit Singh to testify about the statements
Vasquez made to Singh following Ibarra’s arrest. Singh also
testified that she owned the building where Ibarra and
Vasquez lived and that, two days after Ibarra was arrested, she
was contacted by another resident who told her that someone
17870 UNITED STATES v. IBARRA-PINO
had broken into Ibarra’s apartment. Singh stated that, when
she returned to Ibarra’s apartment, the apartment door was
broken, the apartment had been ransacked, and several knives,
which did not belong to Ibarra, were placed throughout the
kitchen and bedroom.
Following the conclusion of the evidence at trial, Ibarra
requested a jury instruction on duress. The district court
denied Ibarra’s request, finding that Ibarra had not presented
evidence sufficient to make a prima facie showing of an
immediate threat of harm. The district court noted that it did
not believe it could preclude a defense and found that,
because there was some evidence related to duress, Ibarra
could “argue it.” The district court declined to “add to” Ibar-
ra’s defense by giving a duress instruction where Ibarra had
failed to make a prima facie showing of duress.
Ibarra was convicted by a jury and sentenced to twenty-
eight months in custody and three years of supervised release.
This timely appeal followed.
II.
Ibarra argues that the district court erred by not allowing
him to present evidence of duress and refusing to instruct the
jury on a duress defense. We review de novo a district court’s
decision to preclude a duress defense and deny a request for
a jury instruction on duress. United States v. Vasquez-
Landaver, 527 F.3d 798, 802 (9th Cir. 2008) (citing United
States v. Moreno, 102 F.3d 994, 997 (9th Cir. 1996) (review-
ing decision to preclude duress defense); United States v.
Shryock, 342 F.3d 948, 987 (9th Cir. 2003) (reviewing denial
of a jury instruction on duress)).
As an initial matter, the parties dispute whether the district
court precluded the duress defense prior to trial. Ibarra asserts
that the district court precluded him from presenting a duress
defense, and the government asserts that the district court did
UNITED STATES v. IBARRA-PINO 17871
not preclude a duress defense and that Ibarra was permitted to
present evidence of duress at trial.2 The district court initially
ruled that Ibarra failed to make a prima facie showing of an
immediate threat of harm and that, as a result, the duress
defense would be precluded. However, following a Sixth
Amendment challenge to this ruling by Ibarra and Ibarra’s
clarification that he was not yet seeking an instruction on
duress, the district court stated that it would rule on whether
Ibarra presented sufficient evidence to warrant a jury instruc-
tion on duress after Ibarra presented evidence at trial. Ibarra
was permitted to, and did, present evidence of duress at trial.
Reviewing the record as a whole, it appears that the district
court did not preclude evidence of duress, but rather permitted
Ibarra to present evidence and argument on duress at trial.
While it appears that the district court did not preclude the
duress defense prior to trial, because there is some ambiguity
in the district court’s ruling, we will nevertheless consider
whether this pretrial ruling is correct, as well as whether the
district court erred in declining to give a jury instruction on
duress. Both the initial pretrial decision and the district court’s
refusal to instruct the jury on duress were based on essentially
the same evidentiary showing.3 Because the difference
2
Ibarra argues that, as a result of the district court’s ruling, he did not
present a duress defense. Ibarra’s defense at trial was that he did not know
that drugs were in the car and only agreed to drive the car across the bor-
der because men threatened to kill him and his family if he refused. Ibarra
offered the same theory of defense prior to the district court’s pretrial rul-
ings on duress.
3
The only relevant evidence offered by Ibarra in his pretrial proffer that
was not presented at trial was the statements Ibarra’s wife made to his
mother that two armed men took Ibarra away on the morning of his arrest
and that the same two men previously came to the apartment and harassed
Ibarra, asking for his green card. Ibarra presented these statements with his
pretrial briefing on duress in an affidavit from his mother and relied on
these statements to show that the men knew where he lived, that the
threats were of an immediate harm, and that he lacked the opportunity to
escape the harm on the day of his arrest. At trial, Ibarra’s mother was not
17872 UNITED STATES v. IBARRA-PINO
between the evidence proffered before trial and the evidence
presented at trial is not dispositive, we evaluate the district
court’s rulings (i.e., its rulings that Ibarra failed to make a
prima facie case that would support either presenting a duress
defense at trial or giving a jury instruction on duress) based
on both the evidence in Ibarra’s pretrial proffer and the evi-
dence presented at trial.
A.
[1] A defendant is not entitled to present a duress defense
at trial or receive a jury instruction on duress unless the defen-
dant makes a prima facie showing of duress in a pretrial offer
of proof, Vasquez-Landaver, 527 F.3d at 802 (citing Moreno,
102 F.3d at 998-99), or in evidence presented at trial, United
States v. Jennell, 749 F.2d 1302, 1305 (9th Cir. 1984). In
order to make a prima facie showing for a duress defense or
a jury instruction, a defendant must establish: “ ‘(1) an imme-
diate threat of death or serious bodily injury, (2) a well-
grounded fear that the threat will be carried out, and (3) lack
of a reasonable opportunity to escape the threatened harm.’ ”
Vasquez-Landaver, 527 F.3d at 802 (quoting Moreno, 102
F.3d at 997). In the absence of a prima facie showing of
duress, evidence of duress is irrelevant and may be excluded,
and a jury instruction is not appropriate. Id. (citing Moreno,
102 F.3d at 998-99; Jennell, 749 F.2d at 1305).
B.
The district court did not err in finding that Ibarra failed to
make the prima facie showing of duress necessary to present
permitted to testify as to the content of these out of court statements
because the district court determined that the statements were inadmissible
hearsay. She did, however, testify that someone had broken into the apart-
ment, permitting the inference that the men who threatened Ibarra knew
where he lived and posed an immediate threat of harm.
UNITED STATES v. IBARRA-PINO 17873
the defense at trial and receive a duress jury instruction. The
district court found that Ibarra failed to proffer sufficient evi-
dence of the first element of duress because the threatened
harm was no longer immediate once Ibarra had an opportunity
to notify authorities of the harm after reaching the border and
being taken into the secondary inspection office. We may
affirm the district court’s evidentiary ruling on any grounds
supported by the record. See United States v. Pang, 362 F.3d
1187, 1192 (9th Cir. 2004). The opportunity to surrender to
the authorities on reaching a point of safety presents an oppor-
tunity to escape the threatened harm. See United States v.
Contento-Pachon, 723 F.2d 691, 695 (9th Cir. 1984). We
evaluate whether Ibarra made a prima facie showing of the
third element of duress, that he lacked a reasonable opportu-
nity to escape the threatened harm.
[2] Ibarra presented evidence that he was threatened in the
days leading up to his arrest at the border. However, Ibarra
did not introduce any evidence that he believed he could not
trust law enforcement or safely contact the authorities. To the
contrary, Ibarra introduced evidence at trial that he had sev-
eral family members in law enforcement and that, during the
post-arrest interview, he asked the ICE agents to contact law
enforcement in Mexico on his behalf. In addition, Ibarra did
not offer any evidence that he was under surveillance during
the time between the initial threats and the day of his arrest.
Ibarra did not explain why he did not contact law enforcement
or make any other attempt to escape the threatened harm in
the days leading up to his arrest. Ibarra thus failed to present
evidence indicating that he lacked a reasonable opportunity to
escape the threatened harm in the days leading up to his
arrest. See Moreno, 102 F.3d at 997 (finding it was proper to
preclude a duress defense where a defendant presented evi-
dence that he was threatened several weeks prior to the com-
mission of the crime and failed to present any evidence
indicating that he lacked a reasonable opportunity to escape
by fleeing or contacting the authorities during the time
17874 UNITED STATES v. IBARRA-PINO
between the initial threat and the criminal act); Jennell, 749
F.2d at 1306.
Ibarra also had an opportunity to escape the threatened
harm when he was confronted by law enforcement at the bor-
der. See Moreno, 102 F.3d at 997-98. “Once a defendant . . .
reache[s] a position where he can safely turn himself in to the
authorities he . . . likewise ha[s] a reasonable opportunity to
escape the threatened harm.” Contento-Pachon, 723 F.2d at
695; see also United States v. Verduzco, 373 F.3d 1022, 1031
(9th Cir. 2004). In order to assert a duress defense in these cir-
cumstances, a defendant must present some evidence indicat-
ing that he “took the opportunity to escape the threatened
harm by submitting to authorities at the first reasonable
opportunity.” Contento-Pachon, 723 F.2d at 695.
[3] We have held that a defendant has a reasonable oppor-
tunity to escape the threatened harm by surrendering to
authorities when confronted at a point of inspection even
where the defendant asserts that he is being watched by the
people who threatened him and that threats have been made
against his family. See Moreno, 102 F.3d at 997-98 (finding
that where a defendant alleged he was being watched, “[t]he
encounter with [the authorities] presented a clear opportunity
for [the defendant] to save himself and alert authorities about
the threat to his family”). While Ibarra asserted that he and his
family were threatened and that he was told that he would be
watched while he drove the vehicle into the United States, the
encounter with the authorities at the border presented Ibarra
with the opportunity to escape the threatened harm and notify
authorities about the threats to his family. See id. Not only did
Ibarra have an opportunity to alert authorities during the pri-
mary inspection, he also had an opportunity to alert authori-
ties, after obtaining a position of even greater safety than we
have previously found necessary, once he was escorted into
the secondary inspection office, where he could have surren-
dered outside the view of any potential surveillance. See id.
(finding that a defendant had an opportunity to escape the
UNITED STATES v. IBARRA-PINO 17875
threatened harm by surrendering to authorities while still
within view of any potential surveillance). Once Ibarra had
the opportunity to turn himself in, he likewise had the oppor-
tunity to escape the threatened harm. See Contento-Pachon,
723 F.2d at 695.
[4] A defendant takes “the opportunity to escape the threat-
ened harm” where the defendant “cooperate[s] with authori-
ties” at the first opportunity to do so without alerting an
observer and “submit[s] to authorities at the first reasonable
opportunity” by consenting to a search. Id. Conversely, a
defendant who attempts to flee and physically resists capture
rather than consenting to a search fails to avail himself of the
opportunity to escape the threatened harm and cannot present
a duress defense. See Moreno, 102 F.3d at 997-98. Here,
Ibarra neither cooperated with the authorities nor attempted to
flee. While Ibarra did not physically resist officers following
the initial stop, Ibarra attempted to mislead the officer during
the primary inspection, failed to notify authorities after he was
removed to the secondary inspection office, and continued to
attempt to mislead the ICE agents during the beginning of the
interview. Ibarra did not proffer evidence indicating that he
“took the opportunity to escape the threatened harm by sub-
mitting to authorities at the first reasonable opportunity.” See
Contento-Pachon, 723 F.2d at 695.
[5] Ibarra argues that, because his crime was essentially
complete at the time he attained a position of safety, he was
under duress at all relevant times. However, we have held
that, where a defendant may surrender to authorities without
being placed in immediate danger, the defendant has a suffi-
cient opportunity to escape the threatened harm even where
the defendant has essentially completed the crime. See
Moreno, 102 F.3d at 997-98 (finding that a defendant had a
reasonable opportunity to escape the threatened harm by sur-
rendering to authorities at an airport after transporting drugs
from California to Hawaii). Here, Ibarra had an opportunity
to cooperate with the authorities after bringing the drugs into
17876 UNITED STATES v. IBARRA-PINO
the United States. Once Ibarra was removed to the secondary
inspection office, prior to the discovery of the drugs and prior
to his arrest, Ibarra was in a position of relative safety and had
a reasonable opportunity to escape the threatened harm by
cooperating with the authorities.
Ibarra also argues that Contento-Pachon controls this case
and demands reversal. However, the facts and analysis in
Contento-Pachon indicate that Ibarra’s proffered evidence is
insufficient to support a duress defense. In Contento-Pachon,
the defendant presented evidence that he was forced to trans-
port drugs into the United States by Colombian drug traffick-
ers who threatened to kill the defendant and his family and
told the defendant that they would be watching him as he
transported the drugs into the United States. 723 F.2d at 693.
The defendant also offered evidence that the drug traffickers
knew personal information about the defendant and his fam-
ily, including his address and the names of his wife and child,
and that he did not report the threats to the police because he
believed the Bogota police were corrupt. Id. at 693-94. The
defendant asserted that he took “the first opportunity to coop-
erate with authorities without alerting the observer” by con-
senting to an x-ray search. Id. at 695. We held that because
the defendant proffered evidence that he could not escape by
alerting the allegedly corrupt authorities or fleeing the reach
of the drug traffickers, there was “a triable issue of fact
whether [the defendant] took the opportunity to escape the
threatened harm by submitting to authorities at the first rea-
sonable opportunity.” Id.
[6] Unlike the defendant in Contento-Pachon, Ibarra did
not proffer any evidence indicating that he could not escape
the threatened harm either by contacting the authorities prior
to the commission of the crime or cooperating with the
authorities at the first opportunity. See id. at 695. Ibarra pres-
ented evidence that he had several family members in law
enforcement and did not assert that he believed the authorities
were corrupt or that it would be dangerous for him to contact
UNITED STATES v. IBARRA-PINO 17877
the authorities prior to the day of his arrest. See Moreno, 102
F.3d at 997 (finding that a defendant who failed to produce
any evidence indicating that he could not seek help from law
enforcement did not proffer sufficient evidence indicating that
he lacked the opportunity to escape the threatened harm). In
addition, rather than attempting to escape the threatened harm
by cooperating with the authorities at the first opportunity,
Ibarra attempted to mislead the primary inspection officer and
the ICE agents. See id. at 997-98; Contento-Pachon, 723 F.2d
at 695. Once Ibarra was confronted by the authorities and
attained a position of safety, he had the opportunity to turn
himself in to the authorities, and he likewise had a reasonable
opportunity to escape the threatened harm. See Moreno, 102
F.3d at 997-98; Contento-Pachon, 723 F.2d at 695.
[7] Ibarra failed to present evidence demonstrating that he
did not have a reasonable opportunity to escape the threatened
harm as required to present a duress defense or receive a jury
instruction on duress. See Vasquez-Landaver, 527 F.3d at 802.
Because Ibarra failed to establish that he lacked an opportu-
nity to escape the threatened harm, and a defendant must
make a prima facie showing of all three elements of a duress
defense in order to present the defense or receive a jury
instruction on duress, we do not address the sufficiency of the
evidence as it relates to the remaining elements. See id. at 803
n.4 (citing United States v. Becerra, 992 F.2d 960, 964 (9th
Cir. 1993)).
III.
[8] Ibarra failed to make a prima facie showing that he
lacked a reasonable opportunity to escape the threatened harm
either by contacting authorities prior to arriving at the border
or by surrendering to authorities upon reaching a position of
safety. Ibarra had a reasonable opportunity to escape the
threatened harm both before arriving at the border and upon
being taken into the secondary inspection office. The district
court did not err in initially precluding Ibarra’s duress defense
17878 UNITED STATES v. IBARRA-PINO
or in refusing to give a jury instruction on duress. For the
foregoing reasons, we affirm the district court’s decisions on
duress.
AFFIRMED.
Chief Judge KOZINSKI, concurring in the judgment:
As the majority recognizes, “the district court did not pre-
clude the duress defense prior to trial.” Maj. op. at 17871. The
evidence it excluded—Ibarra’s post-arrest statements and his
mother’s statements about what his wife said—were inadmis-
sible hearsay. We have no occasion to discuss whether the
district court could properly have precluded a duress defense.
I see this as a difficult issue that we should leave to a case
where it matters.