United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2557
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of Iowa.
Jorge Juarez Morales, *
*
Appellant. *
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Submitted: February 17, 2012
Filed: July 12, 2012
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Before RILEY, Chief Judge, WOLLMAN, and SMITH, Circuit Judges.
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SMITH, Circuit Judge.
A jury convicted Jorge Juarez Morales of one count of conspiring to distribute
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846, and
two counts of distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
and (b)(1)(B). Morales appeals his conviction, arguing that the district court1 erred
by (A) requiring Morales to disclose his firearms expert; (B) prohibiting the firearms
expert from testifying; (C) refusing to instruct the jury on Morales's coercion defense;
(D) refusing to instruct the jury on Morales's defense theory; and (E) prohibiting
1
The Honorable Linda R. Reade, Chief Judge, United States District Court for
the Northern District of Iowa.
Morales's counsel from presenting his defense theory in closing arguments. We
affirm.
I. Background
A grand jury indicted Morales on one count of conspiring to distribute 50
grams or more of methamphetamine and two counts of distributing five grams or
more of methamphetamine after he sold methamphetamine to a confidential informant
in Hampton, Iowa, on two separate occasions. The parties filed a stipulated discovery
order, which provided that they would "exchange a list of prospective witnesses and
a list of prospective exhibits no later than five working days prior to trial." The
district court, in a separate scheduling order, also instructed the parties to hold an
instructions conference "[a]t least 14 days before the commencement of trial" and to
"attempt to agree on the form and content" of many of the "case-specific
instructions," including "any 'theory of defense' instruction(s)" that the defendant
requested. The court also provided that "[i]n the extraordinary circumstances in which
a defendant might be prejudiced by revealing a theory of defense prior to trial, the
defendant may submit a proposed 'theory of defense' instruction for the court's in
camera review 14 days before trial."
On March 14, 2011, two weeks before trial, Morales moved for in camera
review of his theory-of-defense instruction, which stated in part:
In early May 2010, [Morales] was cleaning his apartment. He
opened the outer casing of his vacuum cleaner in an effort to resolve a
malfunction. Inside the vacuum cleaner which [Morales] had loaned to
his friend and neighbor, Luis Rodriguez-Garabito, he found a bag filled
with an unknown but suspicious substance. When [Morales] found the
bag, he stopped what he was doing and went to Luis's apartment.
When he entered Luis'[s] apartment there were two individuals
whom he recognized present. He knew them by their first names, Juan
and 'Tine . . . . When they answered the door[,] [Morales] immediately
suspected Juan and 'Tine's involvement in hiding the bag in his vacuum
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cleaner. [Morales] confronted them both for using his vacuum to hide
what he assumed to be drugs.
In response, 'Tine produced a semiautomatic pistol, "racked the
slide," to aggressively demonstrate that it was loaded and ready to fire,
and, using foul language, threatened [Morales's] family in the United
States and in Mexico if [Morales] went to the police. Moreover, 'Tine
indicated [Morales] now would have do 'Tine unspecified favors in
exchange for the safety of [Morales's] family. . . .
Thus, according to Morales's proposed theory-of-defense instruction, Morales twice
sold methamphetamine for 'Tine because 'Tine coerced him "into committing illegal
acts for which he had no reasonable alternative." Morales also submitted two
alternative coercion instructions for the court to consider. The district court denied
Morales's motion, stating that it would "determine at the close of evidence whether
[a coercion] instruction is appropriate, and if so, how to word the instruction." The
district court did not specifically address the theory-of-defense instruction.
At a pretrial conference on March 21, 2011, the district court indicated that it
would enforce the stipulated discovery order and reminded the parties to "make sure
they have disclosed everything that the order requires." Later that day, Morales filed
a motion for ex parte notice of defense witnesses and exhibits, arguing that disclosure
of certain witnesses and exhibits "before the close of the Government's evidence"
would violate his Fifth and Sixth Amendment rights. Because the expert's testimony
would indicate that a member of the alleged conspiracy, 'Tine, possessed a firearm,
Morales argued that he would be forced to disclose his theory of defense and
incriminate himself. Morales requested that the court "reconsider its informal ruling
that counsel must reveal to the Government its expert witness regarding threats made
with a firearm against the defendant"2 because "[t]he gun expert will need to
2
The "informal ruling" Morales references is the district court's statement at the
March 21, 2011 pretrial conference that it would enforce the terms of the stipulated
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demonstrate the phenomenon of 'racking the slide'—crucial to the Defendant's Theory
of Defense." On March 27, 2011, Morales filed an ex parte offer of proof in which
he submitted a videotape of the firearms expert demonstrating how to "rack the slide"
of a semiautomatic weapon and urged the court to "reconsider its decision to enforce
the stipulated reciprocal discovery order where it will conflict with Defendant's Fifth
and Sixth [A]mendment rights." Prior to trial, Morales's counsel argued that the video
was necessary to demonstrate the "intimidating sound" a semiautomatic weapon
makes when "you rack the slide."
The district court denied the motion for ex parte notice of defense witnesses
and exhibits based on the stipulated discovery order and because, as a practical
matter, the court had to be able to "weed out anybody on the jury who may know
witnesses that you may call." Regarding the ex parte offer of proof, the court withheld
ruling and urged Morales's counsel "to try to get [evidence of racking the slide] in
through other witnesses."
Morales's counsel did not call the firearms expert to testify at trial. Instead,
during his cross-examination of Ryan Moore, Special Agent with the Iowa Division
of Narcotics Enforcement, he asked about racking the slide of a semiautomatic
weapon.
Q. And if you want to load it for the . . . first time, how do . . .
you load a semiautomatic?
A. There's an action or what I would call a slide. You drop the
magazine in. You pull the slide back. It chambers the round, and it's
ready to fire.
Q. Is that what they refer to as racking the slide?
discovery order.
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A. Racking the slide, yes.
Q. Does it make a noise?
A. Yes, yes, sir.
On direct examination, Moore testified that the ammunition found in Garabito's
apartment was for a semiautomatic weapon.
Morales testified at trial that he loaned his vacuum cleaner to Garabito in early
May and that after Garabito returned it, "the sound was different." When Morales
opened the vacuum, he discovered that "inside [the vacuum] were 2 bags of
something . . . and . . . a little black box." Morales testified that he went to Garabito's
apartment down the hall to confront him about the drugs. According to Morales,
Martin Gamboa, also called 'Tine, and a man named Juan were in the apartment.
Gamboa "got mad, and he grabbed the pistol and he loaded it." Morales testified that
Gamboa told Morales that "if [he] went to the police . . . [Gamboa] could hurt
[Morales's] family in Mexico or [in Iowa]." Morales asserted that Gamboa told him
that he "had to do [Gamboa] 2 favors, and then [Gamboa] was going to leave
[Morales] alone and he wouldn't hurt [Morales's] family either in Mexico or [in
Iowa]." Morales also testified that he did not go to the police after he left the
apartment because he believed that Hampton's police chief was racist and did not like
Hispanics. Morales admitted that he sold methamphetamine to a confidential
informant on two occasions but claims that he did so because he was afraid of
Gamboa.
On cross-examination, Morales admitted that the Hampton police chief was
Hispanic. Morales also stated that he played soccer with a Hampton police officer, but
he never told the officer about the threat. Morales worked Sunday through Friday
every week, and he did not work with Gamboa or Juan. However, Morales testified
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that he told the officers during questioning that he "was afraid . . . of a certain
person."
A private investigator testified during trial that he had located a "Martin
Gamboa" in Hampton, Iowa, but that he had not been able to make contact with him.
A defense witness testified that she had heard of a "Martin Gamboa" and that his
nickname was 'Tine. She also testified that he did not live in Morales's apartment
building.
Over Morales's objection, the district court declined to offer a coercion
instruction or theory-of-defense instruction to the jury. The jury found Morales guilty
on all three counts in the indictment.
II. Discussion
On appeal, Morales argues that the district court erroneously (A) required
Morales to disclose his firearms expert; (B) prohibited his firearms expert from
testifying; (C) refused to instruct the jury on the defense of coercion; (D) refused to
provide the jury with Morales's theory-of-defense instruction; and (E) prohibited
Morales's counsel from presenting his theory of defense in closing arguments.
A. Expert Witness Disclosure
Morales argues that the district court violated his Fifth and Sixth Amendment
rights by requiring him to disclose his firearms expert prior to trial, which would have
exposed him to an additional charge for "use of a firearm by a member of the alleged
conspiracy." The government argues that because Morales never called the expert to
testify at trial and did not get a final ruling on the admissibility of the expert's
videotape, "his claims of constitutional harm are speculative."
Generally, we review a district court's enforcement of a discovery agreement
between the parties for an abuse of discretion. See United States v. Edwards, 159 F.3d
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1117, 1130 (8th Cir. 1998) (finding "[t]he district court's order interpreting and
enforcing [a pretrial] agreement was not an abuse of its substantial case management
discretion"). "Normally a party is bound by his stipulations as a stipulation . . . is akin
to a contract." Rathborne Land Co., L.L.C. v. Ascenty Energy, Inc., 610 F.3d 249, 262
(5th Cir. 2010) (quotation and citation omitted); see United States v. 3,788.16 Acres
of Land, 439 F.2d 291, 294 (8th Cir. 1971) (noting that "parties are bound by
stipulations voluntarily made" (quotation and citation omitted)). Morales's obligation
to comply with the stipulation agreement was freely entered and not compelled. Thus,
the district court did not abuse its discretion by ordering Morales to comply with the
stipulated discovery order.
As to Morales's constitutional claim, Morales alleges that if he had disclosed
the expert witness pursuant to the stipulated order, then his constitutional rights
would have been violated because "doing so would [have] reveal[ed] his theory of
defense and potentially expose[d] him [to] an additional charge [for use of a firearm
by a member of the alleged conspiracy]." Because Morales did not disclose the expert
or call the expert to testify at trial, he has failed to allege an injury that is more than
speculative. Cf. United States v. Ray, 411 F.3d 900, 903 (8th Cir. 2005) (stating that,
although "issues decided in motions in limine are not inherently too speculative for
appeal," appeals based on "what [the defendant] thinks might have happened at trial"
are too speculative).
B. Expert Witness Testimony
Morales also argues that the district court violated his constitutional rights by
"declin[ing] to allow actual testimony or submission of the video exhibit" of his
firearms expert at trial. Pursuant to Federal Rule of Evidence 103(a),3 "[o]nce the
3
"A new version of the Federal Rules of Evidence went into effect on
December 1, 2011." United States v. Jean-Guerrier, 666 F.3d 1087, 1091 n.2 (8th
Cir. 2012). "These changes are intended to be stylistic only." Fed. R. Evid. 103
advisory committee's note. "All quotations here are from the rules in effect during
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court makes a definitive ruling on the record admitting or excluding evidence, either
at or before trial, a party need not renew an objection or offer of proof to preserve a
claim of error for appeal." (Emphasis added.) The district court in this case made no
such definitive ruling. Instead, the court expressly withheld ruling on whether the
video was admissible, and Morales never sought a final ruling on the matter. Morales
introduced substantially the same evidence that the expert would have provided
through the cross-examination of Special Agent Moore. Morales's "failure to seek a
final ruling at trial waived the issue." United States v. Echols, 346 F.3d 818, 821 (8th
Cir. 2003). Such a waiver "negate[s] even plain error review." United States v.
Frokjer, 415 F.3d 865, 871 (8th Cir. 2005) (quotation and citation omitted)
(determining that a defendant waived an objection to videotape evidence when the
district court did not make a definitive ruling on a motion in limine and that the
defendant made a tactical decision not to object to the evidence at trial); see also
United States v. Bad Wound, 203 F.3d 1072, 1075 (8th Cir. 2000) (noting that a
defendant can waive his Fifth Amendment privilege against self-incrimination);
Wabasha v. Solem, 694 F.2d 155, 157 (8th Cir. 1982) (noting that the defendant
waived his Sixth Amendment right to compulsory process by pleading guilty).
C. Jury Instructions
Morales argues that the district court erred by refusing to provide the jury with
one of two proffered coercion instructions and the proffered theory-of-defense
instruction. "A defendant is entitled to a particular jury instruction when the
instruction provides a correct statement of the law and is supported by the evidence."
United States v. Harper, 466 F.3d 634, 649 (8th Cir. 2006). "When a party timely
requests a specific jury instruction and makes a proper objection to its omission, we
review the district court's action for abuse of discretion." United States v. Christy, 647
F.3d 768, 770 (8th Cir. 2011).
[Morales's] [March 2011] trial." Jean-Guerrier, 666 F.3d at 1091 n.2.
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1. Coercion Instruction
First, Morales contends that the district court abused its discretion by failing
to instruct the jury on the defense of coercion.
A coercion [instruction] is warranted only if a defendant establishes (1)
an immediate threat of a nature sufficient to induce a well-grounded
apprehension of death or serious bodily injury if the offense is not
committed and (2) that the threat occurred in a situation in which there
was no reasonable opportunity to avoid the danger. A defendant cannot
invoke the defense of coercion if there existed an opportunity to avoid
the act without threat of harm or a reasonable and legal alternative to the
commission of the crime.
Harper, 466 F.3d at 648 (quotation and internal citations omitted). "[E]vidence of
. . . coercion may be stricken if the defendant is unable to present proof of all
elements of the defense." United States v. Blankenship, 67 F.3d 673, 678 (8th Cir.
1995). "We review de novo a district court's determination that the evidence was
insufficient to support submitting a[] [coercion] instruction to the jury." Harper, 466
F.3d at 649.
In Harper, we determined that a defendant who was threatened by an
individual who put a gun to the defendant's head and demanded two favors from him,
which he later performed, did not show that the perceived threat was immediate
because the threat occurred "on a prior, separate occasion" from the subsequent acts
and "at most" caused the defendant to fear "that in the future [the individual] might
act on the prior threat." Id. at 648. Likewise, Morales failed to establish the
immediacy of any perceived threat. Gamboa's threat to his family occurred "on a
prior, separate occasion" from either of the controlled buys. Id. And at most, Morales
feared "that in the future [Gamboa] might act on the prior threat." Id. "Such a
generalized and speculative fear fails as a matter of law to establish an immediate
threat for purposes of a coercion defense." Id.
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Morales attempts to distinguish Harper by arguing that "this case involves a
standing threat of immediate violence" like the threat to the defendant in United
States v. Ceballos, 593 F. Supp. 2d 1054, 1062 n.7 (S.D. Iowa 2009). That case is
inapposite, however, as it involved repeated instances of domestic violence. Id. at
1061–62. The district court in Ceballos found the
[d]efendant's evidence . . . sufficient to establish a prima facie case [of
coercion] and relevant in this context because her testimony and the
testimony of her family members, including her sister's statements that
Gomez beat Defendant almost to the point of unconsciousness, clearly
tend to establish the objective seriousness and constant immediacy of
the threat Gomez posed.
Id. at 1061. Those facts are not present here.
Morales also failed to provide evidence at trial that "the threat occurred in a
situation in which there was no reasonable opportunity to avoid the danger." Harper,
466 F.3d at 648. Morales argues that it is "well-documented" that Mexican authorities
would not have protected his family in Mexico. See United States v. Contento-
Pachon, 723 F.2d 691, 694 (9th Cir. 1984) (holding that the trier of fact should decide
whether the defendant could objectively believe that police in Colombia "were paid
informants for drug traffickers and that reporting the matter to the police did not
represent a reasonable opportunity of escape"). However, Morales "could not have
reasonably believed that exposing [Gamboa's] plans and threats to the police in
[Hampton, Iowa,] would be futile." United States v. Jankowski, 194 F.3d 878, 883 n.3
(8th Cir. 1999) (distinguishing Contento-Pachon). Morales argues that he did not
believe that he could go to police in Iowa because he believed that the police chief
hated Hispanics and because Morales was an illegal alien. "[A] defendant's subjective
belief that going to law enforcement would prove futile is insufficient to meet the
objective standard that there was no reasonable, legal alternative to violating the law."
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Harper, 466 F.3d at 648. Morales played soccer every week with a police officer and
had ample opportunity to report Gamboa's threats to him or any other officer.
2. Theory-of-Defense Instruction
Second, Morales argues that the district court abused its discretion by failing
to offer to the jury his theory-of-defense instruction. It is true "that a criminal
defendant is entitled to a theory-of-defense instruction that is timely requested,
correctly states the law, and is supported by the evidence." Christy, 647 F.3d at 770
(quotation, alteration, and citation omitted). However, a defendant is not entitled "to
a judicial narrative of his version of the facts." Id. (quotation and citation omitted).
Furthermore, "[e]ven where the court declines to give an instruction on a theory of
defense that is supported by the evidence, there is no error if the instructions as a
whole, by adequately setting forth the law, afford counsel an opportunity to argue the
defense theory and reasonably ensure that the jury appropriately considers it." Id.
"Measured against this standard, the district court's refusal to submit the
proffered instruction was not error." Id. Morales's proffered theory-of-defense
instruction consisted almost entirely of factual allegations and legal conclusions that
the evidence did not support.4 Moreover, as stated supra, Morales was not entitled to
a coercion defense, and his proffered theory-of-defense instruction attempted to
explain how he "was . . . coerced into committing illegal acts." Morales did not argue
that the district court's instructions were otherwise erroneous. Thus, the district court
did not abuse its discretion by failing to offer Morales's theory-of-defense instruction.
4
The factual allegations unsupported by the evidence are that Morales "had no
alternative but to cooperate with ['Tine]," that "'Tine . . . lived in the same building
with [Morales]," and that "Hampton Police Chief Ray Beltran's reputation, viewed
objectively, is that Beltran is dishonest and quick to judgment." The evidence also did
not support the legal conclusion that Morales "was immediately coerced into
committing illegal acts for which he had no reasonable alternative."
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E. Closing Arguments
Finally, Morales contends that the district court erred by preventing his counsel
from presenting his defense theory in closing arguments. We review this contention
for an abuse of discretion. United States v. Thomas, 664 F.3d 217, 224 (8th Cir.
2011).
Morales alleges that "the Trial Court explicitly ruled that counsel could not
discuss the threats in terms of the intent element in each charge and could not use the
words coercion or duress." He also says that "[t]he court made very clear and the
record supports that counsel was limited in discussing many of the matters outlined
in the theory of defense relative to the alleged threats."
Although the district court ruled that Morales's counsel could not assert a
coercion defense in closing arguments, the court permitted counsel to argue that
Morales's actions were involuntary. The court determined that "the better procedure
. . . is to give the jury no instruction on this and let . . . [defense counsel] argue it in
terms of voluntariness." The court told defense counsel that he could "argue that the
government has not proven voluntariness of the joining—that your client voluntarily
joined the conspiracy." The government informed the court and defense counsel that
it would object during his closing if "he starts veering into the coercion, duress jury
nullification argument in the guise of voluntariness." The government did not object
during defense counsel's closing argument.
Thus, the district court did not prohibit Morales's counsel from arguing that
Morales's actions were involuntary. The district court did not abuse its discretion by
prohibiting Morales's counsel from arguing that Morales's actions were coerced. See
Part II.D supra.
III. Conclusion
Accordingly, we affirm the judgment of the district court.
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