(dissenting in part and concurring in part):
In order to establish a defense of duress, the trial court in this case required Contento-Pachon to show (1) that he or his family was under an immediate threat of death or serious bodily injury; (2) that he had a well grounded fear that the threat would be carried out; and (3) that he had no reasonable opportunity to escape the threat. Applying this three-part test, the trial court found that the defendant’s offer of proof was insufficient to support a defense of duress. The government argues that this holding should be affirmed and I agree.
The government also contends that the defense of duress includes a fourth element: That a defendant demonstrate that he submitted to proper authorities after attaining a position of safety. This is not an unreasonable requirement and I believe it should be applied. I do not agree with the majority’s conclusion that the fourth element of the duress defense is only required in prison escape cases. Cases applying the fourth element have not so expressly limited its application. See, e.g., United States v. Peltier, 693 F.2d 96, 98 (9th Cir.1982); United States v. Campbell, 609 F.2d 922, 924 (8th Cir.1979), cert. denied, 445 U.S. 918, 100 S.Ct. 1282, 63 L.Ed.2d 604 (1980); United States v. Michelson, 559 F.2d 567, 569-70 (9th Cir.1977). The distinction which the majority attempts to draw between prison escape cases and non-prison escape cases is not persuasive. The force of threats which allegedly excused the defendant’s failure to submit to proper authorities upon his arrival in Los Angeles are no more present, immediate, or impending than the force of threats or fear of retaliation faced by a “snitch” upon his return to prison after an escape.
In granting the government’s motion in limine excluding the defense of duress, the trial court specifically found Contento-Pachon had failed to present sufficient evidence to establish the necessary elements of immediacy and inescapability. In its Order the district court stated:
The first threat made to defendant and his family about three weeks before the flight was not immediate; the threat was conditioned upon defendant’s failure to cooperate in the future and did not place the defendant and his family in immediate danger or harm. Moreover, after the initial threat and until he went to the house where he ingested the balloons containing cocaine, defendant and his family were not physically restrained and could have sought help from the police or fled. See United States v. Gordon, 526 F.2d 406 (9th Cir.1975). No such efforts were attempted by defendant. Thus, defendant’s own offer of proof negates two necessary elements of the defense of duress.
In cases where the defendant’s duress has been raised, the courts have indicated that the element of immediacy is of crucial importance. See, e.g., United States v. Atencio, 586 F.2d 744, 746 (9th Cir.1978); United States v. Patrick, 542 F.2d 381, 388 (7th Cir.1976); see also United States v. Polytarides, 584 F.2d 1350 (4th Cir.1978). The trial court found that the threats made against the defendant and his family lacked the requisite element of immediacy. This finding is adequately supported by the record. The defendant was outside the presence of the drug dealers on numerous occasions for varying lengths of time. There is no evidence that his family was ever directly threatened or even had knowledge of the threats allegedly directed against the defendant.
*697Moreover, the trial court found that the defendant and his family enjoyed an adequate and reasonable opportunity to avoid or escape the threats of the drug dealers in the weeks before his flight. Until he went to the house where he ingested the balloons containing cocaine, defendant and his family were not physically restrained or prevented from seeking help. The record supports the trial court’s findings that the defendant and his family could have sought assistance from the authorities or have fled. Cases considering the defense of duress have established that where there was a reasonable legal alternative to violating the law, a chance to refuse to do the criminal act and also to avoid the threatened danger, the defense will fail. Duress is permitted as a defense only when a criminal act was committed because there was no other opportunity to avoid the threatened danger. United States v. Hernandez, 608 F.2d 741, 750 (9th Cir.1979); United States v. Wood, 566 F.2d 1108, 1109 (9th Cir.1977); United States v. Michelson, 559 F.2d 567, 569 (9th Cir.1977).
The district court is vested with broad discretion whether to admit or exclude proffered evidence and its rulings will not be overturned on review without a clear showing of abuse of discretion. United States v. Brannon, 616 F.2d 413, (9th Cir.) cert. denied sub nom. Cox v. United States, 447 U.S. 908, 100 S.Ct. 2993, 64 L.Ed.2d 858 (1980); United States v. Castillo, 615 F.2d 878 (9th Cir.1980); United States v. Kearney, 560 F.2d 1358 (9th Cir.) cert. denied, 434 U.S. 971, 98 S.Ct. 522, 54 L.Ed.2d 460 (1977). Because the district court’s decision granting the government’s motion in limine is fully and adequately supported by the record, I cannot agree that the district court abused its discretion and I therefore respectfully dissent.
I agree with the majority, however, that the district court properly excluded Contento-Pachon’s necessity defense.