United States v. Arthurs

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

No. 94-1466

UNITED STATES,

Appellee,

v.

LLOYD ARTHURS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Juan M. Perez-Gimenez, U.S. District Judge]

Before

Torruella, Chief Judge,

Campbell, Senior Circuit Judge,

Lynch, Circuit Judge.

Ramon L. Garay-Medina with whom Ramon L. Garay-Medina was on

brief for appellant.
Warren Vazquez, Assistant United States Attorney, Guillermo Gil,

United States Attorney, and Nelson Perez-Sosa, Assistant United States

Attorney, were on brief for the United States.

January 17, 1996

CAMPBELL, Senior Circuit Judge. Defendant-appellant Lloyd

Arthurs was convicted of possessing with the intent to distribute

approximately two kilograms of cocaine in violation of 21 U.S.C.

841(a)(1), and importing cocaine into the customs territory of the

United States from a place outside thereof, in violation of 21 U.S.C.

952(a).* He was sentenced to sixty-three months of imprisonment,

four years of supervised release, and a $100 fine. He appeals from

the judgment of conviction, entered in the United States District

Court for the District of Puerto Rico following a three-day jury

trial.

I. Facts
I. Facts

Arthurs, a twenty-three year-old citizen of Jamaica, was a crew

member aboard the cruise ship, Windward. He worked two shifts,

washing pots from early morning to late afternoon and cleaning cabins

in the evenings.

* The statutes read in relevant part:

[I]t shall be unlawful for any person knowingly or intentionally
--
(1) to manufacture, distribute, or dispense, or possess with
intent to manufacture, distribute, or dispense, a controlled
substance. . . .
21 U.S.C. 841(a).

It shall be unlawful to import into the customs territory of the
United States from any place outside thereof. . . any controlled
substance. . . or any narcotic drug [with certain exceptions
inapplicable here].
21 U.S.C. 952(a).

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On December 5, 1993, the Windward arrived at the port of San

Juan, having traveled there from the Virgin Islands. The government's

evidence, which was largely uncontested by the defense, was that the

Customs Service had caught defendant with approximately two kilograms

of cocaine as he was exiting the ship. Customs agents had been

informed that persons aboard would attempt to smuggle narcotics into

San Juan and were inspecting disembarking passengers and crew members.

An agent noticed that Arthurs appeared bulky in the mid-section. Upon

secondary inspection, six packages of cocaine were found loosely

concealed under Arthurs' clothing.

The defense's case was provided principally by defendant's own

testimony. Because Arthurs raises a duress claim, infra, we summarize

the testimony he provided in support of that claim, testimony that the

government disputes. Arthurs stated that at the time of his arrest,

he had been leaving the ship in order to return two videotapes to a

video club where he had rented them a week earlier. The passageway of

the ship led to the upper level of a pier. There, according to

defendant, a stranger pulled him into a public bathroom, where another

man was waiting. No one else was inside. Defendant testified that

the men pushed him up against a wall and "demand[ed] I take come [sic]

some packages out to the street, and the only way could get out of the

bathroom is to cooperate with them or I would be a dead man. And the

gentleman was very angry, the one was in the bathroom was very angry."

Two packages were placed loosely around his waist, and four were

placed in his pockets. Defendant testified that the men then let him

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out of the bathroom, and he did not see them again.

Defendant, being "very panic," proceeded immediately to Customs

and "requested search from the Customs two times." When told that he

was under arrest, "I started to give [the officer] my statement and he

refused, and arrested me . . . ." A subsequent search of defendant's

cabin yielded no other drugs.

Defendant raises two issues on appeal: 1) the district court

erred in denying his request for a translator of his testimony to

ensure that the Puerto Rican jury understood his English, spoken with

a Jamaican accent, and 2) it erred in refusing as a matter of law to

instruct the jury on a duress defense. Defendant claims that these

errors deprived him of his constitutional rights to due process,

adequate legal representation, a jury trial, and a fair and impartial

trial.

II. Lack of a Translator of Defendant's Testimony
II. Lack of a Translator of Defendant's Testimony

Defendant asserts on appeal, and the government concedes, that he

requested a translator apparently to translate his Jamaican English

into a form of English more easily understood by the jury. This

request does not appear on the record now before us, nor does the

record show that the court denied a request of such a nature. There

also is no indication in the record of a defense objection to the

court's alleged refusal to appoint a translator. Several times during

the trial, however, defense counsel referred to the possibility that

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the jury might have difficulty understanding defendant's English.**

On appeal defense counsel also suggests that defendant, who neither

reads nor writes, did not understand some of the questions put to him

when he testified.

Normally the absence of any record of defendant's request for a

translator would be fatal to the claim on appeal.*** However, the

government conceded at oral argument that such a request was made in a

chambers conference. We shall, therefore, consider the matter,

although, as no objection to the court's refusal to grant the request

appears ever to have been made, we review for plain error only. See

United States v. Olano, 113 S. Ct. 1770, 1779 (1993); see also United

States v. Taylor, 54 F.3d 967, 972-973 (1st Cir. 1995) (discussing

"raise-or-waive" rule and exception for plain error).

The district court's refusal to provide a translator for

defendant's testimony was not plain error. The district judge, who

** For example, defense counsel explained in opening argument, "Mr.
Lloyd Arthurs is a Jamaican National, they speak English but during
this trial you will realize that the [sic] their English is not every
time so easily understandable." When defendant took the stand,
counsel stated, "I will appreciate that all your answers try to be as
clear and slow as possible. . . . For the members of the Jury to
clearly understand your testimony." And in closing arguments, defense
counsel noted that the jury may have had some difficulty understanding
defendant's speech, and reiterated key aspects of his testimony.

*** Where a report of relevant proceedings below is unavailable, an
appellant should seek to supplement the record on appeal pursuant to
Fed.R.App.P. 10(c). Here, given the government's concession and in
the interests of justice -- and given our conclusion that defendant is
without ultimate right to relief in any event -- we discuss his
contention notwithstanding his failure to have utilized this rule.
Our doing so should not be taken as precedent that an appellant may,
in other circumstances, ignore Fed.R.App.P. 10(c).

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heard the defendant speak, had considerable discretion in these

circumstances to determine if Arthurs' English testimony was

intelligible to the jury. Cf. Gonzalez v. United States, 33 F.3d

1047, 1050-1051 (9th Cir. 1994); United States v. Garcia, 818 F.2d

136, 142 (1st Cir. 1987).**** Defendant's counsel at no time

asserted on the trial record that defendant suffered from

comprehension problems so severe as to deny him due process or the

right to a fair and impartial trial. It appears from our own review

of the record that defendant answered for the most part responsively,

although he occasionally misunderstood and needed to have a question

repeated. From what we can ascertain, we cannot say that his language

problems were of such a magnitude as to have deprived him of a fair

trial.

The absence of an objection on this ground left the district

court without notice of any claim that language difficulties bothered

defendant to the extent now claimed on appeal. Had the court been so

notified, it could have made further inquiry and, if necessary, taken

steps to deal with the alleged problem. We cannot say, on the basis

of the record now before us, that the court committed any error, much

**** Defendant does not assert that his principal language was other
than English. The Court Interpreters Act provides in relevant part
that a presiding judicial officer "shall" appoint an interpreter when
it determines that "[a] party (including a defendant in a criminal
case). . . (A) speaks only or primarily a language other than the
English language. . . so as to inhibit such party's comprehension of
the proceedings or communication with counsel or the presiding
judicial officer, or so as to inhibit such witness' comprehension of
questions and the presentation of such testimony." 28 U.S.C.
1827(d)(1).

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less one that "seriously affect[s] the fairness, integrity or public

reputation of judicial proceedings." Olano, 113 S. Ct. at 1779

(citation omitted).

III. Denial of a Jury Instruction on the Duress Defense
III. Denial of a Jury Instruction on the Duress Defense

At the outset, the district court denied a government motion in

limine to prevent defendant from introducing evidence of duress.

After the close of evidence, however, the district court did not find

defendant's testimony of duress sufficient to require submitting a

special duress or coercion instruction to the jury, as defense counsel

had requested in writing and orally during a pre-charge colloquy with

the court.

Defense counsel did not thereafter object to the district court's

omission of a duress instruction from its charge before the jury

retired to consider its verdict, as Rule 30 of the Federal Rules of

Criminal Procedure directs.***** Our precedent requires strict

compliance with this rule:

"As we have repeatedly held, Fed.R.Crim.P. 30 means what it says.
A party may not claim error in the judge's charge to the jury
unless that party 'objects' after the judge gives the charge but
before the 'jury retires,' and, when objecting the party must
'stat[e] . . . distinctly the matter to which that party objects
and the grounds of that objection."

United States v. O'Connor, 28 F.3d 218, 221 (1st Cir. 1994) (quoting

***** The rule provides: "No party may assign as error any portion of
the charge or omission therefrom unless that party objects thereto
before the jury retires to consider its verdict, stating distinctly

the matter to which that party objects and the grounds of the
objection." Fed.R.Crim.P. 30 (emphasis supplied).

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United States v. Wilkinson, 926 F.2d 22, 26 (1st Cir.), cert. denied,

501 U.S. 1211 (1991)). Rule 30 is not satisfied by counsel's pre-

charge colloquy with the court or written explanation of grounds

alone, nor even by a post-charge attempt to incorporate by reference

earlier arguments. See United States v. Gabriele, 63 F.3d 61, 66 &

nn.4, 7 (1st Cir. 1995); Wilkinson, 926 F.3d at 26-27; United States

v. Coady, 809 F.2d 119, 123 (1st Cir. 1987) ("That counsel may have

discoursed upon the nature of his theory at some time prior to the

giving of the charge will not excuse noncompliance with the express

mandates of Rule 30."). Strict compliance with the rule "enables the

trial judge intelligently to appraise the soundness of the position

asserted, and if need be, correct the charge to avoid injustice."

Coady, 809 F.2d at 123.

After its charge, the district court does not appear to have

affirmatively invited counsel to register any objections they then had

to the instructions it had just given. However, Rule 30 places the

burden of compliance on the parties. Cf. id. Counsel should have

spoken out, requesting an opportunity to register objections out of

the jury's hearing. Absent a post-charge objection, we review the

district court's denial of a duress instruction only for plain error.

See Olano, 113 S. Ct. at 1779; Gabriele, 63 F.3d at 66.

A duress defense has three elements: 1) an immediate threat of

serious bodily injury or death, 2) a well-grounded belief that the

threat will be carried out, and 3) no reasonable opportunity to escape

or otherwise to frustrate the threat. See United States v. Amparo,

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961 F.2d 288, 291 (1st Cir.), cert. denied, 113 S. Ct. 224 (1992).

To justify a duress instruction, a defendant must produce

sufficient evidence to support a finding of duress. See Mathews v.

United States, 485 U.S. 58, 63 (1988) ("As a general proposition a

defendant is entitled to an instruction as to any recognized defense

for which there exists evidence sufficient for a reasonable jury to

find in his favor.") (citations omitted); Amparo, 961 F.2d at 291;

United States v. Rodriguez, 858 F.2d 809, 812, 814 (1st Cir. 1988) (a

defendant must show evidence that "fairly supports" each element of

his defense, and in making that determination, "the district court is

not allowed to weigh the evidence, make credibility determinations, or

resolve conflicts in the proof").

When a predicate warranting a duress instruction has been laid,

the government is saddled with the additional burden of showing beyond

a reasonable doubt that a defendant's criminal acts were not the

product of duress. See Amparo, 961 F.2d at 291. Here, the government

escaped this added burden, the district court ruling that the

defendant did not present sufficient evidence of any element to

entitle him to submit a duress defense to the jury.

In reviewing the district court's determination that defendant

did not meet his entry-level burden, we examine the record "most

charitably to the proponent of the instruction." Coady, 809 F.2d at

121. So viewed, the evidence of an immediate threat of serious bodily

injury or death was that Arthurs was pulled into a public bathroom on

the pier and pushed up against a wall, was threatened by two men (one

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of whom was "very muscular" and "very tall"), and felt something like

a weapon on his back. His fear in these circumstances gave rise to

his alleged well-grounded belief that the threat of serious injury or

death would be carried out. His testimony regarding a lack of

reasonable opportunity to escape was that no security officers were

present at the time in the upper pier area. To seek refuge or

assistance by returning to the ship would have required him to pass

the bathroom and the men who had threatened him. Instead, defendant

used the elevator next to the bathroom to proceed immediately to

Customs on the lower level. Defendant testified that at Customs he

requested twice to be searched and attempted to explain his situation

but was not permitted to do so.

Assessing the above evidence, we conclude that the district court

did not commit plain error in refusing to instruct the jury on duress.

While defendant may have been under an immediate threat of serious

injury in the bathroom, he testified that the men released him from

there and he did not see them again. This evidence at most supports a

lingering threat of future harm. Cf. United States v. Wells, 773 F.2d

230, 232 (8th Cir. 1985) (drug deal participant's fear of future harm

insufficient to show duress); W. LaFave & A. Scott, Criminal Law

5.3(b) at 436 (1986) (reciting general rule that threatened future

death or serious bodily harm is insufficient for a duress defense).

The evidence of a well-grounded belief that the threat would be

carried out is similarly weak, given defendant's testimony that he

left the bathroom, boarded the elevator by himself, and did not see

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the men again or know them.

Notably, defendant did not present evidence sufficient to

convince a reasonable juror of the lack of a reasonable opportunity to

escape. In United States v. Bailey, 444 U.S. 394 (1980), the Supreme

Court stated that a duress defense is unavailable "if there was a

reasonable, legal alternative to violating the law, 'a chance both to

refuse to do the criminal act and also to avoid the threatened harm.'"

Id. at 410 (citing W. LaFave & A. Scott, Handbook on Criminal Law at

379 (1972)). Even if a return to the ship was unreasonable and

security officers were unavailable on the pier, defendant might have

discarded the drugs in the elevator or pulled them out from his

clothing at Customs and proceeded to exit with his videos, as the

district court noted during the pre-charge conference. The record

indicates that defense counsel had opportunity to answer this concern

but offered no further evidence. Cf. United States v. Alicea, 837

F.2d 103, 106-107 (2d Cir.), cert. denied, 488 U.S. 832 (1988)

(defendants forced at airport to transport cocaine by threats, a rape,

and constant surveillance failed to show a lack of reasonable

opportunity to escape); United States v. Mejia, 720 F.2d 1378, 1382

(5th Cir. 1983) (defendant who conceded importation of cocaine and

failed to contact authorities to avoid the threat was not entitled to

duress instruction). The failure to show any one element of duress is

sufficient to justify denying a request to submit a defense theory to

the jury. See Bailey, 444 U.S. at 416.

That the evidence fell short of establishing duress is further

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supported by this court's decision in Rhode Island Recreation Ctr.,

Inc. v. Aetna Casualty & Sur. Co., 177 F.2d 603 (1st Cir. 1949). This

civil case discussed the duress defense at length in considering an

insurance policy that excluded from coverage a loss caused by an

employee's fraudulent or criminal acts. The Supreme Court cited Aetna

approvingly in Bailey, 444 U.S. at 410 n.1, to illustrate the need for

an accused to show no reasonable opportunity to avoid violating the

law. Aetna is factually analogous to the claims in the instant case:

two armed strangers ordered appellant's manager into a car, drove him

to the place of business, instructed him to remove all the money from

the safe and meet them shortly afterward or else "they would take care

of" certain family members, and then drove away. See Aetna, 177 F.2d

at 604.The manager did as told without seeking help from the few

employees he saw or by any other means.

Applying the same elements of duress recited above, the Aetna

court found the facts insufficient to indicate that the manager was

acting under duress or coercion. The court pointed to the vague

threat of future harm, the poorly-founded fear of immediate injury,

and the reasonable opportunities to avoid the threat and violation of

the law while temporarily away from the strangers. See id. at 605-

606.

In light of the above authorities, the district court's finding

of insufficient evidence of duress and consequent refusal to instruct

the jury on the defense was clearly not plain error, if error at all,

under the heightened standard applicable in plain error review. See

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Olano, 113 S. Ct. at 1779.

The district court, it should further be observed, denied the

government's early motion in limine to exclude evidence of duress.

The jury, therefore, heard the essence of Arthurs' defense and the

government's response. Cf. Bailey, 444 U.S. at 400, 416-417

(affirming conviction of a separately, subsequently tried defendant

who was precluded from even introducing evidence of duress as his

former co-defendants had done). The district court also instructed

the jury that the government had the burden of proving beyond a

reasonable doubt defendant's specific intent to commit the crimes

charged. Cf. United States v. Sturm, 870 F.2d 769, 777 (1st Cir.

1989). Had the jury actually believed defendant's testimony that he

had been threatened and involuntarily given the drugs in the bathroom,

it might, even without further instruction, have entertained a

reasonable doubt as to whether the element of specific intent was

satisfied. Even more, had the jury believed, as defendant also

testified, that he had unavailingly asked the Customs officers to

search his effects, the jury would have been free to entertain a

reasonable doubt as to defendant's intent to commit the charged

crimes.

We conclude, in all the circumstances, that the district court's

refusal to instruct on duress was not plain error.

Affirmed.

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