United States v. Arthurs, 73 F.3d 444, 1st Cir. (1996)
United States v. Arthurs, 73 F.3d 444, 1st Cir. (1996)
3d 444
I. Facts
2
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 midsection. Upon secondary inspection, six packages of cocaine were found
loosely concealed under Arthurs' clothing.
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.
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 the jury might have
difficulty understanding defendant's English.2 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.
9
10
The district court's refusal to provide a translator for defendant's testimony was
not plain error. The district judge, who 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).4 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.
11
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 less one that "seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings." Olano, 507 U.S. at 736, 113 S.Ct. at 1779
(citation omitted).
III.
12 Denial of a Jury Instruction on the Duress Defense
13
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.
14
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.5 Our precedent
requires strict compliance with this rule:
15 we have repeatedly held, Fed.R.Crim.P. 30 means what it says. A party may not
"As
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."
16
United States v. O'Connor, 28 F.3d 218, 221 (1st Cir.1994) (quoting United
States v. Wilkinson, 926 F.2d 22, 26 (1st Cir.), cert. denied, 501 U.S. 1211, 111
S.Ct. 2813, 115 L.Ed.2d 985 (1991)). Rule 30 is not satisfied by counsel's precharge 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.2d 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.
17
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,
at 736-37, 113 S.Ct. at 1779; Gabriele, 63 F.3d at 66.
18
United States v. Amparo, 961 F.2d 288, 291 (1st Cir.), cert. denied, 506 U.S.
878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992).
19
20
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.
21
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 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.
22
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 Sec. 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 the men again or know them.
23
24
That the evidence fell short of establishing duress is further 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. 8, 100 S.Ct. at 635 n. 8, 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.
25
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 poorlyfounded 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.
26
27
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, 100 S.Ct. at 629-30, 637-38 (affirming conviction of a
separately, subsequently tried defendant who was precluded from even
introducing evidence of duress as his former codefendants 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.
28
We conclude, in all the circumstances, that the district court's refusal to instruct
on duress was not plain error.
29
Affirmed.
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. Sec. 1827(d)(1)
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)