73 F.

3d 444

UNITED STATES, Appellee,

v.
Lloyd ARTHURS, Defendant, Appellant.
No. 94-1466.

United States Court of Appeals,

First Circuit.
Heard Nov. 7, 1995.
Decided Jan. 17, 1996.

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.
Before TORRUELLA, Chief Judge, CAMPBELL, Senior Circuit Judge,
LYNCH, Circuit Judge.
LEVIN H. 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.
Sec. 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. Sec. 952(a).1 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
2

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.

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.

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 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.

7II. 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 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

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

would be fatal to the claim on appeal.3 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, 507 U.S. 725, 736-37, 113 S.Ct.
1770, 1779, 123 L.Ed.2d 508 (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).

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

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, 961 F.2d 288, 291 (1st Cir.), cert. denied, 506 U.S.
878, 113 S.Ct. 224, 121 L.Ed.2d 161 (1992).
19

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, 108
S.Ct. 883, 887, 99 L.Ed.2d 54 (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").

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

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, 100 S.Ct. 624, 62 L.Ed.2d 575 (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, 100 S.Ct. at 635 (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 precharge 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, 109 S.Ct. 88, 102 L.Ed.2d 64 (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, 100 S.Ct. at 637-38.

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

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 Olano, at 736-37, 113 S.Ct. at 1779.

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.

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. Sec. 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. Sec. 952(a).
2

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)

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)