United States v. Gordon, 74-3034.

• Citation: 526 F.2d 406
• Decision Date: 21 November 1975
• Docket Number: No. 74-3034.,74-3034.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward GORDON, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

526 F.2d 406

UNITED STATES of America, Plaintiff-Appellee, v. Joseph Edward GORDON, Defendant-Appellant.

No. 74-3034.

United States Court of Appeals Ninth Circuit.

November 21, 1975.

Ron Minkin, Los Angeles, Cal., for defendant-appellant.

Wilfred A. Hearn, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff-appellee.

Before KOELSCH and CHOY, Circuit Judges, and SOLOMON,^* District Judge.

OPINION

SOLOMON, District Judge:

The principal issue in this appeal is whether the defense of duress is available to one who asserts that he committed an illegal act to protect the lives of friends.

Gordon, the appellant, admits that he possessed and sold 250,000 amphetamine tablets, but he asserts that he did it because of threats to himself and two friends by the undercover agent to whom he sold the drugs.

The trial court excluded the friends' testimony on duress. The defendant was convicted and he appealed. We affirm.

Early in 1974, Reavis agreed to sell amphetamines to Steve Campbell, a part-time Federal narcotics undercover agent. The sale, which was scheduled to take place in Palm Springs, California, was never completed.

Thereafter Gordon was introduced to Reavis by their mutual friend Snyder.

On May 9, 1974, Reavis in Phoenix called Campbell in Chicago and told him that he knew where Campbell could buy amphetamines. Reavis introduced Campbell to Gordon over the telephone. Gordon and Campbell arranged a sale in Los Angeles. This was Campbell's first knowledge of Gordon.

Three days later, at Campbell's request, Gordon sent Campbell a Chicago-to-Los Angeles airplane ticket. The next day both Campbell and Gordon arrived in Los Angeles and checked into separate rooms at the Marriott Hotel.

About 8:00 that evening, Gordon and Campbell met in the hotel lounge. Campbell introduced Gordon to his three "bodyguards", also undercover agents. After a short discussion, Gordon agreed to make the sale.

Gordon, Campbell, and one of the "bodyguards" went to Gordon's room, where they discussed the abortive Palm Springs sale. Gordon testified that Campbell said he was upset with Reavis and his associate Pearson, whom he blamed for the collapse of the sale. Campbell testified that he and Gordon renegotiated the price of the amphetamines. Gordon denied it. Gordon, Campbell, and the other agent then continued their conversation in the hotel lobby.

Between 11:00 p. m. and 1:15 a. m., at least five telephone calls took place between Los Angeles and Phoenix. Campbell and Reavis spoke three times. Gordon and Reavis once, and Gordon and Snyder once.

About 1:30 a. m. Campbell went to Gordon's room. Gordon left and returned with a suitcase containing the tablets, which he showed to Campbell.

Gordon and Campbell talked until 5:30 a. m. Campbell testified that their discussions were friendly, but Gordon testified that Campbell kept pressuring him. He said that Campbell periodically threatened his life. Gordon also testified that he changed his mind about making the sale several times. He said that when Campbell threatened him again at 5:30, he told Campbell the sale was off, and they parted.

About 7:00 a. m. Gordon changed his mind again and agreed to the sale. About 10:00 a. m. three undercover agents went to Gordon's room. Gordon left and returned with the suitcase containing the amphetamines. Gordon was then arrested.

At the trial, Gordon asserted three defenses: entrapment, duress to others, and duress to himself. On appeal he abandoned the defense of entrapment. On duress, he said that he became involved in the drug sale because of Campbell's threats to Reavis and Pearson, and that he finally decided to go through with the sale because of Campbell's threats to Gordon himself.

The classic definition of duress or coercion appears in Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935):

Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion ....

For a defendant to successfully urge duress as a defense, he must show that the threat and the fear which the threat caused were immediate and involved death or serious bodily injury. He must also show that the fear was well-grounded and that there was no reasonable opportunity to escape.

On Gordon's defense of duress to others, he offered to prove through the testimony of Reavis and Pearson, to be corroborated by Snyder, that Campbell had made threats against Reavis and Pearson.

The offer...