U.S. v. Amparo

• Decision Date: 05 March 1992
• Docket Number: No. 91-2010,91-2010
• Citation: 961 F.2d 288
• Parties: UNITED STATES of America, Appellee, v. Luz Maria AMPARO, a/k/a Luz Maria Amparo Sanchez, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 288

961 F.2d 288

UNITED STATES of America, Appellee, v. Luz Maria AMPARO, a/k/a Luz Maria Amparo Sanchez, Defendant Appellant.

No. 91-2010.

United States Court of Appeals First Circuit.

Heard March 5, 1992.

Decided April 8, 1992.

Irma R. Valldejuli, for defendant, appellant.

Ivan Dominguez, Asst. U.S. Atty., with whom Daniel F. Lopez-Romo, U.S. Atty., was on brief, for appellee.

Before BREYER, Chief Judge, FEINBERG, ^* Senior Circuit Judge, and SELYA, Circuit Judge.

SELYA, Circuit Judge.

In an effort to invest Dame Fortune with partiality toward their venture, a group of would-be drug smugglers paid a visit to a sorceress before leaving their native land. The visit was unrewarding: upon arriving in the United States, the three principals were apprehended, indicted, and found guilty of various trafficking charges. One defendant, Luz Maria Amparo Sanchez (Amparo), claiming that her involvement was coerced, now repairs to an appellate venue. This visit, too, proves unrewarding.

I.

We begin by recounting certain (essentially uncontradicted) facts which serve to put Amparo's appeal into initial perspective.

In November 1990, appellant, an attorney in the Dominican Republic, was invited to travel to Puerto Rico with an acquaintance, Miguelina Jimenez. When Jimenez arrived at appellant's home en route to the airport, she was accompanied by a stranger, Humberto Davis. Before going to the airport, the trio stopped at a motel. There, Davis provided Jimenez with a quantity of cocaine. (The evidence showed that Jimenez had previously agreed to smuggle drugs in the course of her journey to the United States.) The contraband being bulkier than anticipated, it was decided that Amparo would carry some of the cocaine. A package was strapped to her torso beneath her corset. The threesome then drove to the home of a local sorceress who was apparently engaged to assure Amparo (with too sanguine an air, as matters turned out) that the trip would be successful. Davis, Jimenez, and Amparo thereafter boarded their flight. The cocaine was not listed on the aircraft's cargo manifest.

Upon arriving in Puerto Rico, Davis was detained in the airport's immigration area and questioned about his frequent entries into the United States. The two women cleared immigration but were kept in the customs area when routine questioning evoked a degree of suspicion. Although inspection of the women's luggage yielded no contraband, pat-downs of their persons uncovered the packages of cocaine. Following a positive field test of the white powder contained in the packages and appellant's identification of Davis as the plot's ringleader, the wayward travellers were arrested.

All three suspects were charged with aiding and abetting the importation of cocaine, possessing the drug with intent to distribute it, and related offenses. ¹ Jimenez pled guilty. Davis moved successfully for severance; he was tried separately and convicted. The appellant was tried last. The jury found her guilty on all counts. After imposition of sentence, this appeal ensued.

II.

On the merits, appellant presents this court with what is essentially a claim that the prosecution's evidence was insufficient to convict. She preserved the point, moving for judgment of acquittal at the close of the government's case in chief and at the close of all the evidence. The district court denied the motions. While appellant challenges both rulings, we need only address the second. A defendant who elects to adduce evidence in her defense after the district court has denied a Rule 29 motion made at the close of the government's case is deemed to have abandoned the earlier motion and waived any objection to its denial. ² See United States v. Clotida, 892 F.2d 1098, 1102 (1st Cir.1989); United States v. Lopez, 576 F.2d 840, 842 (10th Cir.1978); United States v. Belgrave, 484 F.2d 915, 916 & n. 1 (3d Cir.1973).

The standard of review is a familiar one. We must survey the totality of the evidence, scrutinizing the record in the light most favorable to the prosecution and drawing all reasonable inferences in favor of the verdict. See, e.g., United States v. Maraj, 947 F.2d 520, 522-23 (1st Cir.1991); United States v. Victoria-Peguero, 920 F.2d 77, 86-87 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2053, 114 L.Ed.2d 458 (1991). So long as the record, read in this fashion, would have allowed a rational jury to conclude beyond a reasonable doubt that appellant was guilty of the offenses charged, we must affirm a denial of the motion for judgment of acquittal.

In this case, the evidence tendered by the government was powerful. It showed that appellant, at the time of her arrest, was knowingly carrying cocaine; that despite her avowed intention of taking a leisurely jaunt to Puerto Rico, her airline ticket bore an itinerary starting in the Dominican Republic, passing through Puerto Rico, and ending in Maryland; that both Jimenez and Davis had booked the same itinerary; and that appellant had packed a winter coat in her luggage (thus lending credence to the notion that she was not bound for the balmy beaches of San Juan, but for a chillier climate). Moreover, appellant indicated upon initial questioning that she had agreed to transport drugs for Davis in exchange for a payment of $1,000. Based upon the evidence offered by the government, a rational jury could easily have concluded, beyond any shadow of a doubt, that Amparo was guilty of the crimes with which she was charged.

Nor did the evidence presented by the defense sufficiently alter the calculus. The linchpin of Amparo's defense was the testimony of her friend and codefendant, Miguelina Jimenez. Jimenez testified that she led Amparo to believe that the trip would be in the nature of a junket to Puerto Rico; she was planning to buy clothing there for resale in the Dominican Republic and Amparo would assist her. Jimenez further testified that Amparo was unaware of a more nefarious purpose until the cocaine was produced at the motel. Jimenez stated that Amparo did not wish to carry drugs but did so because Jimenez told her that, otherwise, Davis would hurt her or her children. Amparo also testified. In general, her testimony corroborated Jimenez's account. She admitted that she had sentiently carried cocaine into the United States, but asserted that she was coerced into doing so by Davis (who was armed and insistent). In short, her defense was that she acted under duress.

To maintain the defense of duress, a defendant must offer evidence sufficient to show three things: (1) that she acted under an immediate threat of serious bodily injury or death, (2) that she had a well grounded belief that the threat would be carried out, and (3) that she had no reasonable opportunity to escape or otherwise to frustrate the threat. See United States v. Johnson, 956 F.2d 894, 897-98 (9th Cir.1992); United States v. Santos, 932 F.2d 244, 249 (3d Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 592, 116 L.Ed.2d 617 (1991); United States v. Bakhtiari, 913 F.2d 1053, 1057 (2d Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1319, 113 L.Ed.2d 252 (1991); United States v. Scott, 901 F.2d 871, 873 (10th Cir.1990); United States v. Wells, 773 F.2d 230, 231 (8th Cir.1985) (per curiam). The defendant has a burden of producing enough evidence to support a finding of duress. See United States v. Bailey, 444 U.S. 394, 415-16, 100 S.Ct. 624, 637-38, 62 L.Ed.2d 575 (1980) (where the defendant's evidence, even if believed, fails to establish all the elements of a duress defense, the trial court need not submit the issue to the jury); United States v. Bifield, 702 F.2d 342, 346 (2d Cir.) (same), cert. denied, 461 U.S. 931, 103 S.Ct. 2095, 77 L.Ed.2d 304 (1983).

If the defendant succeeds in satisfying this entry-level burden, and the charged crime requires mens rea, the government must prove beyond a reasonable doubt that the defendant's criminal acts were not in fact the product of duress. See Santos, 932 F.2d at 249; United States v. Scott, 901 F.2d 871, 873 (10th Cir.1990); United States v. Beltran-Rios, 878 F.2d 1208, 1214 (9th Cir.1989); cf. United States v. Rodriguez, 858 F.2d 809, 814-15 (1st Cir.1988) (while defendant must shoulder an entry-level burden before an entrapment defense reaches the jury, "the defendant's burden of production does not shift the historic burden of proof"). The government can overcome this obstacle if it proves that the defendant's evidence is bogus in some material respect, say, by showing that no threat occurred, or that the defendant's fear was unreasonable, or that the defendant had an opportunity to escape but did not exercise it. See, e.g., Santos, 932 F.2d at 249; Beltran-Rios, 878 F.2d at 1214.

Here, although Amparo carried her entry-level burden, there was ample room for the jury to conclude that the claimed duress was more apparent than real. For one thing, Jimenez's testimony was open to grave doubts. She did not come forth with her tale of coerced cooperation until after the two women had been incarcerated together for a substantial period of time; and on cross-examination, she conceded that Davis never actually threatened Amparo. For another thing, Amparo's story was far from ironclad. Originally, she admitted that she agreed to help the smugglers in consideration for a cash payment; the jury could have believed this admission rather than her later, more flattering, version of the relevant events. Then, too, the government adduced persuasive rebuttal testimony indicating that Amparo had several opportunities, both on the aircraft and upon arrival in Puerto Rico, to seek assistance without alerting either Davis or Jimenez, but stood pat. No more was exigible. See Victoria-Peguero, 920 F.2d at 86-87 (to sustain a conviction, the proof "need not exclude every reasonable hypothesis of innocence, provided the record as a whole supports a conclusion of guilt beyond a reasonable doubt").

In sum, this record...