Appellants were convicted after a trial on stipulated facts of charges relating to the importation and distribution of cocaine. On the Government's motion a pretrial hearing was held to assess the legal sufficiency of appellants' evidence supporting a defense of duress. After hearing appellants' testimony, the United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, granted the Government's motion precluding the defense at trial. Appellants waived a jury trial and their convictions followed. Held, that the district court properly excluded appellants' evidence of duress under United States v. Bifield, 702 F.2d 342 (2d Cir.), cert. denied, 461 U.S. 931, 77 L. Ed. 2d 304, 103 S. Ct. 2095 (1983), because as a matter of law it fell short of establishing the defense, and that the pretrial procedure did not violate appellants' constitutional right to testify at trial. Judgment affirmed.
Oakes, Cardamone, and Mahoney, Circuit Judges.
The principal question presented by this case is whether two female drug couriers presented sufficient evidence at a pretrial in limine hearing to warrant submission of a duress defense to a jury. This procedure was sanctioned in United States v. Bifield, 702 F.2d 342, 347 (2d Cir.), cert. denied, 461 U.S. 931, 77 L. Ed. 2d 304, 103 S. Ct. 2095 (1983), a case involving a prison escape, though appellants question its use here. The United States District Court for the Eastern District of New York, Thomas C. Platt, Judge, held that the procedure was proper and that the evidence failed to establish a defense of duress. Thereafter, the appellants executed a written waiver of a jury trial and agreed to a trial on stipulated facts. The court found Alicea and Cabezas guilty on all three counts of conspiracy to possess and to distribute in excess of 500 grams of cocaine, importation of that cocaine, and possession of the cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), 846, 952(a), and 960(a)(1) (1981 & Supp. 1987). Both appellants were sentenced to three concurrent five-year terms of imprisonment, special assessments of $150 and four-year terms of supervised release on the importation and possession counts. We affirm.
Prior to trial the Government moved to exclude Alicea and Cabezas from presenting evidence supporting a duress defense, claiming that their evidence of duress was insufficient as a matter of law. At the hearing on the motion, Alicea and Cabezas testified that they had gone to Ecuador for a vacation on December 15, 1986, originally planning to stay only one week. While there, they decided to remain a few days longer and cancelled their December 22 return reservations. They missed their first rescheduled flight on December 25, and their second rescheduled flight on December 28 was cancelled. They then arranged a flight to New York, with a stopover in Miami, for January 2, 1987, and arrived at the airport that day two and one-half hours before the flight was scheduled to depart.
According to Alicea and Cabezas, just after they arrived at the airport in Ecuador and were walking toward the terminal, they were approached by two men who asked if they were going to New York. When the women did not respond, one man put his hand in his pocket as if he had a gun and pointed it at Alicea. Instructed to do exactly as they were told, Alicea and Cabezas then followed the men into a nearby Mercedes. The two men pushed the appellants' heads down so that they could not see where they were going while a third man drove them to a house. Inside the house the women were told to undress and to put on a "girdle," which was actually a pink body suit and a T-shirt. When one of the men attempted to strap packages of cocaine to Alicea's body suit, she resisted. The man who had driven the automobile then forced Alicea into an adjoining room and raped her. Cabezas, who could hear Alicea's screams from the next room, was told that if she did not comply, she, too, would be raped. The men then taped the packages to the body suits and the women put their clothes back on. One of the men made a telephone call to New York, describing the two women and giving the recipient of the call information about where they lived in New Jersey, having obtained the information by examining the contents of their purses. The man who had looked through the purses singled out a picture of Cabezas' daughter, threatening that harm would come to her if their demands were not met. The men told the women that someone would be watching them on the airplane and warned them not to try "anything."
The men then drove them back to the airport, checked them in, escorted them to the security area and left them to board the plane. After going through the metal detection device, appellants waited some twenty minutes before boarding the plane, during which time, out of fear, they did not report their predicament to anyone or try to get rid of the cocaine. They boarded the plane at about noon and sat together. Both Alicea and Cabezas testified that a man seated in their same row, three seats away toward the middle of the airplane, stared at them constantly, at one point asking them for a match. The women believed that this was the man whom their abductors had said would be watching them. Appellants testified that because they were in constant terror they did not seek assistance from a stewardess, or even attempt to go to the lavatory during the nine-hour flight (although at some point during the flight Cabezas fell asleep).
During the plane's scheduled stop in Miami, the women neither split up nor deplaned to seek help. On the plane Alicea was given a Customs declaration to fill in and submit to officials upon arrival in New York, but she wrote no request for help on it. When appellants arrived at Kennedy Airport, the "watcher" followed them off. While he did not stay directly behind them, the women assumed he was near enough to be a threat. Cabezas, an Ecuadorian citizen, was interviewed separately by an Immigration official outside the presence of the "watcher." Although she asked the official several times to check her passport, Cabezas did not tell the official that she had been forced to carry cocaine into the country.
Cabezas cleared the Customs inspection first, with the "watcher" close behind, according to appellants' testimony. But when the inspector reached over to assist Alicea, he touched her back and felt something hard. When he asked her what it was, Alicea replied that it was a body cast. The Customs inspector then took her to a more private area for a secondary search. Cabezas, although she already had been cleared and was free to leave, went with Alicea and also submitted to the search. Inside the secondary search rooms Alicea and Cabezas told the officials how they had been forced to carry cocaine, although neither mentioned the rape. At the hearing Alicea testified that at the time she had been too ashamed to let her family know about the assault. A month later, however, when she discovered that she had become pregnant as a result of it, she arranged to have an abortion at the Metropolitan Correctional Center and confided the incident to a staff psychologist there.
Relying on the testimony of the two women, Judge Platt nevertheless found that they had not overcome the Bifield preclusion test that "[w]here the evidence, even if believed, fails to establish all of the elements of the duress defense, the trial court may rule upon the defense as a matter of law and need not submit it to the jury." Bifield, 702 F.2d at 346. In the judge's view, there was no evidence to sustain the factual dispute as to two elements of the alleged defense, namely, that "there must be no time for a complaint to the authorities or there must exist a history of futile complaints which make any benefit from such complaints illusory"; and that "the defendant must intend to report immediately to the proper authorities when she attains a position of safety from the immediate threat." The court's opinion emphasized that Alicea and Cabezas were free from their abductors for at least twenty minutes prior to boarding the plane in Ecuador. During the nine-hour flight, each of the appellants had an opportunity to separate herself from her companion and the alleged "watcher," and to complain to the cabin attendants or the officers on the airplane. The stopover at the Miami airport presented an even greater opportunity to elude the "watcher" and alert the authorities. Finally, the court pointed out, Cabezas had a full and free opportunity to seek the assistance of the Immigration officers during her private interview, and both appellants had the opportunity to seek assistance from the Customs inspectors on their arrival in New York. From these facts Judge Platt found it "abundantly evident" that "neither defendant intended to 'report immediately to the proper authorities when [they] obtain[ed] a position of safety from the immediate threat' and that there was ample time for them to complain to or seek the assistance of the authorities, and they never did so" (quoting Bifield, 702 F.2d at 346 (quoting United States v. Boomer, 571 F.2d 543, 545 (11th Cir.), cert. denied, 436 U.S. 911, 98 S. Ct. 2250, 56 L. Ed. 2d 411 (1978))).
Appellants' first argument is that United States v. Bifield has no application in a case not involving a prison escape. Thus, they claim, the district court's reliance on the elements of the duress defense catalogued in Bifield is "simply wrong." Rather, their argument runs, the court should have followed United States v. Mitchell, 725 F.2d 832 (2d Cir. 1983), which reiterated the requirements of a duress defense in a passage quoted from United States v. Agard, 605 F.2d 665, 667 (2d Cir. 1979), as follows:
A claim of duress and coercion constitutes a legal excuse for criminal conduct when, at the time the conduct occurred, the defendant was subject to actual or threatened force of such a nature as to induce a well-founded fear of impending death or serious bodily harm from which there was no reasonable opportunity to escape other than by engaging in the otherwise unlawful activity.
725 F. Sd at 837. According to appellants, there is no surrender or reporting requirement under Mitchell. They concede, however, that Mitchell contains an "inescapability" requirement, which under some circumstances may involve assessment of a ...