United States District Court, D. Nebraska
FINDINGS OF FACT
M. GERRARD, UNITED STATES DISTRICT JUDGE
matter, having been tried without a jury, is before the Court
for findings of fact pursuant to Fed. R. Crim. P. 23(c).
See United States v. B.A.D., 647 F.3d 772, 776 (8th
Cir. 2011). The parties have presented the case on stipulated
facts (filing 27; filing 29; filing 32) and have filed
written briefs (filing 30; filing 33), and have submitted the
case after a hearing in open court. The parties have agreed
to waive a jury trial, and the Court accepts that waiver,
finding that the defendant's express waiver was knowing
and intelligent. See, Rule 23(a); United States
v. Mahler, 141 F.3d 811, 814 (8th Cir. 1998); United
States v. Stalder, 696 F.2d 59, 62 (8th Cir. 1982).
defendant is accused of illegally reentering the United
States following deportation, in violation of 8 U.S.C. §
1326(a). Filing 18. That section provides for prosecution of
an alien who, having previously been removed from the United
States, is found in it without the permission of the Attorney
General. See § 1326(a). The defendant has
admitted facts establishing the elements of the offense.
Filing 29 at 2; 4. Accordingly, the Court finds the elements
of the offense have been proved beyond a reasonable doubt.
See United States v. Morris, 791 F.3d 910,
913 (8th Cir. 2015).
defense rests on an affirmative defense of duress or
necessity, which is properly presented by stipulation.
United States v. Wray, 608 F.2d 722, 724 (8th Cir.
1979). The elements of that defense are that
(1) he was under an unlawful and present, imminent, and
impending threat of such a nature as to induce a
well-grounded apprehension of death or serious bodily injury;
(2) that he had not recklessly or negligently placed himself
in a situation in which it was probable that he would be
forced to commit a criminal act; (3) that he had no
reasonable, legal alternative to violating the law; and (4)
that a direct causal relationship may be reasonably
anticipated between the commission of the criminal act and
the avoidance of the threatened harm.
United States v. Diaz, 736 F.3d 1143, 1150 (8th Cir.
2013) (listing elements of "duress or coercion");
United States v. Bonilla-Siciliano, 643 F.3d 589,
591 (8th Cir. 2011) (listing elements of "defense of
necessity"); see United States v.
Polanco-Gomez, 841 F.2d 235, 238 (8th Cir.
1988). The defendant bears the burden of proving
the elements of his defense by a preponderance of the
evidence. See Dixon v. United States, 548
U.S. 1, 17 (2006).
Court finds that the defendant has failed to carry that
burden. Bonilla-Siciliano is particularly pertinent
here. In that case, the defendant- a citizen of El
Salvador-was charged with illegal reentry, and as support for
a necessity defense, proffered the following:
He testified that he faced danger in El Salvador from the
government and gang members because of his tattoos indicating
membership in a gang. He submitted an article from The
Washington Post, which reported that "former and
current gang members complain that police take them into
custody simply for having tattoos." He presented
documentation showing that he had attempted to remove the
tattoos, but testified that he was unable to do so because of
problems with his skin. [He] testified that he could not go
elsewhere, because Canada was not accepting immigrants, and
he also faced danger in Mexico, Guatemala, Columbia, and
Venezuela as a result of his tattoos.
643 F.3d at 590. But the district court found his proffer
insufficient to warrant instructing the jury on his defense,
and he was convicted. Id. at 590-91. Applying the
elements set forth above, the Eighth Circuit affirmed,
concluding that the defendant had failed as a matter of law
to present evidence supporting his proposed defense:
On the first prong, generalized fears are insufficient to
establish an imminent threat of harm; rather, a defendant
must show that a real and specific threat existed. Because
[the defendant] failed to identify any specific threat to his
safety, and relied only on a generalized fear of harm from
the government and gang members, he did not make a prima
facie showing on the first element. As to the third
element, [the defendant] cannot show that he lacked a
reasonable, legal alternative to illegally reentering the
United States, because he did not exclude the option of going
to a country other than the United States or the handful of
others that he stated were dangerous. For these reasons, the
district court was correct to rule as a matter of law that he
was not entitled to present a necessity defense.
Id. at 591 (citations and quotation omitted).
case, admittedly, the defendant's evidence of a real and
specific threat is stronger, given his statement about what
happened to him in Guatemala. See filing 29 at 2-3.
But the defendant's argument still falls short on the
third element of his defense: there is nothing in his proffer
to exclude other lawful options, such as going to a country
other than the United States. And "[i]f there was a
reasonable, legal alternative to violating the law, the
defense of necessity will fail." Polanco-Gomez,
841 F.2d at 238.
duration of the defendant's stay in the United States
also undercuts his argument. He reentered the country in 2005
and lived in Crete, Nebraska until his 2016 arrest. Filing 29
at 4; see filing 1 at 1. In Bailey, the
Supreme Court addressed the applicability of a defense of
necessity or duress to an ongoing offense, in the context of
defendants who claimed that their escape from prison was
justified by coercion. 444 U.S. at 415. The Court held that
the defendants' evidence was not sufficient, because it
was their burden to present evidence not only justifying
their initial departure, but also their continued absence
from custody. Id. at 412. So, "an indispensable
element of such an offer [of proof] is testimony of a bona
fide effort to surrender or return to custody as soon as the
claimed duress or necessity had lost its coercive
force." Id. at 412-13.
escape from prison, illegal reentry "is an ongoing
offense that continues until a person is discovered by
authorities." United States v.
Delgado-Hernandez,646 F.3d 562, 567 (8th Cir. 2011).
And in this case, the defendant's offense lasted for
approximately 11 years. There is nothing to suggest that the
defendant could not have moved on to another country, or
returned to Guatemala after a time. In sum, even if the
defendant had proved that his initial 2005 reentry into the
United States was justified by necessity or duress-and to be
clear, he did ...