The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER FOLLOWING BENCH TRIAL
A bench trial was held in this matter on August 28 and 29, 2007. Having considered the testimony and evidence presented, the Court issues the following ruling.
Defendant Francisca Celaya-Lopez is charged by indictment with one count of Importation of Marijuana in violation of 21 U.S.C. §§ 952 and 960 and one count of Possession of Marijuana with Intent to Distribute in violation of 21 U.S.C. § 841(a)(1). Based upon the evidence presented at trial, the Court finds the Government has established each element of the charged offenses beyond a reasonable doubt. The evidence established that Defendant was arrested on October 13, 2006 attempting to cross the border at the Calexico, California Port of Entry driving a vehicle containing 33.80 kilograms of marijuana. Defendant admitted knowledge of the presence of drugs within the vehicle, and knew she was to deliver the vehicle to a location within the United States.
Indeed, the underlying elements of the charged offenses were largely undisputed at trial; Defendant's case rested upon the defense that she committed the crimes under duress. In deciding the duress issue, the Court has relied on the testimony of the defendant, the video of Defendant's post-arrest interrogation by agents, and the trial exhibits.
Defendant contends that threats occurred over a period of several years, culminating in a threat to Defendant and her family at the time she crossed the border with the drugs. In September 2005, Defendant's boyfriend Francisco, who is younger than Defendant, took Defendant to his grandmother's ranch in Mexico and allegedly tortured Defendant for a day and one half. This apparently led to Defendant suffering a cardiac arrest which lead to an operation and a stroke. However, Defendant testified that the reason for Francisco's abuse was not related to drugs, but was because Francisco believed Defendant had been unfaithful to him. Defendant testified that while she was at the ranch in 2005, she became aware that Francisco`s cousins, five brothers, were involved in drug smuggling. Francisco pressured Defendant to drive drugs across the border for his cousins, but she refused.
Defendant's operation and stroke occurred in October 2005. During her recuperation, Defendant contacted Francisco notwithstanding the fact he allegedly, in her own words, tortured her for one and one half days. On September 1, 2006, Defendant went to Mexicali to visit her daughter and according to her testimony was "taken by force" by Francisco in her vehicle. She claimed she had a gun placed to her head and was driven a distance to a small town where she jumped out at a stop sign and informed the police. The police arrested Francisco and he was convicted and sent to jail. However, Defendant presented a somewhat inconsistent version of events to Bruce Yanofsky, a Clinical and Forensic Psychologist. Defendant told Dr. Yanofsky that she voluntarily accompanied Francisco after he saw her driving from her home to a local store. According to Dr. Yanofsky's report, Defendant claimed Francisco convinced her to get into his vehicle so he could show her a home he had bought for her. Defendant told Dr. Yanofsky that despite being afraid, she went along because she did not want her family to know of her relationship with Francisco. In any event, Francisco was arrested after Defendant called to the Mexican police and he is still in jail.
During the kidnapping, Defendant became aware that Francisco had accepted money from his cousins to have drugs smuggled over the border and that Francisco apparently had promised his cousins that Defendant would be the driver. Francisco allegedly pressured Defendant to comply with his wishes that she cross the drugs over the border by threatening her. Francisco`s cousins were pressuring him because the money had allegedly been paid
After the incarceration of Francisco, a young cousin named Christian allegedly continued to threaten the Defendant and members of her family, claiming that Defendant "had the job that had been paid for." Defendant testified she assured the cousin she would cross the border and take care of it because Francisco had already been given the money and she did not have the money to pay it back.
To prevail under a duress theory, the defendant must establish the following elements by a preponderance of evidence: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the threat will be carried out, and (3) lack of a reasonable opportunity to escape the threatened harm. United States v. Verduzco, 373 F.3rd 1022, 1030 (9th Cir. 2004). The standard for reasonableness is to be determined by what a reasonable person would do under the same or similar circumstances. Id.
The evidence presented with respect to the threats made to Defendant doesn't really explain why Defendant would have been such a critical cog in the drug smuggling venture, particularly when drug smugglers do not seem to have much difficulty recruiting couriers. Defendant did not receive the advance payment and was nothing more than the girlfriend of Francisco. However, an inference can be drawn that because Defendant was responsible for Francisco's incarceration and he was paid the money, the responsibility was therefore seen as Defendant's responsibility.
In weighing the evidence, the Court notes that several factors weigh against a finding that the threats made to Defendant were sufficient to satisfy the first two prongs of the duress defense. First of all, the threats were made over such a long time span that it is difficult to discern that Defendant was ever placed in any immediate harm of death of serious bodily injury. According to Defendant, the threats began with Francisco until he was incarcerated, then were carried out by Christian, the cousin. Overall, the threats in one form or another ran from the time Defendant was allegedly tortured in September, 2005 to the date of offense on October 13, 2006. It should be noted that, although Defendant testified to the alleged torture, the medical records at the hospital placed into evidence did not note any bruises or lacerations.
Furthermore, during rehabilitation from her stroke and heart surgery, Defendant initiated contact with Francisco by giving him her telephone number even though he was allegedly responsible for her condition by the abuse she took at his grandmother's ranch in Mexico. Defendant had the ability to avoid all contact with Francisco as she had moved from her residence to some apartments for the purpose of rehabilitation, all within the United States. If Defendant were truly in fear of imminent harm, it is not logical that she would voluntarily give her number to Francisco at the time of her rehabilitation.
In addition, Defendant never told her children they were in danger. Defendant told the investigating agents and testified at trial that she was embarrassed to tell her children of the situation because of her relationship with Francisco. The Court must consider whether it is reasonable that Defendant would not have warned her children, two of whom live in Mexico, if she were truly concerned for their safety. Or is it more likely that Defendant smuggled the drugs primarily to avoid telling her five children because of her embarrassment over her relationship with a younger man, as she testified at trial?
Also, Defendant told the investigating agents on video tape that she was to be paid $1,500 to deliver the drugs. This is inconsistent with the her statement to her psychologist that Francisco had already been paid $5,000 to deliver the drugs, and her trial testimony that she delivered the drugs because she was afraid because the delivery had already been paid for. Although Defendant indicated in her testimony that she lied to the agents about the $1,500, the video was clear and no impression could be drawn that she was lying when she told the agents she was to be paid. It is difficult to believe that experienced drug smugglers ...