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United States v. Burgueno-Gonzalez

United States District Court, S.D. California

April 28, 2017



          HONORABLE LARRY ALAN BURNS United States District Judge.

         Defendant Maritza Burgueno-Gonzalez (Burgueno) is charged with importing a controlled substance into the United States and her trial is set to begin May 2, 2017. The Court is scheduled to hear motions in limine in the case on May 1, 2017.

         Less than a week before the scheduled trial date - on April 26, 2017 - the Court received in chambers two pleadings, captioned respectively “Defendant's Ex Parte Under Seal Proffer and “Ex Parte/Under Seal Application For Order Permitting Issuance of Subpoenas Under Rule 17(b).” In brief, and without revealing the particulars of the defense proffer, the pleading argues in favor of the admissibility of proffered evidence supporting a duress defense. The motion does not contain a Proof of Service, and it does not appear to have been served on the plaintiff in this case, the United States of America. The Court rejects the pleading, and orders that it is not to be filed by the Clerk's office.

         Whether a defendant has the burden of proving duress by a preponderance of the evidence, or alternatively, whether the government must establish the absence of duress beyond a reasonable doubt, is a question of law. United States v. Meraz-Solomon, 3 F.3d 298, 299 (9th Cir. 1993). When the burden is on the defendant, he must establish three elements before he is entitled to a jury instruction on duress: (1) an immediate threat of death or serious bodily injury; (2) a well-grounded fear the threat will be carried out; and (3) lack of reasonable opportunity to escape the threatened harm. United States v. Becerra, 992 F.2d 960, 964 (9th Cir. 1993). Where the defendant is unable to make a prima facie showing of all three elements, the Court should exclude evidence of the duress defense. Id.; United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984). While a district court may determine the sufficiency of evidence to support a duress defense by a motion in limine, United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985), by filing her pleading ex parte and under seal in this case, the defendant is asking the Court to make legal rulings respecting the adequacy of her proffered duress evidence in what amounts to an in camera hearing, without notice to, or the opportunity for, the United States to oppose the motion.

         It is unnecessary for the Court to decide whether it has inherent power to grant a criminal defendant an in camera hearing, excluding the other litigant party - the prosecution - and to receive proffered evidence for substantive purposes on an issue dispositive of the litigation. If a district court has such power, its invocation would surely require a compelling showing of necessity, and its exercise would require sound judicial discretion based on a recognition that exercise of the power virtually obliterates as to one party all of the basic and fundamental rights included in the concept of a fair trial: the right to be present during all important stages of the proceedings; the right to hear testimony or, as here, to be made aware of proffered evidence; the right to test the truth and accuracy of the proffered evidence by cross-examination; the right to present rebuttal evidence; and the right to be heard in meaningful argument.

         In this case, the defendant hasn't attempted to make such a showing, [1] and the Court finds that to entertain the motion and rule on it without giving notice and the opportunity to be heard to the prosecution would be unfair and prejudicial to the fair trial rights of the United States.

         Defendant's Ex Parte Under Seal Motion In Limine is REJECTED, without prejudice to refiling it with proper notice to the United States.[2]




[1] The defense application recites merely that the motion is filed ex parte because it reveals confidential defense strategy and is protected by the work product privilege and the attorney client privilege. But the proposed defense strategy proposed is subject to the Court making a substantive legal ruling to admit evidence at trial. For reasons outlined above, it is improper and would be unfair for the Court to make that ruling without providing the opposing party notice of the evidence and the opportunity to be heard in opposition. Because the defense intends to introduce the evidence at trial, the Court finds that they have prospectively waived the work product privilege. As for the attorney client privilege, the defense submission does not explain how that privilege will be implicated in the presentation of the anticipated evidence - especially if the defendant herself testifies.

[2] Defendant's accompanying ex parte application for the issuance of Rule 17(b) subpoenas is also DENIED without prejudice. Absent a determination by the Court that the defendant may present a duress defense, there is no good cause shown at this time for the issuance of the requested subpoenas. Notwithstanding the last minute submission of this application, the Court assumes that defense counsel has communicated with the prospective witnesses and ...

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