United States v. Terri Sawyer, 08-2236.

Terri Sawyer was convicted for participating in a conspiracy to distribute methamphetamine. Her appeal primarily rests on the district court's refusal to instruct the jury on the elements of a duress defense.

Sawyer presented a very different account of the events leading to that conviction than the government. She claims she was relentlessly threatened by Seferino Rodriguez, one of the government's witnesses at trial, because of a previous drug debt owed by her ex-boyfriend.

To pay off this debt, she claims that Rodriguez forced her to find meth buyers. The government's evidence at trial indicated that Sawyer was a willing participant in a meth-dealing operation, and that she purchased meth from Rodriguez and was responsible for introducing various buyers and suppliers.

Seferino Rodriguez offered testimony in support of the government's case. Rodriguez testified that he began dealing meth in January 2005, when Sawyer asked him to sell it to her. The government's case included several additional witnesses. Vanes testified that Sawyer introduced him to Rodriguez as a supplier of methamphetamine and that he and Sawyer bought meth from Rodriguez regularly after that meeting. Donald Pruett testified that he began buying meth from Sawyer in February 2005, and bought meth from her about once a month for the next six months.

Sawyer presented a very different version of events. She testified that she began dating Ryan Beauchamp in 2004; eventually, both of them began to use methamphetamine. Sawyer testified that Beauchamp was friends with Rodriguez, and that the two of them dealt marijuana and cocaine together. This business relationship soured when Beauchamp ripped Rodriguez off in a drug deal. Sawyer testified, however, that Rodriguez began threatening Beauchamp after that deal. First, Rodriguez showed up at Sawyer and Beau-champ's house with several other men and threatened Beauchamp.

After that night, Sawyer threw Beauchamp out of their shared house. After that confrontation, Rodriguez evidently lost contact with Beauchamp and instead began harassing Sawyer about the debt. Sawyer never contacted the police because, she claimed, Rodriguez was a member of the Mexican Mafia and she was afraid he would find out if she did.

During an instruction conference at the trial, Sawyer tendered an instruction on the affirmative defense of duress. The government objected on the grounds that Sawyer had not met the burden of production for that defense because she had not established that she faced an immediate threat of death or bodily injury and did not have a reasonable opportunity to escape the threatened harm. The district court agreed with the government and declined to issue the instruction.

This court reviews de novo a district court's decision not to give a defense instruction. United States v. Brack, 188 F.3d 748 (7th Cir. 1999).

A defendant is entitled to offer an instruction on an affirmative defense or a theory of defense if: (1) the defendant's proffered instruction is a correct statement of the law; (2) the theory of defense is supported by the evidence; (3) the theory of defense is not part of the charge; and (4) the failure to include the instruction would deny the defendant a fair trial. United States v. Jenkins, 419 F.3d 614, 618 (7th Cir. 2005). A defendant is entitled to have a jury consider a proffered defense so long as that defense has a foundation in the evidence, "however tenuous" that foundation may be. United States v. Given, 164 F.3d 389, 394 (7th Cir. 1999).

Sawyer's claim centers around the affirmative defense of duress. The duress defense has its roots in common law, and excuses criminal conduct, even though the defendant engages in it with the requisite mens rea, because the defendant nevertheless acted under a threat of a greater immediate harm that could only be avoided by committing the crime charged.

Under the law of this circuit, a defendant attempting to present a defense of duress or coercion must show: (1) she reasonably feared immediate death or serious bodily harm unless she committed the offense; and (2) there was no reasonable opportunity to refuse to commit the offense and avoid the threatened injury. United States v. Jocic, 207 F.3d 889, 892 (7th Cir. 2000). If the defendant had a reasonable alternative to violating the law, then the defense of duress will not lie. Id. A defendant's fear of death or serious bodily injury is generally insufficient. Rather, "[t]here must be evidence that the threatened harm was present, immediate, or impending." United States v. Tanner, 941 F.2d 574, 587 (7th Cir. 1991).

Further, Supreme Court precedent also suggests that when a defendant presenting a duress defense committed an ongoing crime (such as, in this case, conspiracy) that defendant must have ceased committing the crime as soon as the claimed duress lost its coercive force. See United States v. Bailey, 444 U.S. 394, 412-13 (1980) (holding that an escapee from custody must present evidence that he surrendered to authorities as soon as the coercive force ceased when he claimed his escape occurred under duress).

The district court declined to issue the jury instruction in this case because it did not find a sufficient evidentiary basis for it. One sentence of the district court's opinion complicates our review, however. The district court, when discussing the evidence presented, found that "[t]here's just not enough evidence here to meet the burden-preponderance on her burden to show that she engaged in conduct because she reasonably feared that immediate serious bodily harm or death would be inflicted upon her and that she had no reasonable opportunity to avoid injury."

Sawyer argues on appeal that the district court's reference to "preponderance" was erroneous and applied the wrong evidentiary standard to the instruction.

Sawyer suggests that the district court was improperly applying the Supreme Court's decision in Dixon v. United States, 548 U.S. 1 (2006). That case held that the defendant bears the burden of demonstrating the elements of a duress defense by a preponderance of the evidence. The holding of Dixon pertains to the ultimate burden of proof on the issue at trial and not the initial showing that a defendant must make before the court will instruct the jury on the defense.  At the initial showing, a defendant need show only a foundation for the elements of the defense in the evidence, not a preponderance of the evidence supporting the defense.

With respect to Sawyer's argument on appeal, the district court's use of the word "preponderance" in its ruling on the jury instruction does raise some question about what evidentiary standard the court applied. The remainder of the ruling, indicates that the court found no evidentiary basis for the proposed instruction under the correct standard.

Further, the district court committed harmless error even if it applied the wrong evidentiary standard, as Sawyer did not establish a foundation for the defense.

This circuit has long held that the threat giving rise to a duress defense must have been "present, immediate, or impending." Tanner, 941 F.2d at 587. Sawyer does not allege an immediate threat. Even taking her testimony at face value, it recounts Rodriguez's allusions to future violence if Sawyer refused to pay off Beauchamp's drug debt.

We have previously noted in this context that, " 'future' or 'later' and 'imminent' are opposites." United States v. Tokash, 282 F.3d 962, 970 (7th Cir. 2002). Whether or not it was reasonable, Sawyer's fear of future violence if she did not cooperate with Rodriguez does not entitle her to a duress defense. See United States v. Sahakian, 453 F.3d 905, 910 (7th Cir. 2006) (finding that "Sahakian's fear that he might be assaulted at some future point by some unidentified inmate" was insufficient for a duress defense).

Additionally, Sawyer did not present evidence that she could have avoided this threat only by agreeing to help sell drugs, with no reasonable opportunity to seek protection from law enforcement.

We also note that the threat of future violence, often implied and sometimes express, is frequently the currency of drug trafficking operations, and allowing a duress defense in circumstances such as this where the defendant has not shown the requisite elements would flood drug prosecutions with jury instructions in cases where they are unwarranted.

We thus affirm the district court's decision not to offer the instruction in this case.

AFFIRMED

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