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Suppose for instance that you are sipping a margarita in Rosarito Beach , Mexico. You are approached by armed men and told that you must carry a package of methamphetamine, cocaine, or heroin in your car into the United States or your relatives who live in Mexico will be killed. Or perhaps you are visiting an ex-boyfriend in Tijuana. He tells you that he knows where your family lives and unless you do him “this little favor” of smuggling narcotics across the international border, he will hurt you.
If you bring drugs into the United States and are caught do you have a defense under federal criminal law? The short answer is unless you tell authorities at the border that you have drugs in your car and why you have them, you probably don’t have a defense.
The defenses to federal drug crimes, as determined by the appellate court that controls the border area in Southern California, the Ninth Circuit Court of Appeals, has greatly restricted a duress related defense. A defendant must show three things in order to even allow a jury to consider whether there was duress or coercion that justified the commission of the crime:
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.
The defendant must prove to the jury that all of the foregoing are true to be entitled to a finding of not guilty.
Duress defenses most often fail in federal court for several reasons. First, the threat may not still be present once you have left Mexico and are entering the United States in your car. Most important the court found in a case called Ibarra-Pino that in most instances you must report the threat to the border agents when you first enter the United States. The idea is that they will give you a “reasonable opportunity to escape the threatened harm.
Every case is different, but under federal criminal law, a defense based on duress or threats is very difficult to establish. So, if you ever find yourself in a situation where you are forced to bring drugs into the United States, the moral is report it immediately to the agents if you can. Better yet don’t put yourself in a position where you are vulnerable to being asked to carry narcotics into the United States.