good afternoon my name is deborah big b and i represent the appellant mister meros compost mister meros compost was denied the opportunity to present his defense of duress to the jury because the trial co improperly concluded that he had failed to proffer sufficient evidence of the st element of duress which is an immediate threat of death or serious bodily injury however given the severe beating a cartel or flipped  arrest a threat of death or serious bodily injury i'm simply an i t date that two members of the cartel entered the residence he shared with his wife and children stripped him of his personal cell phone and ordered him to drive a truck containing seventy two pounds of contraband phoenix i submit that at that point in time mister maurice compos knew that serious bodily injury to him and his family would be the  i think that the events before the date of his arrest i think they put some teeth into the fact that on the day they showed up and ordered him to drive to phoenix with the contraband he knew that they were serious he knew what would happen to him that's right was specific in that he had the i think i do you tell them being in the in the very but he knew what was going to happen to him if he failed to obey the order and i think he i believe that he thought it was it would be a specific and direct consequence to him and his family i hope that answers your question  having encountered look they went through secondary and somehow that didn't bring the daughter on the dog was not available not feeling well that day and and is that ok looks ok you know go on and then he gets picked up in phoenix does he still have the same argument i think he would only because the had also told him that his family was in danger and i know that like in three separate instances when he was meeting with the officer ochoa he mentioned my failings at risk i'm really worried about my family and at one point he said to him we'll help me take the truck to phoenix because they have my family and so i think in with respect to the issue about his family also being in danger i think that he  would what is it about the we could for money basis in the record and there are three parts to his to rest a fence near focusing on the immediacy of his threat what about the opportunity to escape now i understand your argument gushing was thirty two days before the day he attempted to cross the border and even if a member of the cartel was writing a vehicle with them until he got close to the port of entry then into the port of entry by himself in the vehicle loaded w about the fact that the rd element is lack of a reasonable opportunity to escape and you have to assess reasonableness in terms of you have to take all the particulars of the defendant when you're looking at that reasonable  and he noted he stated when he was narrating the video in court that he that immediately after he came into america he turned around and went back to mexico and he said because the cartel had been watching me and if they'd seen that i  wasn't there or they would have hit me and they had already hit me that's almost like a direct quote of what he said and so i think when you look at this you have to say well there could have been certain circumstances the particulars dealing with this defendant like it might have been more dangerous for him to attempt to go to the p o e s again or the fact that he had a family in back in mexico and to argue that he should have to be displaced and move to another country pick up his family there's just different particulars and i think well you know again he did and he didn't get to present the defense but i think that's a jury question as to whether the reasonable ness defendant and all the particulars that go along with then and as to whether he really had an opportunity to escape during that time period this may be police or anything but i think that it's important that he did try to go to the customs and border patrol officers because that is were once he crossed over that is when a crime would occur  and again you know i i think that you have to look at the particulars of the defendant you know that you're involved with here and the involvement of the cartels and maybe the local police before you can really make that determination and i would assume that would be something the government would want to cross examine him on if you or he might want to present an expert on its defense and gone to the jury and it would be appropriate for the jury to decide that stay well i mean like i said i'd begun i think you have to look at the particulars of the defendant and whether it was safe he considered that it was safe to go back and try again to talk to the border patrol also the fact that he that the person that a member of the cartel got out right at the border i got i've got to believe that if they had seventy two pounds of throgs in the jeep that that person is going to be watching and making sure that he doesn't take a u turn to go off on a dirt road and so intelli got to the port of entry that was really i guess the last opportunity well he could i mean i'm not suggesting his state by taking a u turn circumventing the border once he pulled into the border if the kurds were still able to observe him in a nd sentence a secondary vehicle searched they know the games that the drugs have been seized and if he told the agent that there were drugs in the vehicle the same thing would have happened it would have been he would have gone to secondary to get who had been seized so i don't know how that it's an opportunity for a state well again the family was still at risk and the family was still back in mexico so i think that was still an on his mind and maybe a lack of a reasonable opportunity and first of all the trial court couldn't really look at that because they have to accept the proffer as true but more importantly the family was noted to be in california when that happened what he said there in california was a year after when he was talking in the present it was a year after the crime when he was talking to the pre sentence report person they say they have another witness that that confirmed that he that he said that you at the time i have not been able to importation of drugs as well his is one hundred and twenty one month sentence with respect to the st question presented on appeal the district court correctly precluded mister maritz campus from presenting evidence of  defense to do jury at trial because he cannot establish the st or the rd prongs of this court's three part test for a prima fascia case up to arrest with respect to the rd prong the record shows that campos had multiple reasonable opportunities to escape the threatened harm for two reasons st on the day of his offense mister mare's campos could have escaped any threatened harm that he felt he was under by alerting customs border protection officers in primary inspection as well as in secondary inspection of the harm he faced he did not do that instead he waited to see if the drugs could knew that there were agents in china who knew where his family was made very specific threats and were watching them and tracking them and that it occurred over a period of years not just over a and immediate period so it although he although mister morales may have had an opportunity to escape to to avoid for himself knowing that his family was still in mexico and threatened by the cartel how do we how do we do we deal with that under pro judge two points st i just want to make clear that with respect to himself this court has made it crystal clear in the a borrow days that he did have to turn himself in and he did have to alert the officers in primary and secondary inspection as judge beatty pointed out to the harm he was under by not doing that that forecloses is his defense his directs defense because he cannot meet the rd prong of the prima fascia case because  with respect to his family mister mears campos did not proffer any facts about his family being caught in mexico or under some sort of surveillance or not safe mexico to the district court the claim now on appeal that they apparently had is family and his family in mexico with all due respect to  by the record i would point the court to supplemental excerpts of record nine where the government proffered that he told the custom border protection officer during his immigration interview that his wife and children were bullard's in california now we proffered that it's also in the record the actual immigration form question by question and answer verbatim clerks record forty six dash two which is filed under seal in the district court the question there the place in the record is in the p s r at page seven where he told his the program he told the probation office that his wife his kids and his three living siblings all lived in california so there is no evidence in the record that mister mir is campuses family actually lived in mexico and because they were not in mexico where the cartel members were they were in california this does not protect his family members from the chinese government that back in china honour's i would point to the nd reason why mister mears campos cannot meet the reasonable opportunity to escape wrong of the three part as is because in the weeks leading up to his arrest he left mexico answered the united states and returned to mexico where the cartel members were on three occasions and that's at excerpts of record one hundred and thirty one on september th on september th two thousand and eighteen september th two thousand and eighteen and september th two thousand and eighteen again under this court's decision in a bar of peano those encounters with custom border protection it constitute reasonable opportunities to escape the court ask counsel about well what about mexican authorities and and she suggested that the government would want to cross examine but the defendant here had to come forth with a prima fascia showing of the rest and one of those elements is that he had no reasonable opportunity to escape the record is clear that he had multiple opportunities to escape the threatened harm and for those reasons under this court's decision in a bar up you know he cannot get past the rd prong of the three part yes your honor indeed the two are are close very closely related for example in the apparel penal case the district court said well there was no immediate threat because you had these opportunities to escape and what this court did on appeal was say ok we're going to analyze that under the reasonable opportunity to escape ron rather than the immediacy problem and the reason why we focus on this on appeal is because it's so close to the basis in the record and so yes we would disagree with the district court's finding that he met the prima fascia case with respect to the rd prong and we've asked this court to find that he did not and he cannot under the  supplemental excerpt of record at nine is where the government proffered that the officer what the officer would testify to it in response to mister maritz campbell's testimony and the actual form is at clerks record forty six dollars dash two which is under seal and if the court would like we can file a supplemental submission to the court with that document and what so the document is a form eight i ate seventy seven dollars and essentially after mister mears campus was interviewed by officer cho of the ages side this posed miranda interview he also had an interview with the custom border parts protection officer and there they went through a number of questions with regard to his immigration status and that's where the verbatim where do your voice in children live they all live in fullerton california question and answer  defended there i had family in law enforcement in mexico and couldn't explain why he never tried to contact either mexican or u s or he's and also seems that  you with those distinguishing factors sure so i'll take the last one st because i think it's important that the court there explains that the district court record is really unclear because there was a pretrial ruling where the proffer was prevented the he didn't profit and you're right some testimony did come and there was discussion about well that related to his state of mind it wasn't really related to direct so what the court did there is it said we're going to assume that he was not permitted to present this evidence we're going to assume that was true and that he wasn't allowed to present the rest and that was proper is what the court he and so because of that it really is directly on point now then the concurrence of concurring opinion in a bar a piano one of the judges says yeah i disagree he was allowed to present address defense because some of his testimony did come in and so i think that kind of cleaning that up shows that a viral pino is directly on point and with respect to the mexican law enforcement in his family i think that helps us here too as well because he did not proffer that he couldn't have alerted mexican authorities on his way out of the united states three times that he was under threat he never proffered that the mexican authorities were corrupt and he can go to them such as happened in under this direct threat from the cartel people all going to mexican authorities out what time i guess i'm just trying to figure out are you saying that he should have approached the mexican individual got off the plane his st available opportunity to alert authorities was to sit to consent to a body skin that revealed the drugs and so he has to take every reasonable opportunity it's his burden to put forth evidence the question is reasonable because once somebody gets off the plane i can see here i think you know kind of the focus has been on the up to that point where he gets caught and you know or ha opportunity to reasonably tell what's going on with the whole idea of the threat just seems like the crime of batiuk standard is so low here that you know i'm just saying hey on its face we kind of were saying you don't even get that opportunity it just seems like it's a it's a pretty close question here discords rationale for establishing the test was and again the court establish this test that he has to meet this test and instruct a district courts if he does not meet this test you have to exclude this evidence and the reason for that test is because otherwise any defendant can just throw any sort of claim of fear no matter how veg no matter what lack of specificity out there to the jury and the district court is the gatekeeper to ensure that the evidence that would come in is relevant and if it comes in it could as stablish the preponderance of the evidence standard that of duress and if that isn't there then it should not go to the jury because it would only serve to consider to confuse our owners they see that i'm out of time so unless i unless you have any further questions i would ask the court make your decision based on what his options were here has what happened happen and that's the case that we're faced with but the other point i wanted to make is that the l a lot of the facts that the government is referring to are simply things that the trial court was not permitted to look at he's supposed to take the proffer true in its entirety and so the fact that he he may have been out of mexico three times i know one time he went out to cross an e truck for them at their request i but i just don't think you're going to look at that at at those types of things now about the family i want to make sure that you knew that it's the excerpts of record pages and whether he told the other officer something distinct right afterwords it is again it's something that could be brought up by the government i didn't ask him where his family was simply said ok let's take let's take the kids give me their names they went through this the spelling of scarlet's name because it did result in some linguistic and challenges for them as they were taking the transcription is not is not where you're physically located and so she was visibly located in california and that was sort of her legal address that that doesn't tell us where the family doesn't have the families in california i have to say that might make a difference for me in this case because i think this is that i think this is a close case it is but i just want to make sure you know that's where i was getting that from and he did say they have my family that's at that's at ski said a couple times exercise record one hundred and seventy three i'm worried about my family my family is under threat and then he finally asked officer roach oh can you just help me take the truck to phoenix because because the government seems to rely heavily on it i guess when i was reading the cases i thought are of you know was was important for the all the reasons you stated the cases that i thought this situation were most like were to be that he should get that opportunity to go before the jury and there's a lot of things the government can say that michael coles and his story but i think that he met the threshold maybe barely but