United States Court of Appeals

For the First Circuit

No. 20-2004

UNITED STATES,

Appellee,

v.

LUIS ALFREDO FLORENTINO-ROSARIO,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Francisco A. Besosa, U.S. District Judge]

Before

Lynch and Selya, Circuit Judges,

and McCafferty,* District Judge.

Javier A. Morales-Ramos for appellant.

Jordan H. Martin, Assistant United States Attorney, with 

whom W. Stephen Muldrow, United States Attorney, Mariana E. BauzáAlmonte, Assistant United States Attorney, Chief, Appellate 

Division, and Julia M. Meconiates, Assistant United States 

Attorney, were on brief, for appellee.

December 2, 2021

* Of the District of New Hampshire, sitting by designation.
- 2 -

LYNCH, Circuit Judge. Luis Alfredo Florentino-Rosario 

appeals his conviction for attempted illegal reentry into the 

United States. He argues on appeal that the district court 

committed error at trial in refusing to instruct the jury as he 

requested and in not permitting him to argue the affirmative 

defense of duress. He argues that these errors prevented him from 

developing his defense. The district court did not err in refusing 

Florentino-Rosario's preferred jury instructions and did not abuse 

its discretion in refusing to allow presentation of a duress 

defense, so we affirm.

I.

Authorities first apprehended Florentino-Rosario at a 

Puerto Rico airport in September 2019. He had only a Dominican 

Republic passport and he told the authorities that he was a 

Dominican citizen. He admitted that he came illegally to the 

United States by sea several months previously. FlorentinoRosario was informed that he was banned from reentering the United 

States for five years and was removed to the Dominican Republic

that same day.

In October 2019, authorities stopped a boat roughly 

nineteen nautical miles off the coast of Puerto Rico. The boat 

was covered in a blue tarp, a common tactic of drug smugglers, and 

was carrying fourteen passengers including Florentino-Rosario. 

One of the passengers told the authorities that the boat had come 
- 3 -

from the Dominican Republic. Florentino-Rosario was subsequently 

arrested.

Florentino-Rosario admitted that he had paid $2,000 for 

passage on the boat to the United States. He confirmed that he 

had no legal right to be in the United States and that he had 

applied for a visa but had been denied. When asked why he wanted 

to come to the United States, he said he wanted to make money so 

that he could build a house in Cotuí, Dominican Republic. He was 

subsequently charged with criminal attempted reentry into the 

United States, 8 U.S.C. § 1326(a), which forbids "any alien who[]

has been . . . deported, or removed . . . [to] enter[], attempt[] 

to enter, or [be] at any time found in, the United States" unless

the alien has the consent of the Attorney General or can 

demonstrate that such consent is not needed.

In anticipation of trial, both parties submitted 

proposed jury instructions. The government submitted instructions 

drawn from the First Circuit Pattern Jury Instructions regarding 

§ 1326(a), which do not instruct the jury to find specific intent. 

The government's instructions stated that to obtain a conviction, 

the government must prove beyond a reasonable doubt:

First, that LUIS ALFREDO 

FLORENTINO-ROSARIO was an alien at the time of 

the alleged offense;

Second, that LUIS ALFREDO 

FLORENTINO-ROSARIO had previously been 

deported;
- 4 -

Third, that LUIS ALFREDO 

FLORENTINO-ROSARIO attempted to re-enter the 

United States; and

Fourth, that LUIS ALFREDO 

FLORENTINO-ROSARIO has not received the 

express consent of the Attorney General of the 

United States to apply for re-admission to the 

United States since the time of his previous 

arrest and deportation.

Florentino-Rosario responded to the proposed instructions, 

requesting three separate jury instructions: 1) an instruction 

that attempted reentry is a specific intent crime; 2) an 

instruction explaining the difference between knowing and 

purposeful mental states under the Model Penal Code; and 3) an 

instruction on the defense of duress/necessity. The government 

then filed a motion in limine to preclude presentation of a duress 

defense and to prevent Florentino-Rosario from entering his asylum 

petition, which he filed after he was arrested, into evidence.1

1 Florentino-Rosario asserts in his brief that he was 

attacked in June 2018 in the Dominican Republic, before he came to 

Puerto Rico the first time. Florentino-Rosario states that the 

boyfriend of his child's mother threatened to kill him. He asserts

that the boyfriend belonged to a local gang with a "certain degree 

of authority." Men from the gang chased Florentino-Rosario. One 

of the men swung a machete at him, which Florentino-Rosario blocked 

with his forearm, sustaining a serious cut. Bystanders intervened 

to stop the attack. Florentino-Rosario states that he filed a 

police report, but no action was taken because, he believes, the 

police did not want to interfere with the local gang. He explains

that he went into hiding, ultimately going to Puerto Rico for the 

first time around May 2019 out of fear for his life. After he was 

removed to the Dominican Republic the first time, he began 

receiving death threats, which was why he attempted reentry in 

October 2019.
- 5 -

Florentino-Rosario wanted to enter his asylum petition 

into evidence to support his duress defense, and he opposed the 

prosecution's motion in limine to exclude it. The district court 

sided with the prosecution, precluding Florentino-Rosario from 

arguing duress at trial and from entering his petition for asylum 

into evidence.

Florentino-Rosario then objected to the district court's 

proposed jury instructions. The district court took note of the 

objection and told Florentino-Rosario the matter would be 

addressed at the charging conference. Before the trial, the 

parties once again contended with Florentino-Rosario's request for 

a specific intent instruction and his desire to enter his asylum 

petition into evidence. The district court found that the asylum 

petition was irrelevant to the criminal case and noted that, 

contrary to Florentino-Rosario's claim that he lacked specific 

intent, "it would seem . . . that if he requested asylum he did 

have intent." The court also denied Florentino-Rosario's 

requested jury instructions.

Florentino-Rosario's jury trial was held on February 24, 

2020. The defense did not present evidence or make an opening or 

closing argument at trial. The district court instructed the jury 

primarily using the pattern jury instructions for attempted 

reentry. The trial court told the jury that the prosecution must 

prove beyond a reasonable doubt "that the defendant intended to 
- 6 -

commit the crime of re-entering the United States without 

permission from the United States' authorities after having been 

previously removed from the United States." 

The district court went beyond the pattern instructions

to provide an additional instruction as to the distinction between 

"knowingly" and "intentionally."

The word "knowingly," as that term has been 

used from time to time in these instructions, 

means that the act was done voluntarily and 

intentionally and not because of mistake or 

accident.

To act "intentionally" or "willfully" means to 

act voluntarily and intelligently and with the 

specific intent that the underlying crime be 

committed -- that is to say, with a bad 

purpose, either to disobey or disregard the 

law -- not to act by ignorance, accident or 

mistake.

The government does not appear to have objected to this 

supplemental instruction. Florentino-Rosario once again objected 

to the instructions. The jury convicted him.

Florentino-Rosario filed a Federal Rule of Criminal

Procedure Rule 29 motion for an acquittal and an alternative Rule 

33 motion for a new trial, arguing that the evidence was 

insufficient to convict and that the court had erred in denying 

his preferred jury instructions and in not permitting admission of 

his asylum petition. The district court denied the motion. The 

court sentenced Florentino-Rosario to five years' probation.2

2 Florentino-Rosario has been removed to the Dominican 
- 7 -

Florentino-Rosario now appeals his conviction.3

II.

Florentino-Rosario argues that the trial court erred in 

denying his requested jury instructions as to the requisite level 

of intent and in refusing to admit his petition for asylum into 

evidence. We take these arguments in turn.

A.

Preserved objections to denials of requested jury 

instructions are reviewed under a "split standard": questions as 

to whether the applicable law is correctly stated are reviewed de 

novo, while questions as to whether the instruction's phrasing is

unfairly prejudicial are reviewed for abuse of discretion. DeCaro

v. Hasbro, Inc. 580 F.3d 55, 61 (1st Cir. 2009). A trial court's 

refusal to give a requested jury instruction is only reversible 

error if the requested instruction is "(1) correct as a matter of 

substantive law, (2) not substantially incorporated into the 

charge as rendered, and (3) integral to an important point in the 

case." White v. New Hampshire Dep't of Corr., 221 F.3d 254, 263 

(1st Cir. 2000) (quoting United States v. DeStefano, 59 F.3d 1, 2 

Republic. The appeal is not moot, however, because a conviction 

for attempted reentry has consequences for reentry going forward. 

See, e.g., 8 U.S.C. § 1326(b)(1); see also United States v. GarciaZavala, 919 F.3d 108, 111 n.2 (1st Cir. 2019). 

3 In his Notice of Appeal, Florentino-Rosario states that 

he appeals the "Verdict / Judgment / Sentence" against him. 

However, he presents no arguments pertaining to his sentence.
- 8 -

(1st Cir. 1995)). Florentino-Rosario requested three separate 

instructions, one that attempted reentry is a specific intent 

crime, one that explained the difference between "knowing" and 

"purposeful" mental states under the Model Penal Code, and one 

outlining the defense of duress. 

i.

The first jury instruction Florentino-Rosario requested 

was based on his misunderstanding of and selective quotation from 

United States v. De León, 270 F.3d 90, 92 (1st Cir. 2001). The 

excerpt states that attempted reentry "is a specific intent crime 

in the sense that an 'attempt to enter' requires a subjective 

intent on the part of the defendant to achieve entry into the 

United States as well as a substantial step toward completing that 

entry." Id. The "crux" of Florentino-Rosario's legal defense at 

trial was that he came to Puerto Rico "knowingly" but not 

"purposefully" because he came out of fear for his life. He admits 

that he knew that it was illegal for him to enter the United States 

but argues that he did not do it with a purpose to violate the 

law, and therefore lacked specific intent.

The district court instructed the jury that, in order to 

convict Florentino-Rosario, they needed to find that he had 

specifically intended to commit the crime of attempted reentry. 

As the district court itself recognized, and we discuss further 

below, this additional instruction is neither necessary nor 
- 9 -

encouraged. See United States v. Florentino-Rosario, 459 F. Supp. 

3d 345, 361 (D.P.R. 2020) ("[I]t is apparent the Court's 

instructions placed too high a burden on the government."). 

However, because the court's instruction "substantially 

incorporated" Florentino-Rosario's requested jury instruction, 

Florentino-Rosario's claim that the district court erred by 

refusing to use the exact language he proposed must fail. White, 

221 F.3d at 263.

In De León, immediately after the excerpt FlorentinoRosario wanted to incorporate into the jury instructions, the court 

went on to explain that "there is no requirement that the defendant 

additionally know that what he proposes to do -- i.e., attempt to 

enter the United States -- is for him criminal conduct." 270 F.3d 

at 92 (emphasis added). Though Florentino-Rosario relies on De 

León to argue that the First Circuit has adopted an interpretation 

of attempted reentry under § 1326 which embraces a specific intent 

requirement, De León clearly forecloses his argument that he lacked 

the requisite intent to be found guilty of attempted reentry. 

Florentino-Rosario does not dispute that he knew it was illegal 

for him to reenter nor that he intentionally got on the boat where 

he was found in order to come to Puerto Rico. De León makes clear 

that a defendant need not even know that he is breaking the law in 

reentering, so it cannot be the case that De León requires that a 

defendant have a purpose to enter illegally in order to be found 
- 10 -

guilty under § 1326. Florentino-Rosario's claim that he did not 

come to the United States with the intention of breaking the law 

is therefore irrelevant.

There is ample evidence in the record -- including 

Florentino-Rosario's own statements to the immigration official 

that he had applied for a visa and been denied and that he wanted 

to come to Puerto Rico to earn money to build a house back in the 

Dominican Republic -- to support a finding that he intended to 

enter the country. As the district court correctly noted, "[a]n 

asylum seeker may lack the intent to illegally enter the United 

States. The same is not true, however, for an intent to enter the 

country." Florentino-Rosario, 459 F. Supp. 3d at 363 (citations 

omitted). Under De León, that is all that is required.

Our other precedents support this interpretation of 

§ 1326. In United States v. Soto, we rejected a challenge by a 

defendant appealing his conviction after the district judge 

refused to instruct the jury that good faith was a defense to 

reentry. 106 F.3d 1040, 1041 (1st Cir 1997). Noting that, at the 

time, only a single circuit had endorsed the view that § 1326 

contains a specific intent requirement, we found the appeal without 

merit. Id. In United States v. Cabral, we rejected the appeal of 

a defendant claiming the jury should have been instructed as to 

specific intent for attempted reentry. 252 F.3d 520, 524 (1st 

Cir. 2001). The court found that the evidence was sufficient to 
- 11 -

support a finding of specific intent, such that it was not 

necessary to determine whether such an instruction was necessary. 

Id. The present case is even more straightforward: the record 

contains evidence that Florentino-Rosario intended to reenter the 

United States and that he knew doing so was illegal, though all 

that is required for conviction under our precedents is that he 

intended to reenter, whether he knew it was illegal or not. 

Moreover, the jurors were in fact instructed that they needed to 

find specific intent in order to convict, and they convicted. This 

argument is therefore doubly without merit.

Leaving aside these deficiencies in Florentino-Rosario's 

appeal, his underlying argument is incorrect because our own and 

other circuits' precedents lead us to conclude that attempted 

reentry under § 1326 is a general intent, and not a specific 

intent, crime. See, e.g., United States v. Rodriguez, 416 F.3d 

123, 128 (2d Cir. 2005); United States v. Morales-Palacios, 369 

F.3d 442, 449 (5th Cir. 2004); United States v. Peralt-Reyes, 131 

F.3d 956, 957 (11th Cir. 1997). A specific intent instruction is, 

as a result, not appropriate and should not be given.4

4 To the extent that Comment 3 to the First Circuit Pattern 

Jury Instructions on attempted reentry under § 1326 suggests 

otherwise, it should not be followed. See Pattern Criminal Jury 

Instructions for the District Courts of the First Circuit 78-79, 

https://www.med.uscourts.gov/pdf/crpjilinks.pdf.
- 12 -

ii.

The second jury instruction Florentino-Rosario requested 

was drawn from United States v. Bailey, 444 U.S. 394, 404 (1980),

explaining the difference between "purpose" and "knowledge" under 

the Model Penal Code 

The definition of "intent" has been replaced 

with a hierarchy of culpable states of mind. 

The different levels in this hierarchy are 

commonly identified, in descending order of 

culpability, as purpose, knowledge, 

recklessness, and negligence. There is a 

distinction between the mental states of 

"purpose" and "knowledge": a) a person who 

causes a particular result is said to act 

purposefully if he consciously desires that 

result, whatever the likelihood of that result 

happening from his conduct; while b) a person 

is said to act knowingly if he is aware that 

that result is practically certain to follow 

from his conduct, whatever his desire may be 

as to that result.

As the district court recognized, Florentino-Rosario's challenge 

fails all three prongs of requested-instruction review. See

Florentino-Rosario, 459 F. Supp. 3d at 363. It is not a 

substantively correct statement of law to imply, as FlorentinoRosario's requested instruction would, that § 1326 incorporates

the Model Penal Code's hierarchy of mental states rather than the 

common law general and specific intent mental states. Second, it 

was substantially incorporated into the district court's 

(unnecessary) supplemental instructions as to the distinction 

between knowingly and intentionally. Finally, as discussed above, 
- 13 -

Florentino-Rosario readily admits that he knew he was reentering 

the United States after having previously been removed, which 

satisfies the intent requirement for attempted reentry under our 

precedents.

iii.

Florentino-Rosario's final requested jury instruction 

was the First Circuit's pattern jury instruction as to the 

justifications of self-defense, duress, and necessity. The 

district court correctly refused to give the instruction because 

Florentino-Rosario failed to make a threshold showing of duress.5

The affirmative defense of duress "requires proof that 

'the defendant committed a crime as a result of (1) an immediate 

threat of serious bodily injury or death (2) that the defendant 

reasonably believed was true, (3) without a reasonable opportunity 

to escape or frustrate the threat.'" United States v. LebreaultFeliz, 807 F.3d 1, 3-4 (1st Cir. 2015) (quoting United States v. 

Diaz-Castro, 752 F.3d 101, 108 (1st Cir. 2014)). When the proffer 

in support of an affirmative defense is insufficient as a matter 

of law to create a triable issue for the jury to consider, the 

5 Though Florentino-Rosario styles his request as one for 

the "duress/necessity" defense, the elements in his requested 

instructions align with the elements of a duress defense, so we 

address it simply as a duress defense. At any rate, the 

affirmative defenses of duress and necessity are "closely 

related." United States v. Lebreault-Feliz, 807 F.3d 1, 4 (1st 

Cir. 2015).
- 14 -

judge may prevent the defendant from presenting that defense. Id.

at 4.

It should be noted that Florentino-Rosario made only 

legal arguments in support of his duress defense, and the district 

court had access to his asylum petition only because the 

prosecution attached it as an exhibit to its motion to exclude the 

duress defense. Florentino-Rosario, 459 F. Supp. 3d at 364. Even 

on the assumption that his assertions in the asylum petition were 

accurate, Florentino-Rosario's assertions do not make a sufficient 

showing to create a triable issue as to duress.

The threat that Florentino-Rosario asserted in his 

asylum petition fails to show duress for a number of reasons. To 

start, the threat was not sufficiently immediate to support a 

duress defense. His first entry into the United States came nearly 

a year after the initial attack he alleges. Similarly, he says

that he began getting death threats when he was removed to the 

Dominican Republic on September 9 but did not attempt to return to 

Puerto Rico until October. Our precedents make clear that such 

lengthy spaces of time between the threat and the crime make it 

very unlikely that the threat will be considered "immediate." In 

Lebreault-Feliz, a sixth month gap in time between the incident 

the defendant said caused him to flee to the United States and his 

application for a passport meant the threat was not sufficiently 

immediate for a duress or necessity defense. 807 F.3d at 4. 
- 15 -

Florentino-Rosario's allegations at most demonstrate a lingering 

threat of future harm, not a threat of imminent danger.

Florentino-Rosario also failed to demonstrate that he 

did not have a reasonable opportunity to escape or frustrate the 

threat. He claims that he went to the authorities and they failed 

to act. However, he was able to successfully avoid his attackers 

for nearly a year after the initial assault by going into hiding 

in the Dominican Republic. He argues that it is not possible for 

him to make a living in hiding, but has not said why he could not 

move to another part of the Dominican Republic, or to a country 

that he was legally able to enter. See, e.g., United States v. 

Bonilla-Siciliano, 643 F.3d 589, 591 (8th Cir. 2011) ("[The 

defendant] cannot show that he lacked a reasonable, legal 

alternative to illegally reentering the United States, because he 

did not exclude the option of going to a country other than the 

United States . . . ."). Florentino-Rosario says that Puerto Rico 

is the "logical choice," because it is the second-closest country 

besides Haiti, and he does not speak Creole or French. Even 

accepting that returning to a country where one has recently been 

barred from reentering for five years is the "logical choice," 

convenience is not sufficient to make out a duress defense.

Florentino-Rosario did not make a threshold showing of 

duress and the district court did not err in refusing to instruct 

the jury on this affirmative defense.
- 16 -

B.

"Our standard of review of a district court's admission 

or exclusion of evidence is abuse of discretion." United States

v. Gilbert, 181 F.3d 152, 160 (1st Cir. 1999). In order to be 

admissible, evidence must be relevant. Fed. R. Evid. 402. 

Florentino-Rosario argues that the district court erred 

by refusing to allow him to present evidence of a duress defense, 

including his petition for asylum. As discussed above, the 

government does not need to prove that the defendant intended to 

enter the country illegally, so the district court did not abuse 

its discretion in concluding that the petition was not relevant to 

the case at hand. See Florentino-Rosario, 459 F. Supp. 3d at 365-

66. Because Florentino-Rosario failed to make a threshold showing 

of duress, moreover, the district court did not abuse its 

discretion in refusing to allow him to present a duress defense 

and refusing to admit his asylum petition pursuant to that defense. 

See Lebreault-Feliz, 807 F.3d at 5.

III.

The judgment of the district court is affirmed.