IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-11104

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee

v.

HEATH JAYDEL BREWER,

Defendant-Appellant

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:19-CR-38-1

Before HIGGINBOTHAM, HO, and ENGELHARDT, Circuit Judges.

PER CURIAM:*

Heath Jaydel Brewer appeals his jury-trial convictions for making a false 

statement and obstructing justice in connection with his execution of a

jailhouse affidavit attesting that his prior statements incriminating Alfred 

Sanchez, Jr. were untrue. Brewer asserts that the district court erroneously 

refused his request for a jury instruction on the affirmative defense of duress. 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

August 14, 2020

Lyle W. Cayce

Clerk

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No. 19-11104

2

To raise an issue of duress for consideration by the jury, a defendant 

must present evidence of the following four elements: (1) that he “was under 

an unlawful and present, imminent, and impending threat of such a nature as 

to induce a well-grounded apprehension of death or serious body injury”; 

(2) that he “had not recklessly or negligently placed himself in a situation in 

which it was probable that he would be forced to choose the criminal conduct”; 

(3) that he “had no reasonable legal alternative to violating the law,” that is, 

no chance “to refuse to do the criminal act and also to avoid the threatened 

harm”; and (4) that there was “a direct causal relationship . . . between the 

criminal action taken and the avoidance of the threatened harm.” United 

States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (internal quotation 

marks, brackets, and citations omitted). In determining whether the necessary 

showing has been made, a court “must objectively evaluate the facts presented 

by the defendant.” Id. 

The parties dispute whether Brewer made the necessary showing with 

respect to the first and third elements of the duress defense. Even when 

considered in the light most favorable to him, see United States v. Giraldi, 

86 F.3d 1368, 1376 (5th Cir. 1996), Brewer’s testimony fails to indicate that he 

was under an implicit or explicit threat of immediate violence at the moment 

he signed the false affidavit. See United States v. Harper, 802 F.2d 115, 118

(5th Cir. 1986). While Brewer related in his testimony his subjective fear for 

his life, he failed to offer evidence objectively supporting an immediate mortal 

fear, such as a contemporaneous verbal threat or the exhibition of a weapon.

See Posada-Rios, 158 F.3d at 873. Thus, Brewer has not made a threshold 

showing that he faced a real and imminent emergency sufficient to induce a 

well-grounded fear of death or serious bodily injury. See id. at 873-74. 

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Brewer has likewise failed to point to objective evidence showing that he 

was unable to pursue a legal alternative to participating in the criminal 

activity involving the false affidavit. See id. Brewer testified that he could 

have reported his alleged fear of Sanchez to a jail guard, via an available 

computer text messaging program, or by calling a dedicated hotline, but he did 

not. Significantly, Brewer testified that, during his sentencing hearing two 

days after the affidavit incident, he did not advise the judge of threats relating 

to his cooperation or that he had been forced to sign a false statement, even 

though he admitted that he had the opportunity to say whatever he wanted. 

Brewer did tell his lawyer at sentencing “that something was going on” with 

Sanchez, which resulted in Brewer being moved from the jail unit a week later. 

This sequence of events suggests that there were in fact available legal 

alternatives that Brewer could have utilized to remove himself from Sanchez’s 

reach either before he was forced to sign the false statement or soon afterward 

when he could have disavowed the statement and thereby ended his 

participation in the criminal act. See id.

In light of the foregoing, the district court did not abuse its discretion in 

denying Brewer’s request for a jury instruction on the affirmative defense of 

duress. See United States v. Storm, 36 F.3d 1289, 1294 (5th Cir. 1994). The 

judgment of the district court is AFFIRMED.

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