[00:00:01] Speaker 01:
I call the next case while counsel are settling in.

[00:00:05] Speaker 01:
It is United States versus Carpena, 25-5046.

[00:00:11] Speaker 01:
Mr. Lund.

[00:00:18] Speaker 00:
May it please the court again.

[00:00:19] Speaker 00:
This case involves whether the appellant, Mr. Fabian Cobos Carpena,

[00:00:29] Speaker 00:
met his burden to establish entitlement to address defense instructions, which would be prospectively given to a jury.

[00:00:38] Speaker 00:
There was a hearing, and the court ruled against his ability to present those instructions.

[00:00:45] Speaker 00:
And so he then entered a plea based on that to be reviewed by this court over this issue.

[00:00:55] Speaker 00:
The right to defend.

[00:00:58] Speaker 00:
is has been described in the Hernandez Hernandez case as the keystone of our legal defense system.

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And with regard to a situation like this, where duress defense is at stake, this court in Haney

[00:01:19] Speaker 00:
held that a defendant is entitled to instructions on duress if it's supported by the evidence in the law, and that the testimony most favorable to the defendant should be accepted.

[00:01:33] Speaker 00:
In Dixon, which was cited in the Haney case, which is the Supreme Court case, the district court must give full credits to the defendant's testimony.

[00:01:47] Speaker 00:
In a duress defense case, a party is required to meet three elements.

[00:01:56] Speaker 00:
And our argument is that the defendant in this case, under these special circumstances, presented sufficient evidence that should have been given full credence, such that the duress instructions should have been given to that prospective jury.

[00:02:18] Speaker 01:
What's unusual about this case, as you well know, is that we're not dealing with the typical duress situation, which is very telescoped in time.

[00:02:29] Speaker 01:
Here we're talking about duress not in a moment, not even in a day.

[00:02:37] Speaker 01:
We're talking about duress spanning a lengthy period of time, approximately 10 years.

[00:02:48] Speaker 01:
In terms of making the showing on duress for that period of time, one question that struck me is whether, well, it reminded me a little bit of battered spouse syndrome cases where the question is, well, why does the battered spouse stay and not leave?

[00:03:12] Speaker 01:
And through your experience in cases like that,

[00:03:17] Speaker 01:
typically expert testimony is needed on that question and it seemed to me that there was a similar question here because here was Mr. Carpena he's under threat, he's under the thumb of Ms.

[00:03:37] Speaker 01:
Torres and her colleagues, if you will, but it's a long time and he's got employment, he's running errands, he's not always

[00:03:47] Speaker 01:
in the home, and you might ask the question, well, why does he stick around?

[00:03:54] Speaker 01:
Didn't he have opportunity to leave?

[00:03:59] Speaker 01:
But he didn't.

[00:04:00] Speaker 01:
And in trying to answer that question, it just struck me, why wouldn't you need some expertise, some expert evidence to support your position that he was under duress for?

[00:04:17] Speaker 01:
10 years and never really had a reasonable opportunity to escape.

[00:04:28] Speaker 00:
Well, that evidence is not there.

[00:04:29] Speaker 00:
Obviously, there's not an expert there to say that he was a battered spouse or whatever you might want to call it.

[00:04:36] Speaker 01:
Well, I guess just to simplify my question, to meet your burden under these circumstances, why wouldn't that be necessary?

[00:04:47] Speaker 00:
I think the evidence itself was substantial, that he did face a situation where he was under immediate threat for that entire, and it's really a 13-year period of time.

[00:04:59] Speaker 04:
Do you think that that threat to him was meaningful enough, or do you think the threat to the sister was the key?

[00:05:08] Speaker 00:
No, I think the threat to him was meaningful.

[00:05:11] Speaker 00:
And we're talking about lots of things that have happened to him.

[00:05:15] Speaker 00:
So his teeth have been knocked out.

[00:05:17] Speaker 00:
The family talks about that there's continual bruising on his body.

[00:05:22] Speaker 00:
He has had a broom handle across his back.

[00:05:27] Speaker 00:
He's been poisoned, he's been drugged, he's had a knife put to his throat and told that if he doesn't do exactly what Miss Torres wants him to do, either she's going to kill him, but most likely she's just going to have him sent back to Mexico where it might be a lot easier to have him killed.

[00:05:46] Speaker 00:
And he has every reason to believe that that's going to happen to him because after three years, when at that time he's only 19, he's involved in stealing cars based on what Ms.

[00:06:01] Speaker 00:
Torres tells her to do.

[00:06:03] Speaker 00:
And he does attempt to get the police involved and tell them that over those previous three years, he had been traumatized physically.

[00:06:14] Speaker 00:
psychologically by this woman, and they didn't do anything.

[00:06:18] Speaker 00:
So they send him, he gets deported back to Mexico.

[00:06:22] Speaker 00:
And immediately after he goes across the border, he's apprehended by people who are affiliated with Ms.

[00:06:30] Speaker 00:
Torres.

[00:06:31] Speaker 00:
And for three weeks,

[00:06:33] Speaker 00:
He is tortured and almost killed.

[00:06:39] Speaker 00:
And then, at the end of those three weeks, they take him back across the border.

[00:06:44] Speaker 00:
And who's waiting for him but none other than Ms.

[00:06:48] Speaker 00:
Torres, who then takes him back to her place in either Tulsa or Oklahoma City, and starts this same process again.

[00:06:57] Speaker 00:
And it continues for 10 years.

[00:07:00] Speaker 02:
So it seems like part of your case is built on the idea

[00:07:04] Speaker 02:
that he really, during that 10-year period and up until the time that he started going to these meetings, he really didn't know what to do to get help.

[00:07:13] Speaker 02:
Is that fair?

[00:07:15] Speaker 00:
I think, obviously, he's gone to the police after three years, and they do not help him.

[00:07:21] Speaker 00:
That doesn't seem to be an appropriate avenue for him.

[00:07:24] Speaker 02:
Well, let me ask you a different way.

[00:07:27] Speaker 02:
So what I'm concerned about

[00:07:30] Speaker 02:
As I read your, your, your briefing, at least part of it is, is he actually did it when he could, because until he escaped and started talking to people, he didn't know what to do to get help.

[00:07:46] Speaker 02:
And so.

[00:07:48] Speaker 02:
I mean, is that fair?

[00:07:49] Speaker 00:
It's somewhat fair.

[00:07:51] Speaker 00:
It's very similar to the Contento Pashon case, which involves the fellow from Bogota, Colombia, where he's dealing with the cartel members.

[00:08:01] Speaker 00:
And he doesn't feel like he could just go to the police, because the police are corrupt.

[00:08:07] Speaker 00:
The police are not corrupt here, but they're not sympathetic.

[00:08:11] Speaker 00:
And they just wind up sending him back to Mexico.

[00:08:14] Speaker 02:
At all times, he could have gone to

[00:08:17] Speaker 02:
to ICE or some immigration... But that only leads to getting sent back to Mexico and getting tortured again.

[00:08:23] Speaker 02:
No, I understand that, but too bad.

[00:08:26] Speaker 02:
I mean, that's what... He's got a report.

[00:08:30] Speaker 02:
Any report is going to put him at risk of being sent back.

[00:08:33] Speaker 02:
He did that in 2013.

[00:08:35] Speaker 02:
I understand that happened in 2013.

[00:08:40] Speaker 02:
But what I'm concerned about is that your argument leads to the possibility that anybody

[00:08:46] Speaker 02:
I mean, being fearful that you're here illegally and that you can't report to ICE because of that seems to me a real problematic position because that's technically probably who you're supposed to report to because you need to file some kind of an asylum claim or try to receive some kind of protection from the US government.

[00:09:10] Speaker 02:
And what I'm worried about is that where we're going with this is he didn't know where to report.

[00:09:15] Speaker 02:
He didn't know what to do.

[00:09:16] Speaker 02:
So ergo.

[00:09:18] Speaker 02:
The length of time it took him to report is excusable.

[00:09:22] Speaker 02:
And the fact that he didn't go to the proper place to report and file asylum earlier was because he didn't know about it.

[00:09:32] Speaker 02:
That would leave it where everybody could just claim, well, I didn't know where to go to get help.

[00:09:38] Speaker 02:
So it was excused.

[00:09:40] Speaker 02:
It's okay that it took me a long time.

[00:09:42] Speaker 00:
Now, again, I think he's closer to the Contento Pescian case where he's under constant surveillance during that 13 year period.

[00:09:53] Speaker 02:
But that's belied by the facts.

[00:09:57] Speaker 02:
And he was not under constant surveillance.

[00:10:01] Speaker 00:
He left to work.

[00:10:03] Speaker 00:
every day for like six years.

[00:10:05] Speaker 00:
To a landscaping crew that if he didn't, which was again run by Ms.

[00:10:09] Speaker 00:
Torres, and if he's not doing exactly what he's supposed to do, either he's going to get his throat slit or he's going to get sent back to the folks in Mexico.

[00:10:19] Speaker 02:
I didn't see that it was her landscaping crew was in the record.

[00:10:24] Speaker 00:
Well, I don't have any.

[00:10:26] Speaker 00:
You're probably right.

[00:10:28] Speaker 00:
It would surprise me if she's not connected with the landscaping.

[00:10:32] Speaker 00:
OK, but we don't know that.

[00:10:34] Speaker 00:
We may not know that.

[00:10:35] Speaker 02:
We've got to depend on what's in here.

[00:10:37] Speaker 00:
OK.

[00:10:38] Speaker 00:
And what he does do, I think, is it turns out to be quite reasonable.

[00:10:43] Speaker 00:
Within a month of the time he's able to crawl away from her and even during that month while they're in the process of shooting up her house or she's trying to run him over while he's walking down the street or her men are pulling guns on him as he's walking down the street.

[00:11:01] Speaker 00:
He does respond to her protective order, because she's concerned that he's going to spill the beans on her, maybe in a court process.

[00:11:12] Speaker 00:
And so he does go to court.

[00:11:14] Speaker 00:
And that qualifies as a law enforcement agency under the holdings of the 10th Circuit.

[00:11:20] Speaker 00:
You don't have to go to ICE.

[00:11:22] Speaker 00:
And he tells the court, this is what's happening.

[00:11:26] Speaker 00:
And he finally gets a sympathetic ear.

[00:11:29] Speaker 00:
And during the next two months, he goes back to the court no fewer than three more times, telling them exactly what's happening.

[00:11:39] Speaker 02:
So does it make a difference that he went to court to try to receive some protection from her hurting him?

[00:11:50] Speaker 02:
I mean, that's the purpose of responding, right?

[00:11:52] Speaker 02:
Yes.

[00:11:53] Speaker 02:
In the purpose of filing his own protective order motion.

[00:11:56] Speaker 02:
Yes.

[00:11:57] Speaker 02:
And not to receive some kind of official protection from the government on being retaliated against or being deported or receiving some official protection from the U.S.

[00:12:09] Speaker 02:
government.

[00:12:10] Speaker 00:
Well, again, he's not highly sophisticated.

[00:12:12] Speaker 00:
This is mostly Spanish speaking person.

[00:12:15] Speaker 02:
This is what was concerning me.

[00:12:16] Speaker 00:
Yes.

[00:12:17] Speaker 02:
Because now the level of sophistication of everybody is going to be an issue in every case.

[00:12:22] Speaker 02:
on whether their reporting was sufficient or timely.

[00:12:26] Speaker 00:
He obviously is talking to court officials.

[00:12:29] Speaker 00:
And they easily could have said, let's take you over to ICE.

[00:12:33] Speaker 00:
But they did not do that.

[00:12:35] Speaker 00:
He did do what he's required to do, which is go to law enforcement officials.

[00:12:41] Speaker 00:
And so he's done that.

[00:12:43] Speaker 04:
And then he was required to do so at his first opportunities, at his first reasonable opportunities.

[00:12:50] Speaker 04:
I'm not sure he did that.

[00:12:51] Speaker 00:
Well, I would like to think that he did, frankly.

[00:12:54] Speaker 00:
He's crawled away from her on August or April the 30th, 2023, and he is in court responding to this protective order petition on May 22nd, 2023.

[00:13:08] Speaker 00:
He goes back to court.

[00:13:11] Speaker 04:
He had been under her thumb some period of time by then.

[00:13:16] Speaker 00:
Well, the 10 years prior to that was the time when she's... That's the time I'm concerned about.

[00:13:23] Speaker 00:
So there's no indication that if he doesn't do exactly what he's told to do, he's going to be... Her plan is to send him back to Mexico.

[00:13:34] Speaker 00:
And actually, she gets to get her plan done, because the way he gets arrested is that she makes a claim that he's assaulted her, and as he has

[00:13:45] Speaker 00:
presented his materials to the INS hotline and has his lawyers having prepared his asylum application, she gets to get him arrested and then we start this process.

[00:14:01] Speaker 00:
And so now he's looking at going back to Mexico where he's likely going to get killed.

[00:14:06] Speaker 00:
So this court is going to honor her plan.

[00:14:10] Speaker 00:
Which is, you don't do what I want you to do, I'm going to get you killed.

[00:14:15] Speaker 01:
Why doesn't the government have a good argument that once he escaped on April 30, 2023, he was no longer under duress?

[00:14:30] Speaker 01:
Or at least he had a reasonable opportunity

[00:14:36] Speaker 01:
to escape the threat.

[00:14:37] Speaker 00:
He is under duress because he's shooting up the sister's house, and they're driving by as he's walking down the street, putting guns in his face.

[00:14:45] Speaker 00:
So he's under constant duress, even during that period of time.

[00:14:50] Speaker 04:
To me, that's the problem.

[00:14:52] Speaker 04:
If we just say duress is kind of a loose concept, that if you've got a threat, which these people live under threat all the time, almost all of them can say they're under threat.

[00:15:06] Speaker 04:
So I just have trouble with knowing where to draw the line where they don't have the reasonable opportunity, not to say it's threat free or fear free, but it says reasonable opportunity to call the authorities.

[00:15:24] Speaker 00:
My time is up.

[00:15:24] Speaker 00:
Am I answering the question?

[00:15:26] Speaker 04:
Please.

[00:15:27] Speaker 00:
Yes.

[00:15:29] Speaker 00:
And the answer is that,

[00:15:36] Speaker 00:
Uh, he, he basically was under threat during that time.

[00:15:43] Speaker 00:
He was able to get to a law enforcement authority within a reasonable period of time.

[00:15:51] Speaker 00:
He did not put it off.

[00:15:53] Speaker 00:
And if you want to do it on a sort of day to day basis, which is what the government is going to argue well on, um,

[00:16:00] Speaker 00:
March, May the first, he didn't go to the police because he'd gotten away from her.

[00:16:06] Speaker 00:
I don't think that that's the answer because she's still in the process of shooting up his sister's house and having her men come up to him with guns.

[00:16:16] Speaker 00:
And so I think he did do within a month, he is starting this process of telling law enforcement what's happened to him.

[00:16:26] Speaker 00:
And admittedly, he does have a more lenient situation, but he's already notified the law enforcement authority.

[00:16:36] Speaker 00:
I think we understand the facts.

[00:16:37] Speaker 00:
Thank you.

[00:16:38] Speaker 00:
Thank you.

[00:16:39] Speaker 00:
Thank you, counsel.

[00:16:41] Speaker 01:
Mr. Anderson.

[00:16:42] Speaker 03:
May it please the court, Elliot Anderson of the United States.

[00:16:46] Speaker 03:
A true duress defense does not have any daylight in it.

[00:16:50] Speaker 03:
The Supreme Court tells us in Bailey that the minute the duress loses its coercive force, you have to comply with the law.

[00:16:58] Speaker 03:
That's an indispensable element of a duress claim.

[00:17:00] Speaker 03:
That's why in Al-Rakabi, this court said that duress defenses and necessity defenses should be used parsimoniously.

[00:17:10] Speaker 03:
because as soon as the duress loses its coercive force, the defendant has to comply with the law.

[00:17:16] Speaker 03:
Here, what that required was Mr. Carlos Campana to either surrender to law enforcement or simply go to Mexico himself and leave the country.

[00:17:26] Speaker 03:
Mr. Carlos Carpena had been deported once already.

[00:17:29] Speaker 03:
He's familiar with the legal system.

[00:17:31] Speaker 03:
He knows who does the deportations.

[00:17:34] Speaker 03:
When he went into the courtroom to seek a protective order and mentioned in that application, Ms.

[00:17:40] Speaker 03:
Torres is threatening me with deportation because I don't have papers and I don't want to be deported.

[00:17:44] Speaker 03:
I want to be safe from her so that I can stay here.

[00:17:46] Speaker 03:
That's not surrender.

[00:17:48] Speaker 03:
That is mentioning to someone in a law enforcement context that you're undocumented.

[00:17:53] Speaker 03:
But if he had walked into court and said, Ms.

[00:17:55] Speaker 03:
Torres is forcing me to steal cars, and nobody did anything about it, that wouldn't be a license for him to continue stealing cars.

[00:18:01] Speaker 03:
He hasn't surrendered at that point.

[00:18:03] Speaker 03:
He's just mentioned that he's violating the law.

[00:18:05] Speaker 03:
But he hasn't stopped violating the law.

[00:18:07] Speaker 03:
And that is what the duress defense requires him to do.

[00:18:09] Speaker 03:
The minute he has any choice, stop breaking the law.

[00:18:12] Speaker 01:
I return himself in... When did that happen?

[00:18:14] Speaker 01:
When did he have that choice, in your view, based on the evidence?

[00:18:18] Speaker 03:
The district court found

[00:18:21] Speaker 03:
that he reasonably could have done any of those things that he did during that last year, during the previous 10 years.

[00:18:26] Speaker 03:
He could have sought a protective order.

[00:18:27] Speaker 03:
He could have sought battered domestic partner counseling.

[00:18:31] Speaker 03:
He could have applied for a TV set.

[00:18:32] Speaker 03:
Those options were just as available to him earlier than later.

[00:18:36] Speaker 03:
So the government's position is over that period of 10 years,

[00:18:41] Speaker 03:
Because what the cases look at is, were you alone for as short a period of time as 30 minutes?

[00:18:47] Speaker 03:
Because the cases in Appellant's reply brief in Cornelius, no, it was in Glass.

[00:18:51] Speaker 01:
Well, it sounds like you're rejecting just the overall premise of the argument that someone who is under the type of threat that he was under, from his torus, threat of death or serious bodily injury,

[00:19:10] Speaker 01:
on a continuous basis is not a viable argument at all.

[00:19:17] Speaker 01:
Is that what you're saying?

[00:19:18] Speaker 03:
That is what the district court said, and the government agrees.

[00:19:21] Speaker 01:
Well, I know that that's what the district court said.

[00:19:22] Speaker 03:
The government agrees with that.

[00:19:23] Speaker 03:
It is not objectively reasonable to say that Ms.

[00:19:25] Speaker 03:
Torres's henchmen had complete control over the entire continent.

[00:19:29] Speaker 01:
Well, what are we supposed to view the evidence on something like this issue in the light most favorable to Mr. Carpena?

[00:19:35] Speaker 03:
Indeed, and it must be objectively reasonable as well.

[00:19:38] Speaker 01:
He must have an objectively reasonable fear and belief that he has... Well, if he's been told that he's going to be killed if he gets out of line, why isn't it objectively reasonable to think that he was under duress?

[00:19:54] Speaker 03:
Because this court has answered that question already and said that these facts are well to the left of facts that were not sufficient for duress.

[00:20:01] Speaker 03:
So you were threatened three years ago in El Salvador.

[00:20:04] Speaker 03:
That's not imminent.

[00:20:05] Speaker 03:
That's attenuated.

[00:20:05] Speaker 03:
Six years ago, you were threatened by a long-distance phone call.

[00:20:09] Speaker 03:
That's not an imminent threat.

[00:20:10] Speaker 01:
Well, that isn't his argument.

[00:20:12] Speaker 01:
His argument is that the threat started and it never ended.

[00:20:17] Speaker 01:
And it was repeated.

[00:20:18] Speaker 01:
And so it doesn't sound like the examples you're giving really fit

[00:20:23] Speaker 01:
this situation, but you said that you've got cases.

[00:20:27] Speaker 01:
What do you think is your best case for your position?

[00:20:33] Speaker 03:
There are many good cases.

[00:20:34] Speaker 03:
This is not a new issue, but Portillo Vega is a very good case.

[00:20:38] Speaker 03:
The court said, look,

[00:20:41] Speaker 03:
Mexico is a big place.

[00:20:42] Speaker 03:
You could have gone to a lot of other places, and it's not credible for you to submit that anywhere you go in the whole country of Mexico, you're going to be snatched up and murdered.

[00:20:52] Speaker 01:
Nobody has that kind of power.

[00:20:54] Speaker 01:
Well, you say this is not a unique case.

[00:20:57] Speaker 01:
I'm beginning to wonder about that, given the evidence that was presented.

[00:21:05] Speaker 01:
Are any of the cases you're relying on cases where, at least the argument,

[00:21:10] Speaker 01:
is that, look, 10 years, 13 years, whatever it is, is a really long time.

[00:21:17] Speaker 01:
But look at what happened during that period of time.

[00:21:19] Speaker 01:
I was under constant threat.

[00:21:23] Speaker 01:
Do any of the cases respond to that type of argument?

[00:21:27] Speaker 03:
So constant threat, Your Honor, shows up in three cases.

[00:21:32] Speaker 03:
In Haney, which was a prison escape,

[00:21:36] Speaker 03:
And there, the threat was constant because the two individuals there were locked up in prison with the people who were threatening death or seriously bodily injury.

[00:21:45] Speaker 03:
So there, because they're incarcerated, they're locked up in that controlled environment with people who are threatening to murder them.

[00:21:50] Speaker 03:
The court found, yes, you were under duress there.

[00:21:57] Speaker 03:
Contento Pachon, out of the Ninth Circuit, I'm sorry.

[00:22:01] Speaker 03:
Again, this was, Judge Matheson, what you were talking about.

[00:22:03] Speaker 03:
Contento Pachon was a telescoped focused instance of duress.

[00:22:07] Speaker 03:
The drug trafficker came to the defendant and said, we know where your wife and daughter are.

[00:22:12] Speaker 03:
We will kill them unless you get on this plane right now.

[00:22:15] Speaker 03:
And the whole time you're on the plane, we'll be watching you.

[00:22:18] Speaker 03:
So don't talk to the police.

[00:22:19] Speaker 03:
But it was one trip.

[00:22:20] Speaker 03:
It was a controlled environment.

[00:22:21] Speaker 03:
And he legitimately was told that he was under constant surveillance and threat for the time it took to make that one trip.

[00:22:30] Speaker 03:
constant duress comes up is the Marcelino case where the defendant claims, I didn't know I was walking across the border.

[00:22:36] Speaker 03:
I thought I was going to go get some, do a job.

[00:22:38] Speaker 03:
And then when I tried to turn around and go home, the human trafficker said, I will stab you in the desert and leave your body right here if you don't keep walking.

[00:22:47] Speaker 03:
And so he said, I kept walking.

[00:22:48] Speaker 03:
That is a constant threat, but there are no cases finding duress, finding that immutable threat where it goes on for

[00:22:57] Speaker 03:
a prolonged period of time.

[00:22:58] Speaker 03:
So the case is in the appellant's reply brief.

[00:23:01] Speaker 03:
In Scott, the defendant was involved in a drug conspiracy for 125 days.

[00:23:05] Speaker 03:
And the court said, you could have done something else.

[00:23:08] Speaker 03:
You had other options during that time.

[00:23:10] Speaker 01:
Do you think it's impossible to be under duress for 10 years?

[00:23:15] Speaker 03:
Under the legal standard that's established here, I would say unless a person is locked up in a bordello or a shipping container and truly has no agency, it's all but impossible.

[00:23:27] Speaker 03:
Here we've got Mr. Cobas Carpena going to work, buying a truck, visiting family.

[00:23:33] Speaker 03:
He had letters come in from his sister and his parents.

[00:23:36] Speaker 03:
He's part of a community.

[00:23:37] Speaker 03:
He's not under lock and key.

[00:23:39] Speaker 03:
He doesn't have a gun to his head every minute of the day.

[00:23:41] Speaker 03:
And especially by that last year of his life when he leaves and Ms.

[00:23:45] Speaker 03:
Torres says, you're of no use to me.

[00:23:46] Speaker 03:
Get out.

[00:23:48] Speaker 03:
And then he sets about trying to

[00:23:51] Speaker 03:
establish himself and continue living illegally in the United States and not doing what the law requires him to do, which is to surrender or return to Mexico.

[00:24:00] Speaker 02:
What, what if he had gone to the police department and say, I'm, uh, I'm here illegally.

[00:24:07] Speaker 02:
I surrender.

[00:24:08] Speaker 02:
I mean, is going to the local PD sufficient?

[00:24:13] Speaker 03:
If he had done that, are we, is your, do you lose?

[00:24:17] Speaker 03:
If he had gone to the police and said, I surrender,

[00:24:20] Speaker 03:
take me in, send me back to Mexico.

[00:24:22] Speaker 03:
I think the way things work in Tulsa County, the police would have picked him up and handed him over to ICE, and he would have been removed.

[00:24:28] Speaker 03:
But if he had tried to surrender, yes, that would be closer to compliance.

[00:24:33] Speaker 03:
Here, seeking a protective order so that he can stay in the United States and not be threatened with deportation is not an attempt to surrender.

[00:24:41] Speaker 04:
I'm troubled when the concept of duress, which I think originated, at least I thought it has this

[00:24:50] Speaker 04:
family history in an immediate physical duress.

[00:24:56] Speaker 04:
Here's a gun pointing at your head.

[00:24:58] Speaker 04:
You get on the phone and tell somebody you need ransom money or something like that.

[00:25:02] Speaker 04:
When it morphs from that into a situational emotional duress, it kind of loses anchor points.

[00:25:12] Speaker 04:
And I'm wondering what case law there is out there that discusses additional

[00:25:21] Speaker 04:
guide rails that have to be put on when the word duress, which is considered a cookie cutter, one duress fits all, isn't really a cookie cutter concept.

[00:25:32] Speaker 04:
If it moves out of the physical duress, I'm going to break your arm right now, to a situational duress, seems to me we really ought to be looking at that as a different kind of an animal of duress.

[00:25:45] Speaker 04:
I'm not saying it could never happen.

[00:25:47] Speaker 04:
I think maybe if you had a mentally impaired person,

[00:25:51] Speaker 04:
that couldn't distinguish reality or not.

[00:25:55] Speaker 04:
They might be more vulnerable to a long-term situational duress.

[00:25:59] Speaker 04:
But for most people, I'm really troubled about the open-natured concept that is being argued here.

[00:26:08] Speaker 03:
I agree, Your Honor, because the test as written and the test as this Court has applied it over and over again is we need a imminent threat of death or serious bodily injury.

[00:26:19] Speaker 04:
I don't think serious threat is

[00:26:21] Speaker 04:
is the answer because, my gosh, I credit the fact that all these people have serious threats on them.

[00:26:27] Speaker 04:
I mean, that didn't do it.

[00:26:31] Speaker 03:
Well, but what was missing here is it wasn't an unrelenting threat of death or serious bodily injury every minute of the day.

[00:26:37] Speaker 04:
Yeah.

[00:26:38] Speaker 04:
I mean, and I don't think that's realistic either.

[00:26:40] Speaker 04:
I mean, say you play this recording of my threat of death to you every 15 minutes or you'll get killed.

[00:26:49] Speaker 04:
I'm just troubled about one size fitting all, duress.

[00:26:56] Speaker 04:
I'm just wondering if there's any case law out there that says, look, there's got to be some more guide rails when it is a situational duress which could last forever.

[00:27:07] Speaker 04:
And that's not what duress really is intended for.

[00:27:09] Speaker 04:
Is there cases?

[00:27:12] Speaker 04:
Or is there law review articles?

[00:27:15] Speaker 04:
Any discussion of what kind of guide rails we might impose?

[00:27:20] Speaker 03:
The best guide rails I can point the court to, or adhere to, in Al-Rakabi, this court said, look, duress doesn't arise from a choice of several courses of action.

[00:27:30] Speaker 03:
If you've got options, and any one of them is not illegal, then you have to take that non-illegal option.

[00:27:35] Speaker 03:
You're not under duress.

[00:27:37] Speaker 03:
And then in Salvador Munoz, this court said that a defendant's subjective belief

[00:27:43] Speaker 03:
that he has no alternatives is not sufficient to send the question to the jury.

[00:27:47] Speaker 03:
There needs to be some objective evidence that he truly had no options.

[00:27:51] Speaker 01:
I apologize, Your Honor.

[00:28:02] Speaker 03:
I'm not recalling the details of that one off the top of my head.

[00:28:06] Speaker 03:
I would note

[00:28:07] Speaker 03:
Out of the cases that the appellant cited in his reply, they only underscore that the district court did not abuse its discretion here.

[00:28:14] Speaker 03:
In Glass, the woman was caught up in the drug traffic in the operation.

[00:28:18] Speaker 03:
And the evidence was that the drug trafficker came to her door and said, you're going to run these drugs for me, or I'm going to kill you and your daughter.

[00:28:24] Speaker 03:
Oh, wait, I'll be right back.

[00:28:26] Speaker 03:
And then he left for 30 minutes.

[00:28:28] Speaker 03:
And then he came back with the drugs and put her on a plane by herself.

[00:28:31] Speaker 03:
And the court said, look, she had 30 minutes.

[00:28:33] Speaker 03:
It's not a lot of time, but that would have been time for her to do something other than just go along.

[00:28:37] Speaker 03:
So 30 minutes.

[00:28:39] Speaker 03:
In Gordon, the appellant's case, four and a half hours.

[00:28:42] Speaker 03:
The defendant was left alone for four and a half hours one morning.

[00:28:45] Speaker 03:
That was enough time for him to escape.

[00:28:46] Speaker 03:
He was no longer under duress.

[00:28:48] Speaker 03:
The chain was broken.

[00:28:49] Speaker 03:
So the cases that we've got were 125 days, four and a half hours, 30 minutes, three years, six years, six months.

[00:28:57] Speaker 03:
When there's that much time involved, it's not true duress.

[00:29:00] Speaker 03:
True duress.

[00:29:04] Speaker 03:
in the van and I'm going to kill your kid if you don't go rob the bank.

[00:29:07] Speaker 03:
Do it now."

[00:29:07] Speaker 03:
That's duress.

[00:29:09] Speaker 03:
It's not being in an abusive home environment where someone is emotionally oppressing you.

[00:29:16] Speaker 04:
The question is being phrased and being argued a little bit that duress is when we're forced to make a risky decision.

[00:29:27] Speaker 04:
But life is filled with

[00:29:29] Speaker 04:
situations where there is no non-risky decision available to you.

[00:29:34] Speaker 04:
And if we're going to say that a risky decision is equal to risk, that just doesn't seem to have guidelines.

[00:29:43] Speaker 03:
I agree, Your Honor, and that's why I think death and serious bodily injury is the real standard.

[00:29:48] Speaker 04:
Mr. Carpena says that... Is it just risk of serious bodily injury?

[00:29:53] Speaker 04:
Because I think everybody that deals in illegal immigration and drugs is under a serious bodily injury risk all the time.

[00:30:01] Speaker 04:
But isn't there an immediate question also of immediate bodily injury?

[00:30:06] Speaker 03:
It does need to be an imminent threat.

[00:30:08] Speaker 04:
And doesn't imminent carry some weight that, yes, we know you're under a threat,

[00:30:13] Speaker 04:
You chose this life where it was thrust on you, and it's a dangerous, risky life.

[00:30:17] Speaker 04:
And we're sorry about that.

[00:30:19] Speaker 04:
But if that equals duress, do you have a get-out-of-jail card to do anything you want?

[00:30:25] Speaker 03:
It would seem so.

[00:30:26] Speaker 04:
We've got to give some.

[00:30:27] Speaker 04:
But I think the guide rails might be on immediate, that you may have to make an unpleasant decision.

[00:30:35] Speaker 04:
But if you have the ability to do so, it's not duress.

[00:30:39] Speaker 03:
I would agree, Your Honor.

[00:30:40] Speaker 03:
And the cases here from this court say, look, you were picked up by dirty police in Mexico two years ago.

[00:30:46] Speaker 03:
That's not imminent.

[00:30:48] Speaker 03:
Someone called you from across the country on the phone and threatened you.

[00:30:50] Speaker 03:
That's not imminent.

[00:30:52] Speaker 03:
You were beaten up and threatened in El Salvador three or six years ago.

[00:30:55] Speaker 03:
That's not imminent.

[00:30:56] Speaker 03:
And so what's lacking here is there was not 10 years of imminent threat of death or serious bodily injury that prevented Mr. Carpena from surrendering or returning to Mexico.

[00:31:07] Speaker 03:
Throughout, I would say, the whole 10 years, but certainly

[00:31:10] Speaker 03:
throughout the period he admits that the last year when he was out of Ms.

[00:31:13] Speaker 03:
Torres' house and was acting independently and did not surrender and did not return to Mexico.

[00:31:19] Speaker 01:
Well, what about the sister situation when he was during that last year?

[00:31:28] Speaker 03:
I believe what the judge said is it wasn't really clear that

[00:31:30] Speaker 03:
His family was being threatened.

[00:31:32] Speaker 03:
May I respond briefly?

[00:31:33] Speaker 03:
Was being threatened by Ms.

[00:31:34] Speaker 03:
Torres.

[00:31:35] Speaker 03:
There were pictures of some bullet holes or what looked like holes in the house, but there wasn't any evidence as to who or where those came from.

[00:31:42] Speaker 03:
As I recall, the judge did not find that there was a credible threat to his family from Ms.

[00:31:48] Speaker 03:
Torres there.

[00:31:52] Speaker 01:
Thank you.

[00:31:53] Speaker 01:
Thank you.

[00:31:53] Speaker 01:
I think that exhausts all of our time, so we will

[00:31:58] Speaker 01:
take the case as submitted.

[00:32:01] Speaker 01:
Counselor excused.

[00:32:02] Speaker 01:
Thank you for these arguments.

[00:32:04] Speaker 01:
Very interesting case.

[00:32:06] Speaker 01:
Thank you.

[00:32:07] Speaker 01:
We'll take a short break.