Background
Gonzalo Bustillos-Perea, a Mexican citizen with multiple prior unlawful reentry convictions, was apprehended in New Mexico after reentering the United States. He claimed he was forced to return due to death threats from a gang that had murdered his father. He sought to present a duress defense at trial, arguing the threats were immediate and he had no reasonable alternative. The district court excluded evidence regarding the reason for his reentry and denied his motion to present the duress defense, finding the threats were not sufficiently immediate and that he had reasonable alternatives.
The court’s reasoning
The court reviewed the denial of the duress defense for abuse of discretion. To succeed, a defendant must produce sufficient evidence of an immediate threat of death or serious bodily injury, a well-grounded fear the threat would be carried out, and no reasonable opportunity to escape. The court concluded the district court did not abuse its discretion in finding the first element was not met. The telephone threats began more than a year before the reentry and were directed at a future time. The evidence that gang members followed the defendant’s bus was speculative and did not show an immediate threat. The court did not address the other elements of the defense. The court also noted that even if the district court erred in relying on the general-intent nature of the offense, any error was harmless.
What it means going forward
The ruling reinforces the high bar for establishing the immediacy requirement of the duress defense in unlawful reentry cases, particularly where threats are communicated remotely or are not contingent on immediate non-compliance.
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