In United States v. Hernandez, 16-2765, the Second Circuit (Kearse, Cabranes, Lohier) affirmed the conviction of a member of La Mara Salvatrucha (MS-13), a street gang that operates in certain parts of the country, arising out of an initiation shooting in Brentwood. 

Background

The defendant, Edwin Hernandez (also known as “Scooby” or “Massacre”), joined MS-13 in 2011.  According to the government’s witnesses at trial, who included three former members, as part of the initiation process Hernandez was required to kill someone, preferably a member of a rival gang, but was free to walk away if he changed his mind.  On October 23, 2011, Hernandez and another gang member, Jerry Reyes, drove around looking for a potential target and opened fire on a group of rival gang members, resulting in non-fatal injuries to Robert Faber and Curtis Williams.  In his post-arrest statement, Hernandez acknowledged that the two got out of the car, walked up close to the rival group (about 25 feet away), aimed at the group, and opened fire. 

Hernandez was charged with two counts each (one for Faber and one for Williams) of attempted murder and assault with a dangerous weapon, committed for the purpose of gaining entrance to or maintaining or increasing his position in MS-13, and discharging a firearm during a crime of violence.  His principal defense was duress.  At trial, he testified that he had only joined MS-13 to protect himself and his daughter because the gang was seeking to kill him, that he believed he would be killed if he did not participate in the shooting, and that he had not aimed his gun and had no intent of killing anyone.  The district court instructed the jury to reach Hernandez’s duress defense only if it found the government had proven all elements of the offense beyond a reasonable doubt and that, to succeed on his affirmative defense, Hernandez had to prove that he had no reasonable opportunity to avoid the threatened harm other than by engaging in the illegal activity.  Over Hernandez’s objection, the court explained that Hernandez could not establish the “reasonable opportunity” element if he had “recklessly or negligently placed himself in a situation in which it was probable that would be subject to duress.” 

The jury found Hernandez guilty on two counts—assaulting Williams with a deadly weapon and discharging a firearm during that crime of violence against Williams—but acquitted him on the rest, including attempted murder.  The district court subsequently sentenced him to 300 months in prison based in part on its finding, by a preponderance of the evidence, that Hernandez’s shooting of Williams constituted attempted murder.  The court rejected Hernandez’s contention that its attempted-murder finding was precluded because there was a “possibility” that the jury had acquitted him based on his affirmative defense of duress.

Decision

On appeal, Hernandez challenged the district court’s jury instructions on duress as inconsistent with the Court’s case law, which only mentioned the “reckless or negligent” caveat in two decades-old decisions:  United States v. Agard, 605 F.2d 665 (2d Cir. 1979) and United States v. Paul, 110 F.3d 869 (1997).  The panel disagreed, reasoning that it was bound by prior precedents unless and until they are reversed en banc or by the Supreme Court.  The Court added that those decisions have not been questioned; to the contrary, the current draft of the Model Penal Code contains the same language.  In any event, any error was harmless because Hernandez “probably was not entitled to a duress instruction at all, since he admitted that he knew the MS-13 rules prior to becoming a member.”

Hernandez also challenged his sentence, again arguing that the district court could not make a finding of attempted murder because the jury “might have acquitted him on the attempted murder charge because it found Hernandez’s duress defense to be meritorious, thereby negating any conclusion of guilt.”  The Court again disagreed.  It observed that it is well-settled that the district court may rely on a finding that the defendant engaged in criminal conduct, by a preponderance of the evidence, even if the government failed to prove such conduct beyond a reasonable doubt.  The Court relied on the pre-Apprendi decision in United States v. Watts, 519 U.S. 148, 156 (1997), which permits sentencing to be based on facts found by a preponderance of the evidence.  The Court suggested that Hernandez’s argument may have carried weight had he obtained a special verdict in which the jury stated that the acquittal was based on a finding of duress.  But he had not, and the panel declined “to rule that the court’s normal authority to make findings relevant to sentencing vanished because of a speculative ‘possibility.’”

Analysis

There are at least three takeaways from Hernandez.  First, duress defenses are difficult to present given the state of the law.  In many cases, the threat of harm is not sufficiently imminent to justify the illegal action.  Or the defendant will be found to have had a reasonable opportunity to escape the threatened harm.  In “drug smuggler” cases, for example, courts have held that where the defendants could have spoken to Customs inspectors or Immigration officers, no duress defense lies.  See United States v. Alicea, 837 F.3d 103, 106 (2d Cir. 1987).  Here, as the Court offered in dicta, the defendant knew the rules of the MS-13 might require him to engage in violence, yet he elected to join the gang and commit the crime.

Hernandez also is a reminder that the Court’s published decisions remain binding precedent, no matter how old, unless and until they are overturned.  In his brief, Hernandez cited extensively to cases since Paul and Agard that have described the “reasonable opportunity” element without adding, as here, that the defendant had to specifically prove that he did not recklessly or negligently place himself in a situation in which it was probable that would be subject to duress.  Even so, Hernandez failed to point to any authority that rejected this language as improper, much less intervening Supreme Court authority that would justify the panel in departing from precedent.  

Finally, Hernandez teaches that “[a]lthough special verdicts and interrogatories are generally disfavored in criminal cases,” they may be proper where there is an affirmative defense.  Otherwise, the district court will usually be free at sentencing to rely on conduct for which the defendant has been acquitted.  This rule in Watts has survived the Apprendi-Booker line of cases for 20 years, and shows no sign of being changed now.