United States of America v. FREDY FIGUEROA-MONTES, AKA Huichol, AKA Wichol

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FREDY FIGUEROA-MONTES, AKA
Huichol, AKA Wichol,
Defendant - Appellant.
No. 14-30071
D.C. No. 3:11-cr-00249-MO-6
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted May 6, 2015**
Portland, Oregon
Before: W. FLETCHER and HURWITZ, Circuit Judges and CURIEL,*** District
Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Gonzalo P. Curiel, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
FILED
MAY 14 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Fredy Figueroa-Montes appeals his convictions for conspiracy to
manufacture marijuana, 21 U.S.C. §§ 841(a)(1), (b)(1)(C), 846, and depredation of
government property, 18 U.S.C. §§ 2, 1361, in connection with a marijuana growing
operation in a national forest. He challenges the jury instructions on his duress
defense, which included Instruction 24, a general instruction on duress, and
Instructions 25-27, each defining an element of duress. Figueroa-Montes concedes
that the general instruction was “correct,” but argues that the district court abused its
discretion in giving the additional instructions and that, taken as a whole, the duress
instructions were therefore misleading. We have jurisdiction under 28 U.S.C. §
1291, and affirm.
1. Taken as a whole, the duress instructions were not misleading and
properly instructed the jury that a duress defense can be based on an implied threat.
See United States v. Chao Fan Xu, 706 F.3d 965, 985 (9th Cir. 2013); United States
v. Navarro, 608 F.3d 529, 533 (9th Cir. 2010). Nothing in the definitional
instructions undercut the general instruction’s explicit statement that “the threat of
harm may be express or implied.”
2. Instruction 25. The instruction’s statement that a threat must be
“specific” and “direct” to establish duress does not suggest that a threat to a family
member, rather than the defendant himself, does not qualify. Indeed, the general
duress instruction explicitly stated that duress can be established by a threat to “the

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defendant or a family member of the defendant.” To the extent that Instruction 25
cautioned that a generalized fear by the defendant that members of his family would
be harmed did not constitute duress, it reflected settled law. See Navarro, 608 F.3d
at 533 (“A threat, for purposes of duress, may be express or implied, so long as it is
an immediate threat as distinguished from generalized fear.”).
3. Instruction 26. The instruction’s definition of the “well-grounded fear”
required for duress as an “objectively reasonable fear that the present, immediate, or
impending threat will be carried out,” did not indicate that a threat to
Figueroa-Montes’s family in Mexico would not establish duress because they were
not “present” at the marijuana growing site. “Present” was plainly used in the
instruction in its temporal, not geographical, sense.
4. Instruction 27. “Under any definition of [duress or necessity,] . . . if
there was a reasonable, legal alternative to violating the law, a chance both to refuse
to do the criminal act and also to avoid the threatened harm, the defenses will fail.”
United States v. Bailey, 444 U.S. 394, 410 (1980) (internal quotation marks
omitted). This instruction did not impose any improper burden on
Figueroa-Montes by identifying “contacting police” and “otherwise removing
himself” from the growing operation as potential reasonable, legal alternatives.
AFFIRMED.

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