## Facts

- Juan Manuel Contento-Pachon, a Bogotá taxi driver, was approached by a passenger known as “Jorge,” who first offered him work as a private driver.
- Jorge later proposed that Contento-Pachon transport cocaine into the United States by swallowing cocaine-filled balloons.
- After Contento-Pachon refused, Jorge recited private details about Contento-Pachon’s life and threatened that his wife and young child would be killed if he did not comply.
- Jorge repeated threats to Contento-Pachon and his family and told him they were under surveillance and would be watched throughout the trip.
- At a final meeting, Contento-Pachon swallowed approximately 129 cocaine-filled balloons and traveled by air, with a stopover in Panama, to Los Angeles.
- Contento-Pachon did not seek help from Colombian or Panamanian authorities, asserting he believed they were corrupt and feared retaliation against his family.
- In Los Angeles, customs officials became suspicious; Contento-Pachon consented to an X-ray that revealed the balloons, and he was arrested.
- He was charged with possession of a controlled substance with intent to distribute under 21 U.S.C. § 841(a)(1).

## Issues

1. Whether the defendant’s proffer was sufficient to submit a duress defense to the jury on a § 841(a)(1) charge.
2. Whether the defendant’s proffer was sufficient to submit a necessity defense to the jury.

## Decision

- The Ninth Circuit reversed the conviction and remanded for a new trial.
- The court held the defendant presented enough evidence on each duress element to create a triable jury issue, making it error to exclude duress evidence by motion in limine.
- The court affirmed the exclusion of the necessity defense because the proffered facts did not satisfy necessity’s requirements.

## Legal Principles

- A defendant is entitled to a jury instruction on duress when there is evidence from which a reasonable jury could find: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear the threat will be carried out, and (3) no reasonable opportunity to escape the threatened harm.
- “Immediacy” for duress may be satisfied by evidence of continuous, ongoing threats and apparent capacity to execute them, not only by threats occurring at the literal moment of the crime.
- Whether lawful alternatives were “reasonable” can be a fact question for the jury when supported by evidence bearing on feasibility and risk, including claimed inability to seek police protection.
- Necessity is distinct from duress and generally does not apply where the coercion arises from human threats rather than nonhuman forces.

## Conclusion

The Ninth Circuit held that the district court improperly prevented the jury from considering duress where the defendant offered evidence of ongoing death threats, a plausible basis to fear the threats would be carried out, and a disputed lack of reasonable escape; it also held necessity was unavailable on these facts and was properly excluded.


United States v. Contento-Pachon, 723 F.2d 691 (9th Cir. 1984)