United States v. Ybarra Cruz

PUBLISH

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT
_________________________________
UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

FRANCISCO YBARRA CRUZ,

Defendant - Appellant.

No. 19-2132
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 2:18-CR-02041-KG-1)
_________________________________
Bernadette Sedillo, Assistant Federal Public Defender (Stephen P. McCue, Federal Public
Defender with her on the brief), Las Cruces, New Mexico, for Defendant-Appellant.

Allison C. Jaros, Assistant United States Attorney (John C. Anderson, United States
Attorney with her on the brief), Las Cruces, New Mexico for Plaintiff-Appellee.
_________________________________
Before PHILLIPS, BALDOCK, and McHUGH, Circuit Judges.
_________________________________
PHILLIPS, Circuit Judge.
_________________________________
In March 2018, Francisco Ybarra Cruz—by then a terminated confidential
informant in federal drug investigations—was stopped for a New Mexico traffic
violation. After obtaining consent to search, the officer found more than ten pounds
of methamphetamine in Ybarra Cruz’s truck. After being indicted, Ybarra Cruz
FILED
United States Court of Appeals
Tenth Circuit

December 14, 2020

Christopher M. Wolpert
Clerk of Court
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moved to suppress the methamphetamine evidence and his Mirandized statements
and admissions. The district court denied this motion, and a jury later convicted him
for possessing the methamphetamine with an intent to distribute it.
On appeal, Ybarra Cruz argues four points: (1) that the district court erred by
not granting his motion to suppress, on grounds that the police officer lacked
reasonable suspicion to initiate the traffic stop; (2) that the district court erred by not
acquitting him based on his public-authority defense (that he reasonably believed he
was acting with government authority in transporting the methamphetamine); (3) that
the district court abused its discretion by not granting him a new trial on grounds that
the jury might not have understood that crediting his public-authority defense would
require acquittal on both counts; and (4) that the district court abused its discretion by
not sua sponte instructing on the affirmative defense of duress. We reject each of
these arguments and affirm.
I. BACKGROUND
A. The Drug Investigation
By 2016, Homeland Security Investigations (HSI) Special Agent Fernando
Lozoya had begun a successful working relationship with a confidential informant
(CS)
1
in drug investigations. Their work had led to multiple methamphetamine
seizures, as well as several promised, but unrealized, deliveries. In 2018, the agent

1
This unnamed individual is sometimes referred to as a confidential informant
(CI) and at other times referred to as a confidential source (CS). For clarity, we use
“CS” whenever referring to this informant throughout this opinion.
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and CS worked together to arrange a large methamphetamine delivery from a
Mexican drug organization. The CS acted in the role of a buyer located in Las
Cruces, New Mexico. On March 24, 2018, the CS had good news for Agent
Lozoya—a courier had called the CS to tell him that he had arrived in Las Cruces
with the large load of methamphetamine.
Agent Lozoya began surveilling near the site that the CS had arranged with the
courier for the methamphetamine delivery. Once there, Agent Lozoya focused on a
man working on a truck with Arizona license plates. A woman and child soon joined
this man after arriving in a black pickup truck with Kansas license plates. With help
from the CS’s updates, Agent Lozoya tracked the man to different locations. The man
turned out to be Ybarra Cruz.

Once Agent Lozoya was satisfied that he had located the man transporting the
methamphetamine, he called New Mexico State Police Officer Leonel Palomares (a
Spanish-speaking officer with a drug dog), advised him of the drug investigation,
directed him to Ybarra Cruz’s route (after Ybarra Cruz headed north from Las Cruces
after the CS requested a delay for the purchase), and asked him to make a traffic stop.
Agent Lozoya provided the license-plate numbers of Ybarra Cruz’s white pickup
truck as well as of the black pickup truck, which Ybarra Cruz had begun towing.
Soon afterward, Officer Palomares located the trucks traveling on the interstate
highway.
B. The Stop and Search
While following the white truck, Officer Palomares saw, for a few seconds, its
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right tires cross the line separating the right lane from an exit lane. Officer Palomares
stopped the truck, relying on the driver’s “failure to maintain the traffic lane.” R. vol.
4 at 54. Officer Palomares had the driver, Ybarra Cruz, step out of the truck and
stand in front of his police car, while he issued a written warning. After issuing the
warning, Officer Palomares returned Ybarra Cruz’s driving documents and told him
that he was free to leave. But as Ybarra Cruz neared his truck, Officer Palomares
asked him for permission to ask additional questions. Ybarra Cruz consented.
After the additional questioning, Officer Palomares asked Ybarra Cruz for
permission to search the trucks. Again, Ybarra Cruz consented. Officer Palomares
then deployed his drug dog, which alerted at the white truck. In the cab of the white
truck, Officer Palomares found “a blue glass pipe with white crystal-like residue and
small amounts of crystal-like substances.” Id. at 63. In the bed of the truck, Officer
Palomares found eleven “bundles of a crystal-like substance” in a bag inside a
television. Id.
At this point, Officer Palomares called Agent Lozoya, who, upon arriving,
read Ybarra Cruz his Miranda rights, and took over the investigation. In addition to
asking some questions on the roadside, Agent Lozoya soon after interviewed Ybarra
Cruz at the HSI office in Las Cruces, again obtaining from Ybarra Cruz a Miranda
waiver. Among other things, Ybarra Cruz admitted that he had been transporting the
methamphetamine for $10,000. In addition, Ybarra Cruz told him that he had “been
working with agents in Phoenix.” Id. at 37. Even so, he said that the HSI Phoenix
agents were unaware of his methamphetamine trip.
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C. The Suppression Hearing
Three months later, a federal grand jury indicted Ybarra Cruz on two charges:
(1) conspiracy to distribute 500 grams or more of a mixture and substance containing
a detectable amount of methamphetamine, see 21 U.S.C. §§ 846, 841(a)(1),
(b)(1)(A); and (2) possession with intent to distribute 500 grams or more of a mixture
and substance containing a detectable amount of methamphetamine, see 21 U.S.C.
§§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2. Disputing the legality of the traffic stop,
Ybarra Cruz moved to suppress his Mirandized statements and the
methamphetamine.
At the suppression hearing, the government called two witnesses, Agent
Lozoya and Officer Palomares. It also admitted into evidence numerous photographs,
as well as the Officer’s dashcam-video footage. Ybarra Cruz presented no evidence.
Afterward, the district court issued an Order denying Ybarra Cruz’s Motion to
Suppress the methamphetamine. For our purposes, the district court concluded that
Officer Palomares reasonably suspected that Ybarra Cruz had violated a New Mexico
traffic law. From this, applying the Fourth Amendment, the district court concluded
that the traffic stop had been reasonable at its inception. The court denied the Motion
to Suppress.
D. The Trial
At trial, Ybarra Cruz conceded having transported the methamphetamine, but
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relied on the public-authority defense to excuse his conduct.
2
In her opening
statement, Ybarra Cruz’s counsel acknowledged that the government would introduce
methamphetamine evidence from the stop, as well as “text messages of Mr. Cruz
communicating with many different people about drugs.” Id. at 273. But she
attributed this anticipated evidence to Ybarra Cruz’s working as “a documented
informant.” Id. On this point, she acknowledged that weeks before this stop in Las
Cruces, federal agents had told Ybarra Cruz that they could not continue working
with him, after learning of his recent Arizona arrest and charge for possession of
methamphetamine.
The government called Agent Lozoya and Officer Palomares to establish the
facts of the stop and the content of Ybarra Cruz’s interview statements. In addition,
the government called the two Phoenix HSI agents for whom Ybarra Cruz had
worked as an informant—Agent Edward Arellano and Agent Manuel Ochoa. These
two agents testified about their work with Ybarra Cruz and his deactivation as an
informant weeks before his Las Cruces arrest, right after they had learned about his
previous Arizona methamphetamine offense.
Agent Lozoya testified about some of Ybarra Cruz’s Mirandized admissions
that bore on his public-authority defense. In particular, he noted that Ybarra Cruz had

2
In fact, Ybarra Cruz’s closing argument focused almost exclusively on his
public-authority defense. See R. vol. 4 at 816 (“Ladies and gentlemen, I told you at
the beginning of this case that Mr. Cruz does not dispute that he transported
methamphetamine on March the 24th. So the issue that you have to determine today
is whether or not Mr. Cruz had a reasonable belief that he was acting as a
Government agent at that time.”).
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admitted working with a man, El Viejo, to transport methamphetamine from Phoenix
to Las Cruces for a fee of $500 per pound. Ybarra Cruz had told him that another
man, Omar, delivered the methamphetamine to him in a black duffle bag. In addition,
Ybarra Cruz told him that a third man, El Pariente, gave him the phone number of the
methamphetamine buyer. After this “buyer” (really, the CS) delayed the purchase,
Ybarra Cruz spoke with El Pariente, who “directed him to deliver the
methamphetamine to Denver, Colorado, and he was going to get paid $10,000.” Id.
at 318. After this, Ybarra Cruz told Agent Lozoya that he was working for the
government, but that the agency was unaware of his transporting the
methamphetamine. Agent Lozoya doubted Ybarra Cruz’s claimed status as an
informant “[b]ecause an informant, if he’s conducting any type of work or
operations, the controlling agent would be aware of it.” Id. at 324. In addition, Agent
Lozoya noted that Ybarra Cruz had not provided contact information for the
controlling agent.
Officer Palomares also testified about matters relevant to Ybarra Cruz’s
public-authority defense. He testified that during the consensual questioning, Ybarra
Cruz had denied that he was transporting anything illegal, agreeing that he was
“responsible for everything in the vehicles.” Id. at 371. Yet before Officer Palomares
found the methamphetamine, Ybarra Cruz told him that “if you go inside the
television, you’re going to find a black duffle bag. That’s where it’s located.” Id.
at 376.
Next, the government called HSI Agent Arellano, who testified that in March
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2018, about three months after Ybarra Cruz’s Arizona arrest, Ybarra Cruz finally told
him about it. On then speaking to the officers involved in that arrest, Agent Arellano
learned that Ybarra Cruz had possessed methamphetamine and a pipe on his person.
The agent took this to mean that Ybarra Cruz had been “using narcotics as well as
conducting illegal acts.” Id. at 404.
Agent Arellano testified that on March 14, 2018, he, Agent Ochoa, and their
supervisor met with Ybarra Cruz and deactivated him as an informant for HSI. He
advised Ybarra Cruz that he needed to resolve his state charges before he could be
eligible for any more informant work.
Agent Ochoa testified along the same lines, adding that he told Ybarra Cruz to
stop working and to cut ties with all drug targets. He warned Ybarra Cruz that if he
was caught “doing something illegal” he would be on his own. Id. at 502. Agent
Ochoa testified that Ybarra Cruz was “obviously sad” and “nervous.” Id.
HSI Agent, Joey Rodriguez, testified about two cell phones seized from Ybarra
Cruz after the highway stop. Ybarra Cruz admitted owning the two phones. See id.
at 528 (“He stated the one of ‘em, being the iPhone was his personal phone, and he
stated that the Motorola, the bronze Motorola was actually used for his narcotic-
trafficking activities.”). Ybarra Cruz consented to a search of both phones. Agent
Rodriguez saw that between March 14, 2018 and March 28, 2018, Ybarra Cruz’s
phones registered hundreds of communications with several drug dealers but none
with Agents Arellano or Ochoa.
In his case-in-chief, Ybarra Cruz testified in support of his public-authority
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defense. He described the circumstances in which he first began acting as an
informant for HSI. Despite testifying that he had not wanted to be an informant,
Ybarra Cruz saw undercover work as an opportunity to pay a $10,000 bond. As an
informant, he communicated with the two agents “[t]he whole time, with [his] phone
via text or calls.” Id. at 605. He testified that the agents routinely “searched [his] car
and they searched [him].” Id. at 611. For his work with controlled buys, the officers
counter-surveilled him, including with GPS devices, and they regularly monitored his
cell phone. He understood the strict rules governing informant work and signed
annual agreements to comply with those rules.
Ybarra Cruz also testified that after being deactivated on March 14, 2018, he
never again communicated with Agent Arellano or Agent Ochoa. In fact, Ybarra Cruz
testified that he instead traveled to Iowa to meet drug dealers. Those drug dealers
provided Ybarra Cruz a new cell phone for drug communications. Ybarra Cruz also
admitted that he never told the agents about his Las Cruces methamphetamine trip.
Despite all this, Ybarra Cruz asserted that he had transported the methamphetamine
while reasonably believing that he did so while still in his informant role with the
Phoenix HSI.
After each side’s case-in-chief, Ybarra Cruz moved for a judgment of acquittal
under Fed. R. Crim. P. 29. He argued that the evidence showed that he had
reasonably believed that he was working as an informant in transporting the pounds
of methamphetamine. The court denied both motions. Even so, the court agreed to
instruct the jury on Ybarra Cruz’s public-authority defense.
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In an instruction substantially identical to the one Ybarra Cruz proffered, the
court advised the jury of these features of a public-authority defense: (1) that Ybarra
Cruz had to “prove by a preponderance of the evidence that he had a reasonable
belief that he was acting as an authorized Government agent to assist in law
enforcement activity at the time of the . . . offense charged in the Indictment”;
(2) that “Government authorization of the defendant’s acts legally excuses the crime
charged”; and (3) that “[i]f you find that the defendant has proved that he reasonably
believed that he was acting as an authorized Government agent as provided in this
instruction, you must find the defendant not guilty of the charges in Counts 1 and 2
of the Indictment.” Id. at 798–99.
During its deliberations, the jury sent the court a group of four written
questions: (1) “Are the 2 counts tied together?” (2) “Can a person be not guilty of one
and not guilty of another?” (3) “Is it contradictory to have a split decision?” and
(4) “What is the legal definition of voluntarily?” R. vol. 1 at 187. But minutes later,
the jury withdrew its four questions, so the court did not address them. Neither party
objected to its not doing so. About thirty minutes after withdrawing its questions, the
jury returned its verdict—acquitting Ybarra Cruz on the conspiracy charge (Count 1)
but convicting him on the possession-with-intent-to-distribute charge (Count 2).
E. The Post-Trial Motion Under Rule 29(c)
After trial, Ybarra Cruz filed his third Motion for Judgment of Acquittal under
Fed. R. Crim. P. 29(c). In support, he argued that he had proved by a preponderance
of the evidence that he had reasonably believed that he was working as an informant
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in transporting the charged methamphetamine on March 24, 2018.
3
Along this line,
he claimed that he “was never given anything in writing stating clearly that he was no
longer an authorized informant” and that when the agents told him that they and he
were “going to stop working” together, he did not understand this “to mean that he
was no longer working under government authority at all, only that he was supposed
to get his arrest warrant in [Arizona] straightened out.” Id. at 199. The district court
denied the Motion.
F. The Post-Trial Motion Under Rule 33(a)
In addition, Ybarra Cruz filed a Motion for a New Trial under Fed. R. Crim. P.
33(a). There, Ybarra Cruz raised additional issues from those that he had raised at
trial. Specifically, in requesting that the district court grant him a new trial in the
“interests of justice,” he stated that the court should focus on the “weight” rather than
the “sufficiency” of the evidence. Id. at 201-02. Based on that distinction, he then
argued two new points: (1) that the jury’s first three written questions, addressing
split verdicts, raised a possibility that the jurors may have misunderstood his public-
authority defense, and (2) that the jury’s fourth question, asking about the meaning of
“voluntarily” required the district court to sua sponte instruct the jury on the

3
Yet in the same filing, Ybarra Cruz departed from his trial position in which
he had acknowledged that he bore the burden to establish his public-authority defense
by a preponderance. In this regard, he offered a contradictory view, namely, that “[i]n
a case involving a public authority defense, the jury’s verdict should be upheld only
‘if a rational juror could find beyond a reasonable doubt, that the defendant did not
reasonably believe he was acting as an authorized agent of the Government.’” R.
vol. 1 at 198 (citations omitted). On appeal, he has continued with the latter
approach. We address it in Part II B.
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affirmative defense of duress. Id. at 202–03. The district court denied Ybarra Cruz’s
Rule 33(a) Motion. Ybarra Cruz timely appealed. We exercise jurisdiction under 28
U.S.C. § 1291.
II. DISCUSSION
On appeal, Ybarra Cruz raises four issues: (1) whether the district court erred
in not suppressing evidence, alleging as grounds that the police officer lacked
reasonable suspicion to support the traffic stop; (2) whether the district court erred by
not acquitting him based on the evidence presented on his public-authority defense
(that he reasonably believed he was acting with government authority in transporting
the methamphetamine); (3) whether the district court abused its discretion by denying
him a new trial, based on the jury’s possibly misunderstanding that crediting his
public-authority defense would require acquittal on both counts; and (4) whether the
district court abused its discretion by not sua sponte instructing on the affirmative
defense of duress. We address each of these in turn.
A. The Suppression Issue: Reasonableness of the Traffic Stop
Ybarra Cruz concedes that before his traffic stop on March 24, 2018, he
crossed into an adjacent lane while driving on the interstate highway near Las
Cruces. Yet, he argues that the traffic stop was unreasonable at its inception,
contending that Officer Palomares lacked reasonable suspicion that Ybarra Cruz had
committed a traffic violation.
4

4
Because we conclude that Ybarra Cruz’s lane violation provided the
necessary reasonable suspicion to sustain the traffic stop, we do not address the
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Ordinarily, when reviewing the denial of a motion to suppress, we view the
evidence in the government’s favor and accept the court’s factual findings unless
clearly erroneous. United States v. Smith, 531 F.3d 1261, 1265 (10th Cir. 2008)
(citation omitted). But here, the district court erred in a way that interferes with our
appellate standard of review. The district court mistakenly viewed the evidence at the
suppression hearing in the light most favorable to the government.
5
Fortunately, our
disposition of this case involves no disputed facts or inferences from the suppression
hearing. We resolve the reasonable suspicion question on the observed traffic
violation and not on the suspected methamphetamine crime. After applying the
undisputed facts and inferences, we review de novo the ultimate question of
reasonableness under the Fourth Amendment. United States v. Cortez, 965 F.3d 827,
833 (10th Cir. 2020) (citation omitted).
A traffic stop is a seizure under the Fourth Amendment and is subject to its
reasonableness requirement. Id. To be reasonable, a traffic stop must be “justified at
its inception.” United States v. Mayville, 955 F.3d 825, 829 (10th Cir. 2020), cert.
denied, No. 20-5967, 2020 WL 6551895 (Nov. 9, 2020) (citation omitted). A traffic
stop is justified at its inception if “the specific and articulable facts and rational
inferences drawn from those facts give rise to a reasonable suspicion a person has or

district court’s additional ground for sustaining the traffic stop—reasonable suspicion
that Ybarra Cruz was trafficking methamphetamine.

5
Unfortunately, this mistake keeps recurring. In United States v. Cortez, 965
F.3d 827, 833 n.4 (10th Cir. 2020), we pointed this out in hopes that courts would
apply the proper standard in the future.
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is committing a crime.” United States v. Whitley, 680 F.3d 1227, 1232 (10th Cir.
2012) (citation omitted). We look at the totality of the circumstances to determine
whether reasonable suspicion exists. Id. (citation omitted).
Under New Mexico law, when a “roadway has been divided into two or more
clearly marked lanes for traffic . . . a vehicle shall be driven as nearly as practicable
entirely within a single lane and shall not be moved from such lane until the driver
has first ascertained that such movement can be made with safety.” N.M. Stat. Ann.
§ 66-7-317(A). The New Mexico Court of Appeals has held that a driver sometimes
“may momentarily leave his or her lane of travel without violating the statute.” State
v. Siqueiros-Valenzuela, 404 P.3d 782, 787 (N.M. Ct. App. 2017).
To assess whether a lane deviation is a traffic violation, the New Mexico Court
of Appeals has cited our decisions in United States v. Alvarado, 430 F.3d 1305 (10th
Cir. 2005) and United States v. Gregory, 79 F.3d 973 (10th Cir. 1996), which
interpreted identical language in Utah’s traffic code. Under the fact-specific analysis
used in those cases, and adopted by the New Mexico Court of Appeals, the court
looks at “the particular circumstances present during the incident in question to
determine whether the driver could reasonably be expected to maintain a straight
course at that time in that vehicle on that roadway.” Siqueiros-Valenzuela, 404 P.3d
at 787 (quoting Alvarado, 430 F.3d at 1309). Relevant factors include these: weather
conditions, traffic, road features, vehicle type, and need for the driver to deviate
lanes. See Alvarado, 430 F.3d at 1309 (finding reasonable cause for traffic stop
where “there were no adverse weather or road conditions that might have made it
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impractical for Alvarado to prevent his vehicle from drifting out of the righthand lane
and over the fog line”); Gregory, 79 F.3d. at 978 (finding lane deviation excusable
where the defendant was driving a U-Haul and the “road was winding, the terrain
mountainous and the weather condition was windy”).
We conclude that Officer Palomares had reasonable suspicion that Ybarra Cruz
had violated New Mexico law by failing to drive “as nearly as practicable” within his
lane. Officer Palomares testified that Ybarra Cruz crossed into the exit lane for four
to five seconds. And Officer Palomares testified that no construction, roadway debris,
or other visible condition justified Ybarra Cruz’s deviation.
Ybarra Cruz concedes those facts. After all, Officer Palomares’s video footage
shows Ybarra Cruz’s truck traveling on a nearly empty highway in clear weather
conditions, crossing into the exit lane. Ybarra Cruz contends that he crossed into the
adjacent lane because the two lanes on the highway split into three lanes near the
exit. He also mentions that he was “towing another vehicle.” Appellant’s Opening Br.
at 17. But he does not explain how those circumstances would justify the lane
deviation. Even so, Ybarra Cruz disputes that he violated § 66-7-317(A).
We conclude that Ybarra Cruz’s justifications are not the sort that
§ 66-7-317(A) might excuse. The video shows that his situation differs from that
described in Siqueiros-Valenzuela, in which the defendant was trying to safely pass
two semi-trucks on an interstate highway, resulting in her tires touching, but not
crossing, the yellow shoulder line. 404 P.3d at 788. It also differs from the situation
in Gregory, which involved a winding and mountainous road on a windy day.
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79 F.3d. at 978. Instead, Ybarra Cruz’s situation aligns with that in Alvarado, in
which the driver crossed a highway line by a foot for a few seconds. 430 F.3d
at 1306. Therefore, we conclude that the traffic stop was reasonable.
B. The Denial of the Post-Trial Rule 29(c) Motion: Acquittal Under the
Public-Authority Defense
Ybarra Cruz next argues that the district court erred by not granting his post-
trial Motion for Acquittal under Fed. R. Crim. P. 29(c). Here, taking a contrary
position to his own proffered jury instruction, he argues that “no reasonable jury
could find, beyond a reasonable doubt, that [he] did not reasonably believe he was an
authorized government agent.” Appellant’s Opening Br. at 18. And he adds that
“[t]he government failed to prove beyond a reasonable doubt that Mr. Cruz did not
reasonably believe[] he was acting as a government agent. . . .” Id. at 37.
But we have ruled that “[t]he public authority defense requires a defendant to
show that he was engaged by a government official to participate in a covert
activity.” United States v. Apperson, 441 F.3d 1162, 1204 (10th Cir. 2006) (emphasis
added) (quoting United States v. Parker, 267 F.3d 839, 843 (8th Cir. 2001)). In
Apperson, while concluding that the district court had not erred by refusing to
instruct the jury on this defense, we also noted the district court’s conclusion that the
defendant’s “own testimony was insufficient to establish the public authority
defense[.]” Id. at 1206 n.15. By speaking to what it takes to establish the defense, this
language strongly suggests that even defendants who have been allowed a public-
authority-defense instruction still will need to establish their entitlement to acquittal
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on the defense. Consistently, we now hold that a defendant carries the burden to
prove the public-authority defense to the jury by a preponderance of the evidence.
In so holding, we acknowledge that Ybarra Cruz has cited a passage
suggesting otherwise from an unpublished case decided after Apperson. As he points
out, the panel in United States v. Ortega, 210 F. App’x 784 (10th Cir. 2006)
(unpublished), commented that “[i]n a case involving a public authority defense, we
will uphold the jury verdict if a rational juror could find, beyond a reasonable doubt,
that the defendant did not reasonably believe he was acting as an authorized agent of
the Government.” Id. at 786 (citing Apperson, 441 F.3d at 1205).
But the problem is that nothing in Apperson aligns with the proposition Ortega
apparently gleaned from it. Nowhere does Apperson impose a burden on the
government to disprove the public-authority defense, let alone beyond a reasonable
doubt. We note that the Supreme Court has told us how to assign the burden of proof
between the government and a criminal defendant regarding excuse-related
defenses—those that do not negate an element of the crime. For such defenses, the
Court requires the defendant to prove by a preponderance any such defense. Dixon v.
United States, 548 U.S. 1, 4–8, 13–14, 17 (2006) (affirming the district court’s use of
a jury instruction requiring defendant to prove the affirmative defense of duress by a
preponderance); see also United States v. Jumah, 493 F.3d 868, 875 (7th Cir. 2007)
(“Because the public authority defense is an affirmative defense based on excuse, we
must conclude that Congress intended the burden to rest on the defendant to prove
the defense by a preponderance of the evidence.”); United States v. Al-Rekabi, 454
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F.3d 1113, 1121–22 (10th Cir. 2006) (relying on Dixon to require the defendant to
prove the excuse-related affirmative defense of necessity by a preponderance).
Further, the government offered solid evidence against Ybarra Cruz’s public-
authority defense. We agree with the district court that a reasonable jury could find
“that Defendant did not reasonably believe he was acting as a CI on March 24,
2018.” R. vol. 1 at 221. For instance, as detailed above, the government established
that the HSI agents with whom Ybarra Cruz had previously worked had deactivated
Ybarra Cruz as an informant ten days before his Las Cruces stop, immediately after
learning about his methamphetamine charges in Arizona; that Ybarra Cruz never
communicated with the agents again; that Ybarra Cruz was to be paid thousands of
dollars for delivering the methamphetamine; that Ybarra Cruz named the men with
whom he communicated about the methamphetamine delivery; and that Ybarra
Cruz’s telephones amply showed that he was by then neck-deep in the drug world.
On appeal, Ybarra Cruz simply credits his own testimony and ignores or slights the
overwhelming evidence discrediting his account.
C. Denial of the Rule 33(a) Motion for a New Trial
After his conviction, Ybarra Cruz moved for a new trial under Rule 33(a),
which allows a court to “vacate any judgment and grant a new trial if the interest of
justice so requires.” Fed. R. Crim. P. 33(a). In this Motion, Ybarra Cruz raised new
issues unraised during trial.
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1. The Jury’s Alleged Possible Misunderstanding of Ybarra Cruz’s
Public-Authority Defense

Ybarra Cruz claims that the interests of justice necessitated granting a new
trial. As support, he relies on the first three of four written jury questions asked
during deliberations to show that it was possibly confused about whether a successful
public-authority defense would defeat both charges. These jury questions read as
follows: (1) “Are the 2 counts tied together?” (2) “Can a person be not guilty of one
and not guilty of another?” and (3) “Is it contradictory to have a split decision?”
R. vol. 1 at 187.
The district court rejected this argument in Ybarra Cruz’s Rule 33(a) Motion,
relying on Jury Instruction No. 11:
If you find that the Defendant has proved that he reasonably believed
that he was acting as an authorized government agent as provided in this
instruction, you must find the Defendant not guilty of the charges in
Counts 1 and 2 of the Indictment.
Id. at 222 (quoting Jury Instructions, R. vol. 1 at 164).
We conclude that the district court did not err in denying Ybarra Cruz a new
trial under Rule 33(a). The district court gave Ybarra Cruz’s requested instruction on
the public-authority defense. And, as seen, this instruction unambiguously directed
that the jury must acquit on both counts if it found that the public-authority defense
applied. As we have explained, “[t]he jury is presumed to follow its instructions.”
Bland v. Sirmons, 459 F.3d 999, 1015 (10th Cir. 2006).
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6
For this argument, Ybarra Cruz invites us to reverse his conviction based on
the “weight” of the evidence. Appellant’s Opening Br. at 39–41 (citing Tibbs v.
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2. Duress
Ybarra Cruz next argues that the district court abused its discretion by not sua
sponte instructing on duress. In support, he relies on the jury’s fourth withdrawn
question asking what “voluntarily” means. He surmises that this indicated that the
jurors thought Ybarra Cruz may have acted under duress. After his trial, Ybarra Cruz
argued that he had presented sufficient evidence to prove the duress defense by a
preponderance, a showing that, he asserted, required the district court to sua sponte
instruct on that defense.
The district court denied Ybarra Cruz’s motion for a new trial on this ground
too. In doing so, it noted (1) that Ybarra Cruz had “failed to provide evidence from
which a reasonable jury could find by a preponderance of the evidence that he was
entitled to a duress defense,” and (2) that defense counsel had not raised duress until
her closing argument and thus did not “alert the Court that she was pursuing that
defense.” R. vol. 1 at 224. The district court then concluded that it “was not required
to sua sponte instruct the jury on a duress defense.” Id.
We agree with the district court that Ybarra Cruz did not adduce sufficient
evidence to prove each element of duress by a preponderance of the evidence. Ybarra
Cruz’s evidence of a “generalized fear” was not enough for him to prove by a

Florida, 457 U.S. 31, 37 (1982)). In suggesting that “the evidence preponderated
sufficiently against the verdict that a miscarriage of justice may have occurred,” id.
at 39, Ybarra Cruz in effect asks that we credit his testimony and discredit the
government’s. Like the district court, we see no reason to do so—in fact, just the
opposite.
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preponderance that he had “an unlawful and present, imminent and impending fear of
death or serious bodily injury.” Id. at 222–23 (citing Tenth Cir. Crim. Pattern Jury
Instruction No. 1.36). And Ybarra Cruz did not show that “other alternatives [to
violating the law] were unavailable to him.” Id. at 224. After all, he never even
bothered to tell his former controlling HSI agents that he was being paid thousands of
dollars to transport and deliver ten pounds of methamphetamine from Phoenix to Las
Cruces, and later to Denver.
Further, Ybarra Cruz never sought the instruction. The district court wisely did
not inject itself into Ybarra Cruz’s trial strategy. See United States v. Tyson, 653 F.3d
192, 212 (3d Cir. 2011) (“A defendant’s strategy is his own. It is not for the district
court to sua sponte determine which defenses are appropriate under the
circumstances.”); United States v. Gutierrez, 745 F.3d 463, 472 (11th Cir. 2014)
(“The District Court is not required sua sponte to instruct the jury on an affirmative
defense that has not been requested by the defendant.”) (citation omitted).
III. CONCLUSION
For the reasons stated above, we affirm.

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