United States v. Thompson

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
October 3, 2003
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-51143
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CYNTHIA ANNETTE THOMPSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Texas
(02-CR-236)
Before BARKSDALE, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant Cynthia Annette Thompson (“Thompson”) was found
guilty of violating 21 U.S.C. § 841(a)(1) and (b)(1)(B)(vii), for
possession of more than 100 kilograms of marijuana with intent to
distribute. The district court sentenced Thompson to 60 months’
imprisonment and four years’ supervised release, and ordered
Thompson to pay a $100 special assessment. At the close of
evidence, Thompson requested a jury instruction on the defense of
justification, which the district court refused. Thompson now

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appeals this refusal as harmful error. Because the district court
did not abuse its discretion in refusing the requested instruction,
we AFFIRM the decision below.
BACKGROUND
On January 14, 2002, at about 6:45 a.m., a blue Chevrolet
Caprice Classic entered the Fabens port of entry east of El Paso,
Texas, located across the Rio Grande from the village of Caseta,
Mexico. Immigration and Customs Inspector Ferlin Smith (“Smith”),
who was stationed at the primary inspection lane, questioned the
driver about the car’s ownership. The driver replied that a friend
had loaned him the vehicle. In response to Smith’s questions
regarding citizenship, the driver presented his resident alien
card. Smith then questioned Thompson, the only passenger in the
car, about her citizenship. She declared she was an American and
presented her Kansas Driver’s License. When asked about her
purpose for going to Mexico, Thompson replied that she went there
to party and that the driver, whom she did not know, was just
giving her a ride back.
Smith then escorted the vehicle to the secondary area for a
more thorough inspection. Nothing was found, and the car was
cleared. After the second inspection, the car proceeded onto the
seldom-used Lower Island Road leading to a levee of the Rio Grande
instead of taking the typical route. The Lower Island Road is a
route known to be used for picking up illegal aliens or drugs.

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Smith contacted the Border Patrol to keep a lookout for the
Caprice.
There were three agents already stationed in the levee area
due to earlier sensor activity. Agent Antonio Butron (“Butron”)
was stationed a half mile or so from the sensor activity, while
Agent Melissa Herrera (“Herrera”) and another agent were stationed
closer to the levee. Later that morning, the agents received a
radio-dispatch indicating a suspicious vehicle, described as a blue
Caprice with two occupants. From a tower, Herrera spotted the
Caprice “slow rolling” westbound on the Lower Island Road. The car
then turned south onto a dirt road. Herrera then saw the vehicle
stop, and a group of people loaded large bundles into the trunk and
backseat of the car. The driver got out of the car and, with the
other individuals who had loaded it, ran south to the levee. The
car then began traveling in the direction from which it came.
Herrera advised the other agents of what she observed, and
soon thereafter, Butron intercepted the slow-moving car on the dirt
road. He gestured for the vehicle to stop, and it did. Thompson
was the driver, and no one else was in the car. Butron approached
and asked Thompson to lower her window and turn off the engine.
Thompson asked, “What’s wrong, Officer?” without lowering the
window. Butron asked Thompson to state her citizenship, which she
did, and she showed her Kansas Driver’s License after finally
lowering the window. Butron detected a strong odor of marijuana.
He then asked if the vehicle belonged to her, and Thompson replied

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1 “Jesus’s” actual name is Luis Buendia.
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no, it belonged to a friend.
Butron asked Thompson if she knew what was inside the car, and
she said she did not know. Thompson went on to describe how the
man who had been driving had left her while people began loading
bags into the car. She stated that she was scared and that she
felt she could do nothing but drive off. Thompson never admitted
to knowing that there was marijuana in the car, and by all
accounts, appeared not to know what was going on.
The vehicle was found to contain approximately 325 pounds of
marijuana, and Thompson was arrested and taken into custody by the
Border Patrol. At the Fabens station, Thompson was interrogated
first by Herrera and then by DEA Agents Caesar Hernandez and Jason
Hoff. Thompson agreed to waive her Miranda rights and gave the
following explanation of events.
Thompson stated that she was a waitress at an El Paso Red
Lobster, where on suggestion of bartender Manny Vaquera, she
befriended a man sitting at the bar. She knew him as “Jesus.”1
After her shift ended at about 11:30 p.m. on January 13, Thompson
went to the Airway Pub with some coworkers, where she had a few
drinks and then went home at about 2:00 a.m. Later, Thompson
received a call from Jesus, who asked her about going to a party.
She said “sure” and was picked up by Jesus and Vaquera. They
revealed the party was in Mexico, and Vaquera drove all three of

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them to Juarez. In Juarez, Jesus took over the driving and drove
to a house where they met some people.
Once at the party, Thompson noticed the party consisted of
only men and was winding down, so she asked to be taken home.
Vaquera told her he was staying at the party, and Jesus said
another man was going to give her a ride back to the United States.
Thompson did not know this man and had problems communicating with
him in English. Vaquera then gave her a cell phone preprogrammed
with a number that she was to call him if she needed.
The rest of Thompson’s account closely reflects the facts
already outlined above. In addition, she stated the cell phone
Vaquera had given her rang after she and the driver left the point
of entry, and she answered it. It was Vaquera, but after he asked
where she was and she replied she did not know except that she saw
the Martinez Ranch sign, the signal broke up. Thompson also
testified that after the men had thrown the bundles into and then
run from the car (including the driver), she received another call
on the phone. A voice she assumed to be Vaquera’s told her to
drive to the stop sign and that he could see her. She began to
drive, and Butron intercepted her before she reached that stop
sign.
Thompson was indicted on four counts: (1) conspiracy to import
more than 100 kilograms of marijuana under 21 U.S.C. §§ 952(a),
960(a)(1), and 960(b)(2)(g); (2) importation of more than 100
kilograms of marijuana under 21 U.S.C. §§ 952(a), 960(a)(1), and

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960(b)(2)(g); (3) conspiracy to possess with intent to deliver more
than 100 kilograms of marijuana under 21 U.S.C. § 841(a)(1) and
841(b)(1)(B)(vii); and (4) possession with intent to distribute
more than 100 kilograms of marijuana under 21 U.S.C. § 841(a)(1)
and 841(b)(1)(B)(vii). Her first trial ended in a mistrial. At
her second trial, Thompson moved for a judgment of acquittal both
at the close of the Government’s case and at the close of the
evidence. The district court granted the motion as to the second
count (importation). At the close of the evidence, Thompson
requested a jury instruction as to the defense of justification,
duress, or coercion. The district court refused this instruction,
and the jury returned a guilty verdict only as to the fourth count
(possession).
DISCUSSION
Whether the district court abused its discretion in refusing
Thompson’s requested jury instruction.
A district judge has broad discretion in formulating the jury
charge so long as the charge accurately reflects the law and the
facts of the case. United States v. Allred, 867 F.2d 856, 868 (5th
Cir. 1989) (citation omitted). The given charge is considered as
a whole, in the full context of the trial. Id. (citing United
States v. Chavis, 772 F.2d 100, 108 (5th Cir. 1985)). A district
court acts properly if it declines to give a requested jury
instruction because it “incorrectly states the law, is without
foundation in the evidence, or is stated elsewhere in the

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2 The authority for Thompson’s requested justification
instruction was Fifth Circuit Pattern Jury Instruction 1.36 (2001
ed.). As more consistently reflected in our case law, the wording
of the fourth element is “that a direct causal relationship may be
reasonably anticipated between the [criminal] action taken and the
avoidance of the [threatened] harm.” Posada-Rios, 158 F.3d at 873
(quoting United States v. Harper, 802 F.2d 115, 117 (5th Cir.
1986)).
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instructions." Id. (quoting United States v. Robinson, 700 F.2d
205, 211 (5th Cir. 1983)). Thus, we review a district court’s
refusal to submit a requested jury instruction for abuse of
discretion. United States v. Posada-Rios, 158 F.3d 832, 875 (5th
Cir. 1998).
The instruction requested by Thompson did adequately reflect
what a jury must find by a preponderance of the evidence to acquit
a defendant on the affirmative defense of justification. See Id.
at 873. Also, such instruction was not otherwise covered in the
jury charge. Thompson’s requested instruction included the four
required elements of justification:
(1) The defendant was under an unlawful present,
imminent, and impending threat of such a nature as
to induce a well-grounded fear of death or bodily
injury to herself [or to a family member]; and
(2) The defendant had not recklessly or negligently
placed herself in a situation in which it was
probable that she would be forced to choose the
criminal conduct; and
(3) The defendant had no reasonable legal alternative
to violating the law, that is, she had no
reasonable opportunity to avoid the threatened
harm; and
(4) A reasonable person would believe that by
committing the criminal action she would directly
avoid the threatened harm.2

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Since justification is an affirmative defense, a defendant must
present evidence of each of the four elements before the defense
may be presented to the jury. Id. In determining whether a
defendant has made a threshold showing of each of the elements of
a defense, a court must objectively evaluate the facts presented by
the defendant. Id.
Relying on United States v. Cordova-Larios, 907 F.2d 40, 42
(5th Cir. 1990), Thompson argues that an accused is entitled to
have the jury instructed on a defense theory for which there is
“any foundation in the evidence.” However, this contention is not
a completely accurate statement of the law. This “foundation” is
not set on the ground floor, at the “merest scintilla” benchmark.
See United States v. Branch, 91 F.3d 699, 713 (5th Cir. 1996)
(noting such minimal showing does not warrant an affirmative
defense instruction). Such evidentiary foundation is set and met
at a higher level: “[I]n order for a defendant to be entitled to
an instruction, any evidence in support of a defensive theory must
be sufficient for a reasonable jury to rule in favor of the
defendant on that theory.” United States v. Stone, 960 F.2d 426,
432 (5th Cir. 1992) (internal quotes and citation omitted). In
other words, a district court may properly refuse to give a
requested instruction that lacks a sufficient enough foundation in
the evidence. See Branch, 91 F.3d at 713.
Here, the district court considered Thompson’s requested

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justification instruction and its required elements in light of the
evidence presented in the course of the trial. Upon doing so, the
district court made the determination that it did not “find any
evidence as to one or more of those elements.” That is, the lower
court refused the instruction because Thompson had failed to
present any sufficient evidence for a reasonable jury to find that
she was justified in her criminal behavior and thus should be found
not guilty.
An objective analysis of Thompson’s evidence persuades us that
Thompson failed to present sufficient evidence as to one or more
elements of the justification defense. As to the first element, we
have noted that the threat faced by a defendant must arise out of
“a real emergency leaving no time to pursue any legal alternative.”
Posada-Rios, 158 F.3d at 874. Thompson cited several facts she
believes sufficiently show that she objectively and reasonably
feared imminent harm. She noted that she was on a levee of the Rio
Grande, near a dirt road; she was not sure of her location; she
knew of no store or gas station close by; the levee was a dangerous
place; there were several men “lurking” who had an interest in the
bundles placed in the car; and she was afraid to get out of the
car. However, there is no evidence that either the driver, the men
on the levee, or the voice on the phone physically or verbally
threatened to harm her or forced her to do anything. Also,
Thompson never specified precisely what she feared would happen to

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her if she did try to exit the car. There is no evidence that she
felt any immediate threat that the “lurking” men would kill her or
physically hurt her in any way; in fact, the evidence indicates
that all of them ran away from the car after they had filled it
with the marijuana bundles. No “real emergency” threatened her
life or person, and fear alone is not sufficient evidence of a
“present, imminent, and impending threat.” The district court's
implied finding that Thompson did not face such a threat is not an
abuse of discretion.
As the Government did not contest on appeal that Thompson did
not provide sufficient evidence as to the second element of
justification, we need not discuss it.
To meet the third element, a defendant must show that she “had
actually tried the alternative or had no time to try it, or that a
history of futile attempts revealed the illusionary benefit of the
alternative.” Id. (quoting Harper, 802 F.2d at 118). If the
situation allowed the defendant to select from several
alternatives, including noncriminal ones, the defense fails. Id.
(citation omitted). Here, Thompson claimed there was no reasonable
alternative to driving the Caprice (and thus possessing the
marijuana) because she is a young woman who was stranded in an
unfamiliar place near several men engaged in the drug trade.
However, the evidence does not rule out that reasonable noncriminal
alternatives did exist. Thompson did not attempt to refuse to

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3 There is some evidence in the record that Thompson did try
to press a button on the phone. After this attempt, though, she
made no further attempts to call out. Her testimony indicates that
the phone was not locked, meaning no pin number or code had to be
entered before an outgoing call could be made. And at about 7:26
a.m. that same morning, the Border Patrol successfully made an
outgoing call after they had confiscated the phone.
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drive the car, nor did she use the cell phone she had been given to
dial “911" or another number for emergency assistance, or the
number Vaquera had preprogrammed.3 Plus, Thompson testified the
sun was up and it was light outside at the time, so another
reasonable alternative would be to exit the car and walk to the
nearby stop sign and attempt to summon assistance. Again, the
evidence indicates the men had run away from the car so they could
not be preventing her exit. Nothing in the record indicates either
that Thompson tried any of these alternatives to driving away in
the marijuana-laden car or that any of these alternatives was
foreclosed to her. The district court's implied finding that
Thompson had untried, reasonable, legal alternatives available is
not an abuse of discretion.
As for the fourth element, Thompson claimed the direct causal
relationship was satisfied because her criminal act of driving the
car and thus possessing the marijuana was a reasonable way to avoid
the threatened harm. Thompson argued that driving the car meant
she could get away from the men who had loaded the bundles, reduce
the imminent threat, and take some time to calm down. However,
again, Thompson presented no evidence that the men were pursuing

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her or the car, or that she actually had no time to calm down and
think about what she should do before driving the car. Also, a
direct causal link between clearly criminal behavior and avoidance
of threatened harm is a stretch to show where, as here, the
defendant’s evidence does not sufficiently indicate any threat of
harm existed. The district court's implied finding that there was
no direct causal relationship between the possession of the
marijuana and any threat to Thompson is not an abuse of discretion.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the district court did not abuse its discretion in
refusing to instruct the jury on the affirmative defense of
justification. Therefore, we AFFIRM the decision of the district
court.
AFFIRMED.

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