NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                      No. 19-2885
                                   ________________

                            UNITED STATES OF AMERCIA

                                             v.

                                  RONALD GROVER,
                                              Appellant

                                   ________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                        (D.C. Criminal No. 1-18-cr-00046-004)
                         District Judge: Honorable Yvette Kane
                                   ________________

                     Submitted Pursuant to Third Circuit L.A.R. 34.1
                                   on April 15, 2020

              Before: CHAGARES, SCIRICA, and ROTH, Circuit Judges

                                (Filed: October 27, 2020)

                                   ________________

                                       OPINION*
                                   ________________




*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge

       Appellant Ronald Grover appeals from a judgment of conviction and sentence—

following a guilty plea—for conspiracy to burglarize a pharmacy, burglary of a

pharmacy, conspiracy to possess stolen firearms, and possession of stolen firearms. On

appeal, Grover contends the trial court committed reversible error by granting the

Government’s motion in limine to preclude him from introducing a duress defense at

trial. We disagree and will affirm.

                                             I.

       On January 16, 2018, Ronald Grover, Henry Morales, Jorge Santiago, Fernando

Rodriguez, and an uncharged juvenile traveled from Lancaster to Lebanon, Pennsylvania

in a car owned by Grover’s sister. The group, including Grover, broke into the Medicine

Shoppe Pharmacy and stole cough syrup with codeine. They then drove to Palmyra,

Pennsylvania where three members of the group broke into the Horseshoe Pike Gun

Shop. Grover waited in the car until the others returned. After robbing the store,

Rodriguez and Santiago fled on foot with thirteen guns. Grover, Morales, and the juvenile

fled in the car. They sideswiped a parked car less than two blocks from the gun shop and

drove into several traffic cones. Morales and the juvenile then fled on foot, and Grover

drove home to Lancaster alone after asking for directions at a convenience store.

       On January 22, 2018, Grover consented to a non-custodial interview with federal

agents, during which he asserted that he had agreed to let his co-defendants use his

sister’s car but did not know their intended destination. He stated he got into the car and

smoked marijuana and took Xanax pills with them, but he was unaware the group

                                             2
intended to burglarize a pharmacy. Grover told the agents once the group arrived in

Lebanon, Rodriguez spoke on his cellphone with a man known as “AB” who wanted

them to rob the pharmacy. While on speaker phone, AB told Grover, “if you don’t go in

the store, then you know you’re going to have to deal with me when you come back to

the city.” Grover mentioned he did not know AB but believed AB would harm him or his

family if he did not participate in the burglary.

       On February 14, 2018, a grand jury returned an indictment charging Grover,

Morales, Santiago, and Rodriguez with conspiracy to burglarize a pharmacy, burglary of

a pharmacy, conspiracy to possess stolen firearms, and possession of stolen firearms.

Initially, Grover pleaded not guilty.

       On March 28, 2019, the trial court held an evidentiary hearing regarding the

Government’s motion in limine to preclude Grover from offering a duress defense at trial.

Grover reiterated his statements made during his interview with federal agents—that he

had agreed to let the group use his sister’s car, but that he did not know the intended

destination, and that an unknown man named AB threatened him on the phone. Grover

also testified Rodriguez told him he would “beat [him] up” if Grover did not engage in

the burglary, and that Rodriguez and Santiago were “known for violence . . . and carrying

guns and beating people up and stuff like that.” Grover asserted he reluctantly entered the

pharmacy. He also claimed that on the way to the gun shop, he wanted to be let out of the

car, but could not “jump out” because it was “moving too fast.” Grover then stated that he

waited in the car for five to six minutes until his co-defendants returned from the gun

shop and that he could not see inside the gun shop from the car.

                                              3
       The trial court granted the Government’s motion in limine, finding Grover failed

to make a prima facie showing of duress. United States v. Grover, No. 18-cr-46, 

, at *1 (M.D. Pa. Apr. 1, 2019). On the condition that he could appeal the

ruling on the motion in limine, Grover pleaded guilty on all counts. The trial court

sentenced him to 41 months’ imprisonment, three years’ supervised release, a special

assessment of $400, and $5,551.87 in restitution to be paid jointly and severally with his

co-defendants. This appeal followed.

                                               II.1

       Grover presents two issues for our review: (1) whether the trial court made an

impermissible credibility determination and (2) whether the trial court erred in finding he

had not satisfied his prima facie burden of production for his duress defense. We

conclude that neither issue is meritorious. We concur with the trial court’s decision to

preclude Grover from offering a duress defense at trial.

                                                A.

       Grover first contends the trial court “over-stepped its proper role” by making an

impermissible credibility determination rather than assessing whether the evidence “was

legally sufficient to meet the four elements” of duress. The ultimate determination of a

witness’s credibility is solely the province of the jury, not a judge. See United States v.

Bailey, 

, 414–15 (1989) (remarking the Constitution “makes jurors the



1
  The trial court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C.
§ 1291. The trial court’s decision to preclude evidence of an affirmative defense is a question of
law subject to plenary review. United States v. Wright, 

, 44 (3d Cir. 1990).
                                                 4
judges of credibility of testimony offered by witnesses”). But the trial court refrained

from making a definitive credibility determination. Even though it noted “Defendant

Grover’s testimony at the evidentiary hearing . . . was not entirely consistent with his

January 22, 2018 statement given to federal agents,” Grover, 

, at *4, it

gave Grover’s testimony the benefit of the doubt, see, e.g.

Court credits

Defendant Grover’s testimony at the hearing in its entirety, he fails to make a prima facie

showing as to all four elements of a duress defense.” (first emphasis added)). In doing so,

the trial court did not deviate from its proper function of reviewing the evidence to

discern whether Grover made a prima facie showing of a duress defense.

                                             B.

       Grover next contends his testimony was sufficient to establish a prima facie case

“as to all four elements of his duress defense.” Ultimately, Grover must prove the

affirmative defense of duress by a preponderance of the evidence. United States v. Alston,

, 95 (3d Cir. 2008); see also Dixon v. United States, 

, 8 (2006)

(upholding a jury instruction placing “the burden on petitioner to establish the existence

of duress by a preponderance of the evidence”). To establish duress, Grover must show

(1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear that the

threat will be carried out, (3) no reasonable opportunity to escape the threatened harm,

and (4) he did not recklessly place himself in a situation in which he would be forced to

engage in criminal conduct. United States v. Miller, 

, 422 (3d Cir. 1995). If

he fails to proffer sufficient evidence to support any one element, the court may preclude

him from presenting the defense at trial. See 

.

                                             5
       The trial court assumed that Grover established the first and second elements but

held that Grover failed to provide sufficient evidence for the third and fourth elements.

Because we agree that Grover failed on the third element—that he had no reasonable

opportunity to escape—we will affirm. See

(“[I]f 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 defense[] will fail.”). Thus, though Grover contests all

four elements, we need only address the third. See Brightwell v. Lehman, 

,

191 (3d Cir. 2011) (“We may affirm a district court for any reason supported by the

record.”).

       Grover contends he satisfied the third element, stating that he was unable to escape

because he did not have the keys to the car, his cellphone died, and he was in an

unfamiliar town. Grover also contends he could not flee the burglaries because his co-

defendants knew where he lived and could harm his family.

       To satisfy the third element of duress, a defendant must have no “reasonable, legal

alternative to violating the law.” 

. Grover’s testimony establishes

at least two reasonable opportunities to escape but does not sufficiently explain why he

failed to take advantage of those opportunities. First, when the group broke into the

pharmacy, Grover hesitated and was the last person to go inside. In that moment, he

could have escaped and sought aid. Second, while his co-defendants burglarized the gun

store, Grover sat alone in the car for five to six minutes. Even accepting Grover’s claim

that there was a “snowstorm,” that he was in an “unfamiliar town, miles from home,” and

that he had a “dead cell phone,” Grover could have exited the vehicle and reported the

                                              6
crimes. He claims he wanted to escape badly enough that while riding to the gun store he

had asked to be let out of the car, but did not exit because the car was “moving too fast”

so that he could not even “jump out.” Despite his alleged willingness to jump out of a

moving car, he then failed to take a clear opportunity to escape when left alone in the

parking lot for over five minutes. He even acknowledges that the co-defendants could not

see him while they were inside the gun store, further highlighting his opportunity to

escape. Accordingly, we agree with the trial court that Grover failed to establish a prima

facie case for the third element of duress. This ends our inquiry because Grover must

provide sufficient evidence for each element of duress for his defense to survive.

                                            III.

       For the foregoing reasons, we see no error here. We will affirm the judgment of

conviction and sentence.




                                             7