MEMORANDUM

JED S. RAKOFF, District Judge.

On May 12, 2009, the Government filed a Sixth Superseding Indictment ("Indictment") against defendants Edilberto Berrio Ortiz (a/k/a "El Gavilan"), Alejandro Palacios Rengifo (a/k/a "El Gato" or "Yimi"), Anderson Chamapuro Dogirama (a/k/a "El Tigre" or "El Dairon"), and six alleged co-conspirators. The Indictment charged the defendants with conspiring to take hostages in violation of 18 U.S.C. § 1203 (Count One) and taking hostages in violation of 18 U.S.C. § 1203 and 2 (Count Two). Indict. ¶¶ 1-4. Both Counts of the Indictment arise from the April 4, 2008 kidnapping of Cecilio Padron (the "Victim"), an American citizen living in Panama, by the 57th Front of the Fuerzas Aramadas Revolucionarias de Colombia (the "FARC"). The Indictment alleges that Ortiz, Rengifo, and Dogirama participated in the kidnapping by guarding the Victim from April 6, 2008 to February 10, 2009, a period of over ten months. See Indict. ¶ 3(f).

In March 2011, all three defendants filed motions seeking to raise at trial the affirmative defense of duress. All three defendants filed various affirmations, declarations, and reports in support of their respective motions. Following full briefing and oral argument, the Court concluded that an evidentiary hearing was necessary to determine whether the defendants could present sufficient evidence to enable the defense to be raised at trial. See United States v. Paul, 110 F.3d 869, 871 (2d Cir.1997) ("[I]t is appropriate for a court to hold a pretrial evidentiary hearing to determine whether a defense fails as a matter of law. If, after the hearing, the court finds that the defendant's evidence is insufficient as a matter of law to establish the defense, the court is under no duty to give the requested jury charge or to allow the defendant to present the evidence to the jury.") (internal citations omitted). During the three-day evidentiary hearing, which commenced on May 9, 2011, all three defendants took the stand to testify. Additionally, expert witnesses were called to testify by two defendants.1 On May 23, 2011, after careful consideration, the Court issued a "bottom-line" Order denying the motions. This Memorandum explains the reasons for the Court's decision.

Fundamentally, the defendants mistake a mitigating factor that should be raised at sentencing for an affirmative defense to substantive criminal liability. As the Supreme Court has explained, "[c]riminal liability is normally based upon the concurrence of two factors, `an evil-meaning mind [and] an evil-doing hand....'" United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980) (quoting Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). Or, to use the familiar formulation of Blackstone, there must be both mens rea, a guilty mind, and actus reus, a guilty act. But even when these basic conditions are satisfied, however, there are narrow circumstances in which criminal liability may be excused.

Duress is such a defense. "The rationale of the defense is not that the defendant, faced with the unnerving threat of harm unless he does an act which violates the literal language of the criminal law, somehow loses his mental capacity to commit the crime in question. Nor is it that the defendant has not engaged in a voluntary act. Rather it is that, even though he has done the act the crime requires and has the mental state which the crime requires, his conduct which violates the literal language of the criminal law is excused" because it is coerced. Dixon v. United States, 548 U.S. 1, 7 n. 5, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (internal quotation marks and citations omitted). Accord, United States v. Bailey, 444 U.S. 394, 402, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). The defense of duress, however, must be narrowly construed, since "any rule less stringent than this would open the door to all sorts of fraud." The Diana, 74 U.S. (7 Wall.) 354, 360-61, 19 L.Ed. 165 (1868). Accordingly, the case law makes clear that the defense of duress is viable "only ... if there is a real emergency leaving no time to pursue any legal alternative." United States v. Posada-Rios, 158 F.3d 832, 874 (5th Cir. 1998).

Coercion that does not rise to this high level of legal duress may nevertheless be relevant, but only as to sentencing, rather than guilt or innocence. Thus, it is important to note "[o]ne who commits a crime while subject to coercion, but whose situation does not come under the rules which permit him to be excused ... may nevertheless properly urge that his punishment, within the permissible limits of punishment for the crime in question, should be lower than it would have been if he had not been coerced." Wayen R. LaFave, Criminal Law § 9.7(d) (4th ed.2003). In other words, even when the strict letter of the law does not permit a defendant's crime to be excused as a result of duress, the Court may properly consider evidence of coercion as a mitigating factor in determining the defendant's sentence.

So far as liability is concerned, however, "[d]uress is a legal excuse for criminal conduct [only] if, at the time the conduct occurred, the defendant was subject to actual or threatened force of such a nature as to induce a well-founded fear of impending death or serious bodily harm from which there was no reasonable opportunity to escape other than by engaging in the unlawful activity." United States v. Paul, 110 F.3d 869, 871 (2d Cir.1997) (internal quotation marks and citations omitted). Three discrete elements must be met to establish coercion or duress: "(1) a threat of force directed at the time of the defendant's conduct; (2) a threat sufficient to induce a well-founded fear of impending death or serious bodily injury; and (3) a lack of a reasonable opportunity to escape harm other than by engaging in the illegal activity." United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.2005). A defendant is entitled to submit the defense to the jury only if he can make "a prima facie showing as to each of the elements." United States v. Villegas, 899 F.2d 1324, 1343 (2d Cir. 1990). By contrast, where the evidence to be presented would be insufficient as a matter of law, "no proper interest of the defendant would be served by permitting his legally insufficient evidence to be aired at trial, and interests of judicial economy suggest that the jury should not be burdened with the matter." Id.

During the evidentiary hearing, each of the defendants proffered several hours' worth of testimony, which the Court construes in the light most favorable to the defendants for the purposes of these motions.2 According to their testimony, all three defendants were raised in conditions of dire poverty and forcibly abducted into the FARC as child soldiers: Ortiz was recruited at age 11, Rengifo was recruited at age 13, and Dogirama was recruited at age 12. See 05/09/11 Transcript ("Tr.") at 19, 98, and 221. Defendants were told that they were required to obey orders, and that failure to comply would result either in harsh punishment or execution.3 Rengifo testified that the penalty for failing to follow a so-called "special order" would be death.4 Similarly, the defendants testified that individuals who attempted to escape the FARC risked execution by the FARC, execution by the Colombian government, or death by starvation or disease in the jungle.5

To impose discipline on the recruits, FARC commanders would typically convene a "war council" to determine the accused's punishment;6 if the sentence of death were imposed, the accused would be taken outside and killed by a firing squad.7 Defendants testified that they personally witnessed individuals either killed or sentenced to death for disobeying orders or for trying to escape. For example, Dogirama testified that he saw a FARC commander kill a young woman for insubordination "right in front of us." Tr. 106-07. Ortiz testified that he witnessed people taken away to be killed "[a]t least 200 times." Id. 230.8 Rengifo testified that he saw two people sentenced to death for attempted escape, although he also observed one instance in which a very young recruit was pardoned after attempting to escape. Id. 24-25; 33; 41-43.

Defendants also testified, however, that they knew of many individuals who had successfully escaped the FARC. In particular, Rengifo testified as follows:

Tr. 77-78.

Similarly, Dogirama testified that he saw many people flee successfully while he was in the FARC. Id. 146. As for Ortiz, he explained that he himself had previously escaped from the FARC in 1997; he separated himself from the group during the confusion of a battle and turned himself into Panamanian authorities. Id. 237, 265-66. Although the FARC picked him up again three days later, he apparently suffered no adverse consequence for his desertion. Id. 265-66.

On April 5, 2008, a FARC commander known as "Silver" ordered Ortiz, Rengifo, Dogirama, and three other FARC guerrillas to guard an American hostage named Cecilio Padron. See, e.g., Tr. 30; 112; 247.9 It is undisputed that none of the defendants played any role in planning or executing the kidnapping of the Victim, but rather served solely as guards. Defendants were initially told that they would be required to guard the Victim for about 15 days, id. 34, 113, but they ended up guarding the Victim for about ten months. During that time, defendants made several requests to be relieved. For example, after the initial 15 days, Rengifo and Dogirama asked Silver to be relieved of guard duty, but their requests were refused. Id. 34, 134. Rengifo made the same request sometime later, but Silver again declined to relieve him. Id. 36. Rengifo testified that the order to guard the Victim was a "special order," Tr. 30, and all defendants understood that the punishment for disobeying the order to guard the Victim could have been execution. See Tr. 32, 120, 248-50.

The defendants guarded the Victim in a series of remote jungle camps about one or two hours' walking distance from each other. See Tr. 250-51; see also Government's Memorandum of Law in Response to the Defendants' Motion to Put on a Duress Defense at Trial ("Gov Mem.") at 6. Silver maintained a base camp within an hour of each of these camps, and Ortiz testified that, at the final location, there were two other FARC camps in the vicinity. Tr. 40, 253, 282. Ortiz had the most seniority of the guards and had been promoted to the rank of deputy squad leader; he was therefore responsible for setting the shifts for watching the Victim, and he was able to transmit (but not give) orders. Id. p. 257, 270-71. According to defendants, there were no roads or villages nearby and no phones, radios, or other means of communication. See, e.g., Id. 47-48, 123, 264. However, Silver's base camp was on the water, and multiple boats were available at that location. Id. 275.

All the guards were armed, and they were all responsible for keeping an eye on each other and ensuring that the commander's orders were followed.10 The guards were not always together, however. For example, Rengifo testified that only one guard at a time was assigned to each night shift. Id. 66. Similarly, the guards would go in smaller groups to the base camp to provide status updates to Silver. Id. 284. On some occasions, for instance, Ortiz, Rengifo, and Dogirama would remain together guarding the Victim while the other three guards returned to base camp. Id. There were also instances where the other guards were distracted. For example, a party was held during the 2008-2009 holiday season when a large number of the FARC guerillas, including Silver, were intoxicated. Id. 47, 287-88.

There is some conflicting testimony concerning defendants' eventual escape from the FARC in February 2009. Rengifo testified that he asked Silver to be relieved from guard duty a third time, and that Silver finally agreed to allow him to return to base camp. Id. 52, 258.11 However, Rengifo believed that his request constituted disobedience, and that Silver was planning to convene a war counsel against him for his refusal to guard the Victim. See Id. 69 (Q: "And it was your understanding that the reason that you were going to be tried and killed was your refusal to guard Padron?" A: "Of course, because I was disobeying his order."). According to Rengifo, a similar war council was planned for Ortiz because Ortiz had also refused to guard the victim. Id. 75-76. Ortiz testified that a war council was indeed planned for Rengifo, but indicated that the reason for the council was Rengifo's disobedience of an order not to communicate with the Victim. Id. 257.12 Both Rengifo and Ortiz also acknowledged that they had stolen money from Silver to send to their families, but they denied that the theft was the reason for the planned war council. Id. 76-77, 91, 290-92. Dogirama simply testified that "Alejandro [Rengifo] was at risk." Id. 124.

In any event, defendants seem to agree that a war council was being planned to discipline Rengifo, and that this war council might result in Rengifo's execution. When Rengifo and Ortiz learned of the impending council, they formed a plan to escape. See, e.g., Id. 258-60. The night of the escape, Rengifo was on guard duty at Silver's camp, Rengifo's cousin happened to be the second guerilla assigned to guard duty, and Ortiz scheduled his own watch to coincide with that of Rengifo and his cousin. Id. 81-82, 260-64. Ortiz asked Dogirama, whose watch directly followed Ortiz's, if he would like to escape with Rengifo, and Dogirama agreed. Id. 139, 262-64. With help from Rengifo's cousin, the three defendants stole a boat and left the camp along with two women. Id. 54-55, 81-84, 262-64, 294. After traveling for about three hours, the defendants surrendered to the Panamanian police on the morning of February 10, 2009. Id. 264; see also Gov. Mem. at 7. Defendants told the police that they were escaped members of the FARC. Tr. 86. On February 11, 2009, the Panamanian police turned defendants over to Colombian authorities, who enrolled defendants in a demobilization program designed to reintegrate former FARC members into society. See Gov. Mem. at 7. On March 13, 2009, the Victim — who had been released in exchange for ransom approximately three weeks earlier — identified photos of each of the defendants as his captors. Id.

In addition to the testimony summarized above, defendants offered evidence from expert witnesses. Briefly stated, Dr. Katherine Porterfield, a clinical psychologist, interviewed Rengifo and arrived at the following general conclusions:

Report of Dr. Katherine Porterfield, dated March 14, 2011, at 10. See also Tr. 149-95. Rengifo also called Dr. Marc Chernick, a professor at Georgetown University, who offered to provide background information on the FARC, including its military organization and disciplinary procedures. See Report of Dr. Marc Chernick, dated March 14, 2011, ¶ 10; see also Tr. 195-218.

Dogirama called Dr. Neil Blumberg, a forensic psychiatrist, who testified, among other things, that Dogirama is currently suffering from posttraumatic stress disorder and depression attributable to his experiences with the FARC. See Report of Dr. Neil Blumberg, dated April 1, 2011; Tr. 298-317. Although Ortiz's proposed expert witness, Dr. Jose M. Arcaya, a psychologist, was unavailable to testify during the hearing, he submitted a report to the Court giving conclusions roughly similar to those of Porterfield and Blumberg, and offered to make himself available at a later date.

To determine whether the defendants may present the defense of duress before a jury, the Court must consider whether the evidence summarized above, construed in the light most favorable to the defendants, is sufficient to satisfy each element of the defense of duress. The first two elements, which are in some respects interrelated, require the defendant to establish "a threat of force directed at the time of the defendant's conduct" and "a threat sufficient to induce a well-founded fear of impending death or serious bodily injury." United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.2005) (emphasis added). It is well-established that "[e]vidence of a mere `generalized fear' does not satisfy the requirement of a well-founded fear of impending death or serious bodily harm; rather, there must have been a threat that was specific and prospects of harm that were immediate." United States v. Stevens, 985 F.2d 1175, 1182 (2d Cir.1993). See also United States v. Housand, 550 F.2d 818, 825 (2d Cir.1977) ("the fear must be more than a general apprehension of danger, particularly if one has the chance to escape or to seek the protection of the Government"); United States v. Villegas, 899F.2d at 1346 (upholding district court's decision to preclude evidence on the duress defense where defendant failed to "present evidence of more that a generalized fear"). Similarly, there must be close proximity in time between the threats and the allegedly induced actions. See United States v. Paul, 110 F.3d at 871 ("The availability of the duress defense in this case turns on the point in time as to which the defendant faced imminent danger and lacked an opportunity to avoid the danger except by committing an unlawful act."); United States v. Podlog, 35 F.3d 699, 704 (2d Cir.1994) (defendant in conspiracy case was "required to demonstrate that the necessary threatened force was present at the time of his agreement to participate in the conspiracy").13

Defendants have failed to satisfy these rigorous standards. None of the defendants testified that the order to guard the Victim was accompanied by any specific, immediate threat of force. Indeed, at no time during the entire ten-month period that defendants guarded the Victim did Silver or any other FARC commander make a specific threat against any of the defendants. At no time were defendants told that refusing to guard the Victim would result in any adverse consequence. While the defendants testified that they were under standing orders to obey commands from their superiors, this is insufficient to satisfy the first element of the duress defense. The caselaw is clear that there must be "a threat of force directed at the time of the defendant's conduct," United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.2005), and in this case none of the defendants testified that their commanders ever made even a single specific threat during the entire ten months the Victim was held captive. Examples of specific threats that had occurred years or even decades earlier are plainly insufficient to satisfy the well-established legal standards.14

Relatedly, defendants have failed to proffer evidence of a "well-founded fear of impending death or serious bodily harm." United States v. Stevens, 985 F.2d 1175, 1182 (2d Cir.1993) (emphasis added). Again, defendants guarded the Victim for over ten months in a series of camps outside the presence of the FARC commanders. See, e.g., United States v. Gaviria, 116 F.3d 1498, 1531-1532 (D.C.Cir.1997) (affirming district court's decision to preclude defendant's duress defense when the conspiracy at issue lasted over thirteen months). While defendants have presented evidence of their generalized fear and "general apprehension of danger," United States v. Housand, 550 F.2d 818, 825 (2d Cir.1977), this is again insufficient under the case law. See Villegas, 899 F.2d at 1344 (defendant's generalized fear of Colombian cartels did not "satisfy the requirement of a well-founded fear of impending death or serious bodily harm"). Indeed, the only evidence in the entire record of what conceivably could be considered "impending harm" is the testimony that a war council was rumored to be in the works for Rengifo and possibly Ortiz. Even construing the possibility of a war council that may or may not have led to the imposition of a wide-range of punishments as "impending harm," the record is clear that the defendants escaped from the FARC almost immediately after they learned that the council was being planned.

Indeed, it is with respect to the third element of the duress defense, the lack of an opportunity to escape, that the Government's argument is the strongest. It is well-established that "where there is reasonable opportunity to escape the threatened harm, the defendant must take reasonable steps to avail himself of that opportunity, whether by flight or by seeking the intervention of the appropriate authorities." United States v. Bakhtiari, 913 F.2d 1053, 1058 (2d Cir.1990) (citation omitted). See also United States v. Caban, 173 F.3d 89, 94 (2d Cir.1999) (defendant was properly barred from asserting a duress defense where "[h]e had several opportunities to end his involvement in the conspiracy and warn the police, but he did not do so"). Whether a defendant had a "reasonable opportunity" to escape is measured by an objective standard, which requires the Court to consider whether a reasonable person in the defendant's situation had "a chance both to refuse to do the criminal act and also to avoid the threatened harm." United States v. Posada-Rios, 158 F.3d 832, 873 (5th Cir.1998). See also United States v. Meraz-Valeta, 26 F.3d 992, 995 (10th Cir.1994) ("In proving that there were no legal alternatives available to assist him, a defendant must show he was `confronted with ... a crisis which did not permit a selection from among several solutions, some of which did not involve criminal acts.'") (emphasis removed and citation omitted). The law does not excuse failures to act based on subjective factors such as a defendant's unusually heightened sensitivity to risk or distrust of the authorities. See United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.2005) ("Gonzalez's subjective belief that going to the police would have been futile is insufficient to demonstrate that she had no reasonable alternative but to violate the law.") (2d Cir.2005); United States v. Jankowski, 194 F.3d 878, 881, 883 (8th Cir.1999) (defendant's distrust of police, which arose from father's imprisonment in Poland, did not satisfy the requirement that defendant make prima facie showing "that he had no reasonable, legal alternative to violating the law").15

The cases also make clear that even a small window of opportunity to escape is sufficient to preclude the duress defense as a matter of law. The Second Circuit's decision in United States v. Alicea, 837 F.2d 103 (2d Cir.1988) is particularly instructive. In that case, two female defendants, Alicea and Cabezas, claimed that they were abducted by two men in Ecuador. Id. at 104. According to the defendants, the men raped one of the women and forced both of them to carry drugs on their persons. Id. The men then brought the women to the airport and warned them that someone would be watching them aboard the flight to New York. Id. at 105. The men also threatened to harm one of the defendant's daughters in New Jersey "if their demands were not met." Id. at 106. The district court precluded the defendants from presenting the duress defense before a jury, and the Second Circuit affirmed. In affirming the district court's decision, the Second Circuit highlighted the following aspects of the opinion below:

Id. at 105-106. Given these facts, the Second Circuit held that "[t]he appellants here clearly took no steps, reasonable or otherwise, to extricate themselves from the danger of the `watcher.'" Id. at 106.

Measured by these standards, defendants' own testimony establishes that escape was a realistic option. Rengifo conceded that many more people successfully escaped from the FARC than were caught. See Tr. 77-78. This concession indicates that the defendants' chances of escaping were in fact fairly good. Similarly, Dogirama testified that he saw many people flee successfully while he was in the FARC. Id. 146. Indeed, Ortiz himself successfully escaped in 1997 and suffered no adverse consequence for having made the attempt. Id. 237, 265-66. Although defendants suggested that a unique confluence of events enabled their escape (e.g., the fact that Rengifo's cousin happened to be the other guerrilla assigned to guard duty that particular night), there is no reason why the defendants could not have figured out reasonable, legal alternatives to committing the charged crime if they put their minds to it. Defendants have conceded that they were armed, that they were stationed outside the presence of the FARC commanders, that they were assigned to night shifts alone, that groups of the guards returned to Silver's camp while leaving the others behind, that multiple boats were docked at Silver's camp, etc. Moreover, the simple fact is that the defendants could have walked off at any time. That they were in the jungle was an impediment, not a prohibition. The defendants must show that they had "no reasonable alternative but to violate the law," United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.2005), not merely that the alternative entailed some degree of risk. Indeed, the fact that defendants successfully escaped on their very first attempt demonstrates that escape was a reasonable alternative.

Accordingly, the defendant's own testimony is insufficient to establish that the defendants acted pursuant to a threat of force directed at the time of the hostage-taking, that the threat was sufficient to induce a well-founded fear of impending death or serious bodily injury, or that defendants lacked a reasonable opportunity to escape harm other than by engaging in the illegal activity. United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.2005). The proposed expert testimony proffered by the defendants does not change this outcome. As an initial matter, the testimony of Dr. Marc Chernick as to the typical practices of the FARC is irrelevant to the Court's consideration of the instant motion. The experience of FARC members in general is not relevant unless the defendants themselves endured those same experiences, and the defendants' own testimony is the best evidence of what they have personally endured.

As to the evidence proffered by the two psychologists and one psychiatrist, the Second Circuit has held that such testimony may be admissible "at trial and sentencing" for certain purposes, most particularly to bolster the credibility of the defendants:

United States v. Smith, 987 F.2d 888, 891 (2d Cir.1993). However, the defendants' credibility is not an issue for the purposes of this motion because the Court for the purposes of this motion has accepted all of the defendants' testimony as true and construed all reasonable inferences in favor of the defendants. Moreover, although the Second Circuit has held that psychological testimony is not "irrelevant" for certain purposes, the Court finds that such evidence is at best of limited value in assessing the objective legal standards at issue.

This does not mean, of course, that such testimony may not be helpful at sentencing. 18 U.S.C. § 3553(a) specifies that "[t]he court, in determining the particular sentence to be imposed, shall consider... the nature and circumstances of the offense and the history and characteristics of the defendant." Thus, for the purposes of determining defendants' punishment, the Court may quite properly consider expert testimony regarding defendants' extremely difficult upbringing, their forcible abduction as children into the FARC, the psychological and physical pressures they endured, their subjective mental state, and the role that any mental or psychological trauma may have played in influencing their behavior. Defendants routinely offer evidence of such extenuating circumstances to mitigate their punishments, and it will be so considered here. But none of this is relevant to guilt or innocence, as opposed to punishment.

For the foregoing reasons, the Court concludes that the defendants' evidence is insufficient as a matter of law to establish the defense of duress, and that "no proper interest of the defendant[s] would be served by permitting [their] legally insufficient evidence to be aired at trial." United States v. Villegas, 899 F.2d 1324, 1343 (2d Cir.1990). The Court therefore affirms its May 23, 2011 Order denying defendants' motions to present the defense of duress at trial.