United States v. Thor Hansen , 563 F. App'x 675 ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-11458
Non-Argument Calendar
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D.C. Docket No. 0:81-cr-06057-WPD-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
THOR HANSEN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(April 17, 2014)
Before TJOFLAT, WILSON and JORDAN, Circuit Judges.
PER CURIAM:
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Thor Hansen appeals his conviction for failure to appear, in violation of
18 U.S.C. § 3146. On appeal, he argues that the district court erred by failing to
dismiss the indictment under Federal Rule of Criminal Procedure 48, based on the
government’s representation in a separate proceeding that it would dismiss the
indictment and for undue delay in prosecuting him. He also argues that the district
court abused its discretion by terminating his redirect examination of a witness
during his trial. Finally, Hansen argues that the district court erred when it
responded to a jury question regarding whether an objective or subjective standard
applied to the duress defense by instructing that the former governed.
I.
“Generally, we review a district court’s denial of a motion to dismiss an
indictment for abuse of discretion.” United States v. Evans, 476 F.3d 1176, 1178
(11th Cir. 2007). We maintain a “well-established rule that issues and contentions
not timely raised in the briefs are deemed abandoned.” United States v. Ardley,
242 F.3d 989, 990 (11th Cir. 2001) (per curiam).
Federal Rule of Criminal Procedure 48 provides that “[t]he government may,
with leave of court, dismiss an indictment.” Fed. R. Crim. P. 48(a). It also
provides that the district court “may dismiss an indictment if unnecessary delay
occurs in presenting a charge to a grand jury, filing an information against a
defendant, or bringing a defendant to trial.” Fed. R. Crim. P. 48(b).
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“[Rule 48(b)] vests much discretion in the trial court, and dismissal is
mandatory only if the defendant’s constitutional rights have been
violated. When a defendant fails to establish that his Sixth
Amendment right to a speedy trial was violated, there is no basis for
concluding that the district court abused its discretion in refusing to
grant [defendant’s] motion insofar as it relied on Rule 48(b).”
United States v. Knight, 562 F.3d 1314, 1324 (11th Cir. 2009) (internal citation and
quotation marks omitted).
There is no evidence in the record that indicates that the government moved
to dismiss the indictment at any time, or that the district court ever granted the
necessary leave pursuant to such a motion. Thus, the district court did not abuse its
discretion under Rule 48(a). See Fed. R. Crim. P. 48(a). Additionally, Hansen did
not raise the argument on appeal that his Sixth Amendment right to a speedy trial
was violated, and thus, he abandoned that argument. See Ardley, 242 F.3d at 990.
Therefore, he necessarily cannot establish that the district court abused its
discretion by not dismissing the indictment pursuant to Rule 48(b). See Knight,
562 F.3d at 1324.
II.
“We review the evidentiary rulings of the district court for abuse of
discretion.” United States v. Dortch, 696 F.3d 1104, 1110 (11th Cir. 2012), cert.
denied, 133 S. Ct. 993 (2013). “If an error was not preserved, we review for plain
error.” Id. If there is (1) an error that (2) is plain and (3) affects substantial rights,
then we may exercise our discretion to correct the error, but only if (4) “the error
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seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Lewis, 492 F.3d 1219, 1222 (11th Cir. 2007) (en
banc) (internal quotation marks omitted).
The Federal Rules of Evidence provide that “[t]he court should exercise
reasonable control over the mode and order of examining witnesses and presenting
evidence.” Fed. R. Evid. 611(a). The district court is provided this power to “(1)
make those procedures effective for determining the truth; (2) avoid wasting time;
and (3) protect witnesses from harassment or undue embarrassment.” Id. The
district court’s discretion under this rule is broad. United States v. Hill, 643 F.3d
807, 845 (11th Cir. 2011). We have also noted that, under Rule 403, “[d]istrict
courts are well within their discretion to exclude even relevant evidence for undue
delay, waste of time, or needless presentation of cumulative evidence.” United
States v. Dohan, 508 F.3d 989, 993 (11th Cir. 2007) (per curiam).
Hansen did not object to the termination of redirect examination at trial, so
we review for plain error. See Dortch, 696 F.3d at 1110. Hansen used redirect
examination to contradict Rob Laytner’s testimony with his own version of events
and accuse Laytner of dishonesty, rather than to augment the evidence or address
issues raised on cross-examination. Thus, the district court’s decision to terminate
redirect examination fell within its discretion to avoid wasting time and to protect
the witness from harassment. See Fed. R. Evid. 611(a)(2)–(3); Hill, 643 F.3d at
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845. Because the district court did not abuse its discretion, Hansen cannot
establish plain error. See Lewis, 492 F.3d at 1222.
III.
“We review a district court’s response to a jury question for an abuse of
discretion. While the district court has considerable discretion regarding the extent
and character of supplemental jury instructions, it does not have discretion to
misstate the law or confuse the jury.” United States v. Lopez, 590 F.3d 1238,
1247–48 (11th Cir. 2009) (citation omitted). We review the challenged
supplemental instructions in light of the entire jury charge, the indictment,
evidence presented at trial, and argument of counsel. Id. at 1248. “[W]e reverse
when we are left with a substantial and ineradicable doubt as to whether the jury
was properly guided in its deliberations.” Id. (internal quotation marks omitted).
The defense of duress “requires that the defendant prove [1] that he acted
under an immediate threat of death or serious bodily injury, [2] that he had a well-
grounded fear that the threat would be carried out, and [3] that he had no
reasonable opportunity to escape or inform [the] police.” United States v. Flores,
572 F.3d 1254, 1266 (11th Cir. 2009) (per curiam) (alterations in original) (internal
quotation marks omitted). 1 “Duress can also exist when the threat of immediate,
1
Although Flores discusses the justification defense, we have observed that the
justification and duress defenses “are overlapping concepts with the same analysis.” Flores, 572
F.3d at 1266 n.4.
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serious harm is directed at a third person and the defendant acted unlawfully in
order to protect the other party.” United States v. Blanco, 754 F.2d 940, 943 (11th
Cir. 1985). “The first prong requires nothing less than an immediate emergency.”
United States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000) (explaining the
defense of justification in the context of the offense of being a felon in possession
of a firearm).
The district court did not abuse its discretion in providing the supplemental
jury instruction. Although the elements of the duress defense do not explicitly
state that it is governed by an objective reasonableness standard, the fear of a threat
must have been “well-grounded,” which assumes that the fear is rooted in
something other than the defendant’s subjective conjectures about something
constituting a threat. See Flores, 572 F.3d at 1266. Additionally, the language
assumes that a threat objectively existed in reality and was not derived from the
defendant’s subjective belief that something constituted a threat. See id. The
district court therefore did not “misstate the law or confuse the jury.” Lopez, 590
F.3d at 1248.
Upon review of the entire record and the parties’ briefs, we affirm.
AFFIRMED.
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