United States v. Berdy ( 2021 )

Case: 20-40737 Document: 00516102826 Page: 1 Date Filed: 11/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 22, 2021
No. 20-40737
Summary Calendar Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Joseph Berdy,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 5:19-CR-1987-1
Before Davis, Jones, and Elrod, Circuit Judges.
Per Curiam:*
Joseph Berdy appeals his conviction on one count of conspiracy to
transport and move within the United States an alien unlawfully present in
the United States and two counts of knowingly and recklessly transporting
and moving within the United States an alien unlawfully present therein for
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-40737 Document: 00516102826 Page: 2 Date Filed: 11/22/2021
No. 20-40737
private financial gain. Berdy contends that the district court committed
reversible error by not permitting him to present the affirmative defense of
duress to a jury. 1
We review the legal sufficiency of Berdy’s proffered defense de novo.
See United States v. Bradfield, 113 F.3d 515, 521 (5th Cir. 1997). To present
his duress defense to a jury, Berdy was required to present evidence of each
of the following elements: (1) that he faced an “unlawful . . . present,
imminent, and impending threat” that would induce “a well-grounded
apprehension of death or serious bodily injury,” (2) that he “had not
recklessly or negligently placed himself” in the situation, (3) that he had “no
reasonable legal alternative to violating the law,” and (4) “that a direct causal
relationship may be reasonably anticipated between the criminal action taken
and the avoidance of the threatened harm.” United States v. Posada-Rios,
158 F.3d 832, 873 (5th Cir. 1998) (internal quotation marks and citation
omitted).
Even under de novo review, the record supports the district court’s
conclusions that Berdy failed to make the required showing on the first, third,
and fourth elements. See Bradfield, 113 F.3d at 521. Berdy’s interaction with
the men whom he alleged compelled him to commit the offenses was
characterized not by immediacy but by multiple periods of time in which
Berdy was either alone with his mobile phone or out in public spaces with
ample opportunities to attempt a variety of both reasonable and legal
alternatives. See Posada-Rios, 158 F.3d at 873-74 & n.20; United States v.
Gant, 691 F.2d 1159, 1164 (5th Cir. 1982). Additionally, Berdy’s subjective
fear of the men’s vague threats against his distant family does not, under the
1
We assume arguendo that Berdy conditioned his guilty plea on the right to have
this issue reviewed on appeal, and we pretermit any other potential questions of waiver.
2
Case: 20-40737 Document: 00516102826 Page: 3 Date Filed: 11/22/2021
No. 20-40737
precedent of this court, establish that his apprehension was “well-grounded”
or that the threats were sufficiently immediate and specific that a “person of
ordinary firmness would succumb.” United States v. Willis, 38 F.3d 170, 175-
76 (5th Cir. 1994) (emphasis omitted).
The judgment of the district court is AFFIRMED.
3