63 F.

3d 956
42 Fed. R. Evid. Serv. 1296

UNITED STATES of America, Plaintiff-Appellee,

v.
Brandon J. SMITH, Defendant-Appellant.
No. 94-3337.

United States Court of Appeals,

Tenth Circuit.
Aug. 17, 1995

Michael G. Christensen, Asst. U.S. Atty. (Randall K. Rathbun, U.S. Atty.,

with him on the brief), Wichita, KS, for plaintiff-appellee.
Jack Focht (Kenneth G. Gale on the brief), of Focht, Hughey & Calvert,
Wichita, KS, for defendant-appellant.
Before TACHA and HOLLOWAY, Circuit Judges, and ELLISON,
District Judge.*
HOLLOWAY, Circuit Judge.

Defendant-appellant Brandon J. Smith was convicted on one count of

possession of cocaine base with intent to distribute, 21 U.S.C. Sec. 841(a)(1)
and 18 U.S.C. Sec. 2, and on one count of using or carrying firearms during and
in relation to a drug trafficking crime. 18 U.S.C. Sec. 924(c)(1) and 18 U.S.C.
Sec. 2. A charge of conspiracy to possess cocaine base with intent to distribute
was dismissed by the court at the close of the prosecution's case. Defendant
was sentenced to 63 months' incarceration on the cocaine charge and to 60
months' incarceration on the weapons charge, to run consecutively. A $1,000
fine and a $100 special assessment were also imposed. Defendant brings this
direct appeal.

* Defendant was arrested during the execution of a search warrant for his
residence. The search warrant was issued by a state judge on the basis of an
affidavit describing how a "controlled buy" of cocaine had been effected from

defendant at his residence within the previous 72 hours. The controlled buy had
been set up based on a tip from a confidential informant and had been effected
by the informant. I R.Doc. 45.
3

The affidavit in support of the application for the search warrant contained no
information regarding the credibility of the confidential informant other than
what might be inferred from the fact that the buy had been completed based on
his original tip. The informant had reported that the seller of the cocaine, then
identified only as "Quick,"1 had stated that he had more cocaine available at his
residence. The affidavit said that based on this incident and the affiant's
experience as a police officer, which was not described with any specificity, it
was likely that the residence contained, in addition to cocaine, "items used as
cutting agents, paraphernalia, packaging material, scales,...." and so forth. Id.

The warrant was executed by the Wichita Police Department on October 4,

1993, at about 9:13 p.m., one day after it had been issued. In a hearing on the
defendant's motion to suppress, evidence was presented concerning the entry
and search. Three witnesses were called by the defense, all of whom had been
present at the time. These witnesses testified that they heard nothing until the
police simultaneously broke in the back door and broke the kitchen window. II
R.Doc. 115 at 9-13, 53-54, 74-75. Defendant's evidence was that the doorbell
could be heard in any room in the house and similarly a knock on either the
front or back door could be heard from anywhere in the house. None of the
witnesses heard either a knock or any announcement by the officers.

The lead detective on the search team testified on behalf of the government at
the suppression hearing. His testimony was that eight or nine officers
participated in the search, they began yelling "Police, search warrant" as they
approached the house, and on trying the back door, they found it locked. The
police heard a number of footsteps inside but none seemed to be coming to the
door, so they used a battering ram to break it in. The detective did not know if
anyone rang the doorbell and doubted that the officer at the back door knocked
before using the ram to enter forcibly.

Ten adults and one infant were in the house when the police entered. Three
pistols and a sawed-off shotgun were found in the house. The defendant later
admitted that the pistols were his and said they were legally registered in his
name. One loaded pistol was found in plain view on a dresser in the bedroom in
which defendant, his girlfriend and her infant were when the search began. The
loaded shotgun was on the floor in this room. In the same room the police also
found ammunition, several small bags of marijuana, packaging material, a
digital scale, and a pager. Cocaine was found in two other rooms.

The occupants were subjected to pat-downs initially. Then the defendant

consented to a search of his person. Three small bags of crack and some $600
in cash were found on defendant. A very small "rock" of crack and some
marijuana were found in a search of Mr. Smith's co-defendant, David Vernon.
At trial defendant and his girlfriend denied that the police had found the three
bags of cocaine in his pockets. Defendant said that the cash had been given to
him by his father to help with ordinary bills, something his father did regularly.

After his arrest defendant agreed to be questioned. He admitted ownership of

the three pistols and said that he acquired the guns because he was living in the
territory of a gang called the VLBs and had been threatened by them several
times. Defendant also said that the drugs had been delivered to his house just
before the raid by members of the VLBs who had demanded that he sell drugs
for them since he was living in their territory. Defendant's similar testimony at
trial was the basis for a coercion or duress defense asserted by defendant.

Additional facts will be set out below as necessary for discussion of the issues
raised.

II
10

Defendant first challenges the district court's denial of his motion to suppress
evidence based on alleged insufficiencies in the affidavit supporting the search
warrant and on the alleged overbreadth of the warrant.

11

In reviewing the denial of a motion to suppress, we accept the district court's

findings of fact unless they are clearly erroneous. United States v. Wicks, 995
F.2d 964, 968 (10th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 482, 126 L.Ed.2d
433 (1993). We view the evidence in the light most favorable to the ruling
below. Id. In determining whether a search warrant was supported by probable
cause, considerable deference is given to the initial determination, unless the
affidavit provides no substantial basis for probable cause. United States v.
$149,442.43, 965 F.2d 868, 872 (10th Cir.1992). The ultimate question whether
Fourth Amendment rights have been violated is an issue of law reviewed de
novo. Wicks, 995 F.2d at 969.

12

* Defendant challenges the affidavit supporting the search warrant on several

grounds. First, he argues that the information was stale, the controlled buy
having been completed about 72 hours before the search warrant was sought.
Defendant acknowledges that the determination of timeliness depends not
merely on the passage of time but on the nature of the criminal activity, the

length of the activity, and the nature of the property to be seized. United States
v. Snow, 919 F.2d 1458, 1460 (10th Cir.1990).
13

Defendant says that unlike in Snow, here there was no ongoing investigation
and no reason to think the drug dealing was continuing. Although it is true that
in the instant case there was no ongoing investigation and no specific evidence
that Smith's drug-dealing activities had been continuing for an extended period,
we think that the mere passage of 72 hours did not make the information stale.
In determining whether probable cause has been established to justify the
issuance of a search warrant, we apply a common-sense standard. Wicks, 995
F.2d at 972. From the successful completion of the controlled buy, and the
evidence that defendant had additional amounts of cocaine in his residence at
the time of the informant's purchase, it was reasonable to infer that evidence of
drug dealing could still be found. We hold that Smith's staleness argument is
without merit.

B
14

Second, defendant argues that the information from the informant was
uncorroborated. He contrasts the facts in this case with those in United States v.
$149,442.43, supra, which also involved a search warrant issued after a
controlled buy had been completed. In that case, the supporting affidavit
additionally stated that the informant had provided accurate information in the
past, and the police had also obtained independent corroborating evidence,
including a second reliable informant.

15

In our view the additional information supporting the informant's credibility in

that case, while certainly bolstering the showing of probable cause, was not
critical. The standard for determining the credibility of an informant is the
totality of the circumstances, and we have held that when the reliability of an
informant has been corroborated by extrinsic information, it is unnecessary to
otherwise establish the informant's credibility. United States v. Sturmoski, 971
F.2d 452, 457 (10th Cir.1992). We therefore hold that the successful
completion of the controlled buy, as specifically described in the supporting
affidavit here, was sufficient to establish the reliability of the informant.

C
16

Next, defendant argues that the warrant was overly broad, noting that the only
basis for the allegation that evidence other than cocaine was likely to be found
was the affiant's experience as a police officer. This was insufficient, defendant
argues, because the affiant did not say how long he had been a police officer or

whether he had any experience at all in drug cases, in contrast to the type of
statements that have been found sufficient in other cases.
17

Under the Fourth Amendment, two requirements are established for search
warrants: probable cause supported by an oath or affirmation, and a particular
description of the place, persons and things to be searched for and seized.
Wicks, 995 F.2d at 972. Viewing defendant's contention in this light, we
perceive that this argument is actually focused on lack of probable cause to
support the conclusion that items of the type described would likely be found.
Defendant actually makes no contention that the descriptions were overly
general or vague. In light of our holdings in cases such as Wicks; United States
v. Sullivan, 919 F.2d 1403, 1424 & n. 31 (10th Cir.1990); and United States v.
Harris, 903 F.2d 770, 774-75 (10th Cir.1990), we believe that any such
argument clearly would be unavailing.

18

The government responds to this contention with a circular argument. Its

response is that the officer's experience in drug cases can be inferred from his
description of the items to be seized. The government also notes that all of the
items listed were actually found in the search. This reasoning approaches an
argument that the validity of the warrant may be determined from the results of
its execution--a wholly untenable bootstrapping position. See Maryland v.
Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017, 94 L.Ed.2d 72 (1987) ("[T]he
discovery of contraband cannot validate a warrant invalid when issued....").

19

Notwithstanding the government's failure to counter defendant's argument

convincingly, we are not persuaded that the warrant was deficient.
Unquestionably it would be sounder practice for the police officer to describe
the basis for the conclusion that items described in a search warrant are
reasonably likely to be found based on the evidence supporting the application
for the warrant. In several cases we have relied on officers' statements
regarding their experience and training in drug cases to rebuff challenges to
search warrants. See, e.g., Sullivan, 919 F.2d at 1423; United States v.
$149,442.43, 965 F.2d at 872, 874. Nevertheless, we do not doubt that the state
judge could reasonably infer from the fact that Smith had sold cocaine from his
residence within the previous 72 hours that items such as those listed could
reasonably be expected to be found on the premises. Hence we hold that
defendant has failed to show error in the denial of his motion to suppress, based
on the claimed deficiencies in the warrant and supporting affidavit.

III
20

Defendant contends further that the evidence should have been suppressed

because the manner of execution of the warrant violated the Fourth

Amendment, arguing that the "knock and announce" requirement is mandated
by the Fourth Amendment and was not adhered to in this case. On this issue we
ordered supplemental briefs in light of the recent decision in Wilson v.
Arkansas, --- U.S. ----, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), and they have
been considered.
21

In Wilson, the Court granted certiorari to consider the limited question whether
the common law knock and announce principle "forms a part of the Fourth
Amendment reasonableness inquiry." Id. at ----, 115 S.Ct. at 1916. In holding
that the knock and announce principle is included within the Fourth
Amendment reasonableness inquiry, the Court said that

22
although
a search or seizure of a dwelling might be constitutionally defective if
police officers enter without prior announcement, law enforcement interests may
also establish the reasonableness of an unannounced entry.
23

Id. at ----, 115 S.Ct. at 1919. However, the Court specifically declined to reach
any issues regarding the balancing of valid law enforcement interests with the
Fourth Amendment rights enjoyed by the public, instead leaving "to the lower
courts the task of determining the circumstances under which an unannounced
entry is reasonable under the Fourth Amendment." Id.

24

Although the principle is commonly referred to as "knock and announce," the

Court's holding in Wilson requires only an announcement. Similarly the federal
statute, 18 U.S.C. Sec. 3109, imposes only the requirement that the officer give
"notice of his authority and purpose." Although the statute is not applicable to
the search here by city police pursuant to a search warrant issued by a state
court, we have noted that the statute is "grounded" in the Fourth Amendment.
United States v. Ruminer, 786 F.2d 381, 383 (10th Cir.1986); see United States
v. Baker, 638 F.2d 198, 202 and n. 7 (10th Cir.1980). We have carefully
reviewed Wilson and find nothing therein that suggests that our decisions under
Sec. 3109 infringe upon rights guaranteed by the Fourth Amendment.
Consequently, we think it clear that our cases under Sec. 3109 can provide
valid guidance on the constitutional claim defendant makes. See United States
v. Gatewood, 60 F.3d 248, 250, n. 2 (6th Cir.1995) (Jones, J., dissenting). We
thus proceed to analyze this issue in light of the facts as determined by the
district court and our previous rulings on the Fourth Amendment's
requirements.

25

Defendant contends that the officers gave no notice of their presence before
entering and that no time was given for the residents to admit the officers

voluntarily. Defendant's argument is not supported by the facts as found by the

district court, which findings must be accepted unless they are clearly
erroneous. Defendant does not specifically contend that the findings are clearly
erroneous, nor could such a contention be convincing since the court based the
findings on credibility determinations after hearing the evidence of both parties.
The district judge expressly found that the defendant's witnesses were not
credible and that the police officer's testimony was. That testimony established
that the officers did announce their presence.
26

Specifically Officer Fettke, who was the officer in charge of the operation,
testified that an unlocked screen door to the back porch was first opened;
beginning at that time, if not before, several of the officers "began hollering
'Wichita Police Department, search warrant' " and continued to do so as the
inner door was found to be locked, the battering ram was swung, and the entry
was made. II R. at 94. During the interval between reaching the door and
forcing it open, which Fettke estimated to be probably 45 seconds in duration,
id. at 110, the officers heard "many footsteps" in the house "like stirring or
running or trying to do other things inside the house." Id. at 96. The district
court found, based on the testimony, that "the noises Detective Fettke heard
coming from within the house were consistent with activities other than an
occupant innocently approaching the door." I R.Doc. 60 at 9.

27

In his supplemental brief at 3, defendant argues that the officers "did not knock,
ring the door bell, or take any other action which can even remotely be
interpreted as requesting admittance." We do not agree. To the contrary we
think that the average citizen would understand the officers' statements as a
command to open the door. We think, then, that this case, like United States v.
Knapp, 1 F.3d 1026, 1030-31 (10th Cir.1993), turns on the issue whether the
officers were constructively refused admittance and so were justified in entering
the home forcibly.2 In Knapp, we held that the officers were justified in
concluding that the defendant was refusing to admit them voluntarily when they
received no response after an interval of ten to twelve seconds. Similarly we
conclude that in this case the officers were constructively refused admittance
and that the forcible entry was therefore justified.

28

In his supplemental brief, defendant attempts to distinguish Knapp by stating

that in the instant case the announcement and the forced entry occurred
simultaneously. Although we do not have the benefit of specific trial court
findings on this point, the court did expressly determine that the officer's
testimony was credible. That testimony included a statement that an interval of
"probably 45 seconds" elapsed from the time that the officers had tried the door
and found it locked until the door was struck with the battering ram. II R.Doc.

115 at 110. Several officers had been loudly announcing their presence from
the time that they first approached the house until the entry began.
29

Viewing the record most favorably to the ruling below, we find no

constitutional violation. See Knapp, 1 F.3d at 1030-31; Ruminer, 786 F.2d at
383-84 (collecting cases on the validity of entries made after brief time
intervals from the announcement of the officers' presence and upholding a
search conducted where officers waited five to ten seconds before entering).

IV
30

Over defense objections, the government was allowed to introduce in evidence

three photographs of the defendant which had been seized during the search.
These photos were admitted during cross-examination of defendant by the
prosecutor, the court having ruled at the beginning of the trial that the pictures
could not be used during the government's case-in-chief. Exhibit 15A shows
the defendant alone, sitting with several firearms on his lap.3 Exhibit 15B
shows defendant posed with five of his friends, and each person in the photo is
holding a gun. Exhibit 15D shows defendant and three other persons; defendant
and one of the other persons shown are making hand signals which defendant
admitted were "gang signs." In this photo defendant is wearing a shirt with the
letters "CMG" on it. He testified that this stood for "Cash Money Gangsters," a
group with which he associated and which "call they [sic] self a gang" but
which he said was not like other gangs that "go out and do stuff," at least to his
knowledge. He denied being a member of this group.

31

Defendant contends that the district judge erred in admitting the photos in
evidence, contending that the photos had no probative value whatsoever and
that they served to inflame the jury, thus prejudicing his defense unfairly.
Although not cited by defendant in his brief, this argument is clearly based on
Fed.R.Evid. 402 and 403. The government contends that the photos were
probative as impeachment, citing the district court's rationale that the evidence
of gang affiliation bore directly on Smith's credibility because he had denied
being a gang member, and that the photos depicting Smith with the collection
of firearms were relevant to the credibility of his testimony that he possessed
the guns only for protection from the VLB gang.

32

We review the district court's rulings on admission of evidence under

Fed.R.Evid. 403 for abuse of discretion. United States v. Harrison, 942 F.2d
751, 759 (10th Cir.1991). We find that these photos had probative value for
impeachment purposes. We do not think that the ruling on unfair prejudice was
an abuse of discretion, especially considering that the jury had already heard

testimony about the presence of numerous firearms in the house at the time of
the raid, including loaded weapons in the room occupied by defendant where
an infant was also present. The trial court showed appropriate caution in
hearing the arguments on these exhibits, in restricting the government to using
the exhibits only for impeachment, and in instructing the jury about the limited
relevance of the photos immediately after their admission. We find no abuse of
discretion in the ruling.
V
33

Defendant maintains that the evidence was insufficient to support the jury's
verdict of guilty on the charge of using or carrying firearms in connection with
a drug trafficking offense. In reviewing the sufficiency of the proof, we must
determine whether there is sufficient substantial evidence, direct and
circumstantial, and reasonable inferences that can be drawn therefrom, which
when viewed in the light most favorable to the verdict would permit a
reasonable jury to find the defendant guilty beyond a reasonable doubt. United
States v. Sullivan, 919 F.2d 1403, 1431 (10th Cir.1990).

34

The applicable statute provides in relevant part:

35

Whoever, during and in relation to any crime of violence or drug trafficking

crime ... for which he may be prosecuted in a court of the United States, uses or
carries a firearm, shall, in addition to the punishment provided for such crime of
violence or drug trafficking crime, be sentenced to imprisonment for five
years....

36

18 U.S.C. Sec. 924(c)(1). Defendant acknowledges that we have held that a

defendant "uses" a firearm for purposes of the statute when the firearm is
readily accessible, is an integral part of the criminal undertaking, and increases
the likelihood that the criminal undertaking would succeed. United States v.
Hall, 20 F.3d 1084, 1088-89 (10th Cir.1994). He concedes that the firearms
were readily accessible but contends that the government failed to prove the
remaining elements.

37

Citing Hall, defendant says that to establish the necessary nexus between the
drug trafficking offense and the firearms, the government must prove more than
simply the presence of a firearm in a house containing drugs, drug
paraphernalia and cash. Brief of Appellant at 25. Hall did hold, 20 F.3d at 1089,
that mere proof that a weapon was present in a defendant's residence was
insufficient to prove he had ready access to the firearm. However, we have held

that it is permissible for the jury to infer from the proximity of the weapon to
drugs that the weapon was used in furtherance of a drug trafficking enterprise
where the proof connected the defendant to the vehicle or dwelling involved.
United States v. Coslet, 987 F.2d 1493, 1495 (10th Cir.1993); United States v.
Hager, 969 F.2d 883, 889 (10th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 437,
121 L.Ed.2d 357 (1992); United States v. Parrish, 925 F.2d 1293, 1298 (10th
Cir.1991). Thus, we must determine whether the evidence in this case would
support the inference of guilt, consistent with the premise that something more
than the mere presence of the weapons in the same house in which the drugs
were found is required.
38

We believe that sufficient evidence to support the inference that the weapons
were used in furtherance of drug activities was presented. Unlike Hall, where
the gun was in an upstairs closet removed from the evidence of drug dealing,
here the weapons all were in close proximity to the drugs. In several cases we
have found proximity to be sufficient to support jury inferences that the
weapons were used in connection with the drug offense. See, e.g., Hager, 969
F.2d 883 (gun found in boot in the room in which drugs were found); see also
Hall, 20 F.3d at 1088-89 (noting numerous cases turning on proximity of guns
and drugs). Moreover, here the evidence included an admission by the
defendant that the guns were used to protect drug trafficking. Trial Exhibit 16
(tape recorded statement given by defendant after his arrest and after waiver of
his Miranda rights).

39

To counter this evidence, defendant argues two points. He relies on the fact that
the officers who executed the search warrant testified that no one was holding
or using the weapons when they entered. We find Smith's reliance on this
undisputed fact to be unpersuasive. The statute does not require the government
to prove that the defendant brandished, displayed, or fired the weapons. United
States v. Hager, 969 F.2d at 888. Instead, we have held that "the evidence must
prove that the defendant intended the weapon to be available for use during the
drug transaction." United States v. Conner, 972 F.2d 1172, 1174 (10th
Cir.1992). We have held that the government satisfies this standard if its proves
that

40

The circumstances surrounding the presence of a firearm in a place where drug

transactions take place suggest that it was strategically located so as to be
quickly and easily available for use during such transaction[s].

41

Id. (quoting United States v. Feliz-Cordero, 859 F.2d 250, 254 (2d Cir.1988)).
We hold that the government's evidence was sufficient under this standard,
consistent with cases such as those cited in Hall, 20 F.3d at 1088-89.

42

43

Defendant also points to his testimony that he kept the guns only because of the
threats made by the VLBs. Defendant argues that his statement after his arrest
that the guns were used for protection of the drugs (which the jury heard
because the entire tape of the post-arrest interview was played at trial) was not
a voluntary statement but the product of the detective's leading question, as
shown by his correcting statement made immediately after that statement.
This argument simply ignores the fact that defendant's credibility was properly
left for the jury to decide. Obviously, the jury could properly decide that
Smith's original statement was true and that his attempt to withdraw and explain
the statement was not. Therefore, Smith's testimony of another motive to
explain his gun possession is plainly insufficient to require reversal.

44is reasonable, we think, if an operable firearm is found in close proximity to a

It
room or rooms in which drug distribution, processing, or storage occurs, for the
factfinder to conclude that the defendant knew the gun was there and intended it to
be available for use in connection with the predicate offense. Indeed, so long as one
purpose in situating the weapon nearby was to protect the narcotics enterprise, that
need not have been defendant's sole purpose. In sum, even if a firearm is not
instantly available or exclusively dedicated to the narcotics trade, a sufficient nexus
may exist to support a finding that it was "used" during and in relation to a drug
trafficking crime.
45

Hager, 969 F.2d at 889 (emphasis added) (quoting United States v. Hadfield,
918 F.2d 987, 998 (1st Cir.1990), cert. denied, 500 U.S. 936, 111 S.Ct. 2062,
114 L.Ed.2d 466 (1991)).

46

Therefore, we find no error in the district court's denial of defendant's motion

for judgment of acquittal respecting the firearms charge.

VI
47

Defendant next argues that his conviction should be reversed because the
district judge refused to instruct the jury on his theory of defense--that he was
in possession of the cocaine only because he feared that his life was in danger
due to the threats by the VLBs and their demands that he sell drugs.

48

We review jury instructions as a whole under the de novo standard. It is

reversible error for the trial court to refuse to instruct the jury adequately on
any theory of the defense supported by the law and the evidence. United States
v. Scafe, 822 F.2d 928, 932 (10th Cir.1987). "Whether a defendant has made a
threshold showing as to each element of the duress defense is a question of law

and is reviewed de novo." United States v. Williams, 791 F.2d 1383, 1388 (9th
Cir.), cert. denied sub nom. Sears v. United States, 479 U.S. 869, 107 S.Ct. 233,
93 L.Ed.2d 159 (1986). In conducting this review we must give full credence to
defendant's testimony, id., and we note that the district court in this case
correctly did so. IV R. 555-59.
49

To be entitled to an instruction on coercion the defendant must show: an

immediate threat of death or serious bodily injury; a well-grounded fear that the
threat will be carried out; and no reasonable opportunity to escape the
threatened harm. United States v. Merchant, 992 F.2d 1091, 1096 (10th
Cir.1993); United States v. Scott, 901 F.2d 871, 873 (10th Cir.1990). In the
instant case, the district court refused to instruct on the coercion defense,
finding that defendant had failed to offer proof of no opportunity to escape. It is
fundamental that the defendant's evidence must be sufficient as to all elements
of any affirmative defense for him to be entitled to a jury instruction on the
theory. Accordingly, in Merchant and Scott we upheld the district courts'
refusals to instruct on the defense of coercion when the defendants' evidence
failed to establish the absence of any reasonable opportunity to escape the
threatened harm.

50

Defendant argues that the district court's decision constituted an impermissible

ruling on a genuine issue of fact. Defendant introduced evidence of threats by
the VLBs which began several months before his arrest and continued to the
actual day of the arrest. According to defendant's testimony, the VLBs
considered the area in which he was living to be their territory and had warned
him that he should leave. Later, they had told him that if did not leave, he
would have to sell drugs for them. He said that the gang had threatened him
directly and also suggested that his young child might be harmed if he did not
do as they directed. Besides these verbal threats, defendant testified that on one
occasion a shot was fired from a passing car while he and a friend were
standing outside his home. His companion fired back at the car. Also, about
five days prior to his arrest, defendant was accosted by some VLBs, and one of
them pulled out a knife and cut Smith's finger. Smith went to a hospital
emergency room to have the cut sutured but lied about what caused the injury
because he did not want to be involved with the police at that time.

51

Defendant further testified that on the day of his arrest, some of the gang
members had come to his house and repeated the threats. They also told him to
meet them later that day at a liquor store and to bring with him his scales. Smith
went to the liquor store and met some of the VLBs as they had told him to do.
He also delivered his scales to them as requested. He testified that at that
meeting he was told that some of the gang members would come to his house

that afternoon. Significantly, Smith testified that at that time he expected the
VLBs would be bringing drugs with them which they would expect him to sell
for them. Defendant was not at his home when the gang members came, but
another witness said one of these men was carrying a sack and went into
defendant's bedroom. Defendant further testified that he returned home some
time later and went directly to bed, and thus did not know that the drugs had
been delivered until the police found drugs during the search.
52

Defendant's theory was that he had no opportunity to avoid the illegal conduct
and escape the threats because the police arrived as soon as he learned the
drugs had been delivered. He contends that he had never agreed to sell drugs
for the gang and cites his testimony at trial that he would have called the police
as soon as he discovered that the drugs had actually been delivered but that he
had no chance to do so under the circumstances. Until the drugs had been
delivered, he maintains, there was no certain harm from which he needed to
escape.

53

Although we disagree with the conclusion which defendant draws from this
evidence, we note that each of the facts cited above is supported by evidence at
the trial. However, we find critical the one fact which defendant omits from his
review of the evidence--his admission that he was expecting the VLBs to
deliver drugs to his residence just as he claimed they did. Defendant offers no
reasonable explanation for his failure to contact the authorities in time to
prevent his being forced to break the law. We hold that, as in Scott, defendant
had a "reasonable legal alternative to undertaking the acts" but failed "to avail
himself of the readily accessible alternative of contacting law enforcement
officials...." 901 F.2d at 874.

54

In essence defendant's argument comes down to this: that he was being

threatened with great harm if he did not perform an illegal act, but he was
justified in not seeking to escape from this coercion until he had actually been
compelled to do the act (i.e., to possess the cocaine). Under our precedents,
however, it is clear that the coercion defense can not be so liberally applied.
Shannon v. United States, 76 F.2d 490, 493 (10th Cir.1935) ("One who has full
opportunity to avoid the act without danger ... cannot invoke the doctrine of
coercion and is not entitled to an instruction submitting that question to the
jury."); cf. United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.1980), cert.
denied, 450 U.S. 924, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981) (similar holding
with respect to defense of necessity).4 Thus, we hold that one who, like Smith,
has a reasonable opportunity to avoid both the danger and the illegal conduct at
a time when, by his own admission, he considered that the object of the
coercion--his compelled commission of a crime--was imminent, must take the

opportunity to avoid the situation. If he does not, he cannot say that he was
forced against his will to violate the law.5
55

In sum, we agree with the district court that Smith's evidence, even when given
full credence, was insufficient to entitle him to an instruction on his theory of
coercion or duress. His evidence made no showing or explanation why he did
not seek the assistance of the police to extricate himself from the alleged
dilemma.

VII
56

Finally, defendant maintains that the provisions of the Sentencing Guidelines

which treat crack cocaine much more harshly than cocaine in powder form are
unconstitutional because of their impact on African-Americans. He concedes
that this argument was rejected in United States v. Thurmond, 7 F.3d 947, 95153 (10th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1311, 127 L.Ed.2d 661
(1994), but asks that this ruling be reconsidered and rejected. This panel,
however, cannot overrule the court's existing precedent absent en banc
reconsideration or a superseding contrary decision by the Supreme Court. In re
Smith, 10 F.3d 723, 724 (10th Cir.1993), cert. denied, --- U.S. ----, 115 S.Ct.
53, 130 L.Ed.2d 13 (1994).

57

Accordingly, the judgment and sentence are AFFIRMED.

The Honorable James O. Ellison, Senior United States District Judge for the
Northern District of Oklahoma, sitting by designation

In his trial testimony, defendant acknowledged that he was known by the

nickname "Little Quick" or just "Quick." No evidence regarding the controlled
buy was introduced at the trial, however

If we were to decide this issue in Smith's favor, however, that would not end
the matter. We would then have to determine whether exigent circumstances
justified the forcible entry. We feel that the police announced their presence
and purpose, and that they were constructively denied admission; therefore, we
do not reach any other issue

Good reproductions of the exhibits appear in Appellant's Addendum A to his

Brief on Appeal

Defendant cites United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir.),

cert. denied, 488 U.S. 866, 109 S.Ct. 171, 102 L.Ed.2d 140 (1988), which
stated that an instruction should be given where there is "some foundation in
the evidence [for a defense], even though the evidence may be weak,
insufficient, inconsistent, or of doubtful credibility." Nevertheless, we note that
our holdings in cases like Scott, Merchant, Lewis, and Shannon are
representative of a widely prevailing judicial view. See Lewis, 628 F.2d at
1279 (citing The Diana, 7 Wall. (74 U.S.) 354, 19 L.Ed. 165 (1869); see also J.
Dressler, Exegesis of the Law of Duress: Justifying the Excuse and Searching
For Its Proper Limits, 62 S.Cal.L.Rev. 1331, 1331-32 (1989)
5

At trial, Smith asserted that he had not notified the police of the earlier threats
by the VLBs nor of the incident in which his finger had been cut by one of the
gang members because of his belief that the police would not respond to such
problems. Although Smith does not make this argument on appeal, we note the
similarity between Smith's testimony on this point and that of the defendant in
Scott, which we found to be "nothing more than an amorphous belief ... that
police would not act ... [which] was neither substantiated by the evidence nor
defined as to its scope and coverage." 901 F.2d at 874. Thus, this argument
would be unavailing in any event