Duress Requires a Continuous, Immediate Threat and No Realistic Chance to Seek Help: Proffer Insufficiency Bars Both Defense and Instruction

1. Introduction

This appeal arose from a multi-week jury trial in the Southern District of Florida in which Joseph Christopher Ricard, Christopher Alan Baird, and Luu Nguyen Dieu Hong were convicted of three counts of kidnapping (18 U.S.C. § 1201(a)(1)) and one count of stalking (18 U.S.C. § 2261A(1)(A)). The underlying events involved a plan to confront Ha Nguyen in Miami over allegedly stolen investment funds, which escalated into a coordinated abduction of Ha, the children’s nanny (Idania Marie Webster Lopez), and two minor children, coupled with demands for repayment and a ransom message to Ha’s husband.

The defendants raised 14 appellate issues, but the Eleventh Circuit summarily affirmed on 13 and discussed only one: whether Baird and Hong were improperly prevented from presenting a duress defense and from receiving a duress jury instruction. The central legal question was not whether duress is ever available in kidnapping cases, but whether the defendants’ proffer and the record evidence were legally sufficient to put duress before the jury under Eleventh Circuit standards.

2. Summary of the Opinion

The panel affirmed all convictions and Hong’s sentence. On duress, the court held that Baird and Hong failed to proffer evidence sufficient to establish any of the three required elements of the defense: (1) an immediate threat of death or serious bodily injury, (2) a well-grounded fear the threat would be carried out, and (3) no reasonable opportunity to escape or inform the police. Because the proffer was legally insufficient, the district court properly barred the defense and properly refused a duress instruction.

A notable feature of the opinion is its insistence that duress requires a threat whose “immediacy” continues “during the whole time the crime is committed,” and that separation from the alleged coercer and opportunities to contact law enforcement can defeat the defense at the threshold—before the jury hears it.

3. Analysis

3.1 Precedents Cited

The court’s duress analysis is constructed almost entirely from established Eleventh Circuit formulations governing: (a) the elements of duress; (b) the defendant’s burden of production/proffer before the defense may go to the jury; and (c) when an instruction must be given.

• United States v. Davis, 902 F.2d 860 (11th Cir. 1990) — Cited for the proposition that the appellate court reviews de novo a trial court’s conclusion that evidence is insufficient to create a jury question on an affirmative defense. The panel also flagged tension with another case applying a more deferential standard, but it avoided resolving the conflict by concluding there was no error even under de novo review.
• United States v. Flores, 572 F.3d 1254 (11th Cir. 2009) — Supplies the general standard for reviewing refusal to give a proposed jury charge: abuse of discretion. In practice here, the instruction issue turned on the antecedent question: was there enough evidence to warrant any duress instruction at all?
• United States v. Wattleton, 296 F.3d 1184 (11th Cir. 2002) — Confirms duress is an affirmative defense to criminal liability. That characterization matters because it triggers the defendant’s burden to produce/proffer evidence on each element before the jury may be instructed.
• United States v. Amede, 977 F.3d 1086 (11th Cir. 2020) — Provides the canonical three-part test used in this opinion: immediate threat; well-grounded fear; no reasonable opportunity to escape or inform police. The panel also cited Amede to note (without deciding) that some Eleventh Circuit authority reviews duress-sufficiency rulings under abuse of discretion rather than de novo.
• United States v. Montgomery, 772 F.2d 733 (11th Cir. 1985) — Establishes the gatekeeping requirement: before duress can be submitted to the jury, the defendant must first produce or proffer evidence sufficient to prove the essential elements. This is the procedural hinge that allowed exclusion of the defense without reaching jury credibility assessments.
• United States v. Fernandez, 837 F.2d 1031 (11th Cir. 1988) — Requires that, when evaluating whether the defendant met the threshold, the court must view the evidence in the light most favorable to the defendant. The panel invoked this to emphasize that even a defense-favorable view of the proffer still failed the test.
• United States v. Sixty Acres in Etowah Cnty., 930 F.2d 857 (11th Cir. 1991) — Supplies the opinion’s strictest doctrinal tool: the immediacy requirement is “rigorous,” and the apprehension of immediate danger must continue “during the whole time the crime is committed.” The panel used this language to defeat the defense once armed guards left and once the defendants were separated from the alleged coercers.
• United States v. Blanco, 754 F.2d 940 (11th Cir. 1985) — Recognizes that threats to third parties can satisfy duress. The court accepted that principle in the abstract (important for Hong-as-hostage theories), but held the defendants still failed on immediacy, well-grounded fear, and lack of reasonable opportunity.
• United States v. Quinn, 123 F.3d 1415 (11th Cir. 1997) — Confirms the instruction rule: if the defendant fails to proffer evidence sufficient to raise a jury issue on an affirmative defense, the district court may properly refuse to instruct on that defense. This completed the logic chain from proffer insufficiency to instruction denial.

3.2 Legal Reasoning

The court’s reasoning proceeds in a strict, element-by-element fashion, applying the proffer gatekeeping doctrine. It did not treat duress as a narrative question for the jury; it treated it as a legal sufficiency question for the judge.

(a) Element 1 — “Immediate threat” must be continuous throughout the offense

Baird and Hong’s proffer emphasized armed “guards” (Khan and Hightower) and a statement that if police were called “there will be dead bodies.” The court assumed the proffer in the defendants’ favor but concluded it failed Sixty Acres in Etowah Cnty.’s requirement that immediacy persists for the entire duration of the crime.

• The panel found the alleged immediate danger linked primarily to Khan and Hightower, but they “departed several hours before” Baird and Hong ceased criminal conduct.
• The defendants attempted on appeal to bolster immediacy by referencing testimony that Ricard also had a firearm, but the panel noted they “did not point to that evidence during their proffer.”
• Even considering that testimony, the court relied on undisputed separation: both defendants “spent ample time separated from Ricard,” making any threat “at most, intermittent,” which is incompatible with a continuous-immediacy requirement.

(b) Element 2 — “Well-grounded fear” requires a factual basis for believing the threat will be carried out

The court assumed (without clarity in the record) that Ricard made the “dead bodies” threat. Even then, it held the proffer failed because nothing showed that fear was “well-grounded.” The court pointed to trial evidence that Ricard was “nonviolent toward Hong and Baird the entire time,” undercutting a claim that the threat was credibly imminent or likely to be executed against them (or their third-party interests) in the way duress requires.

(c) Element 3 — No “reasonable opportunity to escape or inform the police”

The panel treated this element as independently fatal. The proffer itself conceded opportunities:

• Baird drove alone to Domino’s, giving him “several minutes” to contact police—an opportunity he “openly admitted” existed.
• Hong rode for “several hours” with Trang, the nanny, and the children “without Ricard or the armed guards present,” creating repeated opportunities to alert authorities or disengage.

Under Amede, duress fails if reasonable legal alternatives existed. The court found multiple such alternatives and thus held the defense unavailable as a matter of law.

(d) Instruction denial follows automatically from failure of the proffer

Once the panel concluded the proffer did not raise a jury issue on duress, it treated the instruction question as straightforward: under United States v. Quinn, a district court does not err in refusing an affirmative-defense instruction where the evidentiary predicate is missing.

(e) Standard of review—left unresolved, but effectively immaterial

The opinion acknowledges doctrinal tension: United States v. Davis suggests de novo review of duress sufficiency, while United States v. Amede includes an instance of abuse-of-discretion review. The panel declined to choose, reasoning that the result would be the same even under de novo review. Practically, this signals that—at least on these facts—no standard would have altered the outcome given the perceived gaps on every element.

3.3 Impact

Although “NOT FOR PUBLICATION,” the decision consolidates several practical lessons for litigants in the Eleventh Circuit:

• Duress is front-loaded: Courts may keep duress from the jury unless the defendant can proffer concrete facts for each element, consistent with United States v. Montgomery. A generalized story of being “forced” will not suffice.
• Immediacy is temporal and continuous: Under United States v. Sixty Acres in Etowah Cnty., a threat that dissipates when armed confederates leave, or becomes “intermittent” due to separations, undermines duress—especially in extended, multi-hour conduct like kidnapping.
• Opportunities to contact law enforcement are decisive: Brief windows (minutes) and longer windows (hours) both can defeat element three. The court’s analysis suggests that, where a defendant is physically separated from the coercer or unguarded by armed actors, courts will scrutinize why authorities were not contacted.
• Instruction strategy must track the proffer: Because instruction entitlement rises and falls with proffer sufficiency (United States v. Quinn), defendants must ensure their proffer contains the facts they will later rely on. Attempting to pivot on appeal (e.g., “Ricard had a gun”) is unlikely to cure a thin proffer.

4. Complex Concepts Simplified

• Affirmative defense: A defense where the defendant bears the burden to produce evidence on specific elements. Here, duress is an affirmative defense (United States v. Wattleton), so the defendant must clear an initial evidentiary threshold.
• Proffer: A preview of the evidence the defendant claims they can present. Under United States v. Montgomery, if the proffer is insufficient, the judge can bar the defense from being presented to the jury.
• “Immediate threat” (immediacy requirement): Not merely “serious” or “scary,” but imminent and pressing, and—per United States v. Sixty Acres in Etowah Cnty.—continuing throughout the crime, not sporadic or occasional.
• “Well-grounded fear”: A fear based on objective facts suggesting the threat is likely to be carried out, not just a subjective feeling. The court saw the record as inconsistent with a credible likelihood of violence against Baird and Hong.
• “No reasonable opportunity to escape or inform the police”: If there was a realistic, safe chance to call 911, flag help, or otherwise alert authorities, duress generally fails. The court identified multiple such chances.

5. Conclusion

The Eleventh Circuit affirmed the convictions and held that Baird and Hong were properly denied the ability to present duress and properly denied a duress instruction. Applying the three-part duress test from United States v. Amede and the proffer threshold from United States v. Montgomery, the court concluded the defendants failed on every element—especially the rigorous, continuous-immediacy requirement emphasized in United States v. Sixty Acres in Etowah Cnty. and the requirement that there be no reasonable opportunity to contact police. The decision underscores a broader doctrinal point: in the Eleventh Circuit, duress is not merely a competing narrative; it is a tightly constrained legal defense that will be withheld from the jury unless the defendant’s proffer squarely satisfies each element.