USCA1 Opinion

      [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]

                 United States Court of Appeals

                     For the First Circuit











No. 97-1525



                          UNITED STATES,



                            Appellee,



                                v.



                 BENJAMIN PANIAGUA, A/K/A BENJI,



                      Defendant, Appellant.







           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



          [Hon. Michael  A. Ponsor, U.S. District Judge]







                              Before



                      Stahl, Circuit Judge,

                   Cyr, Senior Circuit Judge,

                   and Lynch, Circuit Judge.

                                

                                





     Randy Olen for appellant.

     Ariane D. Vuono, Assistant United States Attorney, with whom 

Donald K. Stern, United States Attorney, was on brief for appellee.











June 8, 1998







                                

                                



  Per Curiam.  Defendant-appellant Benjamin Paniagua

appeals his convictions for possession with intent to distribute

and distribution of cocaine base, in violation of 21 U.S.C. 

841(a)(1), 841(b)(1)(B) and 18 U.S.C.  2, and possession with

intent to distribute and distribution of heroin, in violation of 21

U.S.C.  841(a)(1) and 18 U.S.C.  2.  Paniagua claims that the

district court improperly refused to instruct the jury on the

affirmative defense of duress and improperly admitted evidence of

the defendant's prior bad acts.  Because of these alleged errors,

Paniagua argues that he was deprived of a fair trial.  After

careful review of the record, we affirm the convictions.  

  1.  We review de novo the district court's refusal to

instruct the jury on a proposed duress and coercion defense,

viewing "the record 'most charitably to the proponent of the

instruction.'"  See United States v. Arthurs, 73 F.3d 444, 448 (1st

Cir. 1996)(quoting United States v. Coady, 809 F.2d 119, 121 (1st

Cir. 1987)).  A duress defense has three elements: (1) an immediate

threat of serious bodily injury or death, (2) a well-grounded

belief that the threat will be carried out, and (3) no reasonable

opportunity to escape or otherwise to frustrate the threat.   SeeUnited States v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992)(citing

cases).  "A defendant is entitled to an instruction on a duress

defense only after he has produced sufficient evidence from which

a rational jury could find all of the elements of the defense."  

United States v. Sotelo, 94 F.3d 1037, 1039 (7th Cir. 1996). 

  Paniagua was convicted largely on the evidence collected

through the cooperation of a government informant named Victor

Rodriguez.  Rodriguez and Paniagua were both members of "La

Familia," a Hispanic gang that operated throughout western

Massachusetts.  In May 1995, Rodriguez was arrested and charged

with intent to distribute crack cocaine.  After his arrest

Rodriguez agreed to work for the Western Massachusetts Gang Task

Force ("WMGTF") in an undercover capacity.   

  Rodriguez subsequently arranged two drug purchases from

Paniagua.  The first, a crack cocaine purchase, took place on May

3, 1996, at Rodriguez's photography studio.  Subsequently, on May

22, 1996, Rodriguez purchased heroin from Paniagua at Paniagua's

home.

  Throughout the trial, Paniagua attempted to build a

duress defense by eliciting testimony to demonstrate that Rodriguez

was a religious priest in the Santeria and Palerus religions and a

gang leader who "exerted such extraordinary power, control, and

influence over Mr. Paniagua, that Mr. Paniagua was incapable of

resisting Mr. Rodriguez's entreaties to commit the charged

offenses."  Although the district court was initially concerned

that defense counsel intended to impeach Rodriguez's credibility

solely by attacking his religious beliefs, the court eventually

gave Paniagua leeway to pursue this defense.  

     Rodriguez in his testimony acknowledged his position

within the religions and described his religious activities.  In

addition, he testified that gang members were sometimes violently

punished for breaking the rules of the gang, which were described

in a document called "The Book of Love."  Defense counsel was

unable to elicit testimony, however, to establish that specific

threats were directed at the defendant in connection with the

offense conduct or that Rodriguez had used his position as a

religious figure to intimidate or coerce the defendant.  At the

conclusion of the evidence, the district court refused to instruct

the jury on duress, finding that "there is no evidence, zero

evidence as I look at it, that there was a reasonable belief that

immediate or imminent death or serious bodily harm would follow if

Mr. Paniagua did not commit the crime."  

      We agree with the district court that the evidence was

not sufficient to warrant a specialized instruction on duress or

coercion.  Neither the scant testimony concerning defendant's

generalized fear of Rodriguez's position as a religious figure nor

the testimony describing the pressure to commit crime that inures

from gang association provides an adequate evidentiary basis from

which a reasonable jury could find that Paniagua committed the

charged offense under an immediate threat of serious bodily injury

or death and had no reasonable opportunity to avoid committing it. 

See, e.g.,  United States v. Gaviria, 116 F.3d 1498, 1530-32 (D.C.

Cir. 1997).  "[F]ear alone is not sufficient to make a prima facie

case of duress."  United States v. Jennell, 749 F.2d 1302, 1305

(9th Cir. 1984). 

     2.   Paniagua next objects to the admission of evidence

that implicated him in a drug deal on January 5, 1996.  Paniagua

objected to this evidence on relevance grounds because he had not

been charged with committing a crime on that date.  The district

court found that the evidence was relevant to rebut the defendant's

argument that he sold drugs to Rodriguez under duress.  Paniagua

claims that the district court erred by allowing this evidence to

come into evidence without instructing the jury on Mr. Paniagua's

affirmative defenses.  We disagree.   

     Even though the court ultimately refused to instruct the

jury on the duress defense, the district court did not abuse its

broad discretion in finding that the evidence when offered was

relevant to rebut the defense raised by the defendant during the

trial.  Cf. United States v. Pratt, 913 F.3d 982, 989-90 (1st Cir.

1990). 

     3.  Paniagua raises a number of other contentions but

none of these issues were properly preserved for appellate review

and thus are subject to review for "plain error" only.  See United

States v. Olano, 507 U.S. 725, 734-35 (1993).  After carefully

reviewing the record, we are satisfied that none of these alleged

errors raises a concern about the fundamental fairness of the

proceedings below.

     Affirmed.