How to Challenge Marijuana Smuggling Charges Provoked By Duress

Arizona Supreme Court preserves defendant’s rights to inform jury of planned testimony in opening statements.

In any criminal trial, the timing in which the defense theory is presented to the jury, is equally as important as the defense itself.

In a recent case decided by the Arizona Supreme Court, the defendant was charged with Marijuana transportation, and challenged the charges using Arizona’s Dress defense.

The defendant testified that smugglers armed with weapons, forced him to carry large bundles of Marijuana  into the Arizona  desert.

At trial, the jury found the defendant guilty of drug crimes and sentenced him to prison.

The Arizona Court of Appeals affirmed the conviction.

The defendant appealed his conviction to the Arizona Supreme Court on the basis that he was prohibited from advising the jury in opening statements that the duress defense would be used.

Below is an outline of the Arizona Supreme Court opinion and additional topics related to Arizona’s Duress Law:

  • Arizona Supreme Court Opinion – Case Overview
  • Understanding Arizona’s Duress Defense
  • Q. & A. – Duress Defense
  • Penalties, and Criminal Defense for Marijuana Charges

Case Overview

The case arose when two “coyote smugglers” led the defendant and two others from Mexico into the Arizona desert.

The defendant testified that during the trek,
he was forced at gunpoint to carry bundles of Marijuana across the desert.

The group was spotted by Border Patrol and Sheriff’s deputies.

The officers found the defendant under a tree with multiple backpacks full of marijuana, but the others escaped.

The defendant was arrested and charged with transporting marijuana for sale, importing, and possessing drug paraphernalia.

The defendant told the court prior to trial that he planned to testify that his actions resulted from duress, and therefore he would challenge the charges using Arizona’s Duress defense.

Because the trial court judge believed he might change his mind about testifying, the defense was barred from mentioning duress or the defendant’s planned testimony.

Before the trial started, he asked the court to clarify its ruling and swore in an affidavit that coyote smugglers helped him cross the border.

The defendant claimed the smugglers took his possessions and threatened to hurt him if he didn’t transport the marijuana.

The trial court reiterated the ruling that until the testimony was actually established, the defense couldn’t argue duress.

The defense complied. The defendant testified just as he’d described in his affidavit, and his attorney argued duress during closing arguments.

The jury found him guilty of transporting marijuana and possessing paraphernalia, but acquitted him of importing marijuana. He was sentenced and appealed.

The Arizona Appeals Court affirmed the conviction.

The prosecution had argued that the defendant could have changed his mind at any time about testifying.

Therefore, the Appellate Court held that the trial court’s ruling was consistent with case law that an opening statement should include statements that can supported by proof.

The Arizona Supreme Court agreed to review the case.

The State conceded in its brief that it was error to prevent the defense attorney from mentioning the defense of duress in opening statements, but argued it was a harmless error.

The Arizona Supreme Court agreed that the trial court had made a mistake, because a defendant’s opening statement should advise the jury of facts that a defendant relies upon in his defense.

The Court explained further that the opening statement allows the jurors to get a total picture so that they can understand the evidence.

The Court reasoned that the defendant was supposed to be able to explain his plans to use Duress defense  in the opening statement.

It is true that a criminal defendant has an absolute right not to testify.

But a mere possibility that the defendant might later choose not to testify, was not a  good enough reason in the eyes of the Arizona Supreme Court.

The court reasoned that the mere possibility of the defendant choosing not to testify, should not bar a defendant from explaining this in the opening statement.

A trial court can require someone to identify the good faith basis for evidence that will be offered, but can’t be more exacting than that.

The Court noted that things don’t always go according to plan at trial, with witnesses sometimes not appearing. or changing their stories.

To account for that, trial courts instruct jurors that opening statements and arguments are not evidence, whereas testimony and exhibits are.

A defendant that doesn’t provide the appropriate evidence to support claims he made during his opening statement would only hurt his own credibility.

In this case, the affidavit was enough to show a good faith prediction about what evidence the defendant planned to present in his defense.

The Court explained that that restricting the opening statement didn’t deprive the defendant of the basic protections of due process in a criminal trial, or make a structural difference.

This is because he was allowed to testify, which mandated a harmless error review.

Accordingly, the Court sent the case back to the court of appeals to decide whether the lower court’s error relating to the opening statement was harmless beyond a reasonable doubt.

Understanding Arizona’s Duress Defense

Under Arizona Law A.R.S. § 13 – 412, Duress is classified as a Justification Defense.

A Justification Defense such as Duress is used to excuse a person for criminal liability under unique and specific circumstances.

It exists when a reasonable person’s conduct would otherwise be considered a criminal act, but is determined to be justified because the person acted under the threat of immediate physical harm.

For this defense to be available, the person being charged must reasonably believe that they were unable to refuse engaging in the criminal act.

Duress cannot be used a person acted intentionally or recklessly, or knowingly; or if the act carried out, results in homicide or serious physical injury to another person.

When it is used, the prosecution must prove beyond a reasonable doubt that the accused actions were not justified based on the facts presented at trial.

Arizona’s Duress Defense: Questions and Answers

       Q. If a person committed a crime as a result of being under duress, will the judge or prosecution make sure the defendant uses the Duress defense?

       A. No. Neither the judge or prosecutor has an obligation to introduce facts or evidence in favor of the suspect.  If the suspect has a viable defense, the jury will not hear about it, from them.  The most effective way to challenge the charges utilizing this defense is for the defendant to retain a skilled and experienced criminal defense attorney to do this on their behalf.


       Q. When can a person use the Duress Defense?

A.  Under A.R.S. § 13-412 a defendant may raise the Duress Defense, if they were forced to engage in a criminal offense, under the threat of immediate physical injury or harm by another.


       Q. Under what circumstances is a person barred from using the Duress Defense?

A.  Under A.R.S. § 13-412 A person is barred from claiming Duress, if they recklessly or intentionally placed themselves in a situation where duress was likely to happen.   Under A.R.S. § 13 Duress is also unavailable as a defense where a person was murdered or seriously injured due to their actions.


        Q. What is the standard for burden of proof when the Duress Defense is used?

A.  According to Arizona’s Revised Criminal Jury Instructions, the state must prove that the defendant was not    justified in committing the crime, beyond a reasonable doubt.


         Q. What happens if the prosecution is unable to prove beyond a reasonable doubt that the suspect’s actions were not justified?

A. According to Arizona’s Revised Criminal Jury Instructions, if the prosecution is unable to meet this burden of proof, the defendant must be acquitted.

  Marijuana Possession & Transportation Criminal Defense Attorney in Phoenix AZ

In Arizona, knowingly possessing Marijuana for the purpose of importing or transporting it for sale, under Arizona Law A.R.S. § 13 – 3405 is a class 3 felony, for offenses involving possession of Marijuana with a weight under two pounds.

If convicted of a first offense Marijuana transportation resulting in a class 3 felony, the person will be exposed to a minimum of 2.5 years, to a maximum of 7 years in prison.

If convicted in a case where the Marijuana exceeds two pounds in weight, charges will be brought as a class 2 felony, which calls for 4 years to 10 years in prison.

These amounts may vary by 1-2 years less or more, depending on mitigating or aggravating circumstances surrounding the charges.

Other felony sentencing and penalties will apply including large fines, fees, and assessments.

Some other defenses that may apply to Marijuana transportation or importation charges besides Duress, might include but are not limited to the following:

  • Fourth Amendment and other Constitutional Rights violations;
  • No knowledge that the Marijuana was in your possession;
  • You did not have knowledge that others in the group were in possession of Marijuana for transport or sale;
  • No evidence that the Marijuana in your possession was for transfer or sale;
  • Challenges to weight and quantity the defendant is accused of possessing or having direct control;
  • You were not in possession of the Marijuana for sale or otherwise;
  • Mistaken identify

Arizona is tough on repeat offenses, which result in longer prison terms and harsher sentencing.

This is why it is important to invoke your right to a private drug defense representation if you face Marijuana or any drug related charges.

An effective criminal defense attorney will review the facts and evidence surrounding charges to determine the best defense strategy available.

When deciding whether or not to charge a person or enterprise with illegal drug transportation for sale, law enforcement officers consider the quantity found in a person’s possession.

Generally, the higher the quantity, the more likely  the Marijuana is being transported for sales or intent to sell.

If you are charged with importing or transporting marijuana, you will need an experienced and tough defense attorney. James Novak is a former prosecutor and an experienced trial lawyer who offers a free consultation for active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert, and Scottsdale, Arizona.

If retained,  Mr. Novak, will provide you with a strong defense for your charges. Depending on the circumstances, there may be defenses that will apply to your case that can lead to a favorable outcome.

Call (480) 413-1499 or contact James Novak, of the Law Office of James Novak, today to discuss your matter and options for defending your charges.

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