Andrew Zayac was convicted after a jury trial on several counts arising from his involvement in the kidnapping, robbery, and murder of a drug dealer. After rejecting his motion for a new trial and acquittal, the district court (Janet C. Hall, Judge) sentenced Zayac principally to two concurrent terms of life imprisonment. On this appeal, Zayac challenges the sufficiency of the evidence presented against him as to several of the counts of conviction, two of the district court’s evidentiary rulings, and the court’s refusal to instruct the jury regarding the affirmative defense of duress to the kidnapping and robbery charges. Because we conclude that Zayac has failed to identify any error in his conviction, we affirm the judgment of the district court.
BACKGROUND
The evidence presented at trial established that on the evening of February 8, 2009, Zayac drove from New Rochelle, New York, to the Bronx to pick up Edward Rivera, a man from whom Zayac had previously purchased substantial quantities of marijuana for resale. Also in the car was Zayac’s sometime co-worker, Heriberto Gonzalez. Zayac would later tell police that he had agreed with Rivera to purchase more than $100,000 worth of marijuana on this occasion.
Rivera left his building to meet the two men, carrying two duffel bags containing some sixty pounds of marijuana. After placing the bags in the trunk of Zayac’s blue Jeep, Rivera got into the back seat, and the three men drove away.
At some point thereafter, Rivera was shot twice at close range as he sat in the Jeep. Zayac and Gonzalez drove to the Padanaram Reservoir in Danbury, Connecticut. It was there that Rivera’s 232-pound body was eventually discovered,
After disposing of the body, Zayac and Gonzalez drove to the home of Zayac’s girlfriend in New Rochelle, where they transferred the drugs to a vehicle that she leased. The two men then drove the Jeep to Gonzalez’s residence in the Bronx, where they picked up Gonzalez’s car. Surveillance video obtained from a nearby oil company showed the Jeep being set on fire soon afterward, in the early hours of the morning following the murder. Both Za-yac and Gonzalez suffered severe burns that night. Zayac later instructed his girlfriend to report the Jeep, which was registered in her name, stolen and to identify him as “Kevin Hill” in her communications with police. She did so.
On March I, 2009, agents of the United States Drug Enforcement Administration and other federal law enforcement personnel executed a search warrant at the home of Zayac’s parents in Scarsdale, New York. In the course of the search, agents discovered three large bags of marijuana concealed behind wall panels, as well as medical supplies for treating burns and documents indicating that Zayac had consulted a plastic surgeon. Zayac and his girlfriend were present at the search. He agreed to speak with investigators, and was taken to a local police station for that purpose.
Zayac met with investigators three times in the days immediately following the search. He met with them again in December 2010. His account of what transpired on the night of Rivera’s murder changed each time, but he eventually settled on a narrative that put the blame for Rivera’s killing and the destruction of the evidence squarely on Gonzalez.
Although Zayac did not testify at trial, a government witness recounted the version of events he gave investigators. Because that account is relevant to part of our analysis, we briefly recite the pertinent details. According to Zayac, sometime after Rivera got into the Jeep, Gonzalez produced a small semiautomatic handgun from his backpack, along with some zip ties. Gonzalez then ordered Rivera at gunpoint to put the zip ties on himself. Moments later, as Zayac drove the vehicle northward, Gonzalez shot Rivera in the chest. Gonzalez then told Zayac to be happy it was not him who was shot. Once near the Padanaram Reservoir in Dan-bury, Zayac turned down a secluded road and stopped on the shoulder. Gonzalez insisted that Zayac help him pull Rivera’s body from the car. Zayac told investigators that he then returned to the driver’s seat of the Jeep while Gonzalez disappeared down the roadside hill with the body for several minutes. When Gonzalez reappeared, the two men drove back to New York, where they proceeded to stow the marijuana at the home of Zayac’s girlfriend before burning the Jeep.
The Proceedings in the District Court
Zayac was tried before a jury and convicted of kidnapping, see 18 U.S.C. § 1201(a)(1); felony murder, see id. §§ 2, 924(c), 924(j)(l); robbery, see id. §§ 2, 1951(a); possession of marijuana with intent to distribute, see id. § 2; 21 U.S.C. § 841(a)(1), (b)(1)(D); conspiracy to use or possess a firearm in furtherance of a violent felony or drug crime, see 18 U.S.C. § 924(o); three counts of destroying or concealing evidence, see id. §§ 2,1519; and one count of conspiracy to destroy or conceal evidence, see id. § 371. Gonzalez was tried separately.
Zayac’s defense focused on his attempt to pin responsibility for the crimes on Gonzalez. To that end, Zayac sought to enter into evidence an empty holster and
For its part, the government introduced the inconsistent statements Zayac had made to investigators. The defense sought to mitigate the effect of these inconsistencies by proffering the testimony of an attorney who had advised Zayac at the time the statements were made. The court heard the proffered testimony out of the presence of the jury. Zayac’s former attorney recounted that Zayac had apologized to him for lying to investigators and explained that he had done so because he feared Gonzalez. The court concluded that the testimony was irrelevant, and declined to admit the evidence.
Toward the close of trial, Zayac requested that the court instruct the jury regarding the affirmative defense of duress with respect to the kidnapping, robbery, and destruction of evidence counts. The court declined to do so, concluding that Zayac’s defense failed as a matter of law because no reasonable juror could find that he lacked a reasonable opportunity to escape during the course of the criminal conduct.
After trial, Zayac moved for acquittal and a new trial, which the court denied. On November 22, 2011, the court sentenced Zayac to concurrent terms of life in prison on the kidnapping and murder counts, as well as lesser terms of years on seven other counts. This appeal followed.
DISCUSSION
The propriety of the district court’s refusal to provide requested jury instructions is a question of law, which we review de novo. United States v. Nouri,
I. Sufficiency of the Evidence
We begin with Zayac’s contentions regarding the sufficiency of the evidence underlying his convictions on the kidnapping, robbery, firearms and murder counts. A defendant “challenging the sufficiency of the evidence ... faces an uphill battle, and bears a very heavy burden.” Mi Sun Cho,
Zayac claims that his “presence in the Jeep and his association with Gonzalez, even coupled with his (just acquired) knowledge of Gonzalez’s murderous and felonious intent, is insufficient to show knowing participation in” the kidnapping, robbery, firearms offenses, and murder. Appellant’s Br. 38. But the convictions here did not rest only on evidence of Za-yac’s presence in the Jeep. The trial record contains extensive evidence from which the jury could properly have inferred Zayac’s knowing participation in these crimes, including: (a) Zayac appeared to lure Rivera into a trap by offering to pay an above-market price for the marijuana and telling him not to involve any of his associates in the transaction; (b) Zayac and Gonzalez set about methodically destroying all evidence of the murder together and left the marijuana in Zayac’s hands for safekeeping; and (c) Zayac actively sought to conceal his involvement in the crimes, including by instructing his girlfriend to he on his behalf and by repeatedly lying to the government regarding his role. We conclude that the jury could properly have found that Zayac either committed the charged offenses himself or that he “joined [in Gonzalez’s] specific venture and shared in it, and that his efforts contributed to its success, or, in other words ... that [he otherwise] consciously assisted the commission of the [charged] crime[s] in some active way.” Ogando,
II. The District Court’s Evidentiary Rulings
We also reject Zayac’s challenges to the district court’s evidentiary rulings. Under Rule 403 of the Federal Rules of Evidence, a trial court may refuse to admit evidence the probative value of which “is substantially outweighed by a danger of ... unfair prejudice, confusing the issues, [or] misleading the jury.” Fed.R.Evid. 403. It is well established that “so long as the district court has conscientiously balanced the proffered evidence’s probative value with the risk for prejudice, its conclusion will be disturbed only if it is arbitrary or irrational.” United States v. Awadallah,
The record reveals that the court in this case engaged in just such a conscientious balancing when it declined to admit the holster and magazine recovered from Gonzalez’s house. The district court determined that this evidence, if introduced, risked leading the jury to conclude that Gonzalez owned a gun and that this gun was the murder weapon. This chain of inferences, the district court found, would have been based on speculation rather than reasoned deduction from the evidence, since the holster was empty when it was recovered, the murder weapon was not found, and forensic testing had failed to establish with precision what kind of firearm was used to kill Rivera. In light of the high risk that the jury would engage in speculation, the district court concluded that the potential for prejudice outweighed the probative value of this evidence. Because we find this determination neither arbitrary nor irrational, we will not disturb it.
We need not decide whether the district court erred by refusing to admit this testimony because any such error would have been harmless. See, e.g., United States v. Miller,
III. Zayac’s Entitlement to a Duress Instruction
Finally, we consider whether Zayac was entitled to an instruction on the affirmative defense of duress with respect to the kidnapping and robbery charges (Counts One and Four, respectively).
Criminal liability ordinarily requires the “concurrence of an evil-meaning mind with an evildoing hand.” Morissette v. United States,
A defendant invoking a duress defense must establish that, at the time of his criminal conduct, (1) he faced a threat of force (2) “sufficient to induce a well-founded fear of impending death or serious bodily injury,” and (3) he lacked a “reasonable opportunity to escape harm other than by engaging in the illegal activity.” Gonzalez,
The court began by considering the trial testimony of Special Agent Rodney George of the United States Drug Enforcement Administration, who related the statements Zayac had made over the course of his meetings with investigators. The court focused on the fourth and final meeting, a proffer session on December 16, 2010, which Zayac attended with four defense attorneys. During that meeting, Zayac described sitting alone in the driver’s seat of the Jeep for several minutes as Gonzalez dragged Rivera’s body out of sight down a hillside just over a guardrail adjoining the road. In a prior conversation with investigators, Zayac indicated that the murder weapon remained with him in a backpack as he waited for Gonzalez to return. The district court concluded that these minutes alone in the car constituted a reasonable opportunity to escape as a matter of law.
Having concluded that Zayac was presented with a reasonable opportunity to escape, the court next considered whether the kidnapping and robbery offenses were
Turning to our de novo review of the court’s rejection of Zayac’s argument, we begin by agreeing with the district court that Zayac had, as a matter of law, a reasonable opportunity to escape the scene while Gonzalez was engaged in disposing of Rivera’s body. Zayac’s own express recollection placed him alone with the murder weapon, in the driver’s seat of a vehicle, while Gonzalez was out of sight, down a hill, struggling to dispose of a 232-pound body. Under the circumstances, we think that no rational juror could have found that Zayac lacked a reasonable opportunity to escape.
Zayac argues that he was entitled to a duress instruction if his own direct contribution to the crimes concluded before the escape opportunity arose. This argument depends on the assumption that when Za-yac was sitting in the Jeep near the Dan-bury reservoir waiting for Gonzalez to dispose of the body, Zayac’s own contribution to the kidnapping, the robbery, or both had ended. We disagree with this premise, and conclude to the contrary that Za-yac was participating in the crime as an accomplice during the period in which he had an opportunity to escape.
As we have explained, an element of the duress defense is the absence of a “reasonable opportunity to escape harm other than by engaging in the illegal activity.” Gonzalez,
In other words, when an offense is ongoing, a defendant’s continued presence at the scene constitutes ongoing participation absent some fact indicating that he has disassociated himself from the crime. The question then, as the district court correctly determined, is whether the relevant offense was ongoing at the time the defen
Section 1201, the federal kidnapping statute under which Zayac was charged, criminalizes the “earr[ying] away and hold[ing]” of a person “for ransom or reward or otherwise.” 18 U.S.C. § 1201(a). The Supreme Court has explained that kidnapping under section 1201 is a “unitary crime,” which, “once begun, does not end until the victim is free.” United States v. Rodriguez-Moreno,
Contrary to Zayac’s suggestion, then, the criminal act of kidnapping was not complete once Rivera was dead. Nothing in the language of the statute suggests that Congress intended that a victim be considered “free” once dead, and the text of the statute implies the contrary. See 18 U.S.C. § 1201(a)(1) (making clear that the law applies when a victim is transported across state lines “regardless of whether the person was alive” at the time). Nor are the evils targeted by the statute— holding “for ransom or reward or otherwise” — abated by the victim’s death.
Our conclusion is the same with respect to the robbery count. As this Court has explained, a robbery involves “both a taking and a carrying away,” so that the “escape phase of a crime is not ... an event occurring ‘after the robbery’ ” but “is part of the robbery.” United States v. Reid,
As we have explained, duress “negates a conclusion of guilt” based on a defendant’s otherwise culpable conduct. Dixon,
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
. Although Zayac originally sought the instruction with respect to the destruction of evidence counts (Counts Eight-Eleven) as well, we consider only those arguments he has developed on appeal. See Niagara Mohawk Power Corp. v. Hudson River-Black River Regulating Dist.,
. Under the law of this Circuit, the "reasonableness” of an escape opportunity need not be decided by the jury absent special circumstances or the presence of a factual issue. Alicea,
. Indeed, the payment of ransom for corpses is an ancient practice. See The Iliad of Homer (Alexander Pope, trans., Samuel Johnson, ed.1779), Book XXIV, In 169 -174 ("No longer then ([Jove’s] fury if thou dread)/Detain the relicks of great Hector dead,-/Nor vent on senseless earth thy vengeance vain:/But yield to ransom and restore the slain.”).
. We need not and do not decide whether a victim continues to be "held” for "ransom or reward or otherwise” if, for example, the victim’s abandoned remains lie undiscovered while the perpetrators send ransom notes to the victim’s family or await the payment of a ransom.