Stop based on violation of NM law was based on reasonable suspicion; defendant failed to prove public authority defense; motion for new trial properly denied

United States v. Ybarra Cruz, 2020 WL 7330577 (10th Cir. Dec 14, 2020) (NM): A jury acquitted Ybarra of conspiracy to distribute methamphetamine but convicted him of possessing with intent to distribute methamphetamine. The panel finds that: (1) the police had reasonable suspicion to stop Ybarra for a traffic violation; (2) the district court correctly rejected Ybarra's request for an acquittal based on his public authority defense that he reasonably believed he was acting with such authority when he transported methamphetamine ; (3) the district court did not abuse its discretion in denying Ybarra a new trial on grounds that the jury might not have understood that crediting his public authority defense would have required it to acquit on both counts; and (4) the district court did not abuse its discretion when it failed, sua sponte, to instruct on the affirmative defense of duress. 1. Police had reasonable suspicion to stop Ybarra for a traffic violation: Ybarra admitted that while driving on the interstate, the police who were following him (as they were instructed to do by Homeland Security) saw him momentarily cross into an adjacent lane. He argued that traffic stop was unreasonable because the officers did not have reasonable suspicion that he had committed a traffic violation. Although New Mexico courts have held that one will not violate N.M. Stat. Ann. § 66-7-317(A) by momentarily leaving one’s lane, the panel held Ybarra had crossed into the exit lane for four to five seconds! No circumstances would explain this lane deviation and thus Ybarra violated the statute by failing to drive “as nearly as practicable” within his lane. 2. Denial of post-trial Rule 29(c) motion based on public authority defense: This is probably the most important part of the panel’s decision. It holds that for an accused to establish he is entitled to an acquittal based on a public authority defense, he must prove that defense to the jury by a preponderance of the evidence. Case law does not impose a burden on the government to disprove the public authority defense, let alone beyond a reasonable doubt. Here, Ybarra failed to prove his defense because his Arizona HSI handlers testified that before his New Mexico excursion, they had told him he was ‘deactivated.’ After that Ybarra had not communicated with them. The panel concluded a reasonable jury could find that it was not sensible for Ybarra to believe he still was acting as a government information when he transported methamphetamine through New Mexico. 3-4. Denial of motion for new trial: Ybarra argued the interests of justice necessitated a new trial because the jury was confused about whether a successful public authority defense could defeat both charges and because the district court failed sua sponte to instruct the jury on duress. The panel finds the jury would not have been confused because the court’s public authority defense instruction unambiguously directed it to acquit on both counts if it found the defense applied. It also found that Ybarra had not presented sufficient evidence that he was acting under duress. Nor did he show that other alternatives to violating the law were unavailable to him. Notably, at trial, Ybarra did not ask the court for a duress instruction.