United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 20, 2005
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 04-10250
_____________________
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
KESHIA CHERIE ASHFORD DIXON,
Defendant - Appellant.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
Before REAVLEY, JOLLY, and PRADO, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This case may have added interest because the defendant
introduced evidence concerning battered woman’s syndrome as part of
her duress defense. Otherwise, this appeal is unremarkable. The
appellant, Keshia Cherie Ashford Dixon, was convicted of one count
of receiving a firearm while under indictment and eight counts of
making a false statement to purchase a firearm.1 In appealing the
conviction, she contends that the district court erred in: (1)
refusing to permit expert testimony in support of her defense of
duress; (2) excluding as hearsay an out-of-court statement made by
her former boyfriend to an ATF agent; and (3) instructing the jury
1
See 18 U.S.C. §§ 922(n) and 922(a)(6).
that she bore the burden of proving her defense of duress by a
preponderance of the evidence. We find no reversible error, and
thus AFFIRM.
I
Two Dallas gun shows are the situs of the crime. The relevant
facts, occurring in January 2003, are largely undisputed. At both
of the gun shows, Dixon purchased multiple firearms by providing
false information to dealers. In particular, she provided an
incorrect address and stated that she was not under indictment for
a felony, when in fact she had been indicted for her role in a
check cashing scheme. In each instance, the dealer ran Dixon’s
information through the National Instant Criminal Background Check
System, received a “proceed” response, and sold Dixon the gun.
At trial, Dixon attempted to raise a defense of duress,
claiming that she had been coerced into purchasing the guns by her
boyfriend, Thomas Earl Wright, and an associate, Hookie Sanders.
Both Wright and Sanders were convicted felons, so neither could
purchase the guns directly. Each of the gun dealers testified that
Dixon was accompanied by several men while at the gun shows, but
that they did not seem to be controlling her purchases.
Dixon testified that she had been abused by Wright, who
allegedly beat her on a regular basis and threatened her children.
Her description of the relationship was largely corroborated by the
testimony of her two daughters. Dixon further testified that she
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was afraid that, if she did not buy the guns for Wright, he would
harm or even kill her or her daughters.
In support of her duress defense, Dixon attempted to introduce
the testimony of Dr. Toby Myers, a domestic violence expert,
regarding the reactions of battered women to their abusers. The
court held that Dr. Myers’s testimony addressed Dixon’s subjective
state of mind and was therefore inadmissible to show duress. Dixon
also attempted to introduce the testimony of Kelly Oates, an agent
with the Bureau of Alcohol, Tobacco and Firearms, concerning an
out-of-court statement by Wright that he gave Dixon $115 to
purchase a gun for him. The district court excluded Oates’s
testimony as inadmissible hearsay.
The jury convicted Dixon on all nine counts.
II
On appeal, Dixon contends that the district court erred in
three respects: (1) in refusing to admit Dr. Myers’s expert
testimony; (2) in excluding Wright’s out-of-court statement as
inadmissible hearsay; and (3) in giving a jury instruction that
placed the burden of proving duress by a preponderance upon the
defendant.
A
We first consider whether the district court erred in
excluding Dr. Myers’s testimony concerning the psychological
effects of Wright’s battery of Dixon. We review a district court’s
decision to exclude expert testimony only for abuse of discretion.
3
See, e.g., United States v. Krout, 66 F.3d 1420, 1426 (5th Cir.
1995).
Expert testimony is admissible if (1) it will assist the trier
of fact to understand the evidence or to determine a fact in issue;
(2) it is based on sufficient facts or data; (3) it is the product
of reliable principles and methods; and (4) the witness has applied
the principles and methods reliably to the facts of the case. FED.
R. EVID. 702. In the case at bar, neither Dr. Myers’s data nor her
methodology have been challenged. The narrow question raised by
Dixon is whether the district court abused its discretion in
holding that Dr. Myers’s testimony would not have assisted the jury
in making a determination as to a material fact.
Dixon sought to introduce Dr. Myers’s expert testimony in
support of a defense of duress. Duress is an affirmative defense
that has been developed through the common law and adopted by the
federal courts. See United States v. Bailey, 444 U.S. 394, 409-10
(1980). To succeed on a duress defense, this court requires that
the defendant show:
1. that [she] was under an unlawful and
present, imminent, and impending threat of
such a nature as to induce a well-grounded
apprehension of death or serious bodily
injury;
2. that [she] had not recklessly or
negligently placed herself in a situation in
which it was probable that she would be forced
to choose the criminal conduct;
3. that [she] had no reasonable legal
alternative to violating the law, a chance
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both to refuse to do the criminal act and also
to avoid the threatened harm; and
4. that a direct causal relationship may be
reasonably anticipated between the criminal
action taken and the avoidance of the
threatened harm.
United States v. Willis, 38 F.3d 170, 175 (5th Cir. 1994); (quoting
United States v. Liu, 960 F.2d 449, 453 (5th Cir. 1992)). Whether
apprehension is “well-grounded” turns on whether “a person of
reasonable firmness in [the defendant’s] situation would have been
unable to resist” the threat. Id. (quoting AMERICAN LAW INSTITUTE,
MODEL PENAL CODE § 2.09(1) (1985)). In short, the duress defense
requires an objective inquiry into whether a defendant’s conduct,
although illegal, represented her only reasonable alternative to
serious bodily injury or death.
1
Most of the expert testimony proffered in this case, like that
in Willis, dealt with the defendant’s subjective vulnerability to
coercion. In Willis, we held that expert testimony that a
defendant “suffers from the battered woman’s syndrome” is
“inherently subjective” and therefore inadmissible to support a
defense of duress. Id. at 175, 177. In the case at bar, although
Myers carefully avoided using the term “battered woman’s syndrome”,
she nonetheless explained that Dixon was “more vulnerable because
she had lost her job” and that Dixon “didn’t think [calling the
police] would do any good”. Dr. Myers concluded that, as a result
of Wright’s threats and repeated battery, Dixon believed “in her
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heart and mind [that] she didn’t have a choice” as to whether to
buy the guns. In short, this testimony clearly focuses on Dr.
Myers’s opinions as to Dixon’s individual state of mind.
To the extent that Dr. Myers’s proffered testimony described
Dixon’s subjective perceptions of danger, it was not relevant to
the inquiry at hand –- that is, to whether such perceptions were
“well-grounded” or objectively reasonable under the circumstances.
As such, it could not have “assist[ed] the trier of fact” in making
any determination of material fact. See FED. R. EVID. 702. Thus,
we hold that the district court did not err in excluding this
portion of Dr. Myers’s testimony.2
2
Our analysis does not end here, however. Dixon contends that
Dr. Myers’s proffer did not focus exclusively on subjective
2
Furthermore, Dr. Myers’s assertion that Dixon’s fears were
reasonable does not redeem her testimony. Whether a defendant’s
apprehension of harm is reasonable under the circumstances is
ultimately a question for the jury. Although it is certainly
possible that expert testimony might shed light on the
reasonableness of a given type of conduct by describing typical
reactions to unusual circumstances, such was not the case here.
Instead, at the prompting of counsel, Dr. Myers offered the wholly
conclusory assertions (1) that Dixon’s fear of Wright was “well
grounded” and (2) that her decision not to leave Wright was not
“reckless or negligent”.
These statements represent a transparent strategy to
distinguish Dr. Myers’s testimony from that which was excluded in
Willis by inserting brief, perfunctory “objective”
characterizations into testimony that otherwise focuses exclusively
on the defendant’s subjective perceptions. If the rule announced
in Willis –- i.e., that expert testimony as to a defendant’s
subjective beliefs is inadmissible to show duress –- were so easily
swept aside, it would be meaningless.
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perceptions. Rather, Dixon argues, the proffer included a
significant amount of “‘objective’ testimony that would show that
[Dixon’s] fear ... was well-grounded in her history and experience
with Wright”. Although it is not altogether clear to us what Dixon
means by “objective testimony”, the record suggests that the term
refers to testimony by Dr. Myers as to the facts of Dixon’s
relationship with Wright.3
Such testimony, Dixon contends, would be based upon, inter
alia, “interviews with Dixon’s mother and daughters, statements
from Wright and Sanders to the government” and “the testimony of
... Jocelyn Dixon”. In short, it would be inadmissible hearsay.
See FED R. EVID. 802-804. Dixon points out that the facts upon which
an expert opinion are based “need not be admissible in evidence in
order for the opinion or inference to be admitted”. FED. R. EVID.
703; see also United States v. Williams, 447 F.2d 1285, 1290 (5th
Cir. 1971)(en banc). The inverse of this statement, however, is
not true. Where, as here, an expert’s opinion testimony is
inadmissible, the hearsay upon which that opinion is based is also
3
Another type of expert testimony that may be termed
“objective” is that which describes the typical patterns,
circumstances and effects of battery within an abusive relationship
without attempting to draw any conclusions therefrom as to the
subjective perceptions of a particular defendant. Since Willis was
decided, various courts have recognized a distinction between such
generalized testimony and “subjective” expert testimony that
effectively diagnoses a particular defendant as suffering from
battered woman’s syndrome. See, e.g., State v. Grecinger, 569
N.W.2d 189, 196-97 (Minn. 1997); Scugoza v. State, 949 S.W.2d 360,
363 (Tex. App. San Antonio 1997); State v. Stringer, 879 P.2d 1063,
1069 (Mont. 1995).
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inadmissible. Were it otherwise, designation as an “expert” would
permit any such witness –- regardless of her qualification or the
relevance of her testimony -- to escape the ambit of the hearsay
rules.
Thus, in view of the inadmissibility of Dr. Myers’s opinion
testimony, she is not a competent witness to testify as to facts of
Dixon’s relationship with Wright based solely on what others told
her. We therefore hold that the district court did not abuse its
discretion in excluding such testimony.
B
Dixon next argues that the district court erred in excluding,
as inadmissible hearsay, potentially inculpatory statements made by
Wright to Agent Oates. Shortly after his arrest, Wright told Oates
that he and an associate had given Dixon $115 to purchase a .380
semiautomatic pistol for them, and had done so because they were
convicted felons and could not buy the guns themselves. Dixon
acknowledges that Oates’s testimony concerning the statement is
hearsay, but contends that it is nonetheless admissible as a
statement against interest. See FED. R. EVID. 804(b)(3).
The hearsay exception for statements against interest applies
only where (1) the declarant is unavailable; (2) the statement
tends to subject the defendant to criminal liability, such that a
reasonable person in his position would not have made the statement
unless he believed it to be true; and (3) the statement is
corroborated by circumstances clearly indicating its
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trustworthiness. See United States v. Sarmiento-Perez, 633 F.2d
1092, 1101 (5th Cir. 1981). The district court assumed that Wright
would refuse to testify, given the potentially incriminating nature
of his statement. As such, the admissibility of Oates’s hearsay
testimony turned exclusively on whether Wright’s admission was
corroborated by circumstances indicating its trustworthiness.
We will uphold a determination as to the trustworthiness of an
out-of-court statement “unless it is clearly erroneous”. United
States v. Vega, 221 F.3d 789, 803-04 (5th Cir. 2000). In this
case, the district court based its decision to exclude Oates’s
testimony, in part, on a major inconsistency between Wright’s
account of events and Dixon’s. Although Wright admitted in his
statement to Oates that he gave Dixon money to purchase a gun for
him, he also asserted that he went to the gun shows “at Dixon’s
request” to “show her which ones to purchase because she didn’t
know anything about guns”. This directly contradicts Dixon’s
account, in which Wright and Sanders physically coerced her into
going to the gun show with them.
The discrepancy between the two accounts goes to the very
heart of the duress defense –- that is, whether Dixon bought the
guns under threat of violence. Thus, while Dixon contended that
she acted under duress, she sought to introduce a statement that
indicated she acted willingly and voluntarily. Faced with such a
fundamental inconsistency, the district court did not err in
excluding the statement.
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C
Finally, Dixon contends that the district court erred in
instructing the jury that she, as the defendant, bore the burden of
proving her duress defense by a preponderance of evidence. Our
circuit’s law is clear on this point: “Since a justification
defense is an affirmative defense, the burden of proof is on the
defendant. To succeed, the defendant must prove each element of
the defense by a preponderance of the evidence.” Willis, 38 F.3d
at 179. As such, Dixon’s contention is meritless.
III
For the foregoing reasons, the conviction is AFFIRMED.
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