United States v. Dixon

FILED
United States Court of Appeals
Tenth Circuit

August 24, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 17-7010
v.

NIKOLLE DENISE DIXON,

Defendant - Appellant.

Appeal from the United States District Court
for the Eastern District of Oklahoma
(D.C. No. 6:15-CR-00084-RAW-1)

Whitney R. Mauldin, Assistant Public Defender (Julia L. O’Connell, Federal
Public Defender; Chance Cammack, Assistant Public Defender, with her on the
brief), Office of the Federal Public Defender, Northern and Eastern Districts of
Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

Linda A. Epperley, Assistant United States Attorney (Douglas A. Horn, Acting
United States Attorney; Edward Snow, Assistant United States Attorney, with her
on the brief), Office of the United States Attorney, Eastern District of Oklahoma,
Muskogee, Oklahoma, for Plaintiff-Appellee.

Before LUCERO, HOLMES, and McHUGH, Circuit Judges.

HOLMES, Circuit Judge.
 Following a jury trial in the United States District Court for the Eastern

District of Oklahoma, Defendant-Appellant Nikolle Denise Dixon was convicted

on one count of embezzlement and theft from an Indian tribal organization, 18

U.S.C. § 1163.

Prior to trial, Ms. Dixon filed a Notice of Defense of duress, on the theory

that she faced an imminent threat of sexual assault from her stepfather and that

her Post Traumatic Stress Disorder (“PTSD”) caused her to believe that no

recourse to escape that assault was available except through theft. More

specifically, Ms. Dixon asked the court to consider her theory of duress under the

elements for that defense spelled out in Tenth Circuit Pattern Jury Instruction No.

1.36 (“Pattern Instruction 1.36”). In response, the government filed a motion in

limine, asking the court to reject the defense and to exclude all evidence and

testimony relevant to the defense. The court granted the government’s motion.

To ensure preservation of her objection, shortly before trial, Ms. Dixon’s

counsel offered Pattern Instruction 1.36 for the court’s possible presentation to

the jury and filed a written proffer of the expert testimony that would be elicited

in support of her duress defense. At trial, however, the court maintained its

previous ruling, which rejected the defense, and the jury convicted Ms. Dixon.

On appeal, Ms. Dixon asks us to reverse the district court’s decision to

reject her duress defense and, more specifically, her related request for a jury

2
instruction. Ms. Dixon contends that her duress defense was viable because her

actions were reasonable when viewed through the lens of her history of sexual

abuse and her diagnosis of PTSD. Exercising jurisdiction under 28 U.S.C.

§ 1291, we reject this argument and affirm the district court’s judgment.

I

A

The events relating to Ms. Dixon’s conviction for embezzlement occurred

in 2013 and 2014, but the events underlying her claimed defense of duress are

more historically rooted.

1

Ms. Dixon was employed as a cashier at the Pocola Travel Plaza (“Travel

Plaza”), a convenience store owned by the Choctaw Nation of Oklahoma. On

January 6, 2014, a Choctaw Tribal officer was dispatched to speak with the Travel

Plaza Director, who informed the officer that Ms. Dixon was voiding out cash

sales and pocketing the sales at the end of her shifts. A review of three days of

surveillance video showed that Ms. Dixon had voided a total of $1,536.81 in sales

transactions. A more longitudinal review revealed that Ms. Dixon voided over

845 transactions totaling $16,937.83 during the period between October 20, 2013,

and January 4, 2014. Investigators were not able to determine how much was

taken prior to October 2013, due to a lack of transaction journals before that time.

3
 Ms. Dixon admitted to taking the money at a February 21, 2014, interview

with an investigator for the Choctaw Tribal Police. In the interview, Ms. Dixon

indicated that she felt like she had to steal the money because of the financial

situation in her household.

At the time of the theft, Ms. Dixon was twenty-one years old. She lived at

home and was a caretaker for her disabled mother. Ms. Dixon attended college

during this time but struggled because of severe emotional issues. Those

emotional issues accrued during childhood and allegedly were directly related to

her stepfather’s occupancy of the home that Ms. Dixon shared with her mother;

the stepfather began living with them when Ms. Dixon was twelve years old.

During his time in the home, Ms. Dixon’s stepfather allegedly sexually assaulted

her on a near-daily basis. Even after her stepfather moved out of the house, he

allegedly continued to abuse her, albeit less frequently. Ms. Dixon never reported

the abuse to her mother or the authorities prior to her indictment, in large part due

to threats that her stepfather allegedly made against the lives of Ms. Dixon and

her mother. 1

1
In her affidavit, Ms. Dixon states that:

I never reported the abuse to my mother or authorities due to
threats made by [my stepfather]. No one had ever protected me
and I did not believe that any one could and [my stepfather]
threatened to kill my mother if I told. I did not believe that the
police could prevent [my stepfather] from hurting us and I did
(continued...)

4
 Shortly before Ms. Dixon began to steal from the Travel Plaza, her

stepfather cut off financial support to the family and refused to assist financially

unless he was allowed to move back into the home. Ms. Dixon’s mother wanted

the stepfather to return in order to alleviate their financial hardship. Ms. Dixon

was unable to explain her fear of her stepfather’s return to her mother. But this

fear allegedly impelled Ms. Dixon to begin embezzling from the Travel Plaza and

giving her mother the money to pay the bills, in the hope of keeping her

stepfather at bay. Ms. Dixon states that she did so, “knowing that if my mother

had enough money, she wouldn’t let [her stepfather] move back into the house.”

R., Supp. Vol. I, at 132 (Aff. of Nikolle Dixon).

2

Ms. Dixon was indicted by a grand jury for her embezzlement offense on

December 9, 2015. Thereafter, she began receiving psychological therapy from

Dr. Patricia Nation, a licensed counselor, sociologist, and criminologist employed

by the Choctaw Nation. Dr. Nation diagnosed Ms. Dixon with PTSD and

Dissociative Disorder. Dr. Nation’s evaluation found that, consistent with

PTSD’s clinical criteria, Ms. Dixon was exposed to traumatic events (i.e., the

sexual abuse and threats of extreme violence against her mother if she reported

1
(...continued)
not know if I would even be believed.

R., Supp. Vol. I, at 132 (Aff. of Nikolle Dixon).

5
the abuse); consequently, she experienced flashbacks, dissociation, distressing

memories and the need to avoid them, persistent and exaggerated negative

feelings, and feelings of detachment from others. Dr. Nation found that:

Dixon was sexually abused for many years resulting in her
mental health diagnoses, as a result she believed there to be no
hope, no help coming, and that she had no power over her body
or her life . . . . Dixon saw no alternative to her actions[,] and by
taking the money, she was able to secure some momentary peace
and safety.

R., Supp. Vol. I, at 27 (Aff. of Patricia Nation, dated Aug. 26, 2016). Dr. Nation

concluded that Ms. Dixon’s diagnoses directly stemmed from the long-term

sexual abuse she suffered at the hands of her stepfather. As a result of the

counseling with Dr. Nation, Ms. Dixon reported the abuse (apparently to law

enforcement), but her stepfather died before any criminal action against him could

be initiated.

Dr. Curtis Grundy also corroborated Dr. Nation’s diagnosis of PTSD and

Dissociative Disorder. After conducting a forensic psychological examination of

Ms. Dixon, Dr. Grundy agreed that Ms. Dixon’s results were “strongly

characteristic of an individual with a genuine disorder who is making no efforts to

overstate her symptoms.” Id. at 127 (Psych. Rpt. of Curtis Grundy, dated May 20,

2016). Specifically, Dr. Grundy found that “Ms. Dixon described experiencing

increased symptoms of [PTSD] and depression, explaining that she could not cope

with her stepfather returning to live with her and her mother . . . . [T]he

6
circumstances of her previous trauma and symptomatology that developed in

response to her trauma impaired her capacity to control her behavior.” Id. at

129–30.

B

On June 20, 2016, Ms. Dixon filed a Notice of Defense of duress. Therein,

Ms. Dixon asked the court to consider her theory of duress under the elements of

that defense spelled out in Pattern Instruction 1.36. Specifically, Ms. Dixon

averred that she faced an imminent threat of sexual assault from her stepfather

and believed that she had no recourse to escape that assault other than by stealing

the funds at issue. In support of her proposed defense, Ms. Dixon sought to admit

expert testimony tending to show that she suffered from PTSD and that her

perception of duress was reasonable when viewed in light of that diagnosis. The

Notice of Defense included excerpts from the diagnoses and reports made by Dr.

Nation and Dr. Grundy; it predicted that the two medical professionals would

“discuss what PTSD is, the methodology commonly used in diagnosing PTSD and

the affect that the disorder may have on [a] person’s perception of a threat.” R.,

Vol. II, Doc. 46, at 33–43 (Notice of Defense, dated June 20, 2016). The

government filed an opposing motion in limine requesting that the trial court deny

the defense altogether and urging the court to exclude all evidence and testimony

relevant to the defense. The court granted the government’s motion.

7
 In particular, in a written order issued on August 11, 2016, the district court

concluded that Ms. Dixon failed to establish any of the requisite duress

elements—identified in Pattern Instruction 1.36—by a preponderance of the

evidence. Consequently, it rejected Ms. Dixon’s duress defense and excluded

purported duress-related testimony regarding Ms. Dixon’s history of sexual abuse,

as well as her experts’ testimony as to the effects of PTSD on Ms. Dixon’s ability

to perceive alternative options.

To ensure preservation of her objection, shortly before the trial, Ms. Dixon

formally submitted to the court a copy of Pattern Instruction 1.36 and requested

that the jury receive it. Further, she filed a written proffer of the evidence she

would introduce if her duress defense were allowed. The parties proceeded to a

one-day jury trial on August 30, 2016. In the trial, the court adhered to its ruling

on Ms. Dixon’s duress defense, and the jury convicted her on the embezzlement

charge. The present appeal ensued.

II

On appeal, Ms. Dixon contends that the district court wrongly denied her a

jury instruction as to duress because she adduced sufficient evidence to put the

defense at issue. Resolving her argument under the legal framework that Ms.

Dixon advanced before the district court and on appeal—based on Pattern

Instruction 1.36—we reject her challenge.

A

8
 In reviewing whether a proffer was sufficient to establish an affirmative

defense, we “respect the trial judge’s role as gatekeeper” and review “the denial

of a duress defense for abuse of discretion.” United States v. Portillo-Vega, 478

F.3d 1194, 1197 (10th Cir. 2007) (quotation omitted); accord United States v.

Seward, 687 F.2d 1270, 1276 (10th Cir. 1982) (en banc). Under this standard, we

will reverse the district court only “if it based its ruling on an erroneous view of

the law or on a clearly erroneous assessment of the evidence.” Zurich N. Am. v.

Matrix Serv., Inc., 426 F.3d 1281, 1289 (10th Cir. 2005) (quoting F.D.I.C. v.

United Pac. Ins. Co., 152 F.3d 1266, 1272 (10th Cir. 1998)). And the question

of “[w]hether there is sufficient evidence to constitute a triable issue of [the

defense] is a question of law.” United States v. Gutierrez-Gonzalez, 184 F.3d

1160, 1164 (10th Cir. 1999) (discussing the entrapment defense). 2

2
Some of our cases have expressed a degree of uncertainty as to the
applicable standard of review. For example, in United States v. Patton, 451 F.3d
615, 637 (10th Cir. 2006), we reviewed the denial of the defendant’s necessity
defense for abuse of discretion, with the caveat that our caselaw has “not always
been consistent about the standard of review for a district court’s denial of a
requested defense instruction.” Id. We also observed that “other circuits use de
novo review for this essentially legal question.” Id. However, even under a
deferential abuse-of-discretion standard, in the instructional context, erroneous
conclusions of law are effectively subject to de novo review in any event. Thus,
“[l]ittle turns . . . on whether we label review [of a court’s refusal to give a
particular instruction] abuse of discretion or de novo, for an abuse of discretion
standard does not mean that a mistake of law is beyond appellate correction . . . .
The abuse of discretion standard includes review to determine that the discretion
was not guided by erroneous legal conclusions.” United States v. Johnston, 146
F.3d 785, 792 (10th Cir. 1998) (quoting Koon v. United States, 518 U.S. 81, 100
(continued...)

9
 B

The Tenth Circuit recognizes the affirmative defense of duress. See United

States v. Patton, 451 F.3d 615, 637 (10th Cir. 2006). More specifically,

according to Pattern Instruction 1.36—upon which Ms. Dixon has based her

argument—“coercion or duress” consists of three elements:

1. [T]he defendant 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 to himself [or a family member, or others];

2. [T]he defendant had no reasonable, legal alternative to
violating the law, that he had no chance both to refuse to
do the criminal act and also to avoid the harm; and

3. [A] direct causal relationship could have been reasonably
anticipated between engaging in the criminal action and
avoiding the threatened harm.

Tenth Cir. Crim. Pattern Jury Inst. No. 1.36 [hereinafter Pattern Inst. 1.36]

(second alteration in original). 3

2
(...continued)
(1996)). This is because “[a] district court by definition abuses its discretion
when it makes an error of law.” Koon, 518 U.S. at 100 (citing Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405 (1990)).
3
Our pattern instruction for duress includes elements that are
consistent with the elements for the defenses of “justification and necessity,” as
set out in our decision in United States v. Virgil, 743 F.2d 751, 755 (10th Cir.
1984). “While common law historically distinguished between the two, modern
cases have ‘blur[red] the distinction between duress and necessity.’” Portillo-
Vega, 478 F.3d at 1197 n.4 (quoting United States v. Bailey, 444 U.S. 394,
409–10 (1980)). And we have “used the terms duress, necessity, and justification
(continued...)

10
 As Ms. Dixon acknowledges, the defendant bears the burden of proving all

three elements of a duress defense by a preponderance of the evidence. See

United States v. Beckstrom, 647 F.3d 1012, 1016 (10th Cir. 2011); see Portillo-

Vega, 478 F.3d at 1197; cf. Dixon v. United States, 548 U.S. 1, 17 (2006) (“In the

context of the firearms offenses at issue—as will usually be the case, given the

long-established common-law rule—we presume that Congress intended the

petitioner to bear the burden of proving the defense of duress by a preponderance

of the evidence.”). “As a general proposition a defendant is entitled to an

instruction as to any recognized defense for which there exists evidence sufficient

for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58,

63 (1988); accord United States v. Randall, 661 F.3d 1291, 1295–96 (10th Cir.

2011). However, the right to present an affirmative defense is not absolute. See

Portillo-Vega, 478 F.3d at 1200–01 (affirming the denial of a duress defense).

A district court must refuse to issue a duress-defense instruction when the

3
(...continued)
interchangeably.” United States v. Butler, 485 F.3d 569, 572 n.1 (10th Cir. 2007).
We also have opined that duress and necessity are “‘two sides of the same coin,’
being animated by similar policies and principles.” United States v. Cornelius,
696 F.3d 1307, 1323 n.8 (10th Cir. 2012) (quoting United States v. Al-Rekabi, 454
F.3d 1113, 1123 n.8 (10th Cir. 2006)). Because the same essential elements are at
issue in the defenses of necessity and duress, we break no new ground by
referring to caselaw on the necessity defense for guidance in our assessment of
the merits of Ms. Dixon’s duress defense. See, e.g., Portillo-Vega, 478 F.3d at
1200 (holding that Bailey, which dealt with the defense of necessity, “is . . .
central to a discussion of the duress defense”).

11
defendant fails to make “a threshold showing” of duress sufficient to place the

defense in issue. United States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990). Far

from usurping the prerogatives of the jury, see id., a district court’s refusal to

issue a requested instruction in such circumstances is an “example of the proper

exercise of the trial judge’s role as gatekeeper.” United States v. Butler, 485 F.3d

569, 573 (10th Cir. 2007). To open the gate to the defense, “it is essential that

the testimony given or proffered meet a minimum standard as to each element of

the defense so that, if a jury finds it to be true, it would support an affirmative

defense.” United States v. Bailey, 444 U.S. 394, 415 (1980) (emphasis added).

Thus, Ms. Dixon was entitled to have the court present a duress defense to

the jury if she produced sufficient evidence that would permit the jury to find in

her favor by a preponderance on each element of the defense. See Portillo-Vega,

478 F.3d at 1200 (“The issue is whether Portillo-Vega carried his burden of

establishing, by a preponderance of the evidence, each element of a duress

defense.”); accord United States v. Cornelius, 696 F.3d 1307, 1323 (10th Cir.

2012) (“To have been entitled to [a duress] instruction, Cornelius must have

produced or at least proffered evidence that, viewed in the light most favorable to

Cornelius, demonstrated under a preponderance standard each element of the

requested affirmative defense.”). 4

4
Ms. Dixon cites to our decision in United States v. Haney in
(continued...)

12
 4
(...continued)
suggesting that an instruction may be granted on a showing of less than a
preponderance of the evidence. 318 F.3d 1161, 1163 (10th Cir. 2003) (en banc)
(holding that “[a] criminal defendant is entitled to an instruction on his theory of
defense provided that theory is supported by some evidence and the law”
(emphasis added)). However, we reject this reading of Haney. That case does not
stand for the proposition that the mere proffer of “some evidence” at all would
suffice to entitle a defendant to a requested jury instruction. Indeed, Haney
derives from a line of cases that traces back to our decision in Beck v. United
States, 305 F.2d 595 (10th Cir. 1962). See Haney, 318 F.3d at 1163 (citing, in
support of a defendant’s entitlement to a theory-of-defense instruction, United
States v. Scafe, 822 F.2d 928, 932 (10th Cir. 1987), which cites on this subject
United States v. Lofton, 776 F.2d 918, 920 (10th Cir. 1985), which cites in turn,
inter alia, Beck, 305 F.2d at 599). And Beck articulates—albeit in slightly
different terms—the same sufficiency standard that the Supreme Court set out in
Bailey and Mathews. See Beck, 305 F.2d at 599. Specifically, Beck held that “a
defendant . . . is entitled to adequate jury instructions on his theory of defense,
provided, however, there is evidence before the jury to reasonably support such
theory.” Id. (emphasis added). And, under established practice, there would be
sufficient evidence before the jury to support a theory of defense, as Beck
requires, only if the preponderance-of-the-evidence standard was met. See, e.g.,
Beckstrom, 647 F.3d at 1016; Portillo-Vega, 478 F.3d at 1197; see also Dixon,
548 U.S. at 13, 17 (discussing “the long-established common-law rule” that
“required the defendant to bear the burden of proving the existence of duress” by
a preponderance). If Haney had intended to take the remarkable step of departing
from this well-established standard—embodied in Beck—we think it would have
offered at least a few words signaling so, but Haney is mute on the subject. That
is because, in our view, Haney intended no such thing.

Furthermore, quite apart from Beck, we cannot conclude that Haney holds
that a defendant may carry her burden of proof to secure a theory-of-defense
instruction by less than a preponderance of the evidence. Specifically, this
follows because Haney’s reference to “some evidence” cannot be isolated from
the larger body of jury-instruction jurisprudence. As the Supreme Court
emphasized in Bailey, the defendant’s proffer in support of a theory of defense
must meet a “minimum threshold” of proof before a theory-of-defense instruction
can be put before the jury. Bailey, 444 U.S. at 414. And there is no room for
guesswork as to when that minimum threshold is met, because the Court has held
(continued...)

13
 In determining whether the evidence was sufficient to raise a jury issue, we

review the evidence in the light most favorable to the defendant. See Butler, 485

F.3d at 571–572; see also United States v. Yazzie, 188 F.3d 1178, 1185 (10th Cir.

1999) (noting that “we must give full credence to defendant’s testimony” (quoting

United States v. Williams, 791 F.2d 1383, 1388 (9th Cir. 1986))). However, if the

evidence is insufficient as to even one element, “the trial court and jury need not

be burdened with testimony supporting other elements of the defense.” Bailey,

444 U.S. at 416; see also Scott, 901 F.2d at 873 (noting that “[i]f the evidence is

4
(...continued)
at least twice that the minimum quantum of evidence required is that which would
be “sufficient for a reasonable jury to find in his favor.” Mathews, 485 U.S. at
63; see also Bailey, 444 U.S. at 415 (requiring, in the context of a necessity
defense, “a minimum standard as to each element of the defense to that, if a jury
finds it to be true, it would support an affirmative defense”). And that minimum
quantum, as Ms. Dixon acknowledges as to the duress defense, is a
preponderance. We do not regard Haney as holding otherwise. Indeed, even
where we have cited to Haney in discussing a defendant’s entitlement vel non to
an instruction regarding a defense theory, we have underscored that a defendant
must point to a sufficient factual basis to support such an instruction, and
“whether the evidence was sufficient to warrant a jury instruction” is determined
by whether the defendant may prove every “element of an affirmative defense”
“by a preponderance of the evidence.” See United States v. Sparks, 791 F.3d
1188, 1193 (10th Cir. 2015).

In sum, based on the foregoing, we reject Ms. Dixon’s invitation to take
Haney’s “some evidence” language out of context. Instead, as relevant here, we
underscore our holding in Portillo-Vega that the “issue is whether [the defendant]
carried his burden of establishing, by a preponderance of the evidence, each
element of a duress defense.” 478 F.3d at 1200.

14
lacking as to any element of the coercion [i.e., duress] defense the trial court may

properly disallow the defense as a matter of law and refuse to instruct the jury as

to coercion [i.e., duress]”).

C

Based on the record evidence, we conclude that Ms. Dixon failed to make

out the threshold showing to present a duress defense to the jury. We are content

to resolve this case by determining that Ms. Dixon failed to establish the second

element of her duress defense—viz., Ms. Dixon failed to show that she had no

reasonable, legal alternative to violating the law. “[T]his failure alone justified a

rejection of the defense” of duress. Portillo-Vega, 478 F.3d at 1202.

The sine qua non of any justification defense is a lack of a reasonable,

lawful alternative. See Bailey, 444 U.S. at 410 (holding, in the context of

necessity, that “if there was a reasonable, legal alternative to violating the law, ‘a

chance both to refuse to do the criminal act and also to avoid the threatened

harm,’ the defense[] will fail” (quoting W. LaFave & A. Scott, H ANDBOOK ON

C RIMINAL L AW § 28, at 379 (1972))); see also Shannon v. United States, 76 F.2d

490, 493 (10th Cir. 1935) (“One who has full opportunity to avoid the act without

danger of that kind [i.e., of ‘death or serious bodily injury’] cannot invoke the

doctrine of coercion [i.e., duress] and is not entitled to an instruction submitting

that question to the jury.”). “Although some leeway needs be given to individuals

responding to an emergency, they must still act in the most responsible manner

15
available under the circumstances.” United States v. Al-Rekabi, 454 F.3d 1113,

1123 (10th Cir. 2006) (discussing a necessity defense). Moreover, “all reasonable

alternatives must be foreclosed.” Id. Under Ms. Dixon’s offer of proof, it is clear

that there were courses of action open to her other than embezzlement.

For one, Ms. Dixon could have reported the abuse to the police. Indeed,

“[t]he ability to contact law enforcement will generally constitute a reasonable

alternative to illegal activity.” Beckstrom, 647 F.3d at 1016. Ms. Dixon argues to

the contrary, averring in her affidavit that she “did not believe that the police

could prevent [her stepfather] from hurting us and I did not know if I would even

be believed.” R., Supp. Vol. I, at 132. But this is not good enough. See, e.g.,

United States v. Fraser, 647 F.3d 1242, 1246 (10th Cir. 2011) (“Before breaking

the law could have possibly become a reasonable course of action, Mr. Fraser had

to try to comply with it first. A general distrust of legal authorities isn’t enough

to excuse the failure to do so.”).

More specifically, Ms. Dixon needed to show more than just a subjective

belief that going to the police would be futile: she had to put forth “specific

reasons to doubt that the law enforcement alternative was viable.” Beckstrom,

647 F.3d at 1017; see also United States v. Gonzalez, 407 F.3d 118, 122 (2d Cir.

2005) (“Gonzalez asserted that she did not seek police intervention because she

believed the authorities ‘would not listen to her’ about Padua’s threats and

because she was reluctant to ‘giv[e] evidence against her husband.’ Gonzalez’s

16
subjective belief that going to the police would have been futile is insufficient to

demonstrate that she had no reasonable alternative but to violate the law.”

(alteration in original)).

Indeed, mere allegations that “police would have been ineffective or

unwilling to protect [Ms. Dixon] . . . . fall well short of satisfying a defendant’s

burden.” Beckstrom, 647 F.3d at 1017; see Butler, 485 F.3d at 577 (noting, in

reference to a necessity defense, that “distrust [of police] does not eliminate . . .

disclosure of the circumstances to the police as a reasonable legal alternative”);

Scott, 901 F.2d at 874 (noting that “Scott’s failure to avail himself of the readily

accessible alternative of contacting law enforcement officials is persuasive

evidence of the hollow nature of Scott’s claimed coercion [i.e., duress] defense”).

Yet, even assuming that Ms. Dixon could not report the abuse to the police

because she feared retribution from her stepfather, she has offered no evidence

that other alternatives were unavailable to her. As the district court observed,

reporting the abuse was only one alternative. She could have left
the home. She could have sought out a family member to move
in with, even if only temporarily. Also, as the Government
argues, she could have sought out friends or coworkers to move
in with or she could have sought housing assistance through the
tribe. She could have attempted to acquire a loan . . . . [S]he
had reasonable alternatives available to her.

R., Vol. I, at 99–100 (emphases added). In other words, Ms. Dixon could have

done any number of things. And, significantly, she could have done them at any

time during the three months in which she was embezzling. See Butler, 485 F.3d

17
at 576 (“[U]sually, when a defendant’s conduct spans a period of time, there are

other alternatives to the illegal conduct.” (citing United States v. Newcomb, 6

F.3d 1129, 1137 (6th Cir. 1993))); see also Beckstrom, 647 F.3d at 1017 (noting

that defendant did not claim that his drug-trafficking accomplice, who had

threatened him with unlawful violence, “prevented him from reaching out to

police during [an] entire two-week span,” and “[t]o accept [the defendant’s]

argument would allow him to seek a license to sell methamphetamine over a

lengthy period of time based on nothing more than conclusory allegations that

police would be unable or unwilling to help him”); 2 Paul H. Robinson, C RIMINAL

L AW D EFENSES § 177(h), Westlaw (database updated June 2018) (“Once a

defendant has options other than approaching law enforcement specifically, and

the time in which to pursue those options, it is no longer objectively reasonable

not to do so.”). Ms. Dixon, however, did not pursue any of those options, and

further, has yet to offer any compelling argument as to why we should believe

those alternatives were unavailable.

Accordingly, we conclude that Ms. Dixon failed to prove that she had no

reasonable, legal alternatives to embezzling. This was a sufficient basis for the

district court to rebuff her duress defense. See, e.g., Portillo-Vega, 478 F.3d at

1202.

D

18
 To be sure, Ms. Dixon contests such an outcome and argues that we should

assess her actions from the perspective of a reasonable person in the same

circumstances as she confronted—that is, through the lens of a “reasonable person

of ordinary firmness who [has been] abused for years” and who now suffers from

PTSD. Aplt.’s Opening Br. at 15. According to Ms. Dixon, such an approach

would give added texture to the first two elements of duress. Specifically, the

sexual abuse and resultant PTSD “may [have] affect[ed] the objective

reasonableness of [her] fear,” id. at 14, and “altered [her] psychology . . . in

[such] a way that demanded her to engage in an unlawful act to prevent”

what—through years of conditioning—she perceived to be an “omnipresent,”

“certain harm.” Id. at 11; Aplt.’s Reply Br. at 7.

1

We reject Ms. Dixon’s argument because it finds no home under the legal

framework that Ms. Dixon herself has advanced as the proper basis for her duress

defense—that is, Pattern Instruction 1.36. The plain text of that instruction makes

clear that the legal propriety of a defendant’s assessment of, and response to, the

circumstances that allegedly have subjected her to duress is determined by

applying an objective lens—that is, a defendant’s subjective beliefs or

perspectives are only relevant insofar as they are objectively reasonable. The

pattern instruction requires “a well-grounded apprehension,” a lack of a

19
“reasonable, legal alternative,” and a direct causal link that could have been

“reasonably anticipated.”

This language makes clear that a particular defendant’s subjective beliefs or

perspectives are not controlling; they must be objectively reasonable. See Butler,

485 F.3d at 577 (noting that the defendant’s past experiences “may well have led

him to be hesitant in trusting law enforcement to keep him and his family safe,

but such distrust does not eliminate prompt relinquishment of the gun and

disclosure of the circumstances to the police as a reasonable legal alternative”

(emphasis added) (footnote omitted)); United States v. Meraz-Valeta, 26 F.3d

992, 995 (10th Cir. 1994) (holding, as to an asserted necessity defense, which

required the defendant to establish that “there is no legal alternative to violating

the law,” that a “defendant’s subjective belief as to available legal alternatives is

not determinative”), overruled on other grounds by United States v. Aguirre-

Tello, 353 F.3d 1199 (10th Cir. 2004) (en banc); United States v. Saldivar-Munoz,

439 F. App’x 730, 735 (10th Cir. 2011) (unpublished) (“[A] defendant’s

subjective belief that he has no available legal alternatives is insufficient to

submit the question to a jury.”); see also United States v. Willis, 38 F.3d 170, 175

(5th Cir. 1994) (noting that the “requirements” of the duress defense evince an

“objective formulation,” more specifically, they “are addressed to the impact of a

threat on a reasonable person” in that “[t]he fear of death or serious bodily injury

20
must be ‘well-grounded[]’” and “[t]here must be no ‘reasonable’ alternative to

violating the law.”); accord United States v. Dixon, 413 F.3d 520, 523 (5th Cir.

2005) (“[T]he 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.”), aff’d on other grounds, 548 U.S. 1 (2006).

Compare 2 Kevin F. O’Malley, et al., F ED . J URY P RAC . & I NSTR . § 35:06, Westlaw

(6th ed. database updated Aug. 2018)) (noting that the Ninth Circuit’s Jury

Instructions Committee that fashioned the duress-defense instruction “interprets

‘well founded’ and ‘well grounded’ to be an objective test”), with N INTH C IR .

M ODEL C RIM . J URY I NSTR . § 6.6 & cmt. (2010 ed., last updated June 2018)

(instructing that the necessity defense requires the defendant to prove, inter alia,

that “there were no other legal alternatives to violating the law,” and noting the

Committee’s belief that this defense should be “analyzed through an objective

framework”).

Notably, at least the most salient federal decisions that have demonstrated a

receptivity to arguments akin to Ms. Dixon’s have relied in significant part on the

linguistic formulation of the duress defense adopted by the Model Penal Code

(“MPC”), which frames the inquiry as whether a defendant “was coerced” to

commit the crime by “the use of, or a threat to use, unlawful force against his

person or the person of another, that a person of reasonable firmness in his

21
situation would have been unable to resist.” M ODEL P ENAL C ODE AND

C OMMENTARIES § 2.09(1), at 367 (Am. Law Inst. 1985) (emphasis added) (bold

font omitted) [hereinafter MPC]; see United States v. Nwoye (“Nwoye II”), 824

F.3d 1129, 1137 (D.C. Cir. 2016) (“Reasonableness—under both the imminence

prong and the no-reasonable-alternative prong—is not assessed in the abstract.

Rather, any assessment of the reasonableness of a defendant’s actions must take

into account the defendant’s ‘particular circumstances,’ at least to a certain

extent . . . . Examination of the particulars of the duress defense shows that

expert testimony on battered woman syndrome can indeed identify relevant

aspects of a battered woman’s particular circumstances.” (citations omitted,

including to MPC § 2.09) (quoting United States v. Nwoye (“Nwoye I”), 663 F.3d

460, 464 (D.C. Cir. 2011))); see also United States v. Johnson, 956 F.2d 894, 898,

900 (9th Cir. 1992) (discussing, on the one hand, the objective features of the

MPC’s duress-defense formulation and the idea that under that formulation “a

purely subjective element [] cannot be taken into account in determining criminal

liability,” and, on the other hand, noting that the MPC’s “commentary expands

the defense” in a way that may make evidence of Battered Woman’s Syndrome

(“BWS”) relevant), superseded by regulation on other grounds as recognized by

U.S. v. Martinez-Martinez, 369 F.3d 1076 (9th Cir. 2004); United States v.

Marenghi, 893 F. Supp. 85, 94 (D. Me. 1995) (“This Court is reluctant to . . .

22
establish[] a per se rule of excluding expert testimony that may be characterized

as addressing battered woman syndrome [in cases where a defendant asserts a

duress defense]. Part of the complexity of the issue is that the distinction

between subjective and objective evidence is not as clear as the Government

asserts here.” (citing MPC § 2.09)).

However, the linguistic formulation of Pattern Instruction 1.36 is patently

different from the MPC’s and, perhaps most notably, does not include the MPC’s

“in his situation” language, which appears to have been taken by the

aforementioned courts as an invitation to consider, in assessing the propriety of

an asserted duress defense, evidence regarding a psychological disorder that even

the government here acknowledges is “similar” to PTSD, Aplee.’s Resp. Br. at

25—that is, BWS. Consequently, given this linguistic difference, we do not read

our Pattern Instruction 1.36 as offering the same or similar invitation to consider

evidence relating to conditions like PTSD. And, more specifically, we conclude

that under our pattern instruction the legal propriety of a defendant’s assessment

of, and response to, the circumstances that allegedly have subjected her to duress

is determined by applying an objective lens—a lens that is closed to Ms. Dixon’s

evidence that would ostensibly demonstrate the subjectively distorting impact of

PTSD on her ability to reasonably perceive the threat of harm and legal

alternatives to avoid it. Under our pattern instruction, the touchstone is still what

23
is objectively reasonable—not what is reasonable only through the PTSD-

distorted lens of Ms. Dixon.

This is not to say that the linguistic formulation of Pattern Instruction 1.36

is purely objective. The instruction’s focus is on the perceptions and actions of

“the defendant,” not on those of some hypothetical reasonable person. Compare

Objective Standard, B LACK ’ S L AW D ICTIONARY (10th ed. 2014) (“A legal

standard that is based on conduct and perceptions external to a particular person.

[] In tort law, for example, the reasonable-person standard is considered an

objective standard because it does not require a determination of what the

defendant was thinking.”), and Bryan A. Garner, A D ICTIONARY OF M ODERN

L EGAL U SAGE 737 (2d ed. 1995) (noting that “[t]he reasonable person” is “a

hypothetical legal standard”), with Robinson, supra, § 177(f) (questioning the

advisability of a purely objective statutory standard for duress that would permit

an excuse so long as a reasonable person would be coerced by the threatened

harm, and noting that ordinarily “the excusing condition of the duress defense

requires that at the time of the conduct constituting the offense the actor suffer an

impairment of his ability to control his conduct such that he cannot properly be

held accountable for it,” that is “the actor must in fact suffer the relevant

disability” (first emphasis added)), and id. §161(b)(5) (“What is critical is

whether the disability in fact causes the necessary loss of control of the conduct

24
that constitutes the offense.”). The formulation of the pattern instruction does

demand, however, that those perceptions and actions be reasonable. And, because

the focus is on a particular defendant (rather than a hypothetical one), certain

specific circumstances confronting that particular defendant may influence the

factfinder’s evaluation of whether her conduct is reasonable. For example, as

salient here, if the particular defendant is a quadriplegic, ordinarily it would not

be a “reasonable, legal alternative” for that defendant to physically run away

from an “unlawful and present, imminent and impending threat . . . of death or

serious bodily injury” that was presented by an able-bodied assailant, Pattern

Inst. 1.36 —but it might be reasonable for a defendant not afflicted by

quadriplegia to do so.

The fact, however, that the linguistic formulation of Pattern Instruction

1.36 contemplates consideration of whether the objective reasonableness of a

particular defendant’s conduct has been materially influenced by external,

concrete factors unique to her does not mean that this language similarly

contemplates that the factfinder should take into account whether the objective

reasonableness of the defendant’s conduct has been influenced by non-tangible

psychological conditions that ostensibly alter the defendant’s subjective beliefs or

perceptions. Indeed, even some language in the seemingly less restrictive MPC

envisions that, while externally verifiable circumstances may be factored into the

25
duress calculus, circumstances that are not so verifiable may not be. See MPC §

2.09, cmt. 3, at 375 (noting that “account is taken of the actor’s ‘situation,’. . . .

[s]tark, tangible factors that differentiate the actor from another, like his size,

strength, age or health, would be considered in making the exculpatory

judgment,” but “[m]atters of temperament would not” (emphasis added)); see also

Marx v. State, 724 S.W.2d 456, 459 (Ark. 1987) (“[I]f the actor were blind or if

he had just suffered a blow or experienced a heart attack, these would certainly be

facts to be considered, but heredity, intelligence or temperament of the actor

would not.”).

It is helpful in understanding this distinction to note that the objective

lens—which is embodied in the language of Pattern Instruction 1.36—reflects an

historical view that the characteristics of this particular “excuse” for criminal

conduct (i.e., the duress defense) call for the imposition of clearly defined and

concrete boundaries to distinguish between those defendants who are worthy of

exculpation and all others. See 2 Robinson, supra, § 177(c)(3) (“It may seem that

duress is unique among excuses in requiring that the threat causing the disability

meet an objective standard . . . . [T]he special objective restriction on the cause

of the disability in duress is necessary to ensure conformity with a characteristic

that is inherent in the other excuses. By requiring that an actor be intoxicated or

insane, those excuses automatically ensure that an excuse will be available only

26
for defendants with a demonstrable defect that distinguishes them from the

general population. In contrast, the bare, unqualified disability in duress, a state

of coercion, carries no such assurance; everyone is subject to pressures, demands,

and urges every day.”); id. § 161(b)(1) (“[W]here an actor engages in criminal

conduct with the same knowledge and appreciation of its nature, consequences,

and wrongfulness or criminality as a normal person, yet claims an impairment of

control, rather than a gross condition of involuntary conduct, then society is

generally unwilling to excuse unless there is a clear, confirmable, almost

compelling disability.”); cf. Al-Rekabi, 454 F.3d at 1124 (“A claim of necessity

may be little more than an ex-post attempt by defense counsel to exculpate a

client. Such a claim is easily made and so must be factually justified. ‘Vague

and necessarily self-serving statements of defendants or witnesses as to . . .

ambiguous conduct simply do not support a finding of this element of the

defense.’ Demanding a prompt and appropriate remedial response to the claimed

‘necessity’ is a legitimate precondition to recognizing the defense and is also a

useful tool in measuring the bona fides of a claimant.” (citation omitted) (quoting

Bailey, 444 U.S. at 415)).

In sum, the analytical framework established by our Pattern Instruction

1.36—which Ms. Dixon herself has advanced before the district court and on

appeal—makes clear that the legal propriety of a defendant’s assessment of, and

27
response to, the circumstances that allegedly have subjected her to duress is

determined by applying an objective lens. That lens is closed to Ms. Dixon’s

evidence that would ostensibly demonstrate the subjectively distorting impact of

PTSD on her ability to reasonably perceive the threat of harm and legal

alternatives to avoid it. As relevant here, the guidepost of our pattern instruction

is not what is reasonable only through the PTSD-distorted lens of Ms. Dixon but,

rather, what is objectively reasonable. And, as demonstrated in Part II.C, supra,

the district court did not err in finding that Ms. Dixon’s duress defense was

legally insufficient under the analytical framework of our pattern instruction

because she had reasonable, legal alternatives to violating the law.

2

We recognize that on appeal Ms. Dixon appears to tacitly ask us to apply a

different rubric than the one Pattern Instruction 1.36 establishes. In this regard,

she cites for the first time before us the salient federal cases that have embraced

the MPC’s linguistic formulation of the duress defense and, more specifically, its

“in his situation” language, in holding that evidence of a psychological condition

arguably akin to PTSD (i.e., BWS) might be factored into the duress calculus.

See Aplt.’s Opening Brief at 12 (citing Marenghi in arguing that “[i]t is

informative for the Court to look at the whole picture and not just the snapshot of

the time immediately prior to the theft to assess the viability of the defense of

28
duress”); id. at 14–15 (citing Johnson, in contending that “Ms. Dixon suffered

from repeated abuse such that a reasonable juror could find that her fears were

well-grounded”); Aplt.’s Reply Br. at 8 (citing Nwoye II, in asserting that “[t]o

understand the reasonableness of the response, or lack thereof, one has to

understand the effects of long-term abuse”). Yet, even with her citations to cases

like Johnson, Nwoye II, and Marenghi, Ms. Dixon still paradoxically points to

Pattern Instruction 1.36 for the “three elements” of her defense, Aplt.’s Opening

Br. at 11, and does not expressly disclaim that instruction’s framework.

The consequence of Ms. Dixon’s litigation approach for her arguments on

appeal is probably readily apparent, but lest there be any doubt, we state the

matter plainly: Ms. Dixon has failed to preserve any opportunity to argue for

reversal under a duress-defense rubric other than the one that Pattern Instruction

1.36 defines. Notably, she forfeited such an argument before the district court,

and has waived it before us by failing to “run the gauntlet created by our rigorous

plain-error standard of review.” United States v. McGehee, 672 F.3d 860, 876

(10th Cir. 2012). See, e.g., Havens v. Colo. Dep’t of Corrs., --- F.3d ----, No. 16-

1436, 2018 WL 3580861, at *6 (10th Cir. July 26, 2018) (“We conclude that Mr.

Havens has forfeited the argument that Title II validly abrogates sovereign

immunity as to his claim by failing to raise this argument before the district court,

and he has effectively waived the argument on appeal by not arguing under the

29
rubric of plain error.”); Fish v. Kobach, 840 F.3d 710, 729–30 (10th Cir. 2016)

(noting that a forfeited argument not pursued under the plain-error framework on

appeal may be deemed “effectively waived”); Richison v. Ernest Grp., Inc., 634

F.3d 1123, 1128 (10th Cir. 2011) (discussing the circumstances giving rise to

forfeiture).

***

In light of the foregoing, we conclude that the district court did not err in

rejecting Ms. Dixon’s duress defense and her tendered duress instruction.

Specifically, under the framework of Pattern Instruction 1.36—which Ms. Dixon

herself endorsed—she could not show that she had no reasonable, legal alternative

to violating the law.

III

For the foregoing reasons, we AFFIRM the district court’s judgment.

30