United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 14, 2011 Decided December 9, 2011
No. 08-3051
UNITED STATES OF AMERICA,
APPELLEE
v.
QUEEN NWOYE,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No.1:07-cr-00012)
A. J. Kramer, Federal Public Defender, argued the cause
and filed the briefs for appellant. Neil H. Jaffee and Jonathan
S. Jeffress, Assistant Federal Public Defenders, entered
appearances.
Suzanne G. Curt, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Roy W. McLeese III,
Elizabeth Trosman, and Frederick W. Yette, Assistant U.S.
Attorneys.
Before: TATEL and BROWN, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the court filed by Circuit Judge BROWN.
Dissenting opinion filed by Circuit Judge TATEL.
BROWN, Circuit Judge: Appellant, Queen Nwoye
(“Nwoye”), was convicted of conspiring with a male
accomplice, Adriane Osuagwu (“Osuagwu”), to extort money
from Dr. Ikemba Iweala (“Iweala”), by threatening to expose
their brief extramarital affair to his wife and the medical
licensing board. At trial, Nwoye’s attorney proffered
evidence in support of a duress defense. The district court
permitted Nwoye to testify as to the facts of her alleged
duress, but declined to instruct the jury about the defense.
Nwoye now appeals her conviction on the grounds that the
district court improperly denied her a duress instruction and
improperly instructed the jury on venue. Because Nwoye is
not entitled to a duress instruction and because there was no
plain error regarding the venue instruction, we affirm.
I
After Nwoye, a native of Nigeria, came across Dr.
Iweala’s name on prescriptions she handled as a pharmacy
technician, she left phone messages pretending to be a relative
of his in order to get his attention. She succeeded, and for a
few months in 2002, Nwoye and the doctor were lovers. The
romantic part of their relationship ended amicably, and
Nwoye and Iweala remained friendly. Nwoye, who had
earned an accounting degree in Nigeria, was married and had
children. She began attending nursing school sometime after
her affair with Iweala and has since graduated and is a
registered nurse.
In the summer of 2005, Nwoye and her husband agreed
to a separation. Around the same time, she met Osuagwu and
3
began a romantic relationship with him. In February of 2006,
Nwoye told Osuagwu about her affair with Iweala. At
Osuagwu’s urging, Nwoye telephoned Iweala and asked him
to speak with Osuagwu, who she introduced, using a
pseudonym, as her “cousin.” This conversation began a series
of extortion demands with which Nwoye urged Iweala to
comply. In fact, the plot spanned two months and featured a
series of five separate demands for money, three instances in
which Nwoye herself collected money from Iweala alone, one
coordinated and successful effort by Nwoye and Osuagwu to
extract even more money by lying to Iweala and insisting
Nwoye had kept all of the money for herself, and one
particularly dramatic incident in which Nwoye lured Iweala to
meet her in the parking lot of Providence Hospital in
Washington, D.C. by falsely claiming a desire to return his
money and to renew their sexual liaison. That night, she went
with Osuagwu to the hospital parking lot, and once she and
Iweala were alone in her car, in flagrante delicto, Osuagwu
took photographs to use as leverage, at which point Iweala
fled the car. The extortion did not come to an end until the
conspirators had extracted $185,000; Iweala then confessed
his indiscretions and contacted the FBI. Shortly thereafter,
Nwoye returned to her husband and contacted a law
enforcement agency in Nigeria, the Economic and Financial
Crime Commission (“EFCC”), to report Osuagwu’s criminal
activity.
At trial, Nwoye testified she did not want to extort money
from Iweala but that, throughout this extortion scheme,
Osuagwu physically abused her and forced her to participate.
At his insistence, she wore a Bluetooth earpiece so the two
could be in constant telephone contact and so Osuagwu could
monitor her conversations and activities. She also claimed
that Osuagwu said he was an FBI agent, as well as a nurse.
He threatened to kill her if she failed to cooperate. She feared
4
contacting the police because she thought Osuagwu could use
his supposed law enforcement connections to discover her
betrayal and retaliate against her.
Based on these alleged threats, Nwoye’s attorney
requested the jury be instructed on a duress defense.1 A
defendant is only entitled to an instruction on a theory of
duress if there is “sufficient evidence from which a reasonable
jury could find” for the defendant on that theory. United
States v. Akhigbe, 642 F.3d 1078, 1083 (D.C. Cir. 2011). The
district court found Nwoye’s testimony insufficient to support
the instruction. We review this determination de novo.
United States v. Kayode, 254 F.3d 204, 214 (D.C. Cir. 2001).
II
The affirmative defense of duress is only available to a
defendant who shows she acted “under an unlawful threat of
imminent death or serious bodily injury.” United States v.
Bailey, 444 U.S. 394, 409 (1980). The threat must be both
grave and so “immediate,” United States v. Gaviria, 116 F.3d
1498, 1531 (D.C. Cir. 1997), as to preclude “any reasonable,
legal alternative to committing the crime,” United States v.
Jenrette, 744 F.2d 817, 820 (D.C. Cir. 1984); see also United
States v. Rawlings, 982 F.2d 590, 593 (D.C. Cir. 1993) (“[A]
defendant cannot claim duress when he had, but passed up, an
opportunity to seek the aid of law enforcement officials.”). A
defendant who has the opportunity to avoid committing a
crime, either by contacting police or by otherwise removing
herself from a threatening situation, cannot seek to excuse her
criminal conduct by claiming to have acted under duress.
1
Before Nwoye testified, the government objected to the proposed
instruction but stated it would nonetheless not prevent Nwoye from
testifying to these threats or her alleged abuse.
5
This Court has affirmed denials of the duress defense
even in quite harrowing situations. In Gaviria, we denied the
defense for a defendant whose teenage daughter was in the
physical custody of a co-conspirator, with a history of
physical abuse against the daughter, who coerced the
defendant’s cooperation for thirteen months “by reminding
him that [the daughter] was ‘in his hands.’” 116 F.3d at 1531.
But, because of the defendant’s “ample opportunities” to
inform his daughter, other members of his family, his
daughter’s school principal, or any number of other people
about that threat, we concluded the defendant’s claim of
duress “border[ed] upon the frivolous.” Id. The requirement
of immediacy is also not equivocal. A defendant who had just
two days between the receipt of a threat and the inception of
the conspiracy during which he could have contacted the
authorities or sought help failed to meet it. Jenrette, 744 F.2d
at 821.
Our sister Circuits have imposed a similarly high bar. In
United States v. Alicea, the Second Circuit denied the defense
to female defendants forced to transport drugs after having
been raped by their captors, told they were under constant
visual surveillance during a nine-hour plane flight, and
threatened with the deaths of their families if they failed to
cooperate because they could have “complain[ed] to the cabin
attendants” during the flight or sought assistance from
Immigration and Customs officers after landing. 837 F.2d
103, 105–06 (2d Cir. 1988); see also R.I. Recreation Ctr. v.
Aetna Cas. & Sur. Co., 177 F.2d 603, 604–05 (1st Cir. 1949)
(affirming denial of defense for defendant accosted by armed
men who drove him at gunpoint to his office building, ordered
him to take money out of his safe, and threatened they would
“take care of” his family if he did not comply, because the
threat was of “future unspecified harm” and because he was
6
free in the minutes he was alone in the office building to call
someone for help).
Without denying the compelling nature of Osuagwu’s
alleged threats or of the abuse Nwoye claims to have
received, Nwoye’s testimony falls far short of the duress
claimed in, and ultimately denied by, our precedents. She had
ample opportunities to notify law enforcement either directly
or indirectly or, even more basically, to avail herself of
“reasonable, legal alternative[s] to committing the crime,”
Jenrette, 744 F.2d at 820, by extricating herself from the
conspiracy. Three days a week, she attended nursing school
classes or worked at a hospital, and was physically separated
from Osuagwu. While there, she could have contacted police
herself or asked teachers or classmates to do so or to help her
escape Osuagwu’s control. She ordinarily met with Iweala
alone for at least a few minutes when she collected money
from him, and on one occasion she went to collect money
from him entirely on her own. She could have told him then
that she was being coerced, that she needed help, and that he
should contact authorities himself and put an end to the
unlawful activity.2 She let these opportunities pass.
Finally, Osuagwu spent nearly two weeks in California,
thousands of miles away from Nwoye. During that time, their
only contact was by telephone. And though Nwoye testified
they were in constant contact, she could have turned off the
phone, talked to her husband, her friends, or the police, and
fled to safety with her children before Osuagwu could even
2
Nwoye claimed at trial that she tried to confess to Iweala once,
and that he would not listen to her. But this attempt came weeks
into the extortion plot and after the parking lot incident, which
demonstrated to Iweala the likely hollowness of any promise by
Nwoye to renounce her role in the plot.
7
get through airport security.3 And even if Nwoye wanted to
avoid an open breach of her arrangement with Osuagwu, she
could have explained any gap in their cell phone contact as
the result of spotty cell coverage, a trip on the Metro, or a
dead battery. She failed to take any advantage of Osuagwu’s
absence. A defendant with such “countless opportunities to
contact law enforcement authorities or [to] escape the
perceived threats” cannot as a matter of law avail herself of
the duress defense. United States v. Scott, 901 F.2d 871, 874
(10th Cir. 1990). Compared to the duress claims of
defendants who had only days, Jenrette, 744 F.2d at 821, or
even minutes, Alicea, 837 F.2d at 106, in which they could
have sought help, Nwoye’s claim of duress is incredibly thin.
If the attempts of those defendants to avail themselves of a
duress defense failed, then a fortiori, Nwoye’s attempt must
fail as well.
Nwoye counters that she was especially vulnerable as a
recent immigrant who believed her fate was in the control of a
corrupt law enforcement agent. She relies on the Ninth
Circuit’s decision in United States v. Contento-Pachon, 723
F.2d 691 (9th Cir. 1984), for the proposition that this belief
excuses her failures to seek help or to extricate herself from
the conspiracy. Contento-Pachon involved a defendant who
transported drugs from Colombia to the United States and
who was permitted to claim duress, in spite of his failure to
contact police. The court found the evidence sufficient for a
3
That this was a viable option is borne out by the fact that Nwoye
eventually did precisely that even though nothing had changed with
regard to the threat Osuagwu posed: Nwoye simply testified that
her “consciousness came back,” at which point she returned to her
husband’s home and from there contacted the EFCC in her home
country of Nigeria. Tr. 440, Nov. 1, 2007. And in fact, a month
after that, Nwoye voluntarily flew to California to visit Osuagwu,
apparently no longer concerned he would harm her.
8
jury to determine he reasonably believed that he was being
constantly watched and that Colombian and Panamanian
police were corrupt and were “paid informants for drug
traffickers.” Id. at 694.
Assuming Contento-Pachon is applicable, the critical
question is whether Nwoye’s belief was objectively
reasonable, see United States v. Posada-Rios, 158 F.3d 832,
873–74 (5th Cir. 1998), taking into account her particular
circumstances. Thus, although we take it as true that Nwoye
believed Osuagwu when he told her he was an FBI agent, we
must still decide whether the belief itself and the inferences
she drew from this belief—namely, that all police forces were
corrupt and that she therefore had nowhere to turn for help—
were reasonable. We are not persuaded that a jury could
reasonably so find. First, our opinion in Gaviria suggests a
defendant must “provide[] . . . concrete evidence in support of
[an] assertion” that the authorities are corrupt and therefore
not an available avenue of escape. 116 F.3d at 1531; accord
United States v. Jankowski, 194 F.3d 878, 883 & n.3 (8th Cir.
1999) (rejecting duress defense where defendant’s “only
evidence of having no reasonable, legal alternative was that
he had a subjective belief . . . that going to the police would
be futile” and observing that the “well-documented
circumstances” of corruption in the Colombian police force
are lacking with respect to police in this country absent
specific evidence); United States v. Riffe, 28 F.3d 565, 568
(6th Cir. 1994), abrogated on other grounds by Dixon v.
United States, 548 U.S. 1 (2006) (accepting duress defense
only because defendant supported his belief in danger of
contacting authorities with personal prior experience of
having been stabbed while in protective custody); Scott, 901
F.2d at 874 (rejecting defendant’s “amorphous belief” of
futility of contacting police as “neither substantiated by the
evidence nor defined as to its scope and coverage”). Nwoye
9
has provided no evidence of corruption beyond her
conclusory assertion that police and FBI “all work together
for the government” and that anything she told the authorities
would find its way to Osuagwu. Tr. 417, Nov. 1, 2007.
Second, we squarely held in Gaviria that Contento-
Pachon is distinguishable from cases where a defendant “had
access to a number of” people other than allegedly corrupt
police officers, including relatives, and from cases involving
conspiracies lasting for months at a time rather than for one
“single flight,” which by their length present more
opportunities for escape. 116 F.3d at 1531–32. In other
words, 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. In fact, even the Ninth Circuit distinguished Contento-
Pachon in a case involving a defendant who was not under
constant visual surveillance by his coercers and who was
involved in a conspiracy that lasted for more than a year and
that had “times of inactivity,” finding his claim that he had
“no reasonable means of escape” fatally flawed as a result.
United States v. Jennell, 749 F.2d 1302, 1306 (9th Cir. 1984).
Duress thus requires more than simply having no opportunity
to contact the police in particular; rather, it requires that a
defendant have no “legal alternative to committing the
crime.” Jenrette, 744 F.2d at 820.
Finally, Nwoye suggests the mere whiff of battered
woman syndrome (BWS) arising from these facts should alter
the duress determination or the application of Contento-
Pachon. Nwoye was permitted to testify at length about the
facts of her abuse, but she did not present BWS as a theory of
defense at trial. In fact, although Nwoye described some
threats and physical abuse, her theory is devoid of the other
usual indicia supporting a BWS defense—expert witnesses
10
testifying to the effects of isolation, financial dependence, or
estrangement from family members. E.g. United States v.
Marenghi, 893 F. Supp. 85, 94–95 (D. Me. 1995). Indeed, as
discussed earlier, Nwoye had many alternative sources of
protection and support.
Like the defendants in Gaviria and Jennell, and unlike
the defendant in Contento-Pachon, Nwoye had access to
relatives, classmates, and teachers with whom she could seek
refuge. She was not under constant visual surveillance. The
conspiracy in which she participated lasted for months. Even
if we found Nwoye’s belief regarding the dangers of
contacting police objectively reasonable, it would not excuse
her failure to simply seek sanctuary with others, particularly
in the weeks when Osuagwu was thousands of miles away.
Because she had several reasonable options, no reasonable
juror could have found Nwoye lacked a legal alternative to
committing the crime. The district court correctly declined to
instruct the jury on the affirmative defense of duress. Bailey,
444 U.S. at 415 (requiring evidence to “meet a minimum
standard as to each element” of a defense in order for the jury
to be instructed on that defense).
III
The conspiracy instruction given by the district court did
not require the jury to find that any overt act occurred in
Washington, D.C., and Nwoye did not ask the district court to
have the jury determine venue. In fact, Nwoye’s counsel
expressly agreed there was “no issue” regarding venue, and
with his consent, the district court explained to the jury that
venue is not a question for them and that they simply needed
to find an overt act had been proven beyond a reasonable
doubt. Tr. 470–71, Nov. 1, 2007. “[B]efore an appellate
court can correct an error not raised at trial,” there must be an
11
error that is plain and that affects substantial rights, and the
error must “seriously affect[] the fairness, integrity, or public
reputation of judicial proceedings.” Johnson v. United States,
520 U.S. 461, 467 (1997).
Here, there was no error of any kind. Venue is a jury
question only if “the defendant objects to venue prior to or at
the close of the prosecution’s case-in-chief,” “there is a
genuine issue of material fact with regard to proper venue,”
and “the defendant timely requests a jury instruction.” United
States v. Haire, 371 F.3d 833, 840 (D.C. Cir. 2004), vacated
on other grounds, 543 U.S. 1109 (2005). Nwoye neither
objected to venue nor requested a jury instruction, and there
was no “genuine issue” regarding venue in this case.
Nwoye’s own testimony described at least one overt act in
furtherance of the conspiracy that occurred in the District of
Columbia: the incident in which Nwoye and Osuagwu lured
Iweala to the Providence Hospital parking lot in Northeast
D.C. to take compromising photographs. She also collected
payments from Iweala at Providence Hospital on two
occasions. Each incident is sufficient to establish venue in the
District. United States v. Lam Kwong-Wah, 924 F.2d 298,
301 (D.C. Cir. 1991).
Nwoye chooses to focus on procedure, arguing that the
question of venue cannot be left in the hands of the judge to
be decided by a preponderance of the evidence, e.g. United
States v. Morgan, 393 F.3d 192, 195 (D.C. Cir. 2004), but
must be submitted to the jury to be decided beyond a
reasonable doubt. She argues the former is inconsistent with
the Sixth Amendment and with the Supreme Court’s decision
in United States v. Gaudin, 515 U.S. 506, 522–23 (1995),
requiring “every element of the crime” to be decided by a
jury. But the Supreme Court in Gaudin “did not reach the
question whether venue is an element of the offense.” United
12
States v. Shepherd, 102 F.3d 558, 565 (D.C. Cir. 1996). In
fact, three justices concurred in Gaudin to explain that venue
remained a question to be decided by the judge by a
preponderance of the evidence. 515 U.S. at 525–26
(Rehnquist, C.J., O’Connor & Breyer, J.J., concurring). We
have not decided the question, Shepherd, 102 F.3d at 565, and
need not resolve it here. Absent controlling precedent on the
issue or some other “absolutely clear” legal norm, the district
court committed no plain error. In re Sealed Case, 573 F.3d
844, 851 (D.C. Cir. 2009).
IV
The district court properly denied Nwoye’s request for a
duress instruction and did not plainly err in its jury instruction
relating to venue. The conviction is therefore
Affirmed.
TATEL, Circuit Judge, dissenting: Born, raised, and
educated in Nigeria, Queen Nwoye came to the United States
only five years before the events in this case. At her trial,
Nwoye took the stand and gave a harrowing account of her
relationship with her boyfriend Adriane Osuagwu—testimony
that we must accept as true for purposes of the issue before
us. United States v. Glover, 153 F.3d 749, 752 (D.C. Cir.
1998). According to Nwoye, Osuagwu regularly assaulted
her, “slugg[ing]” and “beating” her even “for little
arguments.” Trial Tr. at 371, 391, 393 (Nov. 1, 2007). He
controlled her finances, used her ATM card, charged her
credit cards, and told her how to spend her money. She
testified that Osuagwu “was in total control,” id. at 370,
monitoring her constantly and forcing her not only to keep her
phone on and answer immediately, but also to stay on the
phone with him via Bluetooth headset during her nursing
school classes.
When Osuagwu learned that Nwoye had had a previous
affair with a married man, Ikemba Iweala, he demanded that
she introduce him to Iweala. Osuagwu suspected that Iweala
would be willing to pay a handsome amount to keep the affair
secret. When Nwoye refused to make the introduction,
Osuagwu beat her, she capitulated, and the extortion began.
When she later resisted continuing with the plot, Osuagwu
beat her until she was “helpless.” Id. at 373. Each time Nwoye
met with Iweala, Osuagwu either accompanied her or, as
Nwoye’s phone records confirm, monitored her by phone. He
hit her when she failed to “do [her part] right” and threatened
to “strangle” and “bury [her] right in [her] house” if the
scheme was exposed. Id. at 374, 381. “I was so scared. I
didn’t know who to talk to.” Id. at 380. She followed
Osuagwu’s instructions because “I was scared. I was so
scared of this guy.” Id. at 371.
Nwoye testified that Osuagwu told her that he worked for
the FBI. Asked by the government why she never called the
2
police about the extortion or Osuagwu’s threats, Nwoye
explained that she thought that police “all work together for
the government” and that reporting him would lead to “more
trouble.” Id. at 417. “It’s not easy,” she testified. “This is an
FBI guy. He would find out.” Id. at 400. When the prosecutor
pointed out that law enforcement agents could be arrested if
reported, Nwoye responded, “Who are you going to tell?” Id.
Based on this testimony, Nwoye requested a duress
instruction. The district court refused, and the jury convicted
her.
***
Duress is a classic affirmative defense. To prevail on a
duress defense, a defendant must convince the jury that (1)
she “acted under the threat of immediate death or serious
bodily injury,” United States v. Gaviria, 116 F.3d 1498, 1531
(D.C. Cir. 1997) (per curiam), and (2) that she “had no
reasonable legal alternative to committing the crime,” id., i.e.,
no “chance both to refuse to do the criminal act and also to
avoid the threatened harm,” United States v. Bailey, 444 U.S.
394, 410 (1980) (internal quotation marks omitted). “[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). To obtain a duress instruction,
a defendant “need not produce strong evidence.” United
States v. Jenrette, 744 F.2d 817, 821 (D.C. Cir. 1984); see
also United States v. Riffe, 28 F.3d 565, 570 (6th Cir. 1994)
(“so long as there is even weak supporting evidence, refusal
to give the instruction is reversible error” (internal quotation
marks omitted)), abrogated on other grounds by Dixon v.
United States, 548 U.S. 1 (2006). Because “in a criminal case
3
the law assigns [the fact-finding function] solely to the jury,”
Sandstrom v. Montana, 442 U.S. 510, 523 (1979)—and
indeed because criminal defendants like Nwoye enjoy a
constitutional right to trial by jury—a district court may not
refuse a duress instruction unless “the evidence is insufficient
as a matter of law to support a finding of duress.” Jenrette,
744 F.2d at 821.
Given our obligation to take Nwoye’s testimony as true
and to view all evidence in the light most favorable to her, the
record contains more than enough evidence to have warranted
a duress instruction. Nwoye testified that Osuagwu repeatedly
beat her and threatened to kill and bury her in her own house
unless she followed through with the extortion. This threat is
hardly vague or speculative. By any definition, it qualifies as
“act[ing] under the threat of immediate death or serious
bodily injury.” Gaviria, 116 F.3d at 1531. This case is thus
nothing like Jenrette where the defendant presented no
specific reason to fear bodily harm except that he heard the
bribe-giver was “a tough guy.” 744 F.2d at 821 & n.5.
The only question, then, is whether Nwoye had a
reasonable legal alternative to committing the crime. The
government presents a sensible legal alternative: call the
police! And the court agrees, as do I, that calling the police
would have been a wise choice. But Nwoye has a response.
Because she believed that Osuagwu worked for the FBI, she
feared not only that anything she reported to the police would
get back to him and that he would kill her, but also that—and
again because she thought he was part of the FBI—the police
would neither protect her nor investigate him. “This,” she
testified, “is an FBI guy. He would find out.” “Who are you
going to tell?”
4
To the American-born, highly educated, legally
sophisticated judges of this court, Nwoye’s fears are
unreasonable. They fault her for “provid[ing] no evidence of
corruption beyond her conclusory assertion that police and
FBI ‘all work together for the government’ and that anything
she told the authorities would find its way to Osuagwu.” Maj.
Op. at 9. But to obtain a duress instruction, she needed no
evidence that police were actually corrupt or that they
actually worked together or that they would actually tell
Osuagwu that she reported him. She needed only a reasonable
belief that the police would refuse to protect her, and
reasonableness is quintessentially a question for the jury.
United States v. Gaudin, 515 U.S. 506, 512 (1995)
(“[D]elicate assessments of the inferences a reasonable
decisionmaker would draw from a given set of facts and the
significance of those inferences to him is peculiarly one for
the trier of fact.” (alterations, omission, and internal quotation
marks omitted)); see also United States v. Duncan, 850 F.2d
1104, 1117 (6th Cir. 1988) (The test for sufficiency to reach a
jury “[c]ertainly . . . cannot be one of reasonableness. It is not
for the judge, but rather for the jury, to appraise the
reasonableness or the unreasonableness of the evidence . . . .
To hold otherwise would be tantamount to a grant of partial
summary judgment to the Government in a criminal case.”
(internal quotation marks omitted)). And a jury of Nwoye’s
peers, reflecting “the commonsense judgment of a group of
laymen,” Williams v. Florida, 399 U.S. 78, 100 (1970), might
well view the record very differently than do the judges of
this court. The jury, observing the testimony of an abused
woman and recent immigrant subject to the brutal control of a
man she believed was part of American law enforcement and
forced by him to participate in an unlawful conspiracy, might
well believe her and conclude that she actually thought—and
given her situation, reasonably thought—that any attempt to
5
call the authorities would end in her ruin. See McCleskey v.
Kemp, 481 U.S. 279, 311 (1987) (“[J]urors bring to their
deliberations qualities of human nature and varieties of human
experience, the range of which is unknown and perhaps
unknowable.” (internal quotation marks omitted)); Taylor v.
Louisiana, 419 U.S. 522, 532 n.12 (1975) (the jury’s
“perspective on human events . . . may have unsuspected
importance” to a defendant); see also Oral History: Judge
William B. Bryant (1911–2005) at 146, available at
http://www.dcchs.org/WilliamBBryant/WilliamBBryant_com
plete.pdf (“I’ve known judges who would be completely
horrified and think you were out of your mind if you indicated
that you thought from time to time a policeman wasn’t telling
the truth. And they couldn’t understand why anybody would
disbelieve a policeman. A lot of jurors know better. They
have been around, and they have seen what happens in the
streets and some of them have been exposed to some
things . . . .”).
None of the cases the court cites support taking the
question of reasonableness from the jury. In Jenrette, the
defendant testified that he was under duress to accept a bribe
because the two bribe-givers “deliberately portrayed
themselves as mobsters” and that “because he suffers from
paranoia induced by alcoholism, this ‘gangster image’
induced a reasonable fear of imminent danger.” 744 F.2d at
821. Instead of dismissing this belief—as this court dismisses
Nwoye’s—we assumed its reasonableness. See id.
(“Assuming that Jenrette reasonably believed Weinberg and
Amoroso were gangsters and that this belief produced a
reasonable fear . . . .”). Even so, we rejected the duress
instruction because the defendant—unlike Nwoye—“ha[d]
offered no explanation for his failure to take alternative
action, such as notifying law enforcement officials.” Id. In
6
Gaviria, we rejected a duress instruction because although the
defendant claimed that prison officials were corrupt, he
offered no explanation for failing to go to others despite
“ample opportunities” to do so in unmonitored meetings or
conversations. 116 F.3d at 1531. In sharp contrast, Nwoye
offered a specific explanation for why she thought contacting
authorities herself or having an acquaintance do so would be
of no help. The record, moreover, provides no support for the
claim that there were “relatives, classmates, and teachers with
whom she could seek refuge.” Maj. Op. at 10.
Nor do the two out-of-circuit cases the court cites support
its position. Both lack the evidence lying at the very heart of
this case: testimony that contacting the authorities would
provoke, rather than prevent, the threatened act. See United
States v. Alicea, 837 F.2d 103, 105–06, 107 (2d Cir. 1988)
(explaining that, unlike the defendant in a Ninth Circuit case
who believed authorities worked with the threateners, these
defendants “presented no such special circumstances,” and
detailing defendants’ opportunities to safely contact various
authorities); R.I. Recreation Ctr., Inc. v. Aetna Cas. & Sur.
Co., 177 F.2d 603, 604–06 (1st Cir. 1949) (denying defense
of coercion in a civil insurance suit where plaintiff contended
its manager acted under gangsters’ threats, but never stated
that contacting the police would be dangerous or ineffective,
and manager had “ample” opportunities to call the police
while “walking over a mile to his rendezvous with the
bandits”). This also explains why a jury, if given a chance to
consider the question, could conclude that Nwoye’s “fail[ure]
to take any advantage of Osuagwu’s” trip to California was,
under the circumstances, perfectly understandable. Maj. Op.
at 7. True, Nwoye had time to call the police in Osuagwu’s
absence. But because she feared that the police would not
protect her and that Osuagwu would learn of any contact with
7
the authorities, the beatings—and perhaps even her murder—
were inevitable if she did call the police.
Finally, our sister circuits have required duress
instructions in circumstances similar to Nwoye’s. In United
States v. Contento-Pachon, the Ninth Circuit held that the
defendant, who testified that he believed police in Colombia
served as paid informants for drug traffickers, was entitled to
a duress instruction because although he had time to contact
these authorities or to flee with his wife and three-year-old
child, “[a] juror might find that this was not a reasonable
avenue of escape.” 723 F.2d 691, 694 (9th Cir. 1984). In
United States v. Riffe, the defendant, a prisoner threatened by
a prison gang, feared going to prison officials because they
might not keep his statements secret and protective custody
might fail to keep the gang at bay. 28 F.3d at 568. The Sixth
Circuit held that the defendant was entitled to a duress
instruction because a jury, not the court, should assess
whether he “had nowhere to turn in the prison for safe haven.”
Id. at 570.
***
Nwoye’s claim is simple and fundamental to the criminal
process. She asks that her defense of duress be heard by a jury
of her peers. To be sure, had the district court given a duress
instruction, the jury might have disbelieved her or found her
fears to be unreasonable. But it is the jury’s job to make that
decision, not this court’s to decide how it would vote in a
juror’s place. I dissent.