United States v. Nwoye

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.