Amicus Curiae Brief — Dixon v. United States

G } FILED

No. 05-7053 FEB 27 2006

| OFFICE OF THE cise:

| SUPREME COUNT Ls.

—_—-

IN THE

Supreme Court of the United States

KESHIA CHERIE ASHFORD DIXON,

Petitioner,

V

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

—- ==

—_—__—

BRIEF OF THE NATIONAL ASSOCIATION OF

CRIMINAL DEFENSE LAWYERS AND THE NATIONAL

CLEARINGHOUSE FOR THE DEFENSE OF BATTERED

WOMEN AS AMICI CURIAE IN SUPPORT

OF PETITIONER

PETER GOLDBERGER ELLIOT H. SCHERKER

50 Rittenhouse Place Counsel of Record

Ardmore, PA 19003 JULISSA RODRIGUEZ

(610) 649-8200 GREENBERG | RAURIG, P.A.

1221 Brickell Avenue

PAMELA HarRIS Miami, FL 33131

1625 Eye Street, N.W. (305) 579-0500

Washington, DC 20006

(202) 383-5386 KAREN M. GOTTLieB

Post Office Box 1388

Coconut Grove, FL 33233

(305) 648-3172

Counsel for Amici Curiae

}99770 ce)

COUNSEL PRESS

(800) 274-332) + (ROO) 399-6859

i

TABLE OF CONTENTS

TABLE OF CITED AUTHORITIES ............

INTEREST OF AMICICURIAE ...............

SUMMARY OF ARGUMENT

STATEMENT OF THE CASE

ARGUMENT

Il.

Il.

CONCLUSION

DURESS IS A WELL-ESTABLISHED

DEFENSE AS TO WHICH THE

GOVERNMENT TRADITIONALLY

BEARS THE BURDEN OF PROOF. ......

THE PRACTICAL CONSIDERATIONS

UPON WHICH THE FIFTH AND NINTH

CIRCUITS HAVE RELIED DO NOT

JUSTIFY- DEPARTING FROM THE

TRADITIONAL RULE THAT THE

GOVERNMENT BEARS THE BURDEN

SEN ce rev neces caved secede wane ae

THERE IS NO JUSTIFICATION FOR

ASSIGNING THE BURDEN OF PROOF

ON THE BASIS OF WHETHER DURESS

“NEGATES” A SPECIFIC INTENT

ELEMENT AND DOING SO LEADS

TO ARBITRARY AND ILLOGICAL

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TABLE OF CITED AUTHORITIES

Cases: —

Barnes v. United States, 412 U.S. 837 (1973) ..... 0)

Bryan v. United States, 524 U.S. 184 (1998) ...... 20

California v. Green, 399 U.S. 149 (1970) ........ 16

Commonwealth v. Morningwake, 407 Pa.Super. 129,

errr rye rer Tey 12

Davis v. United States, 160 U.S. 469 (1895) ...... 6,15

In re Winship, 397 U.S. 358 (1970) ..........4.. 21

Jones v. United States, 526 U.S. 227 (1999) ...... 5

Kawakita v. United States, 343 U.S. 717 (1952) ... 4

Lavine v. Milne, 424 U.S. 577 (1976) ........... 21

Leary v. United States, 395 U.S.6 (1969) ........ )

Martin v. Ohio, 480 U.S. 228 (1987) ............ 8

Moes v. State, 91 Wis.2d 756, 284 N.W.2d 66 (1979)

EPL PE PA EE LRP ON Gm EERO TS Aa EN 12

Mullaney v. Wilbur, 421 U.S. 684 (1975) ........ passim

Patterson yv. New York, 432 U.S. 197 (1977) ..... passim

il

Cited Authorities

Page

People v. Terry, 224 Mich.App. 447, 569 N.W.2d 641

i a ee ae lee de 1]

Powell v. Texas, 392 U.S. 514 (1968) ........... 5

Ratzlaf v. United States, 510 U.S. 135 (1994) ..... 17

Schaffer ex rel. Schaffer v. Weast, 546 U.S. __,

i ee a a el ee dtu s g Dai 20-21

Sorrells v. United States, 287 U.S. 435 (1932) ....6, 15

Speiser v. Randall, 357 U.S. 513 (1958) ......... 20

State v. Glidden, 487 A.2d 642 (1985) ........... 11

State v. Jeffrey, 203 Ariz. 111,50 P.3d 861 (2002) ... 12

State v. Romano, 355 N.J.Super. 21, 809 A.2d 158

I aaa Wiese ee ee ok he ei a te 12

State v. Rouleau, 204 Conn. 240, 528 A.2d 343

ST Ga Orta ieee le eee Lend oe ied 11

Turner v. United States, 396 U.S. 398 (1970) ..... 9

United States v. Alvarez, 755 F.2d 830 (11th Cir.

Ae ee ep oe per ebm So eae a UY rE 7,8

4v

Cited Authorities

Page

United States v. Bailey, 444 U.S. 94 (1980) ... 4,5, 8, 21

United States v. Barnes, 60 M.J. 950 (N.M. Ct. Crim.

PRG. FOP. vevrceccses sh vas tess baveeubenn 10

United States v. Campbell, 675 F.2d 815 (6th Cir

PE i vp docu sede edevewcecssewes teres 10

United States v. Campbell, 609 F.2d 922 (8th Cir

og, ES Oe re ery ne ey 10

United States v. Deleveaux, 205 F.3d 1292 (1 Ith Cir

BN cv covedvains 6enks Ceeneer eee 18

United States v. Dodd, 225 F.3d 340 (3d Cir. 2000)

(wheceweey eee) OUR Oe bebe beret 9,18

United States v. Dominguez-Mestas, 929 F.2d 1379

Se GOED + cvchesdaewoeck sae 13, 14, 16, 18

United States v. Gant, 691 F.2d 1159 (Sth Cir. 1982)

és 6d Meek. eRe Kew se 6 br celie eee 14

United States v. Gypsum Co., 438 U.S. 422 (1978) ... )

United States v. Hearst, 563 F.2d 1331 (9th Cir. 1977)

bse acckeeted beshaecedbeeeaeee 7, 10, 14

United States v. Hernandez-Franco, 189 F.3d 1151

SG Pee nc icciaeteiees eeu fret le 18

Vv

Cited Authorities

Page

United States v. Leal-Cruz, 431 F.3d 667 (9th Cir.

ee CE ee ee id vedeese 19

United States v. Marenghi, 893 F. Supp. 85 (D. Me.

EE Ee PS TR EE Ss a a ee ae 7

United States v. Mitchell, 725 F.2d 832 (2d Cir. 1983)

ee oe oe ewes 10, 11

United States v. Newcomb, 6 F.3d 1129 (6th Cir.

ee cweeeeves 18

United States v. Perez, 86 F.3d 735 (7th Cir. 1996) ... 7

United States v. Russell, 411 U.S. 423 (1973) ..... 6

United States v. Santos, 932 F.2d 244 (3d Cir. 1991)

Sn ee pe bbees aes éoees 10

United States v. Simpson, 979 F.2d 1282 (8th Cir.

ROT a Ee eet a ee )

United States v. Talbott, 78 F.3d 1183 (7th Cir. 1996)

nee ted d oho s wees ec héeedu ie 10

United States v. Vigol, 2 Dall. 346, 28 F. Cas. 376

ee i ee wt ewe 4

United States v. Willis, 38 F.3d 170 (Sth Cir. 1994) .. 13,14

vi

Cited Authorities

Page

Statutes:

ee amigas 6, 20

RS or oo i ictbne caickkeeeie ee

ee acee ee 6. 20

i a oe ae ae 6, 20

I ee ab es wk eee 19

Other Authorities:

Pe DEED. occu des cesses tedtedecas 4

American Law Institute, Vol. 1, Model Penal Code

& Commentaries: OrriciaL Drart Ann REVISED

Se Do dw acapececéus 8,12

Federal Judicial Center, Pattern Criminal Jury

Instructions, instr. no. 56(1987) ............. 9

C. McCormick, HANDBOOK oF THE LAW OF EVIDENCE

n/a ced od au uewens coe eee eo )

1A K. O'Malley, J. Grenig & W. Lec, Fep. Jury Prac.

& Instr. § 19.02 (Sth ed. 2000) .............. )

J. Strong, McCormick on Evinence § 337 (Sth ed.

FONE No vadkda coke tb ecéeuntavasauseouaenee 21

vil

Cited Authorities

Page

Scott E. Sundby, The Reasonable Doubt Rule and

the Meaning of Innocence, 40 Hastincs L.J. 457

SE Cadviedueh oks dade teubibakoevewesda 6,17

5 Wigmore, Evinence § 1367 (1940 ed.) ......... 16

9 J. Wigmore, Evinence § 2486 (J. Chadbourn

PERE Arg AP HR Ny 21

U.S. Dept of Justice (Office of Justice Programs,

Nat’l Inst. of Justice), et al., The Validity and Use

of Evidence Concerning Battering and its Effects

in Criminal Trials: Report Responding to Section

40507 of the Violence Against Woinen Act, NCJ

160972 (May 1996), reprinting Gordon & Dutton,

Validity of ‘Battered Woman Syndrome’ in

Criminal Cases Involving Battered Women; and

Parrish, Trend Analysis: Expert Testimony on

Battering and Its Effects in Criminal Cases 27,

available at www.ncjrs.org/pdffiles/batter.pdf.

INTEREST OF AMICI CURIAE'

The National Association of Criminal Defense Lawyers

(NACDL) has more than 12,500 members nationwide, including

both public and private defenders, active U.S. military defense

counsel, law professors, and judges. With 90 state, local and

international affiliate organizations, NACDL speaks for a total

membership of some 35,000 in all 50 states. The American Bar

Association recognizes NACDL as an affiliate organization and

accords it full representation in its House of Delegates. Founded

in 1958, NACDL promotes study and research in the field of

criminal law and procedure, disseminates and advances legal

knowledge in the area of criminal justice and practice, and

encourages the integrity, independence and expertise of cnminal

defense lawyers in the state and federal courts. To promote the

proper administration of justice and appropriate measures to

safeguard the rights of all persons involved in the criminal justice

system, NACDL files approximately 35 amicus briefs a year in

state and federal appeals courts, including this Court, on a variety

of criminal justice issues -affecting the vital interests of its

members and their clients.

The National Clearinghouse for the Defense of Battered

Women (NCDBW), founded in 1987, works to ensure justice

for battered women charged with crimes, where a history of

abuse is relevant to the woman's legal claim or defense. As a

longstanding matter of principle, the National Clearinghouse

does not advocate any special legal rules for battered women

defendants. The organization is committed to ensuring that

battered women charged with crimes, | Ke all defendants, receive

1. No counsel for a party authored this brief in whole or in part.

No person or entity other than NACDL or the NCDBW has made a

monetary contribution to the preparation or submission of this brief.

Petitioner and respondent have consented to the filing of this amicus

brief; their letters of consent have been filed with the Clerk of this Court

pursuant to Supreme Court Rule 37.3(a).

2

the full benefit of all rights and protections designed to ensure

fair trials, accurate verdicts, and appropriate sentences. To this

end, the National Clearinghouse seeks to educixe those involved

in the criminal justice system about battering and its effects, so

that lezal decisions affecting battered women defendants are

not based on misconceptions. The National Clearinghouse also

advocates reforms in existing legal rules and practices, where

needed to ensure fairness for all accused persons, but never in

such a way that the change would afford battered women

different or special rights.

The first and only organization to focus exclusively on

battered women defendants, the National Clearinghouse works

on a wide variety of cases, including those involving self-

defense/defense of others, coercion and duress, crimes of

omission (such as allegedly failing to protect one’s children from

a batterer’s violence), and cases where the history and impact

of abuse help to explain a defendant's behavior and/or rebut the

mens rea element of the crime. In recognition of its quality

services and national leadership role, the National Clearinghouse

was chosen in 1993 to be one of five organizations to receive

funds from the U.S. Department of Health and Human Services

(HHS) as part of the newly formed Domestic Violence Resource

Network. Through a number of continuation grants from HHS,

the National Clearinghouse remains an active member of the

Domestic Violence Resource Network and an integral part of

the national leadership of the battered women’s advocacy

movement.

The position of the National Clearinghouse is that once a

defendant has properly raised the issue of duress, it is the

government's burden to disprove that defense, and thus to

establish the voluntariness of otherwise criminal acts, beyond a

reasonable doubt. Nineteen years of research and counseling

experience, involving more than 275 cases where duress issues

were raised (about | 1% of the cases on which the Clearinghouse

3

has consulted and for which the records are clear in this respect),

have led the National Clearinghouse to the firm belief that

unless the government bears that burden, many wrongful

convictions will surely result, as the risk of jury error due to

misunderstanding of the circumstances ts especially high in such

cases.

SUMMARY OF ARGUMENT

For well over a century, the federal courts and federal

standard jury instructions have placed the burden of persuasion

on the government when defenses such as insanity, self-defense,

and duress — which bears a strong relationship to both insanity

and self-defense — are raised by defendants who satisfy an initial

burden of production. There is good reason for doing so. All

such defenses wholly negate the foundations of criminal liability,

and there is no reason to treat duress differently.

Of late, however, some federal courts have undertaken to

parse the elements of particular charged offenses to determine

whether duress would “negate” a specific intent element. These

courts have created two different duress defenses: one that

—speaks directly to a particular mens rea, and the other that merely

“excuses” criminal conduct. Under this theory, the government

bears the burden if duress happens to negate the particular mens

rea, but the defendant bears the burden if it does not, i.e., if

duress is only an “excuse.” This novel analytical approach cuts

the duress defense loose from its historical moorings in this

Court's jurisprudence and should be rejected.

The minority approach, followed by the court below, is also

impractical and potentially confusing for jurors. A defendant,

such as petitioner Dixon, who is charged with multiple offenses

and asserts duress as her defense, may well be faced with two

sets of jury instructions on the burden with respect to the defense

— one that places the ultimate burden on her for one count, and

a conflicting instruction that places the burden on the

4

government for another count. Or two defendants who are

subjected to exactly the same coercion will have their duress

defense subjected to different burdens of proof, depending on

whether the crime that they are coerced to commit -— or more

precisely, the crime that the prosecution chooses to charge —

includes an element as to which a court can say that duress

would negate the element.

The likelihood of inconsistent and unreliable jury verdicts

should persuade the Court to adhere to the established rules of

federal criminal practice that have uniformly placed the burden

of persuasion on the government when the defendant satisfies

the burden of production on a duress defense. Nothing suggests

that adherence to this tradition has created any difficulty in the

fair enforcement of the criminal laws.

STATEMENT OF THE CASE

The NACDL and the NCDBW adopt the Statement of the

Case in petitioner's brief.

ARGUMENT

I. DURESSIS A WELL-ESTABLISHED DEFENSE AS

TO WHICH THE GOVERNMENT TRADITION-

ALLY BEARS THE BURDEN OF PROOF.

Duress “excuse[s] criminal conduct where the actor was

under an unlawful threat of imminent death or serious bodily

injury, which threat caused the actor to engage in conduct

violating the literal terms of the criminal law.” United States

v. Bailey, 444 U.S. 94, 409 (1980). Duress has long been

recognized as a defense in the federal courts. S. Rep. 96-553, at

105 (1980), citing, e.g., Kawakita v. United States, 343 U.S.

717, 735-36 (1952); United States v. Vigol, 2 Dall. 346, 28 F.

Cas. 376 (C.C.D. Pa. 1795). “At common law, as under Federal

law today, duress is recognized as a defense to all crimes except

murder and, perhaps, offenses involving an intent to take life

5

such as attempted murder or assault with intent to kill.”

S. Rep. 96-553, at 105 (footnote omitted).

This Court has remarked that “[t}he doctrines of actus reus,

mens rea, insanity, mistake, justification, and duress have

historically provided the tools for a constantly shifting

adjustment of the tension between the evolving aims of the

criminal law and changing religious, moral, philosophical and

medical views of the nature of man.” Powell v. Texas, 392 U.S.

514, 536 (1968). And this Court expressiy recognized that duress

is a defense to federal crimes in United States v. Bailey, 444

U.S. at 409. The Court held in Bailey that one charged with the

statutory crime of escape may assert duress as a defense, upon

showing that a threat existed and that, “given the imminence of

the threat, ... [escape] was his only reasonable alternative.”

444 U.S. at 410-11 (citations omitted).

The defense may be asserted, the Court held, despite the

statute’s silence on the availability of common-law defenses

and the absence of a required mens rea element to which a duress

defense would directly speak:

[W]e are construing an Act of Congress, not drafting

it. The statute itself. . . requires no heightened mens

rea that might be negated by any defense of duress

or coercion. We nonetheless recognize that Congress

in enacting criminal statutes legislates against a

background of Anglo-Saxon common law, and that

therefore a defense of duress or coercion may well

have been contemplated by Congress when it enacted

[the escape statute]... .

Bailey, 444 U.S. at 415 n.11. See Jones v. United States, 526

U.S. 227, 234 (1999) (statutes are drafted “against a backdrop

not merely of structural conventions of varying significance,

but of traditional treatment of certain categories of important

facts”). In enacting the criminal prohibition, this Court in Bailey

6

reasoned, Congress is deemed (absent clear evidence to the

contrary) to have adopted implicitly the body of traditional

defenses, which have historically been viewed as negating true

culpability. See also, e.g., United States v. Russell, 411 U.S.

423, 428-35 (1973); Sorrelis v. United States, 287 U.S. 435,

446-52 (1932) (same theory elaborated at length and applied to

entrapment).

So too, when Congress enacted the Federal Gun Control

Act of 1968, it “legislate{d] against a background of Anglo-

Saxon common law,” such that duress is a defense to the crimes

of knowingly making false statements “intended or likely to

deceive” in acquiring or attempting to acquire a firearm,

18 U.S.C. §§ 922(a)(6), 924(a)(2), and willful possession of a

firearm by one who is under indictment, 18 U.S.C. §§ 922(n),

924(a)(1)(D), the offenses of which petitioner Dixon was

convicted.

Duress has been analogized to insanity, as to which this

Court has long held that the government bears the ultimate

burden of persuasion once the accused has offered some

evidence to overcome the presumption of sanity. See Davis \.

United States, 160 U.S. 469, 488 (1895). Both defenses speak

to the accused’s mental state, as well as to her blameworthiness.

Scott E. Sundby, The Reasonable Doubt Rule and the Meaning

of Innocence, 40 Hastines u.J. 457, 483 n. 112 (1989)

(hereinafter Reasonable Doubt) (“|djefendants who act out of

duress, necessity, or insanity can argue that their acts were

involuntary because they lacked either the capacity or the chance

to choose a lawful alternative”). As the Ninth Circuit confirmed

in an oft-cited case:

A defendant who, without opportunity to escape, has

a well grounded fear of imminent death or serious

injury unless he complies with his captor’s wrongful

commands entertains a mental state recognized as

7

exculpatory with respect to most crimes.

Compulsion or duress producing this state of mind

is a defense to most criminal accusations.

* * * *

____We indulge in the assumption that every defendant

is sane, and it is not incumbent upon the prosecution

to prove sanity until the defense presents evidence

to the contrary. “But once substantial evidence of

insanity is received in evidence, the presumption of

sanity disappears. The burden is then placed upon

the prosecution to prove legal sanity beyond a

reasonable doubt, as in the case of any essential

element of the crime charged.” The same

considerations apply to the even rarer defense of

—duress. ...

United States v. Hearst, 563 F.2d 1331, 1335-36 nn.1 & 2 (9th

Cir. 1977) (per curiam) (citations omitted).

Duress is also closely related to self-defense. E.g., United

States v. Perez, 86 F.3d 735, 736 (7th Cir. 1996). “The two

defenses are similar in that they require a defendant to

demonstrate that she acted reasonably in response to a reasonable

fear of death or bodily injury.” United States v. Marenghi, 893

F. Supp. 85, 95 (D. Me. 1995). When self-defense is raised in a

federal criminal trial, it is also well-settled that the government

bears the burden of persuasion to disprove that defense beyond

a reasonable doubt. F.g., United States v. Alvarez, 755 F.2d 830,

842-43 (1 Ith Cir. 1985) (citing cases spanning more than half a

century). See also Mullaney v. Wilbur, 421 U.S. 684, 702 n.30

(1975) (acknowledging this as “the ‘majority rule’” for self-

defense).

And this is so despite the constitutional minimum standard

preserved in such Cases arising in the state courts as Patterson

8

v. New York, 432 U.S. 197 (1977), and Martin v. Ohio, 480 U.S.

228 (1987). While “the absence of self-defense is not an element

of the crime” and the defendant properly bears the burden of

production, “{i]n a federal prosecution ... once the defendant

has met the burden of production, the government must satisfy

the burden of persuasion and must negate self-defense beyond

a reasonable doubt.” Alvarez, 755 F.2d at 842 n.12 (citation

omitted). In the Model Penal Code, which the Court found useful

when addressing duress in Bailey, 444 U.S. at 403-04, 410, the

American Law Institute recommended adoption of the federal

rule for burdens of proof on defenses:

The initial evidential burden is thus placed on the

defendant. The defense is not in issue in the case

without supporting evidence. But when there is such

evidence (whether adduced by the prosecution or

defendant) the prosecution must discharge its normal

burden, disproving the defense beyond a reasonable

doubt.

Affirmative defenses in this sense have been and

are extremely common in the penal law. Typical

illustrations are: self-defense and similar claims of

justification for conduct that would otherwise be

criminal; necessity, duress and claim of right ....

AMERICAN Law Institute, VoL. 1, Mopet Penat Cone &

COMMENTARIES: OrrictaL Drart AND RevisED COMMENTS 192-93

(1985) (footnotes omitted). “[I]t seems inconsistent to demand

as to some elements of guilt, such as an act of killing, that the

jury be convinced beyond a reasonable doubt, and as to others,

such as duress or capacity to know right from wrong, the jury

may convict though they have such doubt.” /d. at 197 (quoting

9

C. McCormick, HANDBOOK OF THE LAW oF EviDENCE § 321, at

684 (1954)).’

So it is that “[o]nce the defendant has placed before the

court evidence sufficient to raise the issue, the government must

rebut the defense beyond a reasonable doubt.” 1A K. O’ Malley,

J. Grenig & W. Lee, Fep. Jury Prac. & Instr. § 19.02, at 746

(Sth ed. 2000) (citation omitted). This may be accomplished by

disproof of “at least [one] element of that defense beyond a

reasonable doubt.” /d. (citation omitted). Similarly, the report

of the Judicial Conference Subcommittee on Pattern Jury

Instructions placed the burden of persuasion on the government

to disprove duress beyond a reasonable doubt. Feperar Jupiciat

CENTER, PATTERN CRIMINAL JuRY INSTRUCTIONS, instr. no. 56, at

68 (1987).* °

That burden placement is well supported in the case law

concerning duress. United States v. Arthurs, 73 F.3d 444, 448

(Ist Cir. 1996) (“[w]hen a predicate warranting a duress

instruction has been laid, the government is saddled with the

additional burden of showing beyond a reasonable doubt that a

defendant’s criminal acts were not the product of duress”)

(citation omitted); United States v. Simpson, 979 F.2d 1282,

1287 (8th Cir. 1992) (“[o]nce the defendant introduces evidence

sufficient to submit the defense of coercion to the jury, the

. This Court has previously looked to the Model Penal Code for

POP when Congress has been silent on a substantive question of

basic criminal law. United States v. Gypsum Co., 438 U.S. 422, 437-38

(1978); Barnes v. United States, 412 U.S. 837, 845 (1973); Turner v.

United States, 396 U.S. 398, 416 & n. 29 (1970); Leary v. United States,

395 US. 6, 46 0.93 (1969).

3. The pattern instructions in the various Circuits do not speak

with a single voice, but many follow the Federal Judicial Center's lead

in placing the burden of persuasion on the government when duress is

properly raised by a defendant. United States v. Dodd, 225 F.3d 340,

349 n.8 (3d Cir. 2000) (survey of Circuit pattern instructions).

10

government must prove beyond a reasonable doubt that the

defendant's acts were not coerced”) (citation omitted); United

States v. Santos, 932 F.2d 244, 249 (3d Cir. 1991) (accepting

government’s concession that prosecution “should from the

outset bear the burden of disproving duress beyond a reasonable

doubt once the defendant has introduced sufficient evidence

concerning each element of the defense”); United States v.

Mitchell, 725 F.2d 832, 836 (2d Cir. 1983) (“in federal criminal!

trials the Government’s burden in disproving at least one element

of duress should be proof beyond a reasonable doubt’); United

States v. Campbell, 675 F.2d 815, 821 (6th Cir. 1982)

(“{djefendant’s burden of going forward to introduce sufficient

facts to support an instruction on a coercion defense in no way

altered the government’s obligation to prove willfulness beyond

a reasonable doubt”; “the prosecution must rebut the issues of

coercion beyond a reasonable doubt’) (citations omitted); United

States v. Campbell, 609 F.2d 922, 925 (8th Cir. 1979) (once

defendant presents evidence of coercion in escape case, “the

prosecution must rebut the issues of coercion beyond a

reasonable doubt”), United States v. Hearst, 563 F.2d at 1336

& n.2 (once duress is raised and supported by evidence,

government bears the burden of persuasion to negate defense).

See also United States v. Talbott, 78 F.3d 1183, 1186 (7th Cir.

1996) (because justification is not defined in the federal criminal

code as a defense to possession of a firearm by a convicted

felon, the courts may not allocate to defendant the burden of

proof on that defense). The military courts apply the same rule,

placing the burden on the prosecution to disprove duress beyond

a reasonable doubt. United States v. Barnes, 60 M.J. 950, 955

(N.M. Ct. Crim. App. 2005) (“[w]hen there is some evidence

that the accused acted under duress, the prosecution has the

burden of proving beyond a reasonable doubt that the affirmative

defense of duress does not exist’) (citation omitted).

11

As the Second Circuit observed in Mitchell, placing the

burden of persuasion on the government makes eminent good

sense, even “[a]part from constitutional concerns”:

[A] reasonable doubt standard for duress will lessen

the risk that a jury will convict solely because of

failure of a defense, a consideration we have

previously stressed in formulating federal rules of

practice for jury instructions. We are not persuaded

that juror confusion may be avoided simply by

adding an admonition that, regardless of whether the

jury disbelieves the duress evidence, the burden

remains on the Government to establish every

element of the crime beyond a reasonable doubt.

Furthermore, we see no reason peculiar to the duress

defense warranting departure from the general

federal practice that once a criminal defendant

satisfies an initial burden of producing sufficient

evidence to warrant submission of a substantive

defense to the jury, the prosecution must disprove

at least an element of that defense beyond a

reasonable doubt.

725 F.2d at 836 (citations and footnote omitted).*

4. The court noted that several states imposed the burden of

persuasion on the government (although others did not). /d. at 836 n.7

(collecting cases). That remains so today. Numerous state courts rely

on constitutional, statutory, and common-law bases to hold that the

prosecution bears the burden of persuasion once the defendant goes

forward with a duress defense. State v. Rouleau, 204 Conn. 240, 252-

53, 528 A.2d 343, 349-50 (1987) (state constitutionally must disprove

duress beyond a reasonable doubt); State v. Glidden, 487 A.2d 642, 644

(1985) (prosecution “bear[s] the ultimate burden” if defendant produces

evidence to support a duress defense under allocation statute); People

v. Terry, 224 Mich.App. 447, 453-54, 569 N.W.2d 641, 645 (1997)

(Cont'd)

12

On this issue, concerns about the reliability of criminal

verdicts support the traditional federal rule. The government,

not the defendant, must bear the burden of proof on the duress

defense.

(Cont'd)

(“lo]nce a defendant successfully raises the defense, the prosecution

has the burden of showing, beyond a reasonable doubt, that the defendant

did not act under duress”) (citation omitted); State v. Romano, 355

N.J Super. 21, 35-36, 809 A.2d 158, 166-67 (2002) (statutory allocation

of burdens requires prosecution to disprove duress beyond a reasonable

doubt); Commonwealth v. Morningwake, 407 Pa.Super. 129, 139-40,

595 A.2d 158, 163 (1991) (prosecution must disprove duress beyond a

reasonable doubt); Moes v. State, 91 Wis.2d 756, 767-68, 284 N.W.2d

66, 70-72 (1979) (state common law requires prosecution to disprove

duress beyond a reasonable doubt). Contra, e.g., State v. Jeffrey, 203

Anz. 111, 114, 50 P.3d 861, 864 (2002) (prosecution need not disprove

duress beyond a reasonable doubt). The Model Penal Code comments

counted as evenly split (9-8) in 1985 the states that had addressed the

issue by statute. AMERICAN Law INSTITUTE, supra, at 384 nn.66-67.

5. One aspect of petitioner Dixon's trial that, while not before the

Court on certiorari, was central to the fairness of her tal, highlights

the reliability concerns in this case: Ms. Dixon was not allowed to

introduce expert testimony about her experiences of abuse at the hands

of her “boyfriend.” Without an expert to provide needed context about

what the social sciences have to teach about battering and its effects, -

many abused women are misunderstood and perceived as responsible

for their own victimization. Such misconceptions often intertere with

the ability of both judges and juries to give battered women the full and

fair benefit of legal rules and doctrines applicable to all defendants.

Without expert testimony providing this needed context, a battered

woman's failure to leave her batterer at some carlier time can wrongly

imply that she voluntarily participated and unreasonably, recklessly

(or even willfully) assumed the nsk of any subsequent duress imposed

upon her to commit a crime for the benefit of the batterer. U.S. Dept of

Justice (Office of Justice Programs, Nat'l Inst. of Justice),

— (Cont'd)

13

ll. THE PRACTICAL CONSIDERATIONS UPON

WHICH THE FIFTH AND NINTH CIRCUITS HAVE

RELIED DO NOT JUSTIFY DEPARTING FROM

THE TRADITIONAL RULE THAT THE

GOVERNMENT BEARS THE BURDEN OF PROOF.

The Fifth Circuit's decision in United States v. Willis, 38

F.3d 170 (Sth Cir. 1994), upon which that court relied to reject

petitioner Dixon’s instruction claim, departed from the settled

federal rule. Instead, it adopted the approach first promulgated

in United States v. Dominguez-Mestas, 929 F.2d 1379, 1384

(9th Cir. 1991) (per curiam). “Since a justification defense such

as duress is an affirmative defense, the burden of proof is on

the defendant” and the defendant must therefore prove “each

element of the defense by a preponderance of the evidence.”

Willis, 38 F.3d at 179 & n.12 (citation omitted).°

(Cont'd)

et al., The Validity and Use of Evidence Concerning Battering and its

Effects in Criminal Trials: Report Responding to Section 40507 of the

Violence Against Women Act, NCJ 160972 (May 1996), reprinting

Gordon & Dutton, Validity of “Battered Woman Syndrome’ in Criminal

Cases Involving Battered Women 20-22 & n.90; and Parrish, Trend

Analysis: Expert Testimony on Battering and Its Effects in Crnminal

Cases 27, 29-30 (surveying use of experts in such cases by prosecution

and defense to “dispel myths and misconceptions”), available at

ww ncjrs.ore/pdffiles/batter pdf. Against that background — which by

itself generated a significant risk of juror confusion - the Fifth Circuit's

refusal to hold the government to its burden of proof rendered even

more acute the potential for a wrongful conviction.

6. By contrast to the long-established and well-articulated

traditional rule, the Fifth Circuit rule applied beiow is only thinly

rationalized and of uncertain origin. In Willis, the defendant made a

plain-error argument on appeal that the duress instruction “was crroncous

because it did not state that the burden of proof on the defendant was a

preponderance of the evidence” and could have suggested to the jury

(Cont'd)

14

Dominguez-Mestas arose from a conviction for heroin

importation. 929 F.2d at 1380. The defendant, a Mexicar.

national, asserted that he had brought the heroin into the United

States because he and his sister had been threatened with death.

Id. at 1380-81. After holding that due process, e.g., Mullaney v.

Wilbur, 421 U.S. 684 (1975), does not require the government

to bear the burden of persuasion on a duress defense because

duress does not negate an element, see, e.g., Patterson v. New

York, 432 U.S. 197, 205-06 (1977), the Ninth Circuit distanced

itself from its earlier Hearst decision and held that the defendant

should be required to carry the ultimate burden. 929 F.2d at

1382-84. The court's rationale was:

To require the government to prove beyond a

reasonable doubt the absence of duress would create

a standard that would be nearly impossible to satisfy.

In many cases, as in the case before us, the sole

evidence of duress is the testimony offered by the

defendant. Often, as here, those to whom the

defendant refers either cannot be located or are

outside the United States and not subject to subpoena

power. In such cases, the government cannot

possibly meet its burden of proving the absence of

duress beyond a reasonable doubt. . . .

(Cont'd)

that he was required to prove duress beyond a reasonable doubt. 38 F.3d at

179. The court first held that “{s]ince a justification defense such as duress

is an affirmative defense, the burden of proof is on the defendant,” id..

citing United States v. Gant, 69) F.2d 1159, 1165 (Sth Cir. 1982). But Gant

holds only, and uncontroversially, that the defendant bears the initial burden

of production. (In addition, most scholars categorize duress as an “excuse.”

because it affects volition, not as a “justification.”) The second sentence of

the two-sentence Willis holding is: “To succeed, the defendant must prove

each element of the defense by a preponderance of the evidence.” 38 F.3d

at 179. No direct authority is cited for this proposition at all. In a footnote,

the court cited Dominguez-Mestas, apparently with approval, but did not

expressly adopt the Ninth Circuit's formulation.

15

Finally, requiring the government to prove the

absence of duress beyond a reasonable doubt would

create a potential for abuse. Because it is extremely

difficult for the government to prove the absence of

duress beyond a reasonable doubt, a burden which

is heightened in the context of border cases, the

standard invites a defendant to tell a tale of duress,

thereby placing a nearly insurmountable burden on

the government... .

Id. at 1384.

The Ninth Circuit’s justification for imposing the burden

of proof on the defendant in a duress case fails to acknowledge

that much of that justification — excepting perhaps cross-border

issues — could be said, for example, of self-defense. That is, the

defendant is usually the primary, if not the only. witness to testify

to a reasonable fear of injury or death, and the government must

make use of cross-examination or other evidence to refute such

testimony. Yet, since the advent of this Court’s 1895 decision

in Davis v. United States, “federal prosecutors have borne the

burden of persuasion with respect to factors like insanity, self-

defense, and malice or provocation, once the defendant has

carried this burden of production,” without there being any

“noticeable handicap to effective law enforcement.” Patterson

v. New York, 432 U.S. at 231-32 (citations omitted) (Powell, J.,

dissenting). The same kind of appeal to “mere convenience”

was rejected by this Court in Sorrells in 1932. See 287 U.S. at

451. Instead, declared Chief Justice Hughes's majority opinion,

“the essential demands of justice” must prevail. /d.

Moreover, shifting the burden of persuasion to the defendant

is a Classic instance of overreacting to a perceived problem. All

of the factors cited by the Fifth and Ninth Circuits to justify

shifting the burden — most notably that a defendant who was

allegedly coerced by shady characters in another country, whom

16

he cannot produce and whom the government obviously could

not locate and compel to be present — are fertile fields to be

plowed on cross-examination. See California v. Green, 399 U.S.

149, 158 (1970) (cross-examination is the “greatest legal engine

ever invented for the discovery of truth”) (quoting 5 Wigmore,

Evipence § 1367 (1940 ed.)). The mythical defendant created

by the court in Dominguez-Mestas would \ikely be skewered

on cross-examination with the very concerns that led the court

to shift the burden, and juries who are familiar with local issues,

such as cross-border crimes, are most unlikely to be fooled by a

defendant who invokes phantom threats. The abusive

“boyfriend” in petitioner Dixon's case, by way of contrast, was

very real, and could be called as a witness by ether side, as were

the sellers of various firearms who observed Ms. Dixon's

demeanor.

The notion that maintaining the burden on the government

is unfair because the prosecution will be hard pressed to negate

the defendant's proffered state of mind at the time of the crime

was rejected in Mullaney. The Court noted that requiring the

prosecution to prove an “absence of passion” in a murder

conviction, after the defendant had raised that defense and

satisfied the burden of production, is no more unfair than

requiring the prosecution to prove the absence of self-defense.

421 U.S. at 701-02. “Satisfying this burden imposes an

obligation that, in all practical effect, is identical to the burden

involved in negating the heat of passion on sudden provocation,”

the Court added. /d. Thus, the Court “discernfed] no unique

hardship on the prosecution that would justify requiring the

defendant to carry the burden of proving a fact so critical to

criminal culpability.” /d. See also id. at 702 n.31 (discussing

Davis).

The concerns expressed in Dominguez-Mestas are more

ephemeral than real. As one commentator has observed in

addressing the district court's decision in that case:

17

If the government were required to prove the lack

of duress solely from its own direct evidence, the

court’s reasoning would be valid. The effect of

requiring the defendant to bring some evidence

forward to meet the burden of production coupled

with the jury’s critical eye, however, makes the

government's task far from “impossible.” The

government through cross-examination and analysis

of the evidence, circumstantial evidence, and logical

inferences still has ample opportunity to show that

no reasonable doubt exists based on the totality of

the evidence presented. The real question at issue is

not an evidentiary problem unique to duress, but the

question inherent to the presumption of innocence:

given that facts often cannot be conclusively proved,

who should bear the risk of an erroneous finding.

Reasonable Doubt, supra, at 501 n.166. See also Ratzlaf v.

United States, 510 U.S. 135, 149 n.19 (1994) (rejecting similar

argument with respect to difficulty of proving defendant's

knowledge).

In short, the only rationale offered in the cases relied upon

by the Fifth Circuit for shifting the burden to the defendant is

convenience to the prosecution. That justification not only is

insubstantial but also has long been rejected by this Court.

18

Ill. THERE IS NO JUSTIFICATION FOR ASSIGNING

THE BURDEN OF PROOF ON THE BASIS OF

WHETHER DURESS “NEGATES” A SPECIFIC

INTENT ELEMENT AND DOING SO LEADS TO

ARBITRARY AND ILLOGICAL RESULTS.

Despite their logical and historical weaknesses, Dominguez-

Mestas and Willis have engendered a series of decisions in which

certain courts have engaged in increasingly intricate analyses

of given statutes to determine the appropriate burden placement

in particular cases. There is suddenly “a quite divided

jurisprudence” in the federal courts and no “clear default rule

as to how affirmative defenses generally should be treated.”

Dodd, 225 F.3d at 348. Many of these cases confuse the mens

rea elements of offenses with traditional defenses in the nature

of excuses or justifications.

For example, invoking “practical considerations” similar

to those set forth in Dominguez-Mestas, the Eleventh Circuit

has recently held that a defendant who raises a “justification”

defense to a charge of possession of a firearm by a convicted

felon bears the burden of persuasion. United States v. Deleveaux,

205 F.3d 1292, 1299-1301 (1 Ith Cir. 2000); accord, Dodd, 225

F.3d at 347-48; United States v. Newcomb, 6 F.3d 1129, 1133

(6th Cir. 1993). The Ninth Circuit, addressing a charge of

attempted transportation of undocumented aliens, acknowledged

that an attempt charge requires specific intent to commit the

underlying crime (and that the underlying crime also required

specific intent), but nonetheless held that the defendant bore

the burden of persuasion on his duress defense because duress

would not rebut the particular intent elements supposedly

implicated in that case. United States v. Hernandez-Franco, 189

F.3d 1151, 1158 (9th Cir. 1999) (“[i]n order to determine whether

there has been an impermissible shifting of the burden of

persuasion ... we must decide ‘whether proof of duress

necessarily entails disproof of the mens rea required” for the

19

charged offense). And the Ninth Circuit, addressing a duress

defense raised by a defendant charged with attempted illegal

entry, which is a specific intent crime, in another recent decision,

similarly parsed the crime’s elements to determine whether

duress “negated the specific intent element of attempted illegal

reentry ... or whether it could only be offered to excuse his

criminal conduct”; the court there held that duress “could only

be offered to excuse the offense,” and therefore placed the burden

of persuasion on the defendant. United States v. Leal-Cruz, 431

F.3d 667, 671-73 (9th Cir. 2005).

The mechanical focus on elements to determine the burden

of proof on a duress defense complicates and confuses what

had been reasonably well settled, skews the defense, and leads

to the risk of unreliable jury verdicts. The same threatening and

_ abusive conduct that causes a defendant to commit a crime will

lead to disparate results, depending on the fortuity of whether

the coerced criminal act violates a statute that a court ultimately

determines includes an element that is “negated” by duress. That

is, if a woman, such as petitioner Dixon, were to be threatened

in precisely the manner that she asserts she was, but was forced

instead to commit what is clearly a specific intent crime, such

as bank robbery, 18 U.S.C. § 2113, the government would have

the burden of persuasion on duress, even in the Fifth Circuit.’

But, if the same threatening conduct forces a person to commit

a crime that is determined to require a mental state that is not

“negated” by duress, such as the knowledge that is typical of

“general intent,” the defendant must bear the burden of

persuasion. And, if the evidence is in equipoise in both instances,

the first defendant would be acquitted and the second would be

7. Of course, if the theory were correct that duress negates scienter

in crimes of specific intent, then “duress” in such cases would not be

classifiable as an affirmative defense at all. The “rule” announced in

those cases really says only that when the defendant offers evidence

relevant to intent, the burden of proot remains on the government.

20

convicted — when the quantum of evidence showing that they

both were coerced was exactly the same. That sort of disparate

treatment simply makes no sense.

Indeed, an even more bizarre scenario unfolds when a

defendant is charged with two (or more) offenses in the same

indictment and the burden of persuasion varies as to different

charges. This case presents just such a possibility: the charge of

possessing a firearm while under indictment requires that the

act be performed “willfully,” 18 U.S.C. § 922(n); 18 U.S.C.

§ 924(a)(1)(D); but the charge of making false statements

requires only that she did so “knowingly.” 18 U.S.C. § 922(a)(6);

18 U.S.C. § 924(a)(2). See generally Bryan v. United States,

524 U.S. 184 (1998) (discussing varying scienter clements under

Gun Control Act, as amended). In this instance, under the

approach taken by some courts, the jury would presumably have

to be instructed that the government bears the burden of

persuasion on the one charge, and the defendant on the others.

The potential for jurors to be confused is self-evident.

This Court observed in Mullaney that “|t}he result, . . .

where the defendant is required to prove the critical fact in

dispute, is to increase further the likelihood of an erroncous . . .

conviction.” 421 U.S. at 701. Quoting from Speiser v. Randall,

357 U.S. 513, 525-26 (1958), the Court continued:

{[W]here one party has at stake an interest of

transcending value — as a criminal defendant his

liberty — th{e] margin of error is reduced as to him

by the process of placing on the [prosecution] the

burden ... of persuading the factfinder at the

conclusion of the trial.

421 U.S. at 701 (brackets in original).

Under federal civil statutes that fail to clarify the allocation

of burden, this Court has applied a “default rule.” Schaffer ex

21

rel. Schaffer v. Weast, 546 U.S. —, 126 S. Ct. 528, 534 (2005),

subject to exceptions based on “policy considerations,

convenience, and fairness,” id. at 537 (Stevens, J., concurring),

537-38 (Ginsburg, J., dissenting) (quoting 2 J. Strong,

McCormick ON Evipence § 337, at 415 (Sth ed. 1999) and 9 J.

As the Court recognized, however, “special concerns attend”

the allocation of burdens in criminal cases. Schaffer, 126 S. Ct.

at 535 (quoting Lavine v. Milne, 424 U.S. 577, 585 (1976)).

With “convenience” discounted, as already discussed in Point

II, “policy considerations” and “fairness” as applied to the

criminal law defense of duress likewise favor the traditional

uniform federal rule, which a/ways places the ultimate burden

on the prosecution beyond a reasonable doubt.

~ The reasonable-doubt standard “is a prime instrument for

reducing the risk of convictions resting on factual error.”

In re Winship, 397 U.S. 358, 362 (1970). The traditional

approach of the federal courts to the burden of persuasion when

duress and similar defenses are raised by a defendant pays heed

to that concern, constitutional issues aside. The element-by-

element approach propounded by the Ninth Circuit and adopted

recently in several other circuits is rife with the potential for

hopeless confusion, leading to unreliable and unfairly disparate

jury determinations. The correct rule is simple, clear and applies

to all cases.

This Court recognized in Bailey that the common-law

duress defense is woven into federal criminal statutes. The Fifth

Circuit's rule thwarts that Congressional intent by stripping the

defense of its vitality and burdening it with confusion and

inconsistency. The NACDL and NCDBW urge the Court to

reverse the Fifth Circuit's decision and reaffirm the ultimate

burden of proof beyond a reasonable doubt to the proof of all

issues attending culpability in federal criminal cases.

22

CONCLUSION

The judgment of the Court of Appeals should be reversed.

Respectfully submitted,

PETER GOLDBERGER Exvuiot H. SCHERKER

50 Rittenhouse Place Counsel of Record

Ardmore, PA 19003 Juuissa RopriGuez

(610) 649-8200 GREENBERG TRAURIG, P.A.

1221 Brickell Avenue

PAMELA Harris Miami, FL 33131

1625 Eye Street, N.W. (305) 579-0500

Washington, DC 20006

(202) 383-5386 Karen M. Gort Lies

Post Office Box 1388

Coconut Grove, FL 33233

(305) 648-3172

Counsel for Amici Curiae