# Amicus Curiae Brief — Dixon v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0268%3A04

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2006
- **Citation:** 548 U.S. 1

## Text

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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€6¢866060 80-686 8 626 8.6.8 @@

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0268%3A04. Public record. Not legal advice.