United States v. Nwoye, 08-3051

• Decision Date: 09 December 2011
• Docket Number: No. 08-3051,08-3051
• Parties: UNITED STATES OF AMERICA, APPELLEE v. QUEEN NWOYE, APPELLANT
• Court: U.S. Court of Appeals — District of Columbia Circuit

UNITED STATES OF AMERICA, APPELLEE

v.QUEEN NWOYE, APPELLANT

No. 08-3051

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 14, 2011

Decided December 9, 2011

Appeal from the United States District Court

for the District of Columbia

(No.1:07-cr-00012)

A. J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant. Neil H. Jaffee and Jonathan S. Jeffress, Assistant Federal Public Defenders, entered appearances.

Suzanne G. Curt, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Ronald C. Machen, Jr., U.S. Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Frederick W. Yette, Assistant U.S. Attorneys.

Before: TATEL and BROWN, Circuit Judges, and WILLIAMS, Senior Circuit Judge.

Opinion for the court filed by Circuit Judge BROWN.

Dissenting opinion filed by Circuit Judge TATEL.

BROWN, Circuit Judge: Appellant, Queen Nwoye ("Nwoye"), was convicted of conspiring with a male accomplice, Adriane Osuagwu ("Osuagwu"), to extort money from Dr. Ikemba Iweala ("Iweala"), by threatening to expose their brief extramarital affair to his wife and the medical licensing board. At trial, Nwoye's attorney proffered evidence in support of a duress defense. The district court permitted Nwoye to testify as to the facts of her alleged duress, but declined to instruct the jury about the defense. Nwoye now appeals her conviction on the grounds that the district court improperly denied her a duress instruction and improperly instructed the jury on venue. Because Nwoye is not entitled to a duress instruction and because there was no plain error regarding the venue instruction, we affirm.

I

After Nwoye, a native of Nigeria, came across Dr. Iweala's name on prescriptions she handled as a pharmacy technician, she left phone messages pretending to be a relative of his in order to get his attention. She succeeded, and for a few months in 2002, Nwoye and the doctor were lovers. The romantic part of their relationship ended amicably, and Nwoye and Iweala remained friendly. Nwoye, who had earned an accounting degree in Nigeria, was married and had children. She began attending nursing school sometime after her affair with Iweala and has since graduated and is a registered nurse.

In the summer of 2005, Nwoye and her husband agreed to a separation. Around the same time, she met Osuagwu andbegan a romantic relationship with him. In February of 2006, Nwoye told Osuagwu about her affair with Iweala. At Osuagwu's urging, Nwoye telephoned Iweala and asked him to speak with Osuagwu, who she introduced, using a pseudonym, as her "cousin." This conversation began a series of extortion demands with which Nwoye urged Iweala to comply. In fact, the plot spanned two months and featured a series of five separate demands for money, three instances in which Nwoye herself collected money from Iweala alone, one coordinated and successful effort by Nwoye and Osuagwu to extract even more money by lying to Iweala and insisting Nwoye had kept all of the money for herself, and one particularly dramatic incident in which Nwoye lured Iweala to meet her in the parking lot of Providence Hospital in Washington, D.C. by falsely claiming a desire to return his money and to renew their sexual liaison. That night, she went with Osuagwu to the hospital parking lot, and once she and Iweala were alone in her car, in flagrante delicto, Osuagwu took photographs to use as leverage, at which point Iweala fled the car. The extortion did not come to an end until the conspirators had extracted $185,000; Iweala then confessed his indiscretions and contacted the FBI. Shortly thereafter, Nwoye returned to her husband and contacted a law enforcement agency in Nigeria, the Economic and Financial Crime Commission ("EFCC"), to report Osuagwu's criminal activity.

At trial, Nwoye testified she did not want to extort money from Iweala but that, throughout this extortion scheme, Osuagwu physically abused her and forced her to participate. At his insistence, she wore a Bluetooth earpiece so the two could be in constant telephone contact and so Osuagwu could monitor her conversations and activities. She also claimed that Osuagwu said he was an FBI agent, as well as a nurse. He threatened to kill her if she failed to cooperate. She fearedcontacting the police because she thought Osuagwu could use his supposed law enforcement connections to discover her betrayal and retaliate against her.

Based on these alleged threats, Nwoye's attorney requested the jury be instructed on a duress defense.¹ A defendant is only entitled to an instruction on a theory of duress if there is "sufficient evidence from which a reasonable jury could find" for the defendant on that theory. United States v. Akhigbe, 642 F.3d 1078, 1083 (D.C. Cir. 2011). The district court found Nwoye's testimony insufficient to support the instruction. We review this determination de novo. United States v. Kayode, 254 F.3d 204, 214 (D.C. Cir. 2001).

II

The affirmative defense of duress is only available to a defendant who shows she acted "under an unlawful threat of imminent death or serious bodily injury." United States v. Bailey, 444 U.S. 394, 409 (1980). The threat must be both grave and so "immediate," United States v. Gaviria, 116 F.3d 1498, 1531 (D.C. Cir. 1997), as to preclude "any reasonable, legal alternative to committing the crime," United States v. Jenrette, 744 F.2d 817, 820 (D.C. Cir. 1984); see also United States v. Rawlings, 982 F.2d 590, 593 (D.C. Cir. 1993) ("[A] defendant cannot claim duress when he had, but passed up, an opportunity to seek the aid of law enforcement officials."). A defendant who has the opportunity to avoid committing a crime, either by contacting police or by otherwise removing herself from a threatening situation, cannot seek to excuse her criminal conduct by claiming to have acted under duress.

This Court has affirmed denials of the duress defense even in quite harrowing situations. In Gaviria, we denied the defense for a defendant whose teenage daughter was in the physical custody of a co-conspirator, with a history of physical abuse against the daughter, who coerced the defendant's cooperation for thirteen months "by reminding him that [the daughter] was 'in his hands.'" 116 F.3d at 1531. But, because of the defendant's "ample opportunities" to inform his daughter, other members of his family, his daughter's school principal, or any number of other people about that threat, we concluded the defendant's claim of duress "border[ed] upon the frivolous." Id. The requirement of immediacy is also not equivocal. A defendant who had just two days between the receipt of a threat and the inception of the conspiracy during which he could have contacted the authorities or sought help failed to meet it. Jenrette, 744 F.2d at 821.

Our sister Circuits have imposed a similarly high bar. In United States v. Alicea, the Second Circuit denied the defense to female defendants forced to transport drugs after having been raped by their captors, told they were under constant visual surveillance during a nine-hour plane flight, and threatened with the deaths of their families if they failed to cooperate because they could have "complain[ed] to the cabin attendants" during the flight or sought assistance from Immigration and Customs officers after landing. 837 F.2d 103, 105-06 (2d Cir. 1988); see also R.I. Recreation Ctr. v. Aetna Cas. & Sur. Co., 177 F.2d 603, 604-05 (1st Cir. 1949) (affirming denial of defense for defendant accosted by armed men who drove him at gunpoint to his office building, ordered him to take money out of his safe, and threatened they would "take care of" his family if he did not comply, because the threat was of "future unspecified harm" and because he wasfree in the minutes he was alone in the office building to call someone for help).

Without denying the compelling nature of Osuagwu's alleged threats or of the abuse Nwoye claims to have received, Nwoye's testimony falls far short of the duress claimed in, and ultimately denied by, our precedents. She had ample opportunities to notify law enforcement either directly or indirectly or, even more basically, to avail herself of "reasonable, legal alternative[s] to committing the crime," Jenrette, 744 F.2d at 820, by extricating herself from the conspiracy. Three days a week, she attended nursing school classes or worked at a hospital, and was physically separated from Osuagwu. While there, she could have contacted police herself or asked teachers or classmates to do so or to help her escape Osuagwu's control. She ordinarily met with Iweala alone for at least a few minutes when she collected money from him, and on one occasion she went to collect money from him entirely on her own. She could have told him then that she was being coerced, that she needed help, and that he should contact authorities himself and put an end to the unlawful activity.² She let these opportunities pass.

Finally, Osuagwu spent nearly two weeks in California, thousands of miles away from Nwoye. During that time, their only contact was by telephone. And though Nwoye testified they were in constant contact, she could have turned off the phone, talked to her husband, her friends, or the police, and fled to safety with her children before Osuagwu could evenget through airport security.³ And even if Nwoye wanted to avoid an open breach of her arrangement with Osuagwu, she could have explained any gap in their cell phone contact as the result of spotty cell coverage, a trip on the Metro, or a dead battery. She failed to take any advantage of Osuagwu's absence. A defendant with such "countless opportunities to contact law enforcement authorities or [to] escape the perceived threats" cannot as a matter of law avail herself of the duress defense. United States v. Scott, 901 F.2d 871, 874 (10th Cir. 1990). Compared to the duress claims of defendants who had only days, Jenrette, 744 F.2d at 821, or...