throbber
United States Court of Appeals
`FOR THE DISTRICT OF COLUMBIA CIRCUIT
`
`
`Argued February 22, 2016 Decided June 10, 2016
`
`
`No. 14-3060
`
`UNITED STATES OF AMERICA,
`APPELLEE
`
`v.
`
`QUEEN NWOYE,
`APPELLANT
`
`
`Appeal from the United States District Court
`for the District of Columbia
`(No. 1:07-cr-00012-1)
`
`
`
`
`A.J. Kramer, Federal Public Defender, argued the cause
`and filed the briefs for appellant.
`
`
`Karen P. Seifert, Assistant U.S. Attorney, argued the
`cause for appellee. On the brief were Elizabeth Trosman,
`Frederick Yette, James Sweeney, and David P. Saybolt,
`Assistant U.S. Attorneys.
`
`
`Before: KAVANAUGH, Circuit Judge, and EDWARDS and
`SENTELLE, Senior Circuit Judges.
`
`
`
`
`

`
`2
`
`filed by Circuit Judge
`the Court
`for
`Opinion
`KAVANAUGH, with whom Senior Circuit Judge EDWARDS
`joins.
`
`Dissenting opinion filed by Senior Circuit Judge
`SENTELLE.
`
`KAVANAUGH, Circuit Judge: A woman named Queen
`Nwoye was convicted of conspiring with her boyfriend,
`Adriane Osuagwu, to extort money from a prominent doctor
`with whom Nwoye had previously had an affair. At trial,
`Nwoye testified that she acted under duress: She said that
`Osuagwu repeatedly beat her and forced her to participate in
`the extortion scheme. Despite asserting a duress defense
`based on Osuagwu’s repeated abuse of Nwoye, Nwoye’s
`counsel did not introduce expert testimony on battered woman
`syndrome. At the close of trial, Nwoye’s counsel requested a
`jury instruction on duress, but the District Court denied the
`request. A jury then convicted Nwoye of conspiracy to
`commit extortion.
`
`On direct appeal, Nwoye challenged the District Court’s
`failure to instruct the jury on duress. This Court rejected the
`challenge, with Judge Tatel dissenting. But the Court
`indicated that it was rejecting Nwoye’s challenge in part
`because Nwoye had failed to introduce expert testimony on
`battered woman syndrome. Such expert testimony, the Court
`suggested, may have entitled Nwoye to a duress instruction.
`
`Nwoye then moved to vacate the conviction based on
`alleged ineffective assistance of trial counsel. A claim of
`ineffective assistance of counsel requires the defendant to
`show (i) that counsel’s performance was constitutionally
`deficient and (ii) that the ineffective assistance prejudiced the
`defendant. On the first prong, the deficiency prong, Nwoye
`claimed that competent trial counsel would have introduced
`
`
`
`

`
`3
`
`expert testimony on battered woman syndrome. On the
`second prong, the prejudice prong, Nwoye claimed that such
`expert testimony would have led the District Court to instruct
`the jury on duress. And Nwoye further argued that the
`combination of the expert testimony and the duress instruction
`would have created a reasonable doubt respecting her guilt.
`
`ineffective-
`The District Court denied Nwoye’s
`assistance-of-counsel claim. The District Court held that
`Nwoye was not prejudiced by trial counsel’s failure to
`introduce expert testimony on battered woman syndrome.
`The District Court therefore did not need to (and did not)
`decide whether counsel’s performance was constitutionally
`deficient.
`
`Although the prejudice question is close, we see it
`differently than the District Court did. We conclude that
`Nwoye was prejudiced by trial counsel’s failure to introduce
`expert testimony on battered woman syndrome. We therefore
`reverse the judgment of the District Court, and we remand so
`that the District Court may decide whether Nwoye’s counsel
`was constitutionally deficient in failing to present such
`testimony.
`
`I
`
`A
`
`In January 2007, a woman named Queen Nwoye was
`indicted for conspiring with her then-boyfriend, Adriane
`Osuagwu, to extort money from Ikemba Iweala. Iweala was a
`prominent doctor. He and Nwoye had previously had an
`affair. Over the course of 49 days in 2006, Osuagwu and
`Nwoye repeatedly
`threatened Iweala
`that
`they would
`publicize his prior relationship with Nwoye unless Iweala
`paid them. Their threats were effective. Iweala made six
`
`
`
`

`
`4
`
`separate payments to Osuagwu and Nwoye, totaling almost
`$200,000.
`
`At Nwoye’s trial, Nwoye admitted to engaging in the
`alleged extortion but testified that Osuagwu had coerced her
`participation through his physically abusive and controlling
`behavior.
` According to Nwoye, her relationship with
`Osuagwu turned abusive shortly after they started dating in
`2005. Osuagwu would frequently slap Nwoye with his hand,
`hit her with his shoe, and beat her on her face and body.
`Later, Osuagwu’s physical violence escalated. Osuagwu beat
`Nwoye when she initially refused to introduce him to Iweala.
`Whenever she objected to the extortion, Osuagwu would beat
`her “like a drum.” And on one occasion when Nwoye did not
`play her part in the extortion scheme, Osuagwu slapped
`Nwoye and threatened to “strangle” and “kill” her if the
`scheme were exposed.
`
`Nwoye further testified that Osuagwu exerted financial
`and psychological control over her. Osuagwu forced Nwoye
`to hand over her ATM card and PIN. In addition, Nwoye and
`her children lived with Osuagwu at Osuagwu’s home in
`Maryland. Nwoye testified that Osuagwu – the only person
`who knew that she lived at the house – would often threaten
`to kill Nwoye and bury her inside the house. Nwoye also
`testified that she was afraid to report Osuagwu to the police
`because Osuagwu had told her that he was a former FBI
`agent.
`
`At the same time, Nwoye’s testimony revealed that
`Osuagwu did not have direct physical control over Nwoye at
`all times. While Nwoye attended nursing school or worked at
`a hospital for three days a week, she was apart from
`Osuagwu. And Osuagwu spent at least a few days in
`California while Nwoye remained in Maryland.
`
`
`
`

`
`5
`
`But even while they were apart, Osuagwu constantly
`monitored Nwoye. He forced Nwoye to keep her phone with
`her and demanded that she answer promptly, even going so
`far as to require Nwoye to wear a Bluetooth earpiece during
`class at nursing school.
`
`B
`
`Despite the significant evidence of Nwoye’s abusive
`relationship with Osuagwu, Nwoye’s trial counsel did not
`seek to introduce expert testimony on battered woman
`syndrome.
`
`Battered woman syndrome is a term that was coined by
`Dr. Lenore Walker in the late 1970s to describe the
`psychological and behavioral traits common to women who
`are exposed to severe, repeated domestic abuse. See LENORE
`E. WALKER, THE BATTERED WOMAN SYNDROME (1984);
`LENORE E. WALKER, THE BATTERED WOMAN (1979). Dr.
`Walker’s theory was that women subject to cyclical domestic
`abuse develop psychological paralysis – or “learned
`helplessness” – that renders them unable to escape abusive
`relationships. See WALKER, BATTERED WOMAN SYNDROME
`at 86-97.1
`
`
`1 Although the majority of domestic violence victims are
`women, some cases involve victims who are men. See Department
`of Justice, Bureau of Justice Statistics, Intimate Partner Violence,
`1993-2010 1 (Nov. 2012, rev. Sept. 2015) (“From 1994 to 2010,
`about 4 in 5 victims of intimate partner violence were female.”).
`Some scholars have advocated abandoning the term “battered
`woman syndrome” in favor of the label “battering and its effects.”
`See, e.g., Mary Ann Dutton, Update of the “Battered Woman
`Syndrome” Critique, National Online Resource Center on Violence
`Against Women (Aug. 2009). We use the term “battered woman
`syndrome” in this opinion because the term is commonly used by
`
`
`
`

`
`6
`
`Since the advent of Dr. Walker’s influential research,
`courts have admitted expert testimony on battered woman
`syndrome to support claims of duress and self-defense. See
`Janet Parrish, Trend Analysis: Expert Testimony on Battering
`and Its Effects in Criminal Cases, in DEPARTMENT OF JUSTICE
`ET AL., THE VALIDITY AND USE OF EVIDENCE CONCERNING
`BATTERING AND ITS EFFECTS IN CRIMINAL TRIALS pt. II, at 19,
`21-22, 28 (1996) (hereinafter DOJ REPORT).
`
` C
`
`At Nwoye’s trial, Nwoye’s counsel did not present expert
`testimony on battered woman syndrome. Counsel instead
`staked Nwoye’s duress defense entirely on Nwoye’s own trial
`testimony. At the close of trial, Nwoye’s counsel requested a
`jury instruction on duress. To be entitled to an instruction on
`duress, Nwoye had to present sufficient evidence (i) that she
`acted under an unlawful threat of imminent death or serious
`bodily injury and (ii) that there was no reasonable alternative
`to participating in the extortion scheme. See United States v.
`Jenrette, 744 F.2d 817, 820-21 (D.C. Cir. 1984).
`
`The District Court ruled that Nwoye had not presented
`sufficient evidence on the second prong of duress – the no-
`reasonable-alternative prong – and therefore declined to give
`the duress instruction. The jury then convicted Nwoye of
`conspiracy to commit extortion, and the District Court
`sentenced Nwoye to 20 months in prison, followed by three
`years of supervised release.2
`
`
`courts and because it describes the alleged circumstances in this
`case.
`2 For his part, Osuagwu pled guilty to conspiracy and was
`sentenced to 22 months in prison.
`
`
`
`

`
`7
`
`the District Court’s
`Nwoye appealed, challenging
`decision not to give the duress instruction. This Court
`affirmed. United States v. Nwoye, 663 F.3d 460 (D.C. Cir.
`2011). The Court explained that Nwoye had a number of
`reasonable alternatives to participating in the extortion
`scheme, including reporting Osuagwu to police or to friends
`and co-workers when she was at school or work, away from
`Osuagwu. Id. at 462-65.
`
`The Court also stressed that although Nwoye had testified
`about the abuse she suffered, she failed to present “other usual
`indicia supporting a BWS defense – expert witnesses
`testifying to the effects of isolation, financial dependence, or
`estrangement from family members.” Id. at 465. Therefore,
`the Court concluded that Nwoye was not entitled to a jury
`instruction on duress.
`
`Judge Tatel dissented. In his view, Nwoye’s testimony
`concerning Osuagwu’s threats and abuse amounted to “more
`than enough evidence to have warranted a duress instruction.”
`Id. at 468.
`
` D
`
`In 2013, after the termination of her supervised release,
`Nwoye filed a motion to vacate her conviction.3 Nwoye
`
`
`3 On appeal, Nwoye has characterized her post-conviction
`motion as a petition for a writ of coram nobis. “A petition for a
`writ of coram nobis provides a way to collaterally attack a criminal
`conviction for a person . . . who is no longer ‘in custody’ and
`therefore cannot seek habeas relief under 28 U.S.C. § 2255 or
`§ 2241.” Chaidez v. United States, 133 S. Ct. 1103, 1106 n.1
`(2013). The Government does not dispute that a petition for a writ
`of coram nobis is an appropriate way for Nwoye to seek redress for
`
`
`
`

`
`8
`
`claimed that her trial counsel was constitutionally ineffective
`because counsel failed to call an expert witness to testify
`about battered woman syndrome. To establish that her
`counsel was constitutionally ineffective, Nwoye had to prove
`(i) that her counsel’s performance was constitutionally
`deficient and (ii)
`that counsel’s
`ineffective assistance
`prejudiced her. Strickland v. Washington, 466 U.S. 668, 687
`(1984).
`
`The District Court held an evidentiary hearing to allow
`Nwoye to present the expert testimony on battered woman
`syndrome that Nwoye argued should have been offered at
`trial. At the hearing, Nwoye’s expert – Dr. Carole Giunta –
`testified extensively about battered woman syndrome in
`general. Dr. Giunta also opined that Nwoye’s relationship
`with Osuagwu exhibited the “classic dynamics” of a battering
`relationship.
`
`After considering this new evidence, the District Court
`denied Nwoye’s motion to vacate her conviction. United
`States v. Nwoye, 60 F. Supp. 3d 225 (D.D.C. 2014). Applying
`the two-part test for ineffective-assistance claims, the District
`Court ultimately did not decide whether trial counsel’s alleged
`failures rose to the level of a constitutional deficiency.
`Instead, the District Court decided that Nwoye was, in any
`event, not prejudiced by the lack of expert testimony on
`battered woman syndrome. The District Court reasoned that
`such testimony still would not have satisfied the second prong
`of duress – the no-reasonable-alternative prong – and that the
`testimony therefore would not have entitled Nwoye to a jury
`instruction on duress. Id. at 236-42. For that reason, the
`
`
`her claim of ineffective assistance of counsel. See United States v.
`Newman, 805 F.3d 1143, 1146 (D.C. Cir. 2015).
`
`
`
`

`
`9
`
`District Court held that Nwoye had not made out a successful
`claim of ineffective assistance of counsel.
`
`II
`
`Nwoye claims that her trial counsel was constitutionally
`ineffective because counsel failed to present expert testimony
`on battered woman syndrome. To reiterate, a defendant
`claiming ineffective assistance of counsel must show that (i)
`“counsel’s representation fell below an objective standard of
`reasonableness”
`and
`(ii) “the deficient performance
`prejudiced the defense.” Strickland v. Washington, 466 U.S.
`668, 687-88 (1984). The District Court held that trial
`counsel’s failure to present expert testimony on battered
`woman syndrome was not prejudicial. The District Court thus
`did not need to (and did not) decide whether trial counsel’s
`failure
`to present such
`testimony was constitutionally
`deficient.
`
`On appeal, therefore, the only issue for us to decide is
`whether the failure of Nwoye’s trial counsel to present expert
`testimony on battered woman syndrome was prejudicial. If
`so, then we must remand for the District Court to determine
`whether trial counsel was constitutionally deficient in failing
`to introduce such testimony. If not, then we must affirm. We
`review de novo the District Court’s denial of Nwoye’s claim
`of ineffective assistance of counsel, including the question
`whether Nwoye was prejudiced by her counsel’s allegedly
`deficient performance. See United States v. Abney, 812 F.3d
`1079, 1086-87 (D.C. Cir. 2016).4 Although the dissent
`
`
`4 Of course, we still review for clear error any findings of
`historical fact embedded in the District Court’s conclusions on
`deficient performance and prejudice. See Payne v. Stansberry, 760
`F.3d 10, 13 (D.C. Cir. 2014); see also HARRY T. EDWARDS, LINDA
`A. ELLIOTT, & MARIN K. LEVY, FEDERAL STANDARDS OF REVIEW:
`
`
`
`

`
`10
`
`suggests that we should give some deference to the District
`Court, our case law is clear that the standard of review is de
`novo.
`
`To establish prejudice, Nwoye must demonstrate “a
`reasonable probability that, absent the errors, the factfinder
`would have had a reasonable doubt respecting guilt.”
`Strickland, 466 U.S. at 695. To demonstrate a reasonable
`probability, Nwoye “need not show that counsel’s deficient
`conduct more likely than not altered the outcome in the case.”
`Id. at 693. She must demonstrate only “a probability
`sufficient to undermine confidence” in the verdict. Id. at 694.
`
`Nwoye’s prejudice argument proceeds in two steps:
`First, Nwoye argues that expert testimony on battered woman
`syndrome would have entitled her to a jury instruction on the
`defense of duress. Second, she claims that a duress
`instruction, together with the expert testimony on battered
`woman syndrome, would have created a “reasonable
`probability” that the jury “would have had a reasonable doubt
`respecting guilt.” Id. at 695. Nwoye must succeed on both
`arguments to establish prejudice.
`
`We conclude first that expert testimony on battered
`woman syndrome would have entitled Nwoye to a jury
`instruction on duress. And we conclude further that a duress
`instruction, together with the expert testimony, would have
`created a reasonable probability that the jury would have had
`a reasonable doubt respecting Nwoye’s guilt.
`
`
`REVIEW OF DISTRICT COURT DECISIONS AND AGENCY ACTIONS 1
`(2d ed. Supp. 2015) (When “courts determine that a particular
`mixed question of law and fact should be treated as a question of
`law and reviewed de novo, subsidiary findings of fact are properly
`reviewed under the clearly erroneous standard of review.”).
`
`
`
`

`
`11
`
`A
`
`As this Court stated on Nwoye’s direct appeal, a
`defendant is entitled to a jury instruction on any recognized
`affirmative defense “if there is sufficient evidence from which
`a reasonable jury could find for the defendant on that theory.”
`United States v. Nwoye, 663 F.3d 460, 462 (D.C. Cir. 2011)
`(internal quotation marks omitted). To obtain an instruction
`on the affirmative defense of duress, a defendant must
`produce sufficient evidence (i) that “she acted under an
`unlawful threat of imminent death or serious bodily injury,”
`and (ii) that there was no “reasonable, legal alternative to
` Id. (internal quotation marks
`committing the crime.”
`omitted).
`
`On direct appeal, this Court held that the evidence
`Nwoye presented at trial was insufficient to support a duress
`instruction. Id. at 462-65. In so ruling, however, the Court
`emphasized that Nwoye had not introduced expert testimony
`on battered woman syndrome. Id. at 465. The Court
`indicated (or at least implied) that Nwoye might have been
`entitled to a duress instruction had she introduced such
`testimony. We now must decide that question.
`
`The question, put simply, is whether expert testimony on
`battered woman syndrome would have moved the evidentiary
`needle enough to entitle Nwoye to a duress instruction. To
`answer that question, we must initially assess whether, in
`general, expert testimony on battered woman syndrome can
`be admissible to prove duress – that is, whether it can be
`reliable and can be relevant to the duress defense. If so, then
`we next must assess whether the particular expert testimony
`proffered by Nwoye in her post-conviction proceeding was
`reliable and would have provided relevant evidence at
`Nwoye’s trial. Finally, if Nwoye’s expert testimony would
`
`
`
`

`
`12
`
`have been admissible, we must determine whether the
`introduction of such testimony at Nwoye’s trial would have
`entitled her to a jury instruction on duress.
`
`We now address those three questions in turn.
`
`1
`
`For expert testimony to be admissible in federal court, it
`must be both reliable and relevant. See FED. R. EVID. 702;
`Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579,
`589 (1993).
`
`As to reliability, trial judges possess “considerable
`leeway in deciding in a particular case how to go about
`determining whether particular expert testimony is reliable.”
`Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1999). At
`bottom, though, the expert’s opinion must have “a reliable
`basis in the knowledge and experience of his discipline.” Id.
`at 148.
`
`The Government does not dispute that expert testimony
`on battered woman syndrome can be reliable. And several
`courts of appeals have permitted the admission of expert
`testimony on battered woman syndrome. See United States v.
`Young, 316 F.3d 649, 656-59 (7th Cir. 2002); Arcoren v.
`United States, 929 F.2d 1235, 1241 (8th Cir. 1991). None has
`held that such testimony is categorically unreliable, so far as
`we are aware. Given the history of expert testimony on this
`subject and the extensive literature, we too agree that expert
`testimony on battered woman syndrome can be reliable,
`assuming of course that the expert can demonstrate sufficient
`expertise to meet the usual requirements for experts to testify
`on a subject.
`
`
`
`

`
`13
`
`To be admissible in support of a duress defense, expert
`testimony on battered woman syndrome must also be relevant
`to proving duress. Most courts that have considered the
`question – especially in recent years – have recognized that
`expert testimony on battered woman syndrome can be
`relevant to prove duress. See Dando v. Yukins, 461 F.3d 791,
`801 (6th Cir. 2006); United States v. Dixon, 413 F.3d 520,
`524 & n.3 (5th Cir. 2005); United States v. Ceballos, 593 F.
`Supp. 2d 1054, 1060-62 (S.D. Iowa 2009); United States v.
`Marenghi, 893 F. Supp. 85, 91-97 (D. Me. 1995); Wonnum v.
`State, 942 A.2d 569, 572-73 (Del. 2007); Commonwealth v.
`Pike, 726 N.E.2d 940, 948 (Mass. 2000) (expert testimony
`assumed to be relevant to prove duress); People v. Romero, 13
`Cal. Rptr. 2d 332 (1992), rev’d on other grounds, 883 P.2d
`388 (Cal. 1994); but see United States v. Willis, 38 F.3d 170,
`174-77 (5th Cir. 1994); State v. B.H., 870 A.2d 273, 289-91
`(N.J. 2005) (expert testimony irrelevant to reasonableness of
`duress defense).
`
`We agree with the majority of the courts that expert
`testimony on battered woman syndrome can be relevant to the
`duress defense. The reason, put simply, is that the duress
`defense requires a defendant to have acted reasonably under
`the circumstances, and expert testimony can help a jury assess
`whether a battered woman’s actions were reasonable.
`
`Reasonableness is the touchstone of a duress defense. To
`satisfy the first prong of the duress defense, the defendant
`must have acted under the influence of a reasonable fear of
`imminent death or serious bodily harm at the time of the
`alleged crime. See 2 WAYNE R. LAFAVE, SUBSTANTIVE
`CRIMINAL LAW § 9.7(b) (2d ed. 2003) (“the danger need not
`be real; it is enough if the defendant reasonably believes it to
`be real”); see also United States v. Jenrette, 744 F.2d 817,
`820-21 (D.C. Cir. 1984). And to satisfy the second prong of
`
`
`
`

`
`14
`
`the defense, there must have been no “reasonable, legal
`alternative to committing the crime.” Nwoye, 663 F.3d at 462
`(emphasis added). Whether an alternative is reasonable turns
`on whether a reasonable person would have availed herself of
`it.
`
`Reasonableness – under both the imminence prong and
`the no-reasonable-alternative prong – is not assessed in the
`abstract. Rather, any assessment of the reasonableness of a
`defendant’s actions must take into account the defendant’s
`“particular circumstances,” at least to a certain extent. See id.
`at 464; see also Model Penal Code § 2.09 (duress defense
`appropriate whenever a “person of reasonable firmness in his
`situation would have been unable to resist” threat of unlawful
`force) (emphasis added).
`
`The circumstances that juries have historically considered
`in assessing
`reasonableness have been
`factors “that
`differentiate the actor from another, like his size, strength,
`age, or health,” as well as facts known to the defendant at the
`time in question, such as the defendant’s knowledge of an
`assailant’s violent reputation. Model Penal Code § 2.09 cmt.
`at 375 (1985); Smith v. United States, 161 U.S. 85, 88 (1896).
`On the other hand, courts have typically precluded juries from
`considering factors such as
`the defendant’s particular
`“psychological incapacity” or her “clarity of judgment,
`suggestibility or moral insight.” Model Penal Code § 2.09
`cmt. at 373-74 (1985).
`
`Thus, whether expert testimony on battered woman
`syndrome is relevant to the duress defense turns on whether
`such testimony can identify any aspects of the defendant’s
`“particular circumstances” that can help the jury assess the
`reasonableness of her actions. Examination of the particulars
`of the duress defense shows that expert testimony on battered
`
`
`
`

`
`15
`
`woman syndrome can indeed identify relevant aspects of a
`battered woman’s particular circumstances.
`
`With respect to the first prong of the duress defense – the
`imminent-harm prong – women in battering relationships are
`often “hypervigilant to cues of impending danger and
`accurately perceive the seriousness of the situation before
`another person who had not been repeatedly abused might
`recognize the danger.” Lenore E.A. Walker, Battered Women
`Syndrome and Self-Defense, 6 NOTRE DAME J.L. ETHICS &
`PUB. POL’Y 321, 324 (1992). Remarks or gestures that may
`seem harmless to the average observer might be reasonably
`understood to presage imminent and severe violence when
`viewed against the backdrop of the batterer’s particular
`pattern of violence. As our colleague Judge Brown stated
`while on the California Supreme Court: “Although a jury
`might not find the appearances sufficient to provoke a
`reasonable person’s fear, they might conclude otherwise as to
`the reality when
`a reasonable person’s perception of
`enlightened by expert
`testimony on
`the concept of
`hypervigilance.” People v. Humphrey, 921 P.2d 1, 17 (Cal.
`1996) (Brown, J., concurring).
`
`Regarding the second prong of the duress defense – the
`no-reasonable-alternative prong – battered women face
`significant impediments to leaving abusive relationships.
`Most importantly, battered women who leave their abusers
`risk a retaliatory escalation in violence against themselves or
`those close to them – sometimes termed “separation abuse.”
`Mary Ann Dutton, Validity of “Battered Woman Syndrome”
`in Criminal Cases Involving Battered Women, in DOJ REPORT
`pt. I, at 14-15; Desmond Ellis, Post-Separation Woman
`Abuse: The Contribution of Lawyers as “Barracudas,”
`“Advocates,” and “Counsellors,” 10
`INT’L
`J.L. &
`PSYCHIATRY 403, 408 (1987). For example, studies have
`
`
`
`

`
`16
`
`suggested that women in battering relationships are more
`likely to be killed by their batterers after separating from
`them. See Dutton, Validity of “Battered Woman Syndrome”
`in Criminal Cases Involving Battered Women (citing Margo
`Wilson et al., Uxoricide in Canada: Demographic Risk
`Patterns, 35 CANADIAN J. CRIMINOLOGY 263, 263-91 (1993)),
`in DOJ REPORT pt. I, at 14. In addition, batterers often isolate
`their victims and exert financial control over them, rendering
`separation a significant burden. See LENORE E. WALKER, THE
`BATTERED WOMAN, 129-32 (1979). Expert testimony on
`those impediments to separation can help explain why a
`battered woman did not take advantage of an otherwise
`reasonable-sounding opportunity to avoid committing the
`alleged crime.
`
`In short, expert testimony on battered woman syndrome
`can be relevant to both prongs of the duress defense.
`
`Our conclusion is further supported by the decisions of
`the vast majority of courts that have long held that expert
`testimony on battered woman syndrome can be relevant in the
`analogous context of self-defense. See, e.g., Humphrey, 921
`P.2d at 8-9; State v. Kelly, 478 A.2d 364, 377-78 (N.J. 1984);
`Ibn-Tamas v. United States, 407 A.2d 626, 631-35 (D.C.
`1979); see also Janet Parrish, Trend Analysis: Expert
`Testimony on Battering and Its Effects in Criminal Cases, in
`DOJ REPORT pt. II, at 19, 28. The elements of self-defense
`are similar to the elements of duress: To establish a claim of
`self-defense in most jurisdictions, a defendant must prove that
`she reasonably believed her use of force was necessary to
`prevent imminent death or serious bodily harm. See 2
`LAFAVE, SUBSTANTIVE CRIMINAL LAW § 10.4. Thus, if
`battered woman syndrome can be relevant to prove self-
`
`
`
`

`
`17
`
`defense (as virtually all courts accept), it likewise should be
`relevant to prove duress.5
`
`In sum, we conclude that expert testimony on battered
`woman syndrome may be admissible as a general matter to
`prove duress because such testimony can be reliable and can
`be relevant to both prongs of the duress defense.
`
`2
`
`The next question is whether expert testimony on
`battered woman syndrome would have been reliable and
`relevant in Nwoye’s case. We conclude that it would have
`been.
`
`To begin with, the Government does not argue that the
`expert testimony from Dr. Giunta that Nwoye proffered in her
`post-conviction proceeding was unreliable. And we have no
`reason to question its reliability.
`
`Nwoye’s expert testimony, moreover, would certainly
`have been relevant to Nwoye’s defense. This Court suggested
`as much on Nwoye’s direct appeal by noting the conspicuous
`absence of expert testimony on battered woman syndrome at
`Nwoye’s trial. Nwoye, 663 F.3d at 465. And the Government
`does not dispute that Nwoye’s trial testimony strongly
`
`5 The Government points out that the defenses of self-defense
`and duress are distinct in one sense: Defendants who act in self-
`defense often injure morally culpable individuals – the initial
`aggressors – while defendants who act under duress often injure
`blameless third parties. Thus, the Government argues, the duress
`defense should be more narrowly circumscribed in order to protect
`innocent third parties. Maybe so. But the proper response to such a
`fundamental mismatch between the defenses would be to make
`wholesale changes to the duress defense rather than to tweak on an
`ad hoc basis the kinds of evidence that are relevant to duress.
`
`
`
`

`
`18
`
`suggested that she had been a victim of a battering
`relationship. An expert on battered woman syndrome could
`therefore have helped the jury assess the reasonableness of
`Nwoye’s actions, as we described above.
`
`3
`
`The next question is whether expert testimony on
`battered woman syndrome would have entitled Nwoye to a
`duress instruction in this case. On Nwoye’s direct appeal,
`when we rejected Nwoye’s claim that she was entitled to a
`duress instruction, we pointed specifically to the absence of
`“expert witnesses testifying to the effects of isolation,
`financial dependence, or
`estrangement
`from
`family
`members.” Id. We now conclude that the introduction of
`such testimony at Nwoye’s trial would have entitled Nwoye
`to a duress instruction.
`
`the
`testimony on
`Perhaps most critically, expert
`likelihood of retaliatory violence upon separation could have
`provided a plausible explanation for why Nwoye failed to
`extricate herself from the extortion scheme. Nwoye may have
`feared that any attempt to leave Osuagwu would have resulted
`in still greater violence. Moreover, Nwoye may have
`reasonably believed that reporting Osuagwu to the police (or
`others) would have been unlikely to result in his immediate
`arrest and would have therefore placed her at greater risk in
`the interim. Thus, Nwoye’s testimony concerning Osuagwu’s
`abuse, supplemented by expert testimony on battered woman
`syndrome, would have constituted “sufficient evidence from
`which a reasonable jury could find” for Nwoye on a theory of
`duress. Id. at 462.
`
`It may be helpful here to take a step back so that the
`reader does not miss the forest for the trees. The concept of
`battered woman syndrome fits this case to a T. A woman was
`
`
`
`

`
`19
`
`beaten repeatedly by her boyfriend. Some outsiders may
`question why she didn’t just leave her boyfriend. But the
`expert
`testimony would help explain why.
` For
`the
`Government to come in now and say that such expert
`testimony, combined with Nwoye’s own testimony about the
`beatings, still would not entitle her to a duress instruction is to
`say in essence that battered woman syndrome does not matter,
`at least in duress cases. We do not agree with that suggestion.
`
`B
`
`To this point, we have concluded that expert testimony
`
`on battered woman syndrome would have entitled Nwoye to a
`jury instruction on duress. To make out her claim of
`prejudice for purposes of the ineffective-assistance-of-counsel
`inquiry, Nwoye also must show that expert testimony on
`battered woman syndrome,
`together with
`the duress
`instruction, would have created a “reasonable probability that
`. . . the result of the proceeding would have been different.”
`Strickland, 466 U.S. at 694. To repeat what we noted above,
`Nwoye does not need to show that the expert testimony and
`the jury instruction “more likely than not” would have
`produced an acquittal. Id. at 693. She must demonstrate only
`“a probability sufficient to undermine confidence” in the
`verdict. Id. at 694.
`
`It can be difficult for a reviewing court (whether a district
`court or a court of appeals) to determine how additional
`evidence or an additional jury instruction would have affected
`a trial. It is inherently a speculative exercise. In this case,
`however, we conclude that Nwoye has demonstrated a
`reasonable probability that the jury would have had a
`reasonable doubt respecting her guilt.
`
`At trial, Nwoye admitted to participating

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