United States v. Dingwall

6 F.4th 744

UNITED STATES of America, Plaintiff-Appellee,

v.Marjory DINGWALL, Defendant-Appellant.

No. 20-1394

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2021

Decided July 30, 2021

Barbara L. Oswald, Attorney, Rita M. Rumbelow, Attorney, Office of the United States Attorney, Madison, WI, Yishai Schwartz, Attorney, Department of Justice, Office of the Solicitor General, Washington, DC, for Plaintiff-Appellee.

Craig W. Albee, Attorney, Federal Defender Services of Eastern Wisconsin, Incorporated, Milwaukee, WI, Joseph Aragorn Bugni, Attorney, Federal Defender Services of Wisconsin, Inc., Madison, WI, for Defendant-Appellant.

Amy Catherine Miller, Attorney, Ryan J. Walsh, Attorney, Eimer Stahl LLP, Madison, WI, for Amicus Curiae.

Before Wood, Hamilton, and Kirsch, Circuit Judges.

Hamilton, Circuit Judge.

Marjory Dingwall was charged with three counts of robbery and three counts of brandishing a firearm during a crime of violence. She admits the robberies but claims she committed them under duress, in fear of brutal violence at the hands of her abusive boyfriend, Aaron Stanley. Dingwall filed a motion in limine seeking a ruling on evidence to support her duress defense, including expert evidence on battering and its effects.

The duress defense has two elements: reasonable fear of imminent death or serious injury, and the absence of reasonable, legal alternatives to committing the crime. United States v. Sawyer , 558 F.3d 705, 711 (7th Cir. 2009). The district court denied Dingwall's motion, finding that her evidence could not meet either requirement. Dingwall then pleaded guilty to three counts of Hobbs Act robbery and one count of brandishing a firearm during and in relation to a crime of violence, but she reserved her right to appeal the decision on the motion in limine.

We see the question differently than the district court did, but we recognize that the rare cases like this are close and difficult, often dividing appellate panels. Dingwall surely faces challenges in demonstrating both imminence and no reasonable alternatives: Stanley was not physically present for any of the robberies, Dingwall actually held a gun, and there is a dispute about whether Stanley threatened harm if she did not commit these specific offenses. Those facts present questions for a jury, however. We join the Ninth, District of Columbia, and Sixth Circuits in concluding that immediate physical presence of the threat is not always essential to a duress defense and that expert evidence of battering and its effects may be permitted to support a duress defense because it may inform the jury how an objectively reasonable person under the defendant's circumstances might behave. See United States v. Lopez , 913 F.3d 807 (9th Cir. 2019) ; United States v. Nwoye (Nwoye II) , 824 F.3d 1129 (D.C. Cir. 2016) (Kavanaugh, J.); Dando v. Yukins , 461 F.3d 791 (6th Cir. 2006) ; contra, United States v. Dixon , 901 F.3d 1170, 1173 (10th Cir. 2018) (affirming exclusion of evidence of battered woman's syndrome); United States v. Willis , 38 F.3d 170, 173 (5th Cir. 1994) (same). We therefore reverse the judgment of the district court and remand for further proceedings.

I. Nature and Elements of a Duress Defense

The defense of duress "may excuse conduct that would otherwise be punishable." Dixon v. United States , 548 U.S. 1, 6, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). This is "because the defendant nevertheless acted under a threat of greater immediate harm that could only be avoided by committing the crime charged." Sawyer , 558 F.3d at 711.

To present a duress defense, the defendant must produce evidence that "(1) she reasonably feared immediate death or serious bodily harm unless she committed the offense; and (2) there was no reasonable opportunity to refuse to commit the offense and avoid the threatened injury." Id. , citing United States v. Jocic , 207 F.3d 889, 892 (7th Cir. 2000). "To satisfy a threshold showing of a duress defense, a defendant must introduce sufficient evidence as to all the elements of the defense." United States v. Tanner , 941 F.2d 574, 588 (7th Cir. 1991) (citations omitted); see also Dixon , 548 U.S. at 17, 126 S.Ct. 2437 (defendant must establish duress defense by preponderance of evidence).¹

The duress defense uses "reasonable" twice, first in terms of the defendant's reasonable fear of harm, and second in terms of whether a reasonable and legal alternative course was available. The Model Penal Code puts it a little differently but still makes reasonableness the touchstone: "It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist." Model Penal Code § 2:09(1) (1985) (emphasis added), quoted in Lopez , 913 F.3d at 822. "Reasonableness is the touchstone of a duress defense... . Whether an alternative is reasonable turns on whether a reasonable person would have availed herself of it." Nwoye II , 824 F.3d at 1136–37. As we explain below, expert evidence on battering and its effects may give a lay jury useful insights about the situation in which a person of reasonable firmness finds herself.²

II. Factual and Procedural History

A. Facts of Abuse and the Robberies

Because we review what amounts to a rejection of Dingwall's duress defense as legally insufficient, we accept her version of the facts for purposes of this appeal. We draw much of our account from the statement, text messages, photographs, and other evidence she submitted to support her motion in limine. Marjory Dingwall met Aaron Stanley in Madison, Wisconsin while she was in treatment for alcohol abuse. Stanley, out of recovery himself, was a volunteer van driver at the treatment center. The two began a relationship. After Dingwall relapsed, she was barred from the treatment center.³

Dingwall and her daughter lived in a rented room for a few weeks but moved out after she woke up one night to find the landlord sitting on her bed. They next stayed at a homeless shelter, but some nights the shelter had no space and they had to sleep on the floor of a friend's home. Stanley asked Dingwall to stay with him, but that lasted only a week because Dingwall became concerned by the way Stanley was treating her. But after another week back at the homeless shelter, Dingwall and her daughter again moved in with Stanley.

Stanley then began using crack cocaine. Slowly he became emotionally and then physically abusive to Dingwall. Stanley's beatings escalated from hitting and strangling, to dragging Dingwall down the stairs, breaking her nose, and boxing her ear. Soon a pattern became apparent: Stanley would beat Dingwall, then apologize profusely, and things would then return to "normal" for a while until Stanley would fly into a rage again.

After Stanley bought a gun, the beatings and controlling behavior got worse. One night, Stanley shot the gun into the mattress on the side where Dingwall slept. Stanley began walking around the house, holding the gun. He frequently looked through Dingwall's phone, certain that she was cheating on him. He took her food-stamp card, making it difficult for Dingwall to buy food. Dingwall wanted to leave, but she felt that she had no other options.

Stanley began robbing stores to get money for drugs. When he felt that he was "hot" and had run out of money, he started telling Dingwall that she owed him money. After unsuccessfully begging her parents for money, Dingwall stalled by lying to Stanley, insisting that there were problems with routing the money from her parents. After a few days of delay, Stanley grew frustrated and literally pistol-whipped her.

The next day, on January 6, 2019, Stanley drove Dingwall to a Stop-N-Go gas station near Madison. He told Dingwall to put on a sweatshirt backwards, said it was her "turn," and put his gun in her hand. Dingwall walked in, showed the clerk she had a gun, "asked" for money, took approximately $80 cash from the clerk, and ran out.

Stanley did not hit her that night, sending the message that committing the crime as ordered was a way to avoid his abuse. But the money did not protect Dingwall for long. Stanley harangued her the entire next day, reminding her that she still owed him money, telling her "NEED THE REST OF THE MONEY THIS IS BS," and more.⁴ Dingwall committed the second robbery while Stanley was still at work: she took the gun to a boutique store, pointed it at the clerk on the counter, and demanded money. Dingwall did not tell Stanley that she got the money from a robbery; she told him it was from her mother. That night, Stanley was "nice to [her]" but demanded degrading sex.

On January 8, 2019, Stanley called Dingwall from work, yelling and demanding the rest of the money. He told Dingwall that Mobil would be a good gas station to "hit." That afternoon, Dingwall entered a Mobil gas station, revealed her pistol grip, demanded money, and left after the clerk complied.

The next morning, Stanley strangled Dingwall and punched her in the face. Dingwall later texted Stanley asking him to "please try to be nice to me. I'm so sore from this morning," and "I've never been hit so hard in all my life." Police arrested Dingwall a few days later.

B. Procedural History

A federal grand jury charged Dingwall with three counts of Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a), and three counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).

Dingwall filed a pretrial motion in limine seeking a ruling on evidence she planned to offer about battering and its effects to support a duress defense. The evidence included the statement by Dingwall, emails, text messages, and an expert report from Dr. Darald Hanusa, Ph.D., LSAC, of the Midwest Domestic Violence Resource Center. Dr. Hanusa...