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United States v. Dixon

United States Court of Appeals, Tenth Circuit

August 24, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
NIKOLLE DENISE DIXON, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. No. 6:15-CR-00084-RAW-1)

          Whitney R. Mauldin, Assistant Public Defender (Julia L. O'Connell, Federal Public Defender; Chance Cammack, Assistant Public Defender, with her on the brief), Office of the Federal Public Defender, Northern and Eastern Districts of Oklahoma, Tulsa, Oklahoma, for Defendant-Appellant.

          Linda A. Epperley, Assistant United States Attorney (Douglas A. Horn, Acting United States Attorney; Edward Snow, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Eastern District of Oklahoma, Muskogee, Oklahoma, for Plaintiff-Appellee.

          Before LUCERO, HOLMES, and McHUGH, Circuit Judges.


         Following a jury trial in the United States District Court for the Eastern District of Oklahoma, Defendant-Appellant Nikolle Denise Dixon was convicted on one count of embezzlement and theft from an Indian tribal organization, 18 U.S.C. § 1163.

         Prior to trial, Ms. Dixon filed a Notice of Defense of duress, on the theory that she faced an imminent threat of sexual assault from her stepfather and that her Post Traumatic Stress Disorder ("PTSD") caused her to believe that no recourse to escape that assault was available except through theft. More specifically, Ms. Dixon asked the court to consider her theory of duress under the elements for that defense spelled out in Tenth Circuit Pattern Jury Instruction No. 1.36 ("Pattern Instruction 1.36"). In response, the government filed a motion in limine, asking the court to reject the defense and to exclude all evidence and testimony relevant to the defense. The court granted the government's motion.

         To ensure preservation of her objection, shortly before trial, Ms. Dixon's counsel offered Pattern Instruction 1.36 for the court's possible presentation to the jury and filed a written proffer of the expert testimony that would be elicited in support of her duress defense. At trial, however, the court maintained its previous ruling, which rejected the defense, and the jury convicted Ms. Dixon.

         On appeal, Ms. Dixon asks us to reverse the district court's decision to reject her duress defense and, more specifically, her related request for a jury instruction. Ms. Dixon contends that her duress defense was viable because her actions were reasonable when viewed through the lens of her history of sexual abuse and her diagnosis of PTSD. Exercising jurisdiction under 28 U.S.C. § 1291, we reject this argument and affirm the district court's judgment.



         The events relating to Ms. Dixon's conviction for embezzlement occurred in 2013 and 2014, but the events underlying her claimed defense of duress are more historically rooted.


         Ms. Dixon was employed as a cashier at the Pocola Travel Plaza ("Travel Plaza"), a convenience store owned by the Choctaw Nation of Oklahoma. On January 6, 2014, a Choctaw Tribal officer was dispatched to speak with the Travel Plaza Director, who informed the officer that Ms. Dixon was voiding out cash sales and pocketing the sales at the end of her shifts. A review of three days of surveillance video showed that Ms. Dixon had voided a total of $1, 536.81 in sales transactions. A more longitudinal review revealed that Ms. Dixon voided over 845 transactions totaling $16, 937.83 during the period between October 20, 2013, and January 4, 2014. Investigators were not able to determine how much was taken prior to October 2013, due to a lack of transaction journals before that time.

         Ms. Dixon admitted to taking the money at a February 21, 2014, interview with an investigator for the Choctaw Tribal Police. In the interview, Ms. Dixon indicated that she felt like she had to steal the money because of the financial situation in her household.

         At the time of the theft, Ms. Dixon was twenty-one years old. She lived at home and was a caretaker for her disabled mother. Ms. Dixon attended college during this time but struggled because of severe emotional issues. Those emotional issues accrued during childhood and allegedly were directly related to her stepfather's occupancy of the home that Ms. Dixon shared with her mother; the stepfather began living with them when Ms. Dixon was twelve years old. During his time in the home, Ms. Dixon's stepfather allegedly sexually assaulted her on a near-daily basis. Even after her stepfather moved out of the house, he allegedly continued to abuse her, albeit less frequently. Ms. Dixon never reported the abuse to her mother or the authorities prior to her indictment, in large part due to threats that her stepfather allegedly made against the lives of Ms. Dixon and her mother.[1]

         Shortly before Ms. Dixon began to steal from the Travel Plaza, her stepfather cut off financial support to the family and refused to assist financially unless he was allowed to move back into the home. Ms. Dixon's mother wanted the stepfather to return in order to alleviate their financial hardship. Ms. Dixon was unable to explain her fear of her stepfather's return to her mother. But this fear allegedly impelled Ms. Dixon to begin embezzling from the Travel Plaza and giving her mother the money to pay the bills, in the hope of keeping her stepfather at bay. Ms. Dixon states that she did so, "knowing that if my mother had enough money, she wouldn't let [her stepfather] move back into the house." R., Supp. Vol. I, at 132 (Aff. of Nikolle Dixon).


         Ms. Dixon was indicted by a grand jury for her embezzlement offense on December 9, 2015. Thereafter, she began receiving psychological therapy from Dr. Patricia Nation, a licensed counselor, sociologist, and criminologist employed by the Choctaw Nation. Dr. Nation diagnosed Ms. Dixon with PTSD and Dissociative Disorder. Dr. Nation's evaluation found that, consistent with PTSD's clinical criteria, Ms. Dixon was exposed to traumatic events (i.e., the sexual abuse and threats of extreme violence against her mother if she reported the abuse); consequently, she experienced flashbacks, dissociation, distressing memories and the need to avoid them, persistent and exaggerated negative feelings, and feelings of detachment from others. Dr. Nation found that:

Dixon was sexually abused for many years resulting in her mental health diagnoses, as a result she believed there to be no hope, no help coming, and that she had no power over her body or her life . . . . Dixon saw no alternative to her actions[, ] and by taking the money, she was able to secure some momentary peace and safety.

R., Supp. Vol. I, at 27 (Aff. of Patricia Nation, dated Aug. 26, 2016). Dr. Nation concluded that Ms. Dixon's diagnoses directly stemmed from the long-term sexual abuse she suffered at the hands of her stepfather. As a result of the counseling with Dr. Nation, Ms. Dixon reported the abuse (apparently to law enforcement), but her stepfather died before any criminal action against him could be initiated.

         Dr. Curtis Grundy also corroborated Dr. Nation's diagnosis of PTSD and Dissociative Disorder. After conducting a forensic psychological examination of Ms. Dixon, Dr. Grundy agreed that Ms. Dixon's results were "strongly characteristic of an individual with a genuine disorder who is making no efforts to overstate her symptoms." Id. at 127 (Psych. Rpt. of Curtis Grundy, dated May 20, 2016). Specifically, Dr. Grundy found that "Ms. Dixon described experiencing increased symptoms of [PTSD] and depression, explaining that she could not cope with her stepfather returning to live with her and her mother . . . . [T]he ...

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