United States v. Annette Pierce , 549 F. App'x 303 ( 2013 )

Case: 12-60980 Document: 00512476849 Page: 1 Date Filed: 12/19/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 12-60980
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
December 19, 2013
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
ANNETTE M. PIERCE, also known as Norma Lisa Thiem, also known as
Myrtis Annette Thiem,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:05-CR-6-2
Before STEWART, Chief Judge, and JOLLY and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
Annette M. Pierce appeals her jury trial conviction for kidnapping and
carjacking for which she received a sentence of 110 months of imprisonment to
be followed by a three-year term of supervised release. Pierce argues that the
district court plainly erred in instructing the jury on the defense of duress
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 12-60980 Document: 00512476849 Page: 2 Date Filed: 12/19/2013
No. 12-60980
because it did not rely on the definition of one of the elements of that defense
contained in the Model Penal Code. She contends that the instruction
permitted the jury to reject her defense based on her negligence in placing
herself in a position where she would have to commit the charged offenses.
Pierce acknowledges that she did not object to the instruction in the district
court and that review is for plain error. See United States v. Daniels, 252 F.3d
411, 414 (5th Cir. 2001).
The district court’s instruction tracks this circuit’s Pattern Jury
Instructions and is consistent with this court’s precedent regarding the
elements of the defense of duress. See United States v. Dixon, 413 F.3d 520,
523 (5th Cir. 2005); United States v. Posado-Rios, 158 F.3d 832, 873 (5th Cir.
1998); United States v. Willis, 38 F.3d 170, 179 (5th Cir. 1994). The district
court did not commit a clear or obvious error--if any--in giving the approved
instruction, and thus, Pierce has not demonstrated plain error. See Puckett v.
United States, 556 U.S. 129, 135 (2009); Jimenez v. Wood County, Tex., 660 F3d
841, 847 (5th Cir. 2011).
Pierce argues that even if the instruction was correct, the district court
plainly erred in failing to further define the terms of recklessness and
negligence. We need not reach that issue. Pierce testified that, despite
opportunities to escape or alert third parties about Shugart’s criminal
activities, she voluntarily chose to continue to participate in the criminal
activity to expedite her return to South Carolina. These admissions showed
that Pierce had a reasonable legal alternative to violating the law that would
have allowed her to escape the threatened harm, which supports the rejection
of her duress defense. See United States v. Bailey, 444 U.S. 394, 410 (1980).
Accordingly, Pierce has not shown that the jury instruction affected her
substantial rights or that our failure to correct any error would seriously affect
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No. 12-60980
the fairness, integrity, or public reputation of judicial proceedings. See Puckett,
556 U.S. at 135. Thus, she has shown no reversible plain error.
Pierce alternatively argues that her counsel was ineffective in failing to
raise the foregoing challenges to the jury instructions. We decline to reach
these claims on direct appeal, without prejudice to Pierce’s ability to raise them
in a postconviction proceeding. See United States v. Gulley, 526 F.3d 809, 821-
22 (5th Cir. 2008).
The judgment is AFFIRMED.
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