IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-60980

Summary Calendar

UNITED STATES OF AMERICA,

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.

United States Court of Appeals

Fifth Circuit

FILED

December 19, 2013

Lyle W. Cayce

Clerk

 

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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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 Case: 12-60980 Document: 00512476849 Page: 3 Date Filed: 12/19/2013