United States v. Izac , 239 F. App'x 1 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-4461
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CHARLES D. IZAC,
Defendant - Appellant.
Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. Irene M. Keeley, Chief
District Judge. (3:02-cr-00058-WCB)
Argued: March 16, 2007 Decided: July 11, 2007
Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit
Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Fred Warren Bennett, BENNETT & BAIR, L.L.P., Greenbelt,
Maryland, for Appellant. Paul Thomas Camilletti, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg,
West Virginia, for Appellee. ON BRIEF: Gary E. Bair, BENNETT &
BAIR, L.L.P., Greenbelt, Maryland, for Appellant. Rita R.
Valdrini, Acting United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles D. Izac appeals from his conviction for possession of
a firearm by a felon in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2) and (e). Izac contends that the district court erred by
(1) excluding evidence relevant to his defense of justification,
(2) excluding his wife from the courtroom during jury selection,
and (3) refusing to allow him to argue to the jury that the
Government’s failure to call a witness to testify constituted a
basis for believing the witness’s testimony would be unhelpful for
the Government. As set forth below, we affirm.
I
At trial, the evidence tended to show that on November 7,
2001, Izac was involved in an incident with his neighbor,
Christopher Billek. According to Izac, this incident occurred
after he had filed a lawsuit against Billek and served process on
him that day, causing Billek to confront him in response. During
the confrontation, Billek yelled profanities at, and threatened to
kill, Izac while advancing toward the fence separating Billek’s and
Izac’s property. In addition, Billek screamed threats to burn down
Izac’s house and kill his dog. In response to Billek’s threats,
Izac emerged from his house and onto his deck. Seeing that Billek
was armed with what appeared to be a rifle or shotgun, Izac quickly
went inside his house and retrieved a .22 caliber rifle which his
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wife had left inside a closet in the house for Izac’s use should a
confrontation with Billek occur. Izac reemerged onto the deck with
the rifle in his possession and told Billek that he would kill him
if he came over the fence. Billek then retreated into his house
and telephoned the police, and Izac returned the rifle to his
closet. At that point, Izac locked the doors to his house and went
to the rear of his property, where he awaited the arrival of the
police. After the police arrived, Izac surrendered the weapon to
them.
The district court permitted Izac to present a justification
defense; however, it excluded evidence describing a long-running
feud between Izac and Billek, including evidence of threats and
violence by Billek, which Izac contends would have bolstered the
defense by demonstrating his state of mind and his fear of Billek.
In excluding this evidence, the district court restricted Izac to
the presentation of testimony regarding his confrontation with
Billek on November 7, 2001.
The case was tried to a jury, with the Government arguing two
theories in support of its case. First, the Government contended
that Izac was in actual possession of the .22 rifle from the time
he retrieved it from the closet until he returned it to the closet.
Second, the Government argued that Izac constructively possessed
the rifle during the period when the rifle was left in the closet
for his use. The district court charged the jury that it could
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convict Izac on either actual or constructive possession and that
the defense of justification did not apply to the Government’s
constructive possession theory. The jury returned a general
verdict of guilty, and Izac now appeals.
II
We review the district court’s exclusion of evidence, its
exclusion of Izac’s wife from jury selection, and its exclusion of
Izac’s “missing witness” argument for abuse of discretion. United
States v. Uzenski, 434 F.3d 690, 708 (4th Cir. 2006) (reviewing
evidentiary rulings for abuse of discretion); United States v.
Duncan, 598 F.2d 839, 865 n.25 (4th Cir. 1979) (noting district
court’s broad discretion over voir dire proceedings). We review de
novo the legal question of whether Izac was entitled to present a
justification defense. United States v. Perrin, 45 F.3d 869, 871
(4th Cir. 1995).
A.
Izac argues that the district court erred in excluding
evidence of Billek’s past threats and aggression, which Izac
contends is relevant to establishing a justification defense. The
Government, on the other hand, maintains that Izac was not entitled
to a justification defense in the first place, rendering harmless
any error relating to the exclusion of evidence.
4
To be entitled to a defense of justification, a defendant must
produce evidence which would allow a reasonable factfinder to
conclude that: (1) he was under an unlawful and present threat of
death or serious bodily injury; (2) he did not recklessly place
himself in a situation where he would be forced to engage in
criminal conduct; (3) he had no reasonable legal alternative (to
both the criminal act and the avoidance of the threatened harm);
and (4) a direct causal relationship existed between the criminal
action and the avoidance of the threatened harm. United States v.
Crittendon, 883 F.2d 326, 330 (4th Cir. 1989). Of these elements,
the third -- no reasonable legal alternative -- is the “keystone of
the analysis.” United States v. Singleton, 902 F.2d 471, 473 (6th
Cir. 1990). In demonstrating that he had no reasonable legal
alternative to violating the law, a defendant must show that “he
had actually tried the alternative or had no time to try it, or
that a history of futile attempts revealed the illusionary benefit
of the alternative.” United States v. Gant, 691 F.2d 1159, 1164
(5th Cir. 1982).
We hold that Izac failed to demonstrate that he had no
reasonable legal alternative to possessing a firearm. When Billek
confronted Izac, Billek was at the fence separating Izac’s property
from Billek’s. Izac, however, was inside his home in relative
safety. Izac then came onto his deck and observed Billek with a
firearm before returning into his house. Once again, Izac was in
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relative safety. At this point, remaining in his house with the
door locked was a reasonable alternative. Izac’s testimony that
his window panes were thin, that his door was weak, and that Billek
had threatened to burn down his house does nothing to make it
unreasonable. If Billek had come onto Izac’s deck and attempted to
break a window or door, remaining in the house may have ceased to
be, at that point, a reasonable alternative. However, the defense
of justification does not allow Izac to assume that this further
escalation would have occurred. Cf. Perrin, 45 F.3d at 875 (“[W]e
continue to construe the justification defense for possession of a
firearm by a felon very narrowly.”). Instead, it requires Izac to
show that retreating inside his house was not a reasonable
alternative at the time he chose to confront Billek with a firearm.
Similarly, Billek’s threat to burn down Izac’s house did not render
retreat into the house unreasonable, given that Billek did not have
the means of carrying out this threat when Izac retreated into the
house. If Billek had later taken steps toward actually setting the
house on fire, remaining in the house may have ceased to be a
reasonable alternative at that time.
Accordingly, retreating into, and remaining in, his house was
a reasonable alternative available to Izac. Because Izac failed to
avail himself of that alternative, to show that he had no time to
do so, or to show that it would have been futile to do so, he was
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not entitled to a justification defense.1 Therefore, we do not
consider whether the district court erred in excluding Izac’s
proffered evidence because any error in the exclusion of this
evidence would be harmless. United States v. Armocida, 515 F.2d
49, 55 (3d Cir. 1975) (error committed is harmless where defendant
not entitled to defense as a matter of law).
B.
Izac next argues that the district court violated his right to
a public trial when it excluded his wife from the courtroom during
jury selection. The record indicates that during jury selection
Izac’s wife, who was on Izac’s witness list, was seated in the
courtroom area where the jury venire was to be seated. On the
Government’s motion, the district court excluded Mrs. Izac from the
courtroom, observing that “a potential witness will not sit among
the jurors during jury selection.” J.A. 264.2
1
None of the evidence relating to justification which the
district court excluded undermines this conclusion. For example,
the district court excluded testimony that Billek had threatened
Izac and his wife in the past by coming onto their deck and
threatening to kill them while they were in their house. This
testimony does not indicate that remaining in the house would have
been futile or that its benefit would have been illusionary. If
anything, it demonstrates that the house provided safety from
Billek’s threats.
2
The Government apparently based its motion to exclude Mrs.
Izac from the courtroom on Fed. R. Evid. 615, and the district
court relied on this rule in granting the motion. We note that
this was inappropriate because Rule 615 does not apply during voir
dire. Nevertheless, because we find that the district court’s
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While a defendant generally has a Sixth Amendment right to a
public trial, in certain situations the exclusion of a member of
the public can be too trivial to amount to a violation of the Sixth
Amendment. United States v. Perry, 479 F.3d 885, 890 (D.C. Cir.
2007); Braun v. Powell, 227 F.3d 908, 918 (7th Cir. 2000). Given
that the district court excluded Mrs. Izac from the courtroom only
to ensure the seating of an impartial jury, that she was subject to
exclusion in any event under Rule 615 once the trial began, and
that the courtroom otherwise remained open to the public, Izac’s
Sixth Amendment right to a public trial was not implicated.
C.
Finally, Izac contends that the district court abused its
discretion by preventing him from making a “missing witness”
argument during closing statements to the jury. Izac maintains
that he should have been permitted to argue that the fact that
Billek, who was under subpoena by the Government, did not testify
leads to an inference that his testimony would have been unhelpful
to the Government. We disagree with Izac’s position. Billek was
identified as a witness by both Izac and the Government, was
present in the courthouse under subpoena, and was available to
testify. In these circumstances, Billek cannot be considered a
exclusion of Mrs. Izac did not violate Izac’s right to a public
trial, the district court’s misplaced reliance on Rule 615 was
harmless.
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missing witness. United States v. Brooks, 928 F.2d 1403, 1412 (4th
Cir. 1991). Thus, the district court properly excluded Izac’s
missing witness argument.
III
Based on the foregoing, the judgment of the district court is
AFFIRMED.
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