United States v. Joshua Green , 835 F.3d 844 ( 2016 )


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  • United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 15-1734
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    Joshua Green
    Defendant - Appellant
    ___________________________
    No. 15-1737
    ___________________________
    United States of America
    Plaintiff - Appellee
    v.
    John Dennis Hayes
    Defendant - Appellant
    ____________
    Appeal from United States District Court
    for the Eastern District of Arkansas - Little Rock
    ____________
    Submitted: June 14, 2016
    Filed: August 31, 2016
    ____________
    Before SMITH, GRUENDER, Circuit Judges, and KETCHMARK, 1 District
    Judge.
    _____________
    KETCHMARK, District Judge.
    After a joint trial, Appellants Joshua Green and John Dennis Hayes were
    convicted of conspiracy to possess with intent to distribute methamphetamine, in
    violation of 21 U.S.C. §§ 841 and 846. 2 Hays and Green were also convicted of
    possessing, brandishing, and discharging a firearm in furtherance of a drug
    trafficking crime in violation of 18 U.S.C. § 924(c). Additionally, Hayes was
    convicted of being a convicted felon in possession of a firearm in violation of
    18 U.S.C. § 922(g)(1).
    Green and Hayes raise four points in their joint brief. First, Green and
    Hayes argue that the evidence was insufficient as a matter of law to support the
    conviction for methamphetamine conspiracy. Second, Hayes argues that the
    evidence was insufficient as a matter of law to support his conviction for being a
    felon in possession of a firearm. Third, Green and Hayes contend that the district
    court erred in denying their motion to suppress and in not excluding all evidence
    obtained through a search as a sanction for late disclosure by the government.
    Fourth, Green and Hayes argue that the district court erred in refusing to give the
    jury an instruction on the defense of justification in connection with the shooting.
    For the reasons set forth below, we affirm.
    1
    The Honorable Roseann A. Ketchmark, United States District Judge for the
    Western District of Missouri, sitting by designation.
    2
    The Honorable D. P. Marshall, Jr., United States District Judge for the
    Eastern District of Arkansas.
    -2-
    I.
    On January 30, 2012, Krystal Journigan, Jason Harcourt, and Jamar
    Williams drove from Little Rock, Arkansas, to Hayes’ residence in Alexander,
    Arkansas. Harcourt had been purchasing methamphetamine from Hayes through
    Journigan and another woman. That day, Harcourt intended to purchase a pound
    of methamphetamine directly from Hayes and “eliminate the females out of the
    middle of it.” Hayes would not agree to meet Harcourt, so Journigan agreed to be
    the “middleman” one more time. Journigan drove alone to Hayes’ residence and
    parked in the driveway. Harcourt and Williams remained parked in Williams’
    truck some distance down the road from Hayes’ residence. Upon arriving at
    Hayes’ residence, Journigan met Hayes and entered. Journigan tried to get Hayes
    to talk to Harcourt on the phone, but Hayes refused. Harcourt became angry and
    walked toward the residence.
    While Journigan was in Hayes’ residence, she saw Joshua Green and Cammi
    Lewis arrive, with Green carrying a plastic bag. Journigan walked with Hayes and
    Green to a back bathroom, where Journigan saw that the bag contained four
    bundles of methamphetamine, which she presumed were quarter-pound packages.
    Journigan and Hayes remained in the bathroom, and Green went to the
    kitchen/living room area. Hearing a commotion, Journigan and Hayes left the
    bathroom. Outside of the residence, Harcourt, wearing a black curly wig, and
    Williams were asking about buying a car that was parked adjacent to the residence.
    Green told them the car was not for sale and to leave, which they did.
    Suspicious of the pair outside, back inside the residence, Hayes and Green
    each brandished a firearm and told Journigan to sit down and not leave. Journigan
    complied but later went to the bathroom and called Harcourt to alert him that she
    was being held at gunpoint. Journigan then left the residence, telling Hayes and
    Green she was “leaving regardless.” Hayes followed Journigan as she remained on
    the phone and left the residence. Journigan handed the phone to Hayes to speak
    -3-
    with Harcourt. Hayes and Harcourt argued over the phone while Hayes stood with
    Journigan at her vehicle.
    While Hayes and Green held Journigan at gunpoint, Harcourt had returned
    to Williams’ truck and dropped off the black curly wig. Harcourt and Williams
    then walked back towards Hayes’ residence. A woman waiting to pick up her
    child at a bus stop saw Harcourt and Williams walking up the street. She saw
    Harcourt talking on a cellular phone and heard Harcourt say that he was coming to
    get his money or his drugs and that he had a gun. Harcourt continued to argue with
    Hayes over the phone as he turned the corner onto Hayes’ street. Harcourt saw
    Hayes standing with Journigan and noted that Hayes had a firearm in his hand that
    was resting by his side. Harcourt had a Glock .45 firearm behind his right hip.
    Harcourt and Hayes scuffled by Journigan’s vehicle. At some point, Hayes’
    gun fired, shooting off a portion of his finger. Also at that time, Green appeared on
    the porch of Hayes’ residence and began firing a Ruger 9mm. Williams also
    appeared at the scene and began to fire at Hayes’ residence. Hayes and Harcourt
    fell to the ground near the cars parked in the street. Williams ran from the scene
    with his gun. Harcourt was shot in the wrist and forearm.
    When shots were fired, Journigan ducked down in her car, turned over the
    ignition, and started to back out. Green shot her rear, driver’s side tire. Green had
    walked down to where Hayes was, and Journigan saw one or both of them standing
    over Harcourt, shooting him. Journigan drove off. Harcourt had multiple gunshot
    wounds and retreated behind a fence several yards away.
    Green helped Hayes into Green’s vehicle. Green gathered the firearms at the
    scene and placed them in his vehicle. Green and Lewis drove Hayes to the hospital
    and dropped him off. Green returned to Lewis’ residence, driving near Hayes’
    residence, where Saline County Sheriff’s Office and the Alexander Police had
    responded.
    -4-
    Upon execution of a search warrant inside Hayes’ residence, a detective
    found an empty Ruger firearm box, an empty Federal Cartridge ammunition box,
    and a 9mm Federal Cartridge round on the kitchen counter.
    Another officer responded to the hospital where Hayes was having his finger
    treated. Hayes’ personal belongings were seized as evidence of the shooting. In a
    pocket of his pants was a Wal-Mart receipt for the purchase of 9mm Federal
    Cartridge ammunition dated January 30, 2012, at 1:09 p.m. Hayes told police that
    “Josh” was involved in the shooting but that he did not know his last name.
    On February 2, 2012, law enforcement arrested Green for his role in the
    shooting at Hayes’ residence on January 30, 2012. Green gave a recorded
    statement. Despite initial denials, Green admitted that he fired the Ruger 9mm and
    that he took guns from the scene. Green told officers that the firearms were at his
    residence and agreed to turn them over to police. During a consent search of
    Green’s home, officers recovered from an air vent a black computer bag containing
    four firearms, one of which was the Ruger 9mm used in the shootout on January
    30, 2012. The air vent also contained a blue backpack and a black computer bag
    that had wheels. Within these bags were items identifying Green as the owner of
    the bags, as well as scales, pipes, baggies, and approximately seven grams of
    methamphetamine. The bags also contained cellular phones and a laptop
    computer. The Saline County Sheriff’s office seized these items and placed them
    into secure storage.
    Also on February 2, 2012, law enforcement located Green’s blue Trailblazer
    in the carport at Lewis’ residence. During a search of the vehicle, police located a
    Federal Cartridge ammunition box and fifty rounds of Federal Cartridge
    ammunition. During a search of Lewis’ residence, officers found Green’s clothing
    with .45 caliber bullets and a .380 bullet lying on top.
    On September 11, 2013, Green and Hayes were charged with conspiracy and
    firearms violations. In May of 2014, prosecutors learned that the cellular phones
    -5-
    and the computer found in Green’s air vent had not been searched. On
    May 14, 2014, the government obtained a search warrant based on probable cause
    obtained at the time of their seizure in 2012 and produced the evidence
    approximately a week before trial. The trial began May 27, 2014.
    A search of the electronic devices resulted in photographic evidence from
    two of the phones and the computer, as well as text messages from one of the
    phones. The district court denied a motion to suppress evidence from that search
    on Fourth Amendment grounds. However, the district court excluded from trial
    inculpatory evidence obtained from the electronic devices based on late disclosure
    as a discovery sanction under Federal Rule of Criminal Procedure 16. Evidence
    excluded from trial included photographs of drug paraphernalia from a phone, the
    “contacts list” from a phone, a photograph from the computer showing 31.8 grams
    of methamphetamine on a scale, and several photographs of marijuana from the
    computer. Evidence admitted from the search included the two phones, three
    photographs of Green from one of the phones to show ownership of the phones,
    and a series of redacted text messages from one of the phones that was admitted
    under Federal Rule of Evidence 404(b).
    II.
    In their first point, Green and Hayes challenge the sufficiency of the
    evidence supporting their conviction for conspiracy to possess with intent to
    distribute methamphetamine. Specifically, Green and Hayes contend that the
    jury’s failure to make a finding on their special verdict form that the conspiracy
    included fifty or more grams of methamphetamine means that the jury must have
    convicted Green and Hayes based solely on the seven grams of methamphetamine
    found at Green’s home, but that there was no evidence at trial connecting that
    methamphetamine to charged conspiracy. Additionally, they argue that there was a
    complete withdrawal by everybody allegedly involved in that conspiracy through
    the shootout three days before the seven grams were found at Green’s house.
    According to Green and Hayes, because that methamphetamine was found after the
    -6-
    shootout, the evidence was insufficient as a matter of law to establish their
    involvement in a conspiracy before the shootout. 3 We disagree, and affirm their
    conspiracy convictions.
    “When reviewing the sufficiency of the evidence, we consider the evidence
    in the light most favorable to the verdict rendered and accept all reasonable
    inferences which tend to support the jury verdict.” United States v. White, 
    816 F.3d 976
    , 985 (8th Cir. 2016) (citation omitted). “Although the evidence need not
    preclude every outcome other than guilty, we consider whether it would be
    sufficient to convince a reasonable jury beyond a reasonable doubt.” 
    Id. We will
    reverse for insufficient evidence only if no reasonable jury could have found the
    appellants guilty beyond a reasonable doubt. 
    Id. To establish
    that a defendant conspired to distribute drugs under
    21 U.S.C. § 846, the government must prove: “(1) that there was a conspiracy, i.e.,
    an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy;
    and (3) that the defendant intentionally joined the conspiracy.” United States v.
    Sanchez, 
    789 F.3d 827
    , 834 (8th Cir. 2015) (citation omitted). “An agreement to
    join a conspiracy need not be explicit but may be inferred from the facts and
    circumstances of the case.” 
    Id. “A defendant
    may be convicted for even a minor
    role in a conspiracy, so long as the government proves beyond a reasonable doubt
    that he or she was a member of the conspiracy.” United States v. Lopez, 
    443 F.3d 1026
    , 1030 (8th Cir. 2006) (citation omitted).
    As an initial matter, Green and Hayes are mistaken in their assertion that any
    specific finding regarding which methamphetamine was part of the conspiracy
    must be read from the jury’s special verdict form. As noted above, Green and
    3
    Green and Hayes also argue in this point that the § 924 firearms counts
    depend upon the conspiracy count and therefore that if the conspiracy count fails,
    then the dependent § 924 firearms counts fail as well. Because sufficient evidence
    supports the conspiracy count, this argument is without merit.
    -7-
    Hayes were charged with conspiring to possess with intent to distribute at least
    fifty grams but less than 500 grams of methamphetamine. In its special verdict
    form, the jury determined that the amount was less than fifty grams. Green and
    Hayes speculate that because the amount listed on the special verdict form is less
    than fifty grams, the amount must have been the amount found at Green’s
    residence after the two had withdrawn from the conspiracy. No such inference is
    required, let alone suggested, by the jury’s verdict. Rather, the evidence at trial –
    including (1) evidence regarding a conspiracy to distribute methamphetamine prior
    to January 30, 2012; (2) evidence of the failed transaction that day, such as
    testimony that Green brought methamphetamine into Hayes’ home to sell; and (3)
    evidence found at Green’s home that is highly corroborative of methamphetamine
    trafficking – was more than sufficient for a rational jury to conclude that Hayes
    and Green conspired together, and with others, to distribute methamphetamine.
    To that end, Green and Hayes cite no authority indicating that a special
    verdict in a case like this can render the evidence of the conspiracy insufficient to
    support the convictions. The special verdict here applies only in determining the
    statutory minimum and maximum for the offense of conviction. See United States
    v. Rolon-Ramos, 
    502 F.3d 750
    , 754-55 (8th Cir. 2007) (“drug quantity is not an
    essential element of a conspiracy offense”). Here, that the jury found beyond a
    reasonable doubt an amount less than what the government charged does not
    impact the sufficiency of the evidence supporting the conviction. See 
    id. As to
    the appellants’ related argument that they had withdrawn from the
    conspiracy through the shootout, we have held that “[i]t is not easy to withdraw
    from a criminal conspiracy.” United States v. Zimmer, 
    299 F.3d 710
    , 718 (8th Cir.
    2002) (citation omitted). To withdraw from a conspiracy, a defendant must do
    more than demonstrate that he or she undertook no conspiratorial activity after the
    cut-off date. 
    Id. (citations omitted).
    Rather, a defendant must demonstrate that he
    or she took affirmative action to withdraw from the conspiracy by making a clean
    breast to the authorities or by communicating withdrawal in a manner reasonably
    -8-
    calculated to reach coconspirators. 
    Id. To make
    a clean breast of a conspiracy, the
    conspirator must sever all ties to the conspiracy and its fruits, and act affirmatively
    to defeat the conspiracy by confessing to and cooperating with the authorities. 
    Id. “Simply ceasing
    to be an active participant in the conduct of the conspiracy alone
    is not enough to establish a withdrawal from the conspiracy.” United States v.
    Shepard, 
    462 F.3d 847
    , 869 (8th Cir. 2006) (citation omitted).
    Again, Green and Hayes do not appear to contest that any of the three
    elements were proven beyond a reasonable doubt. Rather, they contend that the
    shootout communicated withdrawal and an end to the conspiracy. But withdrawal
    does not negate an element of the conspiracy crime in this case. See Smith v.
    United States, 
    133 S. Ct. 714
    , 719 (2013).4 “Far from contradicting an element of
    the offense, withdrawal presupposes that the defendant committed the offense.”
    
    Id. Because conspiracy
    is a continuing offense, “a defendant who has joined a
    conspiracy continues to violate the law through every moment of the conspiracy’s
    existence, and he becomes responsible for the acts of his co-conspirators in pursuit
    of their common plot.” 
    Id. (citations and
    quotation marks omitted). “Withdrawal
    terminates the defendant’s liability for postwithdrawal acts of his co-conspirators,
    but he remains guilty of conspiracy.” 
    Id. The burden
    of establishing withdrawal
    rests upon the defendant. 
    Id. at 720-21.
    Here, neither Green nor Hayes appears to have submitted a jury instruction
    as to withdrawal, even though it was their burden to establish the defense. 
    Id. Even without
    such a jury instruction, the jury was free to disbelieve that there was
    withdrawal as of the shooting. Specifically, the jury was free to disbelieve there
    was withdrawal from the conspiracy between Hayes and Green as they continued
    4
    This issue often arises on review of a district court’s decision not to submit
    a jury instruction for withdrawal. See, e.g., United States v. Shepard, 
    462 F.3d 847
    , 868-869 (8th Cir. 2006). Green and Hayes do not raise this argument and do
    not point to any portion of the record indicating the submission of a withdrawal
    instruction.
    -9-
    to further their crime through concealment, namely, Green providing Hayes at least
    one firearm used in furtherance of their conspiracy or Green removing the firearms
    from Hayes’ residence, which the jury could infer meant was for the purpose of
    hiding or disposing those firearms. The jury was additionally free to disbelieve
    Green’s testimony that the amount of methamphetamine found in his residence was
    for personal use. Rather, the jury was free to find that the methamphetamine was
    tied to the conspiracy, particularly as it was co-mingled with other evidence of
    narcotic trafficking, including multiple guns, multiple cellular phones, baggies, and
    scales. Finally, even assuming that all co-conspirators had withdrawn as of
    January 30, 2012 (an assumption we reject), the fact that this evidence was not
    recovered until two days later is simply inconsequential, as the jury could readily
    infer that it related back to the just-ended conspiracy.
    III.
    In the second point on appeal, Hayes challenges the sufficiency of the
    evidence supporting his conviction for felon in possession of a firearm, here, a
    Ruger 9mm. As noted above, in our review for sufficiency of the evidence, we
    view the evidence in the light most favorable to the verdict, and we will reverse for
    insufficient evidence only if no reasonable jury could have found the appellants
    guilty beyond a reasonable doubt. 
    White, 816 F.3d at 985
    .
    To convict Hayes of being a felon in possession of a firearm under
    18 U.S.C. § 922(g), the government had to prove: “(1) that [Hayes] had a previous
    conviction for a crime punishable by imprisonment exceeding one year, (2) that he
    knowingly possessed the firearms and ammunition, and (3) that the firearms and
    ammunition traveled in or affected interstate commerce.” 
    Id. Hayes does
    not
    challenge the first and third elements; rather, he argues only that the evidence is
    not sufficient to show that he knowingly possessed the Ruger 9mm.
    “A defendant knowingly possesses a firearm if he has actual or constructive
    possession of it, and the possession can be sole or joint.”
    - 10 -
    
    469 F.3d 716
    , 719 (8th Cir. 2006) (citation omitted). “Constructive possession of
    the firearm is established if the person has dominion over the premises where the
    firearm is located, or control, ownership, or dominion over the firearm itself.” 
    Id. Here, the
    record contains ample evidence from which a jury could conclude
    beyond a reasonable doubt that Hayes constructively possessed the Ruger 9mm
    firearm used during the shootout. When Hayes was arrested at the hospital, police
    confiscated the contents of his pockets, which included a Wal-Mart receipt for
    9mm ammunition. Green testified that the Ruger 9mm was his and that he brought
    it inside Hayes’ residence that day for protection. An officer located the empty
    Ruger 9mm firearm box and Federal Cartridge 9mm bullet box in plain view on
    the island between the kitchen and dining area of Hayes’ residence the day after
    the shooting. Journigan testified that Hayes and Green “pulled their guns” and
    together held her at gunpoint. Under these facts, a reasonable jury could find that
    Hayes had dominion and control over the contents of his home, including the
    Ruger 9mm. See 
    Wells, 469 F.3d at 720
    .
    IV.
    In the third point on appeal, Green and Hayes contend that the district court
    erred in denying their motion to suppress evidence obtained from the delayed
    search of phones and a computer. Green asserts a Fourth Amendment violation
    because of the government’s continued possession of cellular phones and a
    computer, and Green and Hayes assert a violation of discovery rules.5
    As to Green’s argument that the district court erred in denying his motion to
    suppress evidence based on Fourth Amendment law, “we review the district
    court’s findings of fact for clear error and the ultimate question of whether the
    5
    Hayes concedes that he has no standing under the Fourth Amendment to
    challenge the search.
    - 11 -
    Fourth Amendment was violated de novo.” United States v. Allen, 
    705 F.3d 367
    ,
    369 (8th Cir. 2013) (citation omitted).
    Green asserts that the government’s continued possession of various cellular
    phones and a computer that were included within evidence taken from his
    residence pursuant to a consent search on February 2, 2012, violated the Fourth
    Amendment. Specifically, Green contends that the government’s retention of the
    cellular phones and the computer for more than two years was without
    justification, warranting application of the exclusionary rule. The government
    responds that the cellular phones and computer were in its possession through
    Green’s consent such that no possessory interest was infringed and that Green
    never sought return of the property.
    Even assuming that the appellants are correct that the delay in securing a
    search warrant was a Fourth Amendment violation, admission of evidence from the
    cellular phones was harmless beyond a reasonable doubt. See Chambers v.
    Maroney, 
    399 U.S. 42
    , 53 (1970) (evidence admitted in violation of the Fourth
    Amendment is subject to review for harmless error). “An error is harmless if we
    conclude that no substantial rights were affected and that the error did not
    influence or had only a very slight influence on the verdict.” United States v.
    Tenerelli, 
    614 F.3d 764
    , 769 (8th Cir. 2010) (citation omitted); see also Fed. R.
    Crim. P. 52(a). Here, the government introduced evidence independent of that
    introduced pursuant to the May 14, 2014 search that supports the jury’s verdict.
    See United States v. Briley, 
    319 F.3d 360
    , 365 (8th Cir. 2003). As detailed above,
    completely independent of the photographs and the text messages, there was (1)
    sufficient evidence to convict Green and Hayes of conspiracy to possess with
    intent to distribute methamphetamine, and (2) sufficient evidence to convict Hayes
    of being a convicted felon in possession of a firearm. We conclude that any error
    in admitting evidence uncovered in the search pursuant to the May 14, 2014
    warrant was harmless beyond a reasonable doubt as to those convictions.
    - 12 -
    As to the third conviction, possessing, brandishing, and discharging a
    firearm in furtherance of a drug trafficking crime, we also find that the government
    introduced sufficient evidence independent of that introduced pursuant to the
    May 14, 2014 search such that any error in the admission of that evidence was
    harmless beyond a reasonable doubt. To establish that the defendants violated
    § 924(c) as charged in this case, the government must prove that (1) the defendants
    committed a drug trafficking crime; and (2) the defendants possessed, brandished
    or discharged a firearm in furtherance of that crime. United States v. Robinson,
    
    617 F.3d 984
    , 988 (8th Cir. 2010). With regard to the first element, and as shown
    above, there was sufficient evidence – without evidence from the contested search
    – to support the jury’s finding that both appellants engaged in a conspiracy to
    distribute methamphetamine, which is a drug trafficking crime under § 924(c). See
    
    Rolon-Ramos, 502 F.3d at 757
    .
    With regard to the “in furtherance of” element of § 924(c), “the government
    must present evidence from which a reasonable [trier of fact] could find a ‘nexus’
    between the defendant’s possession of the charged firearm and the drug crime,
    such that this possession had the effect of ‘furthering, advancing or helping
    forward’ the drug crime.” 
    Robinson, 617 F.3d at 988
    (alterations in original;
    citations omitted). As detailed above, there was sufficient evidence that both
    appellants possessed the Ruger 9mm. See United States v. Conway, 
    754 F.3d 580
    ,
    590 (8th Cir. 2014) (noting that possession may be actual or constructive; it need
    not be exclusive). There was also sufficient evidence to support the jury’s finding
    that Hayes brandished a firearm, in particular, the testimony that he brandished a
    firearm to Journigan inside the house. Likewise, Green’s own admissions, along
    with the other evidence detailed above, was more than sufficient to support the
    jury’s finding that he both brandished and discharged the Ruger 9mm. Moreover,
    all of these acts occurred during a methamphetamine transaction gone bad, which
    certainly provides a sufficient basis for the jury’s finding of the requisite nexus
    between this possessing, brandishing, and discharging and the drug trafficking
    conspiracy. As the evidence at trial was sufficient to support both Green’s and
    Hayes’ § 924(c) convictions even ignoring the evidence from the contested search,
    - 13 -
    we conclude that any error in admitting evidence uncovered in the search pursuant
    to the May 14, 2014 warrant was harmless beyond a reasonable doubt.
    In this point, Green and Hayes also argue that the district court abused its
    discretion under Rule 16 in its consideration of the evidence found pursuant to the
    May 14, 2014 search warrant.
    We review for abuse of discretion a district court’s decision regarding
    the exclusion of evidence as a sanction for governmental discovery
    violations. If an actual discovery violation exists, the sanction will be
    upheld or reversed based on (1) whether the Government acted in bad
    faith and the reason(s) for delay in production; (2) whether there is
    any prejudice to the defendant; and (3) whether any lesser sanction is
    appropriate to secure future Government compliance.
    United States v. Polk, 
    715 F.3d 238
    , 249 (8th Cir. 2013) (internal citations and
    quotation marks omitted).
    During a pre-trial hearing, the government conceded that the delayed search
    of the computer and phones was its error and that when prosecutors discovered that
    the searches had not been done, the government obtained search warrants and
    disclosed the contents of the search as soon as possible. Because of late
    disclosures, the district court excluded multiple pieces of evidence. The record
    indicates that the district court’s review of the timeline and its treatment of the
    evidence was measured and considered. Notably, the district court found no bad
    faith and allowed in only limited evidence from that late search. Additionally, the
    record reflects that following the disclosure, the defense had a week to prepare for
    this evidence. See 
    Polk, 715 F.3d at 250
    (affirming where defense had seven days
    prior to trial to prepare for trial following disclosure); United States v. Altman, 
    507 F.3d 678
    , 680 (8th Cir. 2013) (district court abused its discretion by excluding as
    untimely disclosed testimony where defense had four days to prepare).
    Accordingly, we hold that the district court did not abuse its discretion in
    - 14 -
    fashioning its sanctions and allowing in some evidence of what was recovered in
    the May 14, 2014 search.
    V.
    In the fourth point on appeal, Green and Hayes contend that the district court
    erred in prohibiting them from presenting a justification defense. “We review de
    novo a district court’s decision whether there is sufficient evidence to submit an
    affirmative defense to a jury.” United States v. El-Alamin, 
    574 F.3d 915
    , 925 (8th
    Cir. 2000 (citation omitted). We reject this argument as well.
    Although it appears we have not been faced with a challenge regarding the
    justification defense as it applies to § 924(c), we have previously declined to
    recognize “a defense of legal justification in violation of § 922(g).” United States
    v. Cooney, 571 F. App’x. 505, 506 (8th Cir. 2014) (citations omitted); see also
    United States v. Poe, 
    442 F.3d 1101
    , 1103 (8th Cir. 2006). In those § 922(g) cases,
    we have indicated that if such defense were available, we would require proof of
    the following four elements:
    (1) that defendant was under an unlawful and “present, imminent, and
    impending [threat] of such a nature as to induce a well-grounded
    apprehension of death or serious bodily injury,” (2) that defendant had
    not “recklessly or negligently placed himself in a situation in which it
    was probable that he would be [forced to choose the criminal
    conduct],” (3) that defendant had no “reasonable, legal alternative to
    violating the law, ‘a chance both to refuse to do the criminal act and
    also to avoid the threatened harm,’” and (4) “that a direct causal
    relationship may be reasonably anticipated between the [criminal]
    action and the avoidance of the [threatened] harm.”
    
    Poe, 442 F.3d at 1104
    (citation omitted; alterations in original). “To be entitled to
    a jury instruction on a justification defense, a defendant must show an underlying
    - 15 -
    evidentiary foundation as to each element of the defense, such that a reasonable
    person could conclude that the evidence supported the defendant’s position.” 
    Id. at 1104
    (citations and internal quotation marks omitted).
    Relying on Cooney, Green contends that he should have been allowed to
    raise a justification defense to his charge brought pursuant to § 922(g), and Green
    and Hayes make the same argument as to their conviction under § 924(c). Even if
    we were to recognize the defense as applied to either provision, Green and Hayes
    did not establish, at a minimum, that they did not recklessly or negligently place
    themselves in a situation where it would be probable that either man would be
    forced to choose the criminal conduct. As detailed above, there is sufficient
    evidence indicating that Green and Hayes were part of a dangerous drug
    conspiracy, and jointly possessed at least one firearm for protection during that
    conspiracy. Further, neither appellant provided any showing that he had no
    reasonable, legal alternative to violating the law. Where a defendant could have
    called the police, as either easily could have done after Harcourt and Williams first
    left Hayes’ residence, that defendant does not meet this element. See 
    El-Amine, 574 F.3d at 926
    . Here, Green and Hayes pulled a gun on Journigan when they
    grew suspicious of Harcourt and Williams outside of the home. Rather than stay
    inside when the two individuals returned, they exited the residence and engaged in
    gunfire. This is not choosing unlawful conduct where no lawful conduct is
    available. This is consciously committing a crime, and the district court did not err
    in refusing a jury instruction or argument on justification under these facts.
    VI.
    Accordingly, we affirm the judgment of the district court.
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