United States v. Lee , 208 F. App'x 352 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 8, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-11389
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
WANDA LAFAYE LEE
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas, Fort Worth
No. 4:05-CR-16-ALL
Before KING, BENAVIDES, and CLEMENT, Circuit Judges.
PER CURIAM:*
Defendant-appellant Wanda Lafaye Lee was convicted of
possession of a firearm by a convicted felon pursuant to 18
U.S.C. § 922(g)(1). She now appeals her conviction, arguing
that the district court erred by: (1) not allowing her to present
her justification defense to the jury and (2) considering hearsay
statements at sentencing without allowing her to confront those
*
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this opinion should not be published and is not precedent except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.
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witnesses.
I. JUSTIFICATION DEFENSE
A. Standard of Review
The legal sufficiency of a proffered defense is a question
of law and is reviewed de novo. United States v. Tokash, 282
F.3d 962, 967 (7th Cir. 2002). Before an affirmative defense,
such as duress, may be presented to the jury, a defendant must
present evidence of each element of the defense. United States
v. Posada-Rios, 158 F.3d 832, 873 (5th Cir. 1998) (citing United
States v. Bailey, 444 U.S. 394, 415 (1980).
B. Analysis
Lee contends that she submitted evidence supporting each
element of a justification defense and that the district court
violated her Fifth Amendment right to a jury trial by denying her
the opportunity to present that defense to the jury. On
sufficient facts, the common-law defenses of duress and necessity
can justify a violation of a firearms possession statute.1 See
United States v. Panter, 688 F.2d 268, 272 (5th Cir. 1982). That
defense arises “where a convicted felon, reacting out of
reasonable fear for the life or safety of himself, in the actual,
physical course of a conflict that he did not provoke, takes
temporary possession of a firearm for the purpose or in the
1
As noted in several cases, “[t]he proper name of this
defense has . . . not been established.” United States v.
Harper, 802 F.2d 115, 117 n.1 (5th Cir. 1986).
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course of defending himself.” Id. The defense protects a
defendant “only for possession during the time he is endangered.
Possession either before the danger or for any significant period
after it remains a violation.” Id.To present a justification defense to a charge of § 922(g),
a defendant must show that: (1) he was under an unlawful and
“present, imminent, and impending” threat of death or serious
bodily injury; (2) that he “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) he “had
no ‘reasonable, legal alternative to violating the law’ . . .;
and (4) that a direct causal relationship may be reasonably
anticipated between the [criminal] action taken and the avoidance
of the [threatened] harm.” United States v. Gant, 691 F.2d 1159,
1161 (5th Cir. 1982) (internal quotations omitted).
A justification defense arises only when “there is a real
emergency leaving no time to pursue any legal alternative.”
Posada-Rios, 158 F.3d at 874. Generalized testimony that a
defendant was “afraid to stay at home and that she feared for her
family’s safety” was not sufficient evidence of an imminent
threat. Id. at 875. Fear of future harm also does not satisfy
the present, imminent, and impending threat requirement, United
States v. Harvey, 897 F.2d 1300, 1305 (5th Cir. 1990), overruled
in part on other grounds by United States v. Lambert, 984 F.2d
658 (5th Cir. 1993), even when the defendant has previously been
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shot. See United States v. Crittendon, 883 F.2d 326, 329 (4th
Cir. 1989) (holding that although a defendant purchased a gun
because he had been shot before, he was not entitled to a
justification defense because the threat was not imminent). The
defendant must produce evidence that he “was in danger of
imminent bodily harm at the moment he purchased and possessed the
gun.” United States v. Harper, 802 F.2d 115, 118 (5th Cir. 1986)
(emphasis added).
The imminence of the threat goes hand in hand with the
availability of reasonable, legal alternatives. A reasonable,
legal alternative is “a chance both to refuse to do the criminal
act and also to avoid the threatened harm.” Gant, 691 F.2d at
1163. To establish no alternative was available, a defendant
must prove “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.” Posada-Rios, 158 F.3d
at 874 (quoting Harper, 802 F.2d at 118). These alternatives
include notifying the police of the threats, taking other steps
to prevent robbery, and leaving the purchase and possession of a
weapon to a companion. Harper, 802 F.2d at 118. Furthermore,
the no-reasonable-alternative inquiry is an objective one. The
defendant’s subjective belief that no legal alternatives exist is
not determinative. Posada-Rios, 158 F.3d at 874.
Lee’s proffered evidence did not establish any imminent
threat of death or serious bodily injury. Lee purchased the
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firearm two days after her altercation with Trina Hart and Eddie
Dickson. Her testimony indicates that she did not have contact
with Hart and Dickson after the incident and that other threats
were relayed by acquaintances. Those second-hand reports
establish a future threat rather than an imminent one. See
Harvey, 897 F.2d at 1305 (holding no imminent threat existed even
though rival religious groups had engaged in shoot-outs and the
defendant was threatened by members of a rival faction who wanted
him to get out of town).
The proffered evidence also does not support Lee’s
contention that she had no other reasonable alternative to
firearm possession or that the threats were so imminent she had
no opportunity to call the police. Lee would have us believe
that she exhausted all reasonable alternatives by going to the
police, but that is not the case. Even though one officer may
not have responded to her satisfaction, this is not a situation
where repetitive attempts to contact police were futile.
Additionally, Lee did not report the alleged threats or the
suspicious vehicle driving by her home.
Because Lee did not satisfy her burden to produce evidence
on each element of the justification defense, the district court
did not err by not presenting the defense to the jury.
II. CONFRONTATION RIGHTS AT SENTENCING
A. Standard of Review
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We review allegations of Confrontation Clause violations de
novo. See United States v. Bell, 367 F.3d 452, 465 (5th Cir.
2004). Any errors are subject to harmless error analysis. See
id.B. Analysis
The district court sentenced Lee to eighty-five months
imprisonment and a three-year term of supervised release. Lee
argues that the district court erred by considering the out-of-
court statements of Hart and Dickson without allowing Lee the
opportunity to confront those witnesses.
We have specifically held that the constitutional right to
confrontation of witnesses does not apply during non-capital
sentencing proceedings. United States v. Navarro, 169 F.3d 228,
236 (5th Cir. 1999). “[A] defendant’s confrontation rights at a
sentencing hearing are severely restricted.” United States v.
Rodriguez, 897 F.2d 1324, 1328 (5th Cir. 1990). Because the
sentencing court “‘may consider any information which has
sufficient indicia of reliability to support its probable
accuracy,’” the district court may rely upon hearsay that was not
admissible during the guilt/innocence stage of a trial. United
States v. Ramirez, 271 F.3d 611, 612-13 (5th Cir. 2001) (quoting
United States v. Vital, 68 F.3d 114, 120 (5th Cir. 1995)).
Lee argues that we should reevaluate our stance in light of
the Supreme Court’s decision in United States v. Mitchell, 526
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U.S. 314 (1999). However, we see nothing in that opinion which
suggests our prior holdings in Navarro and Ramirez are
incorrect.2 Thus, the district court did not err in considering
Hart’s and Dickson’s statements without allowing Lee the
opportunity to confront those witnesses.
III. CONCLUSION
Lee’s conviction and the sentence imposed are AFFIRMED.
2
Nor do we hold, as Lee also contends, that due process
requires that Lee be given the right to confront and cross-
examine witnesses during sentencing because that right is
extended to parolees/probationers at revocation proceedings. See
Morrissey v. Brewer, 408 U.S. 471, 489 (1972); Gagnon v.
Scarpelli, 411 U.S. 778, 782 (1973). That requirement has not
been extended to sentencing hearings. In fact, earlier Supreme
Court precedent states that due process does not require that a
“sentencing judge . . . be denied an opportunity to obtain
pertinent information” as a result of “rigid adherence to
restrictive rules of evidence properly applicable to the trial.”
Williams v. New York, 337 U.S. 241, 247 (1949).
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