United States v. Butler ( 2007 )


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  •                                                                       F I L E D
    United States Court of Appeals
    Tenth Circuit
    PU BL ISH
    May 7, 2007
    UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
    Clerk of Court
    TENTH CIRCUIT
    U N ITED STA TES O F A M ER ICA,
    Plaintiff - Appellee,
    v.                                                     No. 06-5027
    JUAN DESHAN NON BUTLER,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of N.D. Oklahom a
    (D.C. No. 05-CR-4-01-CVE)
    Douglas Edward Snow , Assistant United States Attorney (David E. O’M eilia,
    United States Attorney, and Kevin Danielson, Assistant United States Attorney,
    on the briefs) Tulsa, Oklahoma, for Plaintiff - Appellee
    Robert A. Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal
    Public Defender, on the briefs), Tulsa, Oklahoma, for Defendant - Appellant
    Before O ’B RIE N, SE YM OU R and TYM KOVICH, Circuit Judges.
    O’BRIEN, Circuit Judge.
    A jury convicted Juan Butler of being a felon in possession of a firearm, in
    violation of 
    18 U.S.C. § 922
    (g)(1), and an armed career criminal in possession of
    a firearm and ammunition, in violation of 
    18 U.S.C. § 924
    (e)(1). The district
    judge refused Butler’s request to instruct the jury on justification, but made a
    downward departure from the sentencing guidelines in recognition of the unique
    circumstances of this case. Butler appeals. W e affirm.
    I. Background
    On October 27, 2004, Federal Bureau of Investigation Agent M att
    Lotspeich and Tulsa Police Detective Paul Hutter were investigating an armed
    robbery. Believing Butler might have some information about suspects, the
    officers met with him at his apartment and arranged to again meet with him for
    additional questioning. On November 4, 2004, that meeting occurred in an
    unmarked police car outside Butler’s apartment. During the meeting Butler went
    into his apartment and returned to the car with a loaded gun. He said he needed
    to be rid of the gun.
    At trial, Butler testified about the circumstances of his possession of the
    gun. For purposes of this appeal we accept his testimony as true and relate his
    version of events. One day, when his wife and daughter were home, there was a
    knock at the back door of the apartment. W hen he opened the door, two men
    were outside. Butler knew one, Jermaine Link, but not the other, later identified
    as Rudy Gomez. He admitted the men because he knew Jermaine, who said he
    had a business proposition. W hen Butler asked the nature of the proposition,
    Gomez explained he was having a problem w ith a person named A lvin. Gomez
    -2-
    said he had been assaulted by Alvin and wanted Butler to kill Alvin. Gomez
    pulled out a gun and told Butler to use it to murder Alvin. Shocked and afraid,
    Butler agreed. He felt he had no choice; if he refused, Gomez would shoot him
    and his family. His fear was well founded because Gomez pointed the gun at
    Butler while explaining the Alvin problem, changed the tone of his voice, and
    acted as if he had another gun in his pants.
    Although Butler knew it was illegal for him to possess the gun, he did not
    take it to the authorities because Gomez and Jermaine would be coming back and
    he would be in danger if they discovered it was missing. The next evening,
    Gomez and Jermaine returned to the apartment. They drove Butler to A lvin’s
    house and parked inconspicuously behind it to discuss the layout. Butler
    acquiesced because he wanted to avoid violence against him and his family.
    Gomez wanted an “airtight alibi,” such as being incarcerated, so he
    instructed Butler to delay the murder until he could make such arrangements. In
    the interim Gomez stayed in contact with Butler via cell phone. Knowing Gomez
    and others believed cell phones operated by the local mobile phone company were
    constantly monitored, Butler tried to “spill information” – that is, mention
    information linking Gomez to the plot – hoping Gomez would believe he could be
    connected to the murder regardless of what alibi he might arrange. Thus, Butler
    hoped, Gomez would call off the plot.
    Finally, Gomez changed his mind about the murder. W hen he so advised
    -3-
    Butler he allowed Butler to keep the gun. At this point, Butler decided to turn the
    gun over to the authorities. Knowing the agents (with whom he had now
    established a relationship) were due to visit him again, he waited for them to
    come to his apartment to surrender the gun. The elapsed time between aborting
    the murder and surrendering the gun was two to four days; Butler possessed the
    gun for a total of four to six w eeks.
    II. Standard of Review
    If supported by the evidence and the law , a criminal defendant is entitled to
    jury instructions concerning his theory of defense, United States v. Visinaiz, 
    428 F.3d 1300
    , 1308 (10th Cir. 2005), cert. denied, 
    126 S.Ct. 1101
     (2006), in this
    case, justification. “‘For the purposes of determining the sufficiency of the
    evidence to raise the jury issue, the testimony most favorable to the defendant
    should be accepted.’” United States v. Al-Rekabi, 
    454 F.3d 1113
    , 1121 (10th Cir.
    2006) (quoting United States v. Scull, 
    321 F.3d 1270
    , 1275 (10th Cir. 2003)).
    But, “it is essential that the testimony given or proffered meet a minimum
    standard as to each element of the defense so that, if a jury finds it to be true, it
    would support an affirmative defense— here that of duress or necessity.” United
    States v. Bailey, 
    444 U.S. 394
    , 415 (1980). W hen the trial judge refuses to
    instruct on a specific defense, we review for an abuse of discretion. Al-Rekabi,
    
    454 F.3d at 1121
    .
    -4-
    III. Discussion
    In this case, Butler sought an instruction on a justification defense. 1 Such a
    defense requires the defendant to demonstrate the following:
    (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
    1
    Courts have used the terms duress, necessity, and justification
    interchangeably. See United States v. Leahy, 
    473 F.3d 401
    , 406 (3d Cir. 2007).
    This may be due to the development of the defense by drawing upon comm on
    law. 
    Id.
     "While the defense of duress covered the situation where the coercion
    had its source in the actions of other human beings, the defense of necessity, or
    choice of evils, traditionally covered the situation where physical forces beyond
    the actor's control rendered illegal conduct the lesser of two evils." Bailey, 
    444 U.S. 394
    , 409-410 (1980). In modern times, “‘[t]he traditionally separate
    defenses of necessity and duress have become increasingly blurred in modern
    decisions, to the point of merger.’” United States v. Holliday, 
    457 F.3d 121
    , 127
    (1st Cir. 2006), cert. denied, 
    127 S.Ct. 1317
     (2007) (quoting United States v.
    Nelson-Rodriguez, 
    319 F.3d 12
    , 40 n.9 (1st Cir. 2004)). The defense requested by
    Butler, as we defined it in United States v. Vigil, 
    743 F.2d 751
    , 755 (10th Cir.
    1984), is spoken of in terms of justification and necessity. W e use that
    terminology in this opinion. Leahy, 
    473 F.3d at 406
     (“[E]ase in administration
    favors treating [the common law defenses of duress, necessity, and self-defense],
    in a federal felon-in-possession case, under a single, unitary rubric:
    justification.”); United States v. Salgado-Ocampo, 
    159 F.3d 322
    , 327 n.6 (7th Cir.
    1998) (“[N]ecessity, justification, duress and self-defense are interchangeably
    lumped together under the rubric of the justification defense.”); United States v.
    Gomez, 
    92 F.3d 770
    , 774 (9th Cir. 1996) (where defendant argued he was entitled
    to a duress or necessity defense, the N inth Circuit noted such cases “have almost
    always been analyzed in terms of justification,” and analyzed accordingly).
    -5-
    between the [criminal] action taken and the avoidance of the
    [threatened] harm.
    Vigil, 
    743 F.2d at 755
     (citations and internal quotations omitted).
    Another principle overarches and qualifies the four factors announced in
    Vigil. It is temporal – if justification is established by evidence of all four
    factors, the defense is available only so long as all of those factors continue to
    exist. Al Rekabi, 
    454 F.3d at 1123
    . W e rest our decision on the first of Vigil’s
    four factors. 2
    A. Imminent and Impending Threat of Death or Serious Bodily Injury
    To satisfy the first prong of a justification defense, “[t]he defendant must
    show an imminent danger – a real risk of death or serious bodily injury.” Al-
    Rekabi, 
    454 F.3d at 1125
    . 3 And the imminent danger must persist throughout the
    possession. 
    Id. at 1125-26
    . The Supreme Court’s decision in Bailey is both
    instructive and compelling. 4 The Court clearly conditioned a justification
    2
    “If, as we here hold, an affirmative defense consists of several elements
    and testimony supporting one element is insufficient to sustain it even if believed,
    the trial court and jury need not be burdened with testimony supporting other
    elements of the defense.” Bailey, 
    444 U.S. at 416
    .
    3
    In Al-Rekabi the defendant argued he should be entitled to a justification
    instruction because he had taken the firearm from his 12-year-old brother. 
    Id.
    Although the situation was “potentially very dangerous,” the defendant was not
    entitled to a justification instruction because “the danger . . . was not clearly
    ‘imminent.’” 
    Id.
     (emphasis added).
    4
    In Al Rekabi we analogized the elements of the escape in Bailey to the
    elements of a felon in possession of a weapon. Id. at 1124.
    -6-
    instruction on the defendant’s proof of abandonment of illegal conduct at the
    earliest possible opportunity. In Bailey, prison escapees requested an instruction
    on duress or necessity, claiming their escape from prison was due to intolerable
    conditions. Reversing the Court of Appeals for the District of Columbia, the
    Supreme Court affirmed the district court’s refusal to instruct the jury on such a
    defense. “[W]here a criminal defendant is charged with escape and claims that he
    is entitled to an instruction on the theory of duress or necessity, he must proffer
    evidence of a bona fide effort to surrender or return to custody as soon as the
    claimed duress or necessity had lost its coercive force.” Bailey, 
    444 U.S. at 415
    .
    Because the Bailey defendants failed to turn themselves in at the “earliest possible
    opportunity,” which was “an indispensable element of the defense of duress or
    necessity,” they were not entitled to the instruction. 5 
    Id.
    Butler’s account of the facts – relating Gomez’s threatening manner, his
    tone of voice, and pointing a gun at Butler – arguably presented a jury question as
    to a present, imminent and impending threat of death or serious bodily injury
    during the initial meeting. But as Butler’s narrative continued the possible
    inference of imminent danger eroded to the point where, as the trial judge
    5
    “The requirement of a threshold showing on the part of those w ho assert
    an affirmative defense to a crime is by no means a derogation of the importance
    of the jury as a judge of credibility. Nor is it based on any distrust of the jury's
    ability to separate fact from fiction. On the contrary, it is a testament to the
    importance of trial by jury and the need to husband the resources necessary for
    that process by limiting evidence in a trial to that directed at the elements of the
    crime or at affirmative defenses.” Bailey, 
    444 U.S. at 416
    .
    -7-
    decided, the evidence, considered as a whole and viewed most charitably to the
    defendant, simply did not sustain the required inference. It is a working example
    of the proper exercise of the trial judge’s role as gatekeeper – deciding if the
    evidence passes the threshold for a justification instruction.
    Butler failed to relinquish the gun at the “earliest possible opportunity.”
    The standard announced in Al-Rekabi, while not unforgiving, is demanding. It
    appears the district court was not convinced, nor are we, that “imminent” danger
    persisted the entire four to six weeks Butler possessed the firearm. Certainly it
    was not an abuse of discretion for the district court to so consider the evidence.
    But, one need not dwell on lingering danger because Gomez called off the murder
    plot and told Butler to keep the gun. At that point the danger had clearly
    dissipated, yet, according to Butler’s undisputed testimony, he continued to
    possess the gun for two to four days. Objectively considered, the duress or
    necessity, even if initially present, had “lost its coercive force.” See 
    id. at 415
    .
    Since Bailey’s predicate for a justification instruction, presently extant coercive
    force, was not met the instruction was properly refused.
    Butler cites several cases from other circuits arguing for a contrary result.
    Of course those cases, even if persuasive, cannot substitute for Tenth Circuit
    precedent. But they are inapposite or only marginally relevant in any event.
    -8-
    The first is United States v. Deleveaux, 
    205 F.3d 1292
     (11th Cir. 2000). 6 In
    Deleveaux, the government and the defendant presented different version of
    events. According to Deleveaux: his wife was under attack from a neighbor
    wielding a firearm; he reacted by obtaining a 9mm handgun from a place she had
    hidden it in the attic and exchanged fire with the intruder; he knew his wife
    owned a gun and where she kept it in her house (they had been estranged and
    living apart when he came to that knowledge – he later moved back into the
    home); he had never handled the gun until the day of the incident; after the
    altercation, he placed the gun back in the attic. 
    Id. at 1294
    . The trial judge
    thought a justification instruction “was a ‘close question.’ . . . [but] decided to
    ‘err [ ] on the side of giving the defendant the opportunity to argue this matter to
    the jury.’” 
    Id. at 1295
    . The government, having obtained a conviction, did not
    appeal from that decision. The only issue before the Seventh Circuit was whether
    justification is an affirmative defense, placing the burden of proof on the
    defendant (the court concluded it was). Since the propriety of the justification
    instruction given by the trial judge was not argued or decided in Deleveaux and
    the issue the Deleveaux court did decide is not present here, we fail to see the
    6
    “Since the language of § 922(g)(1) prohibits a convicted felon from even
    possessing a firearm, the first question is w hether a justification defense is
    available to a § 922(g)(1) charge. W e join the other circuits addressing this issue
    and hold that the defense of justification may be available to a § 922(g)(1)
    charge.” Deleveaux, 
    205 F.3d at 1297
     (citations omitted). “How ever, we also
    agree with those circuits that this defense is available in § 922(g)(1) cases in only
    extraordinary circumstances.” Id. (citations omitted).
    -9-
    relevance of that case.
    Butler next points to United States v. Paolello, 
    951 F.2d 537
     (3d Cir.
    1991). Paolello testified he was attacked, disarmed his assailant, and ran away
    with the gun – an act of self preservation. A police officer on the scene saw
    Paolello fleeing down an alley and ordered him to stop. Paolello discarded the
    gun but kept running until apprehended by another officer. 
    Id. at 538-39
    . The
    district court refused to give a justification instruction; the Third Circuit reversed.
    
    Id. at 539, 544
    . The court of appeals applied the equivalent of our four-part Vigil
    test, 
    Id. at 540
    , and adopted the rule “an interdicted person may possess the
    firearm no longer than absolutely necessary.” 
    Id. at 541
     (citations omitted). It
    concluded Paolello was entitled to a justification instruction
    “[b]ecause w e must accept in the procedural posture of this case
    Paolello’s version of the facts in the record, it appears that Paolello
    did not maintain possession of the weapon any longer than absolutely
    necessary. Thus, even if we find Paolello’s testimony unpersuasive,
    his credibility should be judged by the jury.”
    
    Id. at 543
    . Paolello hardly equates with this case. First, there is no factual
    dispute here, as there was in Paolello. W e accept Butler’s version of events,
    without regard to conflicting evidence. Second, possession of a firearm for a few
    moments in an adrenalin rush while fleeing from a violent encounter is a world
    apart from Butler’s continued possession of the firearm for weeks and especially
    for a period of two to four days after any credible threat had been eliminated.
    Finally, Butler refers us to United States v. Gomez, 
    92 F.3d 770
     (9th Cir.
    -10-
    1996). Gomez was acquitted of state law charges. Knowing he would soon be
    released from the jail, one of the other inmates solicited Gomez to kill a number
    of people in exchange for substantial sums of money. Gomez reported the
    solicitation to the guards and cooperated with law enforcement in gathering
    evidence against the inmate. 
    Id. at 772
    . Although the government promised to
    keep his identity secret and to protect him, it failed; Gomez’s full name w as
    disclosed in the indictment against the inmate. Gomez began to receive written
    and verbal death threats and learned there was a contract out for his life. W hen
    he reported this to federal agents, they refused to take him into protective
    custody. 
    Id. at 773
    . He also went to the sheriff, his parole officer, and local
    churches for help. He went to the newspaper with his story. Gomez moved from
    one house to another, and even went homeless in an attempt to avoid danger.
    Finally, Gomez went to his parole officer and lied, claiming he was using illegal
    drugs. That led to his incarceration, where he received a written death threat
    from an inmate. Upon release, he received yet another death threat. On the same
    day, Gomez took possession of a 12-gauge shotgun to protect himself. 
    Id.
     at 773-
    74. Two days later, federal agents served him with a subpoena and found him
    with the shotgun. The Ninth Circuit reversed Gomez’s conviction because the
    district court failed to instruct the jury on justification. 
    Id. at 778
    .
    Butler argues his predicament was on the same order as that of Gomez.
    Unlike Butler, however, Gomez received several death threats, both in person and
    -11-
    in writing. See 
    id. at 776
    . Gomez behaved as if he was concerned for his safety –
    he moved from home to home and sought protection from federal agents, the local
    sheriff, and his parole officers. See Al-Rekabi, 
    454 F.3d at 1125
     (considering
    defendant’s response to alleged threat as evidence of whether the defendant
    believed the threat to be imminent). Butler did nothing of the sort and after the
    murder plot was called off, Butler conceded he was no longer afraid. In Gomez
    the critical question, whether the danger “had lost its coercive force,” was
    sufficiently in doubt to require jury resolution. The factual landscape here is
    entirely different.
    W e must take care not to transform the narrow, non-statutory justification
    exception to the federal anti-felon law into something permitting a felon to
    possess a w eapon for extended periods of time in reliance on some vague “fear”
    of street violence. Indeed, “[i]f ex-felons who feel endangered can carry guns,
    felon-in-possession laws will be dead letters.” United States v. Perez, 
    86 F.3d 735
    , 737 (7th Cir. 1996). By insisting that the evidence of a threat of serious
    injury or death is actually “present, imminent and impending,” w e will avoid this
    undesirable result. See Vigil, 
    743 F.2d 755
    .
    The district court did not err in denying a justification instruction because
    Butler’s evidence was insufficient to permit the jury to reasonably find the
    continuing urgent danger required by our cases. The circumstances of Butler’s
    -12-
    case are better considered as mitigation of punishment 7 than exoneration of
    criminal behavior.
    B. Reasonable, legal alternatives to violating the law
    Butler failed on the first prong of the Vigil test and that is sufficient to end
    the matter. However, to be thorough we address the third prong in response to
    Butler’s arguments. It requires Butler to show he had no reasonable, legal
    alternatives to possessing the gun. 
    Id. at 755
    . Gom ez serves as a possible
    example of an arguable case for a thorough and principled exhaustion of available
    legal alternatives to illegal possession of a firearm – one grounded in self defense.
    By comparison, Butler’s evidence clearly appears wanting. Nevertheless, he
    claims it to be sufficient, relying on United States v. Newcomb, 
    6 F.3d 1129
     (6th
    Cir. 1993). Newcomb provides cold comfort.
    Newcomb w as charged with unlawful possession of a firearm and
    ammunition. 
    Id. at 1130
    . A police officer observed a group of three people in an
    alley. 
    Id. at 1130-31
    . Someone the officer identified as the tallest of the three
    placed a two foot long dark object into an abandoned couch in an alley. W hen the
    officer patted down Newcomb, he found four 12-gauge shotgun shells. He then
    7
    In a global view of the criminal justice process, the fact a felon
    voluntarily, albeit belatedly, surrendered a firearm to the police is not irrelevant.
    Surely it is a factor for prosecutors in the exercise of charging discretion. It is
    also a consideration for judges in the exercise of their discretion in crafting a
    reasonable sentence. See United States v. Booker, 
    543 U.S. 220
    , 260-62, 265
    (2005). That safety valve is evident here, where the court made a downward
    departure.
    -13-
    found a sawed-off 12-gauge shotgun in the couch. The officer identified
    Newcomb, the tallest person, as the one w ho put the gun in the couch. Defense
    witnesses testified Newcomb had gone out with others to find and dissuade his
    girlfriend’s son, who was in a murderous rage, from killing another with a
    shotgun. They found the son and Newcomb managed to wrest the gun from him.
    After Newcomb removed the shells, the son again took possession of the gun and
    placed it in the couch, vowing to get another gun to shoot his intended victim.
    In N ew com b, as it does here, the government argued the defendant had
    other, plausible alternatives to violating the statute – including having someone
    else possess the weapon or calling law enforcement to handle the problem. 
    Id. at 1137
    . The Sixth Circuit held the jury might reasonably find Newcomb had no
    reasonable alternatives to illegal possession of the gun if it found he was faced
    with an emergency situation. But in doing so, the Newcomb court noted that
    usually, when a defendant’s conduct spans a period of time, there are other
    alternatives to the illegal conduct.
    That point was not lost here. According to the district court:
    [W ]e don’t even have to assume that he could have gone to the
    police. He met with the police on October 27th and didn’t mention
    it. And it wasn’t until the second meeting that he said I have
    something to give you. The defendant had six weeks to contact the
    police and say, look, someone wants to kill someone else; they gave
    me a gun to do it; I want to turn them in, and along the way, I want
    to give you the gun. He did not do that. He sat back and continued
    to possess the gun for six weeks.
    -14-
    (R . Vol. III at 172-73.)
    Butler conceded he never asked the officers for protection from Gomez. In
    explanation for that failure he claimed not to trust the officers to protect him and
    his family. He claimed such protection only happens “in the movies.” (Id. at 91.)
    W e cannot fully imagine the difficulty faced by someone in the situation Butler
    described. Nevertheless, Congress has declared that felons are not to be in
    possession of firearms. 18 U .S.C. § 922. Although, along with other courts, we
    have applied an exception to this general rule, 8 the exception is narrow and is
    appropriate only in extraordinary circumstances. See, e.g., Al-Rekabi, 
    454 F.3d at 1121
     (“The necessity defense is a narrow exception to stringent federal firearms
    law s.”); Deleveaux, 
    205 F.3d at 1297
     (“[T]his defense is available in § 922(g)(1)
    cases in only extraordinary circumstances.”); Paolello, 
    951 F.2d at 542
     (“The
    restrictive approach [to the justification defense] is sound.”).
    Butler’s experiences may well have led him to be hesitant in trusting law
    enforcement to keep him and his family safe, 9 but such distrust does not eliminate
    prompt relinquishment of the gun and disclosure of the circumstances to the
    police as a reasonable legal alternative. W ithout substantial and compelling
    8
    See Al-Rekabi, 
    454 F.3d at
    1122 n.7 (noting courts have assumed a
    justification defense applies, although the statute does not explicitly provide for
    such a defense).
    9
    Butler explained he “didn’t believe in the protection of the police force,”
    and explained he believed Gomez’s “homeboys” could get to him even if the
    police arrested Gomez. (R. Vol. III at 95.)
    -15-
    proof, as in Gomez, distrust of officials is much too convenient as a post hoc
    rationalization for illegal possession. Cf. United States v. Harper, 
    466 F.3d 634
    ,
    648 (8th Cir. 2006) (where a defendant claimed he had no faith in law
    enforcement because he was threatened by a deputy, the court applied the rule “a
    defendant's subjective belief that going to law enforcement would prove futile is
    insufficient to meet the objective standard that there was no reasonable, legal
    alternative to violating the law.”), cert. denied, 
    127 S.Ct. 1504
     (2007); United
    States v. Hudson, 
    414 F.3d 931
    , 934 (8th Cir. 2005) (w here defendant claimed to
    be afraid of a “rogue” police officer, “[o]ne reasonable alternative for [defendant]
    was to report her alleged fear of the rogue officer to responsible law enforcement
    authorities.”), cert. denied, 
    126 S.Ct. 1769
     (2006); Gomez, 
    92 F.3d at 777
     (noting
    that defendant sought help from federal agents, the sheriff, his parole officer and
    local churches).
    Difficult choices may emanate from federal firearms laws, which “impose
    something approaching absolute liability.” United States v. Adkins, 
    196 F.3d 1112
    , 1115 (10th Cir. 1999) (internal quotations omitted). It is one of the burdens
    of a felony conviction. W hile Butler’s alternatives may have been uncomfortable,
    a prompt surrender of the firearm was not impossible.
    A FFIR ME D.
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