                         UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                             No. 02-4921
DYRON LAQUEE RUSH,
             Defendant-Appellant.
                                       
            Appeal from the United States District Court
     for the Eastern District of North Carolina, at Wilmington.
                James C. Fox, Senior District Judge.
                             (CR-02-46)

                      Argued: December 5, 2003

                      Decided: March 15, 2004

       Before LUTTIG and GREGORY, Circuit Judges, and
               HAMILTON, Senior Circuit Judge.



Affirmed by unpublished per curiam opinion.


                            COUNSEL

ARGUED: Joseph Lanny Ross, II, OFFICE OF THE FEDERAL
PUBLIC DEFENDER, Raleigh, North Carolina, for Appellant. Chris-
tine Witcover Dean, Assistant United States Attorney, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas P. McNamara, Federal
Public Defender, Stephen C. Gordon, Assistant Federal Public
Defender, Raleigh, North Carolina, for Appellant. Frank D. Whitney,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Raleigh, North Carolina, for Appellee.
2                        UNITED STATES v. RUSH
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                               OPINION

PER CURIAM:

   On July 24, 2002, appellant Dyron Laquee Rush was convicted of
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). He contends on appeal that the district court committed
reversible error by refusing to instruct the jury on a defense of justifi-
cation to this crime. We hold that the district court did not err in
refusing the instruction. Accordingly, we affirm Rush’s conviction.

                                    I.

   Viewed in the light most favorable to the defendant, the circum-
stances surrounding his arrest and conviction were as follows.

   On the night of December 5, 2001, the defendant was visiting with
his sister, Diresha Rush, at her house, when Kowan Curry, the father
of his sister’s children, arrived. The defendant and Curry spoke ami-
cably for a short period of time before the defendant received a tele-
phone call and left, leaving Curry alone with his sister. Curry and
Diresha Rush began to fight almost immediately thereafter. The fight-
ing between Curry and Rush turned violent, and, at some point, Curry
punched Diresha Rush in the face.

   The defendant returned to his sister’s house shortly after he left
because he had forgotten his cell phone. As he approached, he heard
fighting and saw Curry knocking his sister against the back door to
the house. The defendant intervened immediately, putting himself
between his sister and Curry. Curry then made threats against the
defendant himself, and the defendant responded by pinning Curry
against a wall. The ruckus that followed attracted a crowd of people
from the neighborhood, including relatives of Dyron and Diresha
Rush and friends of Curry. Various members of the crowd then
attempted to defuse the situation by calming Curry down and encour-
                         UNITED STATES v. RUSH                           3
aging him to leave, which he eventually did. However, before Curry
got into his car, he hollered, "I’ll be back. This ain’t over. You’ll see."
J.A. 109. After Curry drove away, the defendant left the house again.

   Diresha Rush next called the police. Officer Joseph Cina responded
to her call and followed her to the state magistrate’s office so that she
could take a warrant out against Curry. After Rush obtained the war-
rant, she was followed home by both Officer Cina and Officer Rei-
chard, who was driving a second police car. During the drive, Diresha
Rush pointed out to the officers a black Nissan Altima, which she
identified as belonging to Curry. The officers followed her the rest of
the way to her house and returned immediately to the car Diresha
Rush identified.

   As the officers neared the parking lot where the car had been
parked, they saw the car pulling out onto the road. Moving quickly,
the officers turned on their blue lights and blocked the car in by posi-
tioning their vehicles in front of and behind it. The driver of the car
unsuccessfully attempted to "seesaw" his way out from between the
two police cars. The officers then exited their cars. As they
approached the Altima, they realized that there were two men in the
car. Curry was in the driver’s seat and an individual, later identified
as the defendant, was in the passenger’s seat.

   Officer Cina noticed that the individual on the passenger side
appeared to be slumped over and have his head in his hands. The pas-
senger then looked at Cina, looked back down, and began fumbling
around on the floorboard of the car, as if he had dropped something.
Officer Cina ordered him out of the car. After several commands, the
defendant opened the car door, stepped out of the vehicle slowly, and
then took off running. Officer Cina followed in pursuit and eventually
tackled the defendant in the middle of the street a block and a half
away. Cina handcuffed him and had begun to pat him down when he
asked if the defendant had anything on him. The defendant replied
that he had a gun "in his front area." J.A. 36. Officer Bordeaux, who
had arrived to assist Cina, then took custody of the defendant and
found a loaded Taurus revolver in the front, "hand warmer" pocket of
the defendant’s sweatshirt. Officer Bordeaux testified that, as he
moved the defendant to his police car, the defendant was irate and
that, once in the police car, he attempted to kick out the windows.
4                        UNITED STATES v. RUSH
   The defendant testified at trial to explain the circumstances sur-
rounding his arrest. According to this testimony, the defendant was
walking down the sidewalk an hour and a half after the fight between
Curry and his sister, when he saw Curry approaching in his car. The
defendant flagged Curry down to find out whether he had calmed
down from the fight and "to make sure that he wasn’t going to put
further harm on [his] sister." J.A. 134. Curry pulled over and the
defendant voluntarily got into his car. The defendant testified that
Curry was still "hyped up about what happened earlier." J.A. 118. The
first thing that Curry told the defendant was, "Man, I’m tired of your
sister, man, she always trying to play me." J.A. 112. Curry then told
him, "Well, she going to pay. I’m tired of her trying to play me. She
going to pay." When the defendant asked Curry what he was going
to do, Curry responded, "You’re going to see." The defendant testified
that Curry "stopped at that point. He never did say at that point what
he was going to do right then." J.A. 119.

   The defendant then asked Curry for a cigarette and was told to look
in the console, which was located between the driver’s seat and the
passenger’s seat. When he opened the console, the defendant testified
that he saw Curry’s gun and took it. Curry became more angry and
shouted at the defendant that he, "couldn’t stop him from doing what
he [Curry] was going to do, that ain’t the only gun ever made." J.A.
121. Curry next put the car in gear and attempted to pull onto the
road, at which time his car was boxed in by Officers Cina and Rei-
chard. The defendant testified that, at most, he was in Curry’s car for
three minutes before the police arrived.

   Based on this evidence, the defendant requested that the district
court instruct the jury on a defense of justification. The district court
refused, on the grounds that the defendant’s sister did not face a
"physical immediate threat of harm" and that the defendant did not
take the first available lawful action to avoid the threat of harm that
did exist. The defendant appealed.

                                   II.

   As a general rule, "a defendant is entitled to an instruction as to any
recognized defense for which there exists evidence sufficient for a
reasonable jury to find in his favor." Matthews v. United States, 485
                         UNITED STATES v. RUSH                           5
U.S. 58, 63 (1988). Without ever holding that a justification defense
is available for defendants accused of violating section 922(g), see
United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989)
(declining to "rul[e] on the general availability of the common law
defense of justification in possession of a firearm by a convicted felon
cases"), we have, nevertheless, adopted from our sister circuits the
following test for determining when a court would be required to give
a jury instruction on a justification defense:

     [T]he defendant must produce evidence which would allow
     the factfinder to conclude that he:

     (1) was under unlawful and present threat of death or seri-
     ous bodily injury;

     (2) did not recklessly place himself in a situation where he
     would be forced to engage in criminal conduct;

     (3) had no reasonable legal alternative (to both the crimi-
     nal act and the avoidance of the threatened harm); and

     (4) a direct causal relationship between the criminal action
     and the avoidance of the threatened harm.

Crittendon, 883 F.2d at 330. As is implicit in this quotation, the
defendant must present evidence sufficient to support a jury verdict
on each of the four elements. Moreover, the elements themselves are
to be interpreted "very narrowly." See United States v. Perrin, 45 F.3d
869, 875 (4th Cir. 1995).

   Because we hold, as a matter of law, that the defendant did not sat-
isfy the first or the third elements of a justification defense, we affirm
the district court and decline once again to reach the question of
whether such a defense would be available if the defendant had satis-
fied each of its elements.

    Turning to the first element, the defendant does not contend that he
was under a threat of harm; rather, he argues that his actions were jus-
tified due to the threat of harm to his sister. Although the test, as fash-
6                       UNITED STATES v. RUSH
ioned in Crittendon, appears only to extend to threats against the
defendant himself, we agree with the defendant that, if justification is
a viable defense at all, there may be limited circumstances in which
it would be a viable defense for threats against third parties as well.
See United States v. Newcomb, 6 F.3d 1129, 1136 (6th Cir. 1993)
(listing cases from other circuits). Thus, we assume that were the
defendant’s sister subject to death or serious bodily injury, the defen-
dant’s action in her defense would be no less justified than if that
action were taken by the defendant to protect himself. See, e.g.,
United States v. Paolello, 951 F.2d 537, 540-41 (3d Cir. 1991) (hold-
ing that a jury instruction on a justification defense was warranted
where the defendant seized a gun from a man actively attacking his
stepson).

   Nevertheless, we affirm the judgment of the district court because
we conclude that Diresha Rush was not "under unlawful and present
threat of death or serious bodily injury" at the time that the defendant
seized the gun in Curry’s car. As the defendant himself testified, at
the time that the defendant took Curry’s revolver, Curry had not said
anything that indicated that he intended to cause "serious bodily
injury" to Diresha Rush or that the actions he was planning were immi-
nent.1 After Curry told the defendant that Diresha Rush was "going
to pay" for "trying to play" him, the defendant testified, "[h]e stopped
at that point. He never did say at that point what he was going to do
right then." J.A. 119. In fact, Curry explicitly avoided making a par-
ticular threat against Diresha Rush, telling the defendant only that,
"[y]ou going to see," in response to the defendant’s question about
what he was going to do.

   While these vague remarks may have sparked a rational fear on the
part of the defendant and might have even been his real motivation
for seizing Curry’s gun, see Crittendon, 883 F.2d at 330, we hold that
they did not place Diresha Rush under a "present or imminent threat
of . . . serious bodily harm," such that the defendant was required to
respond to an "immediate emergency," to ensure her well-being, see
    1
   The only evidence that Curry intended to use a gun to harm the defen-
dant’s sister came after the defendant had seized the gun, when Curry
excitedly told the defendant that he, "couldn’t stop him from doing what
he was going to do, that ain’t the only gun ever made." J.A. 121.
                         UNITED STATES v. RUSH                          7
United States v. Bell, 214 F.3d 1299, 1301 (11th Cir. 2000). The
defendant acted in response to his own apprehensions about unspeci-
fied actions that Curry might take, not in reaction to particular threats
that Curry actually made. Indeed, from Curry’s remarks, it is unlikely
that Curry himself knew what he was going to do to make Diresha
Rush "pay." As we held in Crittendon, such "generalized fears,"
untethered to any specific, threatened harm, are simply not sufficient
to satisfy the first element of the justification defense. See Crittendon,
883 F.2d at 330. Therefore, we hold that, on this ground alone, the
district court was correct to deny the defendant’s request for a jury
instruction.

   The defendant also failed to present sufficient evidence to support
a jury verdict on the third element of the justification defense, that he
"had no reasonable legal alternative (to both the criminal act and the
avoidance of the threatened harm)." Crittendon, 883 F.2d at 330.
Even prior to the arrival of Officers Cina and Reichert, the defendant
was faced with several "reasonable legal alternative[s]," which did not
include the illegal possession of a firearm and which would have suc-
ceeded in mitigating the threat against his sister. For example, when
Curry told the defendant that he planned to make Diresha Rush "pay"
and the defendant saw that Curry had a gun in his car, he could have
gotten out of Curry’s car, which was parked at the time, and called
either his sister or the police (or both) on his cell phone to let them
know about Curry’s apparent intentions. And, of course, after the
police arrived, the defendant could have alerted the officers to the
threats that Curry had made and handed over the revolver then in his
possession. Instead, he chose to flee the scene and fight violently
against arrest. Accord United States v. Gomez, 92 F.3d 770, 777-78
(9th Cir. 1996) (holding that a jury instruction on a justification
defense was warranted where both the police and the Customs Service
ignored the defendant’s pleas for protection and, for that reason, the
defendant was forced to arm himself). The defendant’s reaction may
have been motivated by his knowledge that he was forbidden by law
to possess a firearm, but this fact has no bearing on the question of
whether there were "reasonable legal alternatives" to the defendant’s
criminal act. As recounted above, there clearly were, and, for what-
ever reason, the defendant decided against taking them. Therefore, for
this reason as well, the defendant could not prevail on a defense of
justification.
8                      UNITED STATES v. RUSH
                          CONCLUSION

   Without deciding whether the justification defense would be avail-
able to a defendant accused of being a felon in possession of a fire-
arm, we hold that the district court was not in error to deny such a
jury instruction in this case, because, even assuming the availability
of the defense, the defendant failed to present evidence to support a
jury verdict on either the first or the third element of the defense.

                                                         AFFIRMED
