                             UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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


                                     2
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


                                   3
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


                                  5
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




                                    6
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

                                7
     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.

                                  8
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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