                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 16-1732
                         ___________________________

                              United States of America

                         lllllllllllllllllllll Plaintiff - Appellee

                                            v.

                                    Robert Dinkins

                       lllllllllllllllllllll Defendant - Appellant
                                       ____________

                     Appeal from United States District Court
                   for the Eastern District of Missouri - St. Louis
                                   ____________

                             Submitted: January 9, 2017
                               Filed: May 26, 2017
                                  [Unpublished]
                                  ____________

Before SMITH,1 GRUENDER, and SHEPHERD, Circuit Judges.
                           ____________

PER CURIAM.

       Robert Dinkins was charged with being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). In his defense, Dinkins argued that


      1
       The Honorable Lavenski R. Smith became Chief Judge of the United States
Court of Appeals for the Eighth Circuit on March 11, 2017.
he was justified in possessing the firearm for personal and neighborhood safety. The
district court2 rejected this defense and found Dinkins guilty during a bench trial. The
court sentenced him to 180 months’ imprisonment—the mandatory minimum—and
two years’ supervised release. We affirm.


                                    I. Background
      On June 4, 2015, police officers observed “a silver scooter being ridden by
[Dinkins] . . . fail[] to stop at [a] stop sign” and pursued Dinkins to conduct a traffic
stop. Dinkins failed to pull over, ran another stop sign, and eventually crashed his
scooter. When the officers helped Dinkins to his feet, a firearm fell from Dinkins’s
waistband. The officers determined that Dinkins was a convicted felon and arrested
him for resisting arrest and unlawful possession of a firearm. Dinkins was indicted for
being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1).


       Dinkins lives in the Walnut Park neighborhood of St. Louis, which he calls
“one of the most dangerous . . . in the city.” Dinkins incorporated the New East Afrika
Allegiance Council (NEAAC), a nonprofit organization that he formed “to organize,
provide security, and detective activity for the community” and which is “engaged in
all forms of self-defense activities” and “engaged in addressing the combat and
criminal activity generally.” At his bench trial, Dinkins testified that he possessed the
gun because he retrieved it after an associate told him that “a gun was stolen from [an
employee of the NEAAC]” and the gun was located in an alley. Feeling “concerned
about the public” and his own safety, Dinkins immediately believed his retrieval and
possession of the firearm was lawful because he “had the corporation” and “felt like
[this] was the opportunity to do [his] job.”


      2
        The Honorable Carol E. Jackson, United States District Judge for the Eastern
District of Missouri.

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       Dinkins asserted that his possession of the firearm was justified, arguing that
he “acted [out of] self-defense” because he feared that the firearm “could [be used to]
commit[] a crime against [himself] or the individuals in the community.” Dinkins
argued that he was “under imminent threat . . . of death or serious bodily injury”; “did
not place himself negligently or recklessly into” a situation in which it was probable
that he would be forced to commit a crime; “had no reasonable . . . alternative to
violating the law”; and there was “a direct causal relationship between the action that
he took and the harm that he was trying to avoid.”


      The district court rejected Dinkins’s justification defense, finding that Dinkins
“had every opportunity to report the firearm as being stolen to the police” and “could
have directed the owner of the firearm to go retrieve it. However, he chose to do it
himself.” The district court found Dinkins guilty of unlawful possession of a firearm
and sentenced him to 180 months’ imprisonment, followed by a two-year term of
supervised release. Dinkins appeals the district court’s denial of his justification
defense, arguing that his testimony presented sufficient proof of all four elements of
the defense.


                                    II. Discussion
      “‘We review de novo a district court’s decision whether there is sufficient
evidence to submit an affirmative defense to a jury.’ Thus far, ‘[t]his circuit has not
recognized a defense of legal justification to a violation of § 922(g).’” United States
v. El–Alamin, 574 F.3d 915, 925 (8th Cir. 2009) (alteration in original) (quoting
United States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005)). Although we have not
yet recognized the justification defense, we have outlined the four elements a
defendant must demonstrate if a district court were to permit the defense:




                                          -3-
      1) [that] he 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 he had not recklessly or
      negligently placed himself in a situation in which it was probable that he
      would be forced to commit a criminal act; 3) that he had no reasonable,
      legal alternative to violating the law; and 4) that a direct causal
      relationship may be reasonably anticipated between the commission of
      the criminal act and the avoidance of the threatened harm.


United States v. Bonilla–Siciliano, 643 F.3d 589, 591 (8th Cir. 2011) (alteration in
original) (quoting El–Alamin, 574 F.3d at 925).


       “To be entitled to a jury instruction on a justification defense, a defendant must
show an underlying evidentiary foundation as to each element of the defense, such
that a reasonable person could conclude that the evidence supported the defendant’s
position.” United States v. Green, 835 F.3d 844, 855 (8th Cir. 2016) (quoting United
States v. Poe, 442 F.3d 1101, 1104 (8th Cir. 2006)); see also Hudson, 414 F.3d at 933
(“We have never held, however, that a defense must be submitted to the jury even
when it cannot be said that a reasonable person might conclude the evidence supports
the defendant’s position.” (quoting United States v. Kabat, 797 F.2d 580, 591 (8th Cir.
1986))). Here, Dinkins failed to present evidence that could allow a reasonable person
to conclude that he is entitled to the justification defense because, as a matter of law,
Dinkins cannot establish the first element.


      Under the first element, Dinkins “was required to show that []he 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.” Hudson, 414 F.3d
at 933. Specifically, Dinkins was required to “show that a real and specific threat
existed at the time of the unlawful possession.” Id. (quoting United States v. Perrin,
45 F.3d 869, 874 (4th Cir. 1995)). However, Dinkins merely asserted a generalized

                                          -4-
fear of a potential future threat (he feared that the firearm “could have [been used to]
commit[] a crime”). Thus, as a matter of law, Dinkins failed to show a real and
specific threat existed at the time of his unlawful possession. Our analysis need
proceed no further as the facts clearly refute Dinkins’s assertion of an imminent threat.
The district court did not err in rejecting Dinkins’s justification defense.


                                    III. Conclusion
      Accordingly, we affirm the judgment of the district court.
                        ______________________________




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