       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    United States v. Brown                       No. 02-6205
    ELECTRONIC CITATION: 2004 FED App. 0127P (6th Cir.)
                File Name: 04a0127p.06                    Appellant. Stephen P. Hall, ASSISTANT UNITED STATES
                                                          ATTORNEY, Memphis, Tennessee, for Appellee.
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                                               OPINION
                _________________                                             _________________

 UNITED STATES OF AMERICA , X                               ALAN E. NORRIS, Circuit Judge. Defendant Don Brown
                                                          appeals from a jury verdict that found him guilty of a single
            Plaintiff-Appellee, -                         count of knowingly possessing a firearm despite a prior
                                  -
                                  -  No. 02-6205          felony conviction, in violation of 18 U.S.C. § 922(g).
           v.                     -                       Defendant testified at trial and conceded that he briefly had
                                   >                      his brother’s .25 caliber pistol in his possession but contended
                                  ,                       that he took it because his brother was intoxicated and he
 DON BROWN ,                      -
         Defendant-Appellant. -                           wished to make certain that the gun was safely stored away.
                                 N                          On appeal defendant has designated four assignments of
      Appeal from the United States District Court        error: 1) he should have been provided with street clothes
   for the Western District of Tennessee at Memphis.      during the trial; 2) the district court erred in permitting
     No. 02-20102—Julia S. Gibbons, Circuit Judge.        testimony that the firearm was loaded at the time that it was
                                                          confiscated from him; 3) the district court gave the jury an
               Argued: February 3, 2004                   improper instruction concerning the burden of proof with
                                                          respect to a defense of “necessity”; and 4) he was entitled to
            Decided and Filed: May 6, 2004                a reduction for acceptance of responsibility despite his
                                                          decision to go to trial.
   Before: NORRIS, GILMAN, and ROGERS, Circuit
                      Judges.                                                            I.

                  _________________                          According to defendant’s trial testimony, his troubles
                                                          stemmed from his decision to accompany his brother,
                       COUNSEL                            Timothy, on January 29, 2002, to a club in Memphis to
                                                          “check on [Timothy’s] girlfriend.” The brothers left around
ARGUED: Stephen R. Leffler, LAW OFFICE OF                 9:30 that evening in Timothy’s van, visited the club for 10 to
STEPHEN R. LEFFLER, Memphis, Tennessee, for               15 minutes, and then left when they failed to locate the
Appellant. Stephen P. Hall, ASSISTANT UNITED STATES       girlfriend. Although they did not drink at the club, they had
ATTORNEY, Memphis, Tennessee, for Appellee.               already been drinking beer that Timothy kept in the van.
ON BRIEF: Stephen R. Leffler, LAW OFFICE OF
STEPHEN R. LEFFLER, Memphis, Tennessee, for

                            1
No. 02-6205                        United States v. Brown            3   4      United States v. Brown                      No. 02-6205

  Defendant went on to testify that, not long thereafter,                    walk home with me or you get in there and go to sleep,
Timothy “just got down on his accelerator and the van sped                   but you don’t need to drive.”
up and got away from him and he hit the under beam of the
overpass right there at the interstate where you go off the off-         Defendant went on to explain that he was concerned that his
ramps there.” Timothy told defendant not to get out of the               brother might have quarreled with his girlfriend, and he took
van, although it was clear that the front bumper was bent and            the gun with the intention of placing it in his aunt’s house for
the windshield cracked where defendant’s head had struck it              safekeeping.
on impact. Timothy attempted to drive off despite the fact
that a back tire went flat as they pulled away. According to                Timothy did not take kindly to his brother’s concerns.
defendant, he told his brother to stop a number of times but he          Instead, he stopped the van, jumped out, and approached
refused. Defendant testified as follows with respect to the              Memphis police officer Brad Savage. According to Savage’s
gun:                                                                     trial testimony, “He told me that him and his brother had
                                                                         gotten into an argument in the van, and his brother jumped
  . . . I looked down at the beer and stuff, I said, “I’m                out of the van, grabbed a pistol and was walking westbound
  fixing to get out . . . .” Then I looked over and got the              on Chelsea from Evergreen.” This encounter occurred at
  beer, I said, “You don’t need this.” And I noticed the                 about 11:15 p.m.
  pistol was in the little thing right there at the little cockpit
  thing, what you put cups and stuff at. And I reached and                 Timothy pointed his brother out to Savage, who radioed for
  grabbed it. He was reaching for it, and I grabbed it from              help and then approached defendant:
  him like this here and got out the van. He was still,
  “Give me the gun, give me the gun.” I said, “What you                      I got on my loud speaker, and I instructed [defendant] –
  doing with this here in the first place,” know what I’m                    He was carrying a 40-ounce bottle of beer, and I
  saying. And so I got the gun and the beer and got out the                  instructed him to put it down . . . . I told him to put his
  van and he got out the van with me. I said, “Man, you                      hands up on the wall at which time he did, and I
  don’t need to have this stuff in here, you are already in                  approached him at that time.
  enough trouble as it is,” know what I’m saying.
                                                                               ....
    ....
                                                                               I then patted that pocket down. I could feel something,
    I was concerned that he was going to hurt hisself [sic]                  so I reached in there and there was a small caliber pistol
  or somebody else, you know what I’m saying, driving the                    in his pocket.
  way he is. He was obviously drunk because he had the
  wreck. And I didn’t know what he was going to do at                    Savage also testified that defendant told him the location of
  that point in time because he refused to stop the van. So              the gun when asked.
  I got out, I was already out, and I took the beer and                    Shortly thereafter, police officer Dwayne Johnson arrived
  what’s you call it, he constantly trying to follow me                  on the scene. Johnson took possession of the pistol and
  asking me for the gun and whatever. I said, “No, you                   emptied it. At trial, he testified that he removed a live round
  don’t need this.” I said, “You either lock the van up and              of ammunition from the gun’s chamber and that the clip
                                                                         contained an additional five rounds.
No. 02-6205                          United States v. Brown      5   6      United States v. Brown                      No. 02-6205

   A grand jury returned a one-count indictment on April 10,             negate the presence of compulsion necessary to establish
2002, charging defendant with being a felon in possession of             a constitutional violation.
a firearm, 18 U.S.C. § 922(g). Prior to trial, the parties
stipulated to the fact that defendant had previously been            Id. at 512-13 (footnote omitted). In other words, a
convicted of four felonies and to the fact that the firearm in       defendant’s fundamental liberty interest under the Fourteenth
question – a Bryco Arms .25 caliber pistol – had traveled            Amendment prevents the State from denying the accused the
across state lines. After a two-day trial, the jury returned a       option of wearing something other than prison garb. Id. at
guilty verdict. Defendant received a sentence of 235 months          503-04. However, the mere fact that a defendant appears in
of imprisonment, three years of supervised release, and a            prison attire during his trial does not necessarily mean that his
special assessment of $100.                                          right to a fair trial has been compromised. As the Court
                                                                     observed, “The cases show . . . that it is not an uncommon
                               II.                                   defense tactic to produce the defendant in jail clothes in the
                                                                     hope of eliciting sympathy from the jury.” Id. at 508.
1. Prison Clothing                                                   Accordingly, the only constitutional prohibition is that a
                                                                     defendant cannot be forced to wear prison clothes and, even
   On the first day of trial, defense counsel told the court that    then, he must object to that directive to preserve his claim.
his client had tried to obtain clothes from his family but had
received no response to his request. The judge replied, “If            Defendant concedes in his brief to this court that “[t]here is
you’ve got a reasonable way of getting them here, you know,          nothing in the record to indicate that the jurors were, in fact,
in a timely, reasonably timely way, I would by happy to wait,        affected by what they saw.” Furthermore, he does not argue
but it just doesn’t seem like there is any basis for waiting         that the State compelled him to wear prison-issued clothing
under th[e current] circumstances.” The court went on to note        or prohibited him from obtaining other attire.
that, “[I]f at some later point Mr. Brown . . . is able to get
some clothes here, I would be happy to allow him an                    Under the circumstances, we conclude that there simply
opportunity to change, but of course . . . the jury will have        was no compulsion. If anything, the remarks that the district
already seen him . . . .” Other than expressing the general          court addressed to defendant when he mentioned the issue
desire that his client have access to non-prison attire, defense     prior to trial demonstrate a general willingness to
counsel did not object to the district court’s resolution of the     accommodate him. Defendant did not otherwise object when
problem, nor did he ask for a continuance.                           the court determined that, in the absence of a viable plan to
                                                                     obtain clothing, it would begin the trial. This failure to object
 In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme            negates any claim of compulsion. Estelle at 512-13.
Court held as follows:
                                                                     2. Testimony Concerning Whether the Pistol was Loaded
  [A]lthough the State cannot, consistently with the
  Fourteenth Amendment, compel an accused to stand trial               During trial, officer Savage testified that fellow officer
  before a jury while dressed in identifiable prison clothes,        Johnson “cleared the weapon” when he arrived at the scene.
  the failure to make an objection to the court as to being          Defense counsel objected to testimony concerning whether or
  tried in such clothes, for whatever reason, is sufficient to       not the pistol at issue was loaded at the time it was
No. 02-6205                     United States v. Brown         7   8      United States v. Brown                      No. 02-6205

confiscated; in his view, that fact was “irrelevant.” The court      We disagree. The district court correctly recognized that
overruled the objection based on the following rationale:          the evidence had some relevance to defendant’s necessity
                                                                   defense. Moreover, this evidence was not overly prejudicial:
    Well, it may not be relevant whether it’s loaded or not        the fact that the gun was loaded bolstered defendant’s
  for purposes of the legality or illegality of the conduct.       argument that it was necessary to secure it temporarily from
  On the other hand, the fact that it’s loaded, and frankly,       his brother. We find no abuse of discretion on the part of the
  the defense [of necessity] you are trying to present, it         district court in permitting the introduction of this evidence.
  may not have much to do with the likelihood of the
  factual scenario of either party, but it generally has           3. Jury Instructions with Respect to Necessity Defense
  something to do with the overall fact situation. So I
  mean it’s relevant also.                                           Defendant next maintains that the jury instruction
                                                                   explaining his affirmative defense of necessity improperly
  This court reviews evidentiary rulings concerning relevance      shifted the burden of proof to him. We review jury
and admissibility for an abuse of discretion. See United           instructions as a whole to determine whether they fairly and
States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993) (“We             adequately submitted the issues and applicable law to the
review the trial court’s admission of testimony and other          jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.
evidence under the abuse of discretion standard.”). Under this     1991).
standard, we take a “maximal view” of the evidence’s
probative effect and a “minimal view of its unfairly                 After instructing the jury on the government’s burden of
prejudicial effect.” United States v. Sassanelli, 118 F.3d 495,    proof, the district court gave it the following guidance
498 (6th Cir. 1997).                                               concerning defendant’s affirmative defense:

  The statute of conviction reads in part as follows:                  If you conclude that the government has proved beyond
                                                                       a reasonable doubt that the defendant committed the
  It shall be unlawful for any person . . . (1) who has been           crime as charged, you must then consider whether the
  convicted in any court of, a crime punishable by                     defendant should nevertheless be found not guilty
  imprisonment for a term exceeding one year . . . to ship             because his actions were justified by necessity. The
  or transport in interstate or foreign commerce, or possess           defendant’s actions were justified and therefore he is not
  in or affecting commerce, any firearm or ammunition; or              guilty only if the defendant has shown by a
  to receive any firearm or ammunition which has been                  preponderance of the evidence that each of the following
  shipped or transported in interstate or foreign commerce.            five elements is true. . . .
18 U.S.C. § 922(g). Because the statute does not require that            The five elements which the defendant must prove by
the firearm be loaded, defendant takes the position that the           a preponderance of the evidence to establish the defense
introduction of such evidence runs afoul of Federal Rule of            are as follows: Number one, the defendant was under an
Evidence 403 because its probative value was “substantially            unlawful present imminent and impending threat of such
outweighed by the danger of unfair prejudice.”                         nature as to induce a well-grounded fear of death or
                                                                       serious bodily injury to himself or another. And two, the
                                                                       defendant had not recklessly or negligently placed
No. 02-6205                      United States v. Brown          9   10   United States v. Brown                       No. 02-6205

  himself in a situation in which it was probable that he            affirmative defense in § 922(g) prosecution). Proving
  would be forced to choose the criminal conduct. And                necessity does not necessarily undercut the element of
  three, the defendant had no reasonable legal alternative           “knowing possession;” one can knowingly possess a firearm
  either before or during the event to violating the law, that       but still do so under circumstances of necessity that justify an
  is, he had no reasonable opportunity to avoid the threat           otherwise illegal act.
  to harm. And number four, a reasonable person would
  believe that by committing the criminal action he would              In our view, the district court correctly instructed the jury
  directly avoid the threat and harm. And five, the                  in light of Singleton, which specifically placed the burden to
  defendant did not maintain the illegal conduct any longer          show the elements of the necessity defense on defendant.
  than absolutely necessary.                                         Singleton, 902 F.2d at 472 (stating “a defendant must show”
                                                                     before listing the requirements of the necessity defense).
This court has held that “a defense of justification may arise
in rare situations” when the charge of being a felon in              4. Acceptance of Responsibility
possession of a firearm has been alleged. United States v.
Singleton, 902 F.2d 471, 472 (6th Cir. 1990). However, this             Finally, defendant contends that he should have been
defense must be “construed very narrowly.” Id. In Singleton,         accorded a reduction to his offense level based upon
we expressly adopted the requirements imposed by the Fifth           acceptance of responsibility. U.S.S.G. § 3E1.1. Application
Circuit upon a defendant in order to make out such a defense.        Note 2 to this section states that it should not generally apply
Id. (adopting United States v. Gant, 691 F.2d 1159 (5th Cir.         to a defendant “who puts the government to its burden of
1982)). These requirements track those set forth by the              proof at trial by denying the essential factual elements of
district court in its jury instructions.                             guilt, is convicted, and only then admits guilt and expresses
                                                                     remorse.” U.S.S.G. § 3E1.1, comment. (n.2). We generally
   Defendant argues that the elements of the affirmative             review the district court’s judgment on this issue for clear
defense, which he was obliged to prove by a preponderance            error. United States v. Webb, 335 F.3d 534, 538 (6th Cir.
of the evidence, go to an essential element of the offense that      2003). Even when this Guideline’s section is applied to
the government must prove: that he “knowingly possessed              uncontested facts, we review the lower court’s decision with
the firearm.” It is axiomatic, of course, that the government        deference, not de novo. Id. at 537 (noting a change in the
must prove all elements of a crime beyond a reasonable               circuit’s standard of review in light of Buford v. United
doubt. See In re Winship, 397 U.S. 358, 364 (1970).                  States, 532 U.S. 59, 63-66 (2001)). Here, however, the facts
Furthermore, if an affirmative defense bears a necessary             were contested and therefore a clear error standard of review
relationship to an element of the charged offense, the burden        applies.
of proof does not shift to defendant. Patterson v. New York,
432 U.S. 197, 210-11 (1977). However, where, as here,                   Defendant takes the position that he never denied his felony
defendant asserts an affirmative defense that does not negate        convictions, possession of a firearm, or the fact that the
any element of the offense, he may be required to prove that         firearm had traveled in interstate commerce. He sought a trial
defense by a preponderance of the evidence. Id. In this case,        in order to assert an affirmative defense, which does not
a felon in possession charge only requires proof of general,         negate an element of the crime.
rather than specific, intent. United States v. Bennett, 975 F.2d
305, 308 (6th Cir. 1992) (voluntary intoxication not an
No. 02-6205                       United States v. Brown       11

  In denying the benefit of acceptance of responsibility, the
district court reasoned as follows:
  . . . I do not think Mr. Brown is entitled to points for
  acceptance of responsibility. I think that possibly in a
  given case an individual who asserted a defense such as
  this might . . . still be entitled to points for acceptance of
  responsibility, but when I – when one evaluates Mr.
  Brown’s credibility, the fact that his explanation of
  events was not accepted by the jury and, frankly, I did
  not find Mr. Brown to be credible under all the
  circumstances of the case. I don’t think he can be given
  points for acceptance of responsibility because he did not
  in my judgment fully accept responsibility.
  The district court properly recognized that putting the
government to its burden did not automatically preclude a
reduction under § 3E1.1; it merely found that the facts as
adduced at trial made such a finding inappropriate in this
case, which is precisely the kind of determination that we
review for clear error. No such error occurred in this case.
                              III.
  For the foregoing reasons, we affirm the judgment of the
district court.
