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                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0290n.06

                                            No. 08-5412                                    FILED
                                                                                       May 12, 2010
                             UNITED STATES COURT OF APPEALS                      LEONARD GREEN, Clerk
                                  FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                 )
                                                          )        ON APPEAL FROM THE
       Plaintiff-Appellee,                                )        UNITED STATES DISTRICT
                                                          )        COURT FOR THE WESTERN
v.                                                        )        DISTRICT OF TENNESSEE
                                                          )
CARLOUS LEON CLARK,                                       )                           OPINION
                                                          )
       Defendant-Appellant.                               )




BEFORE:        MERRITT, COLE, and COOK, Circuit Judges.

       COLE, Circuit Judge. Defendant-Appellant Carlous Leon Clark appeals his conviction for

being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). This charge arose after

Clark shot Eric Chandler in the arm, and police found a gun in Clark’s rental car two days later.

Clark argues that the district court erred by (1) not suppressing the gun, (2) admitting into evidence

two photographs taken of Chandler after he had been shot, and (3) excluding evidence of Chandler’s

previous felony convictions. For the reasons set forth below, we AFFIRM Clark’s conviction.

                                       I. BACKGROUND

A. Factual background

       On the night of April 7, 2006, Clark went to Sholanda Buchanan’s home at 355 Hatton Street

in Jackson, Tennessee. Clark and Buchanan, who is Chandler’s sister, had been dating for several

months. However, Buchanan had plans to go out with another man that night, who arrived at
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Buchanan’s home around the same time as Clark. Soon after Clark arrived, the other man left, and

Buchanan and Clark started to argue. During their argument, they began to struggle over Buchanan’s

cell phone, during which time she received a call from Chandler. Unbeknownst to Buchanan,

Chandler was at a nearby house, and he headed over to her house following their brief conversation.

       Buchanan’s and Clark’s testimony differed significantly as to what happened next.

According to Buchanan, she was struggling to get Clark out of her front door as he was holding onto

her by her collar. She reached for a liquor bottle on her dresser and used it to hit Clark on the head.

At that point, Chandler arrived at his sister’s house, grabbed Clark, and pulled Clark out of the

doorway and down the porch steps. Chandler told Clark to leave, and Clark departed in his car.

However, Clark returned to Buchanan’s house moments later and continued to argue with Chandler,

who was standing outside the house. Buchanan testified that Clark then drew a pistol and fired three

shots at Chandler, the second shot striking Chandler’s arm. Buchanan then ran back into her house,

followed by her brother, and then Clark. Buchanan locked herself in her bedroom. Chandler ran out

the back door of the house, apparently chased by Clark. Buchanan testified that she heard two more

gunshots, fired either inside the house or in her backyard. Buchanan left her room and went outside

in time to see Clark get into his car and drive off.

       In contrast, Clark testified that after he grabbed Buchanan’s phone, he headed towards his

car. As he reached his car, Chandler came out of nowhere and pinned him against the car, yelling

at him to return the phone to Buchanan. While Clark was pinned against the car, Buchanan took the

phone from him, went back into her house, and grabbed the liquor bottle. According to Clark,

Buchanan came back out of the house and hit him in the face with the bottle while he was still

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pinned against the car. Buchanan then headed back towards the house and Chandler began beating

Clark next to his car. According to Clark, a gun fell from Chandler’s waistline as Chandler was

beating him. Clark picked up the gun and fired it at Chandler five times, until it was empty. In

shock, Clark dropped the gun on the ground and left in his car.

       The police arrived at Buchanan’s house shortly thereafter and issued a “be-on-the-lookout”

or “BOLO” order for Clark, describing his car and mentioning the handgun. When the police

arrived, Chandler already had gone to a hospital to have his gunshot wound treated. Officer Steven

Story went to the emergency room and took photographs of Chandler and his wound.

       Over the next two days, Buchanan cooperated with police and kept in contact with Clark.

According to Buchanan, she talked with Clark on the phone several times and encouraged him to

turn himself in. At some point, Clark told Buchanan that he was staying at the Casey Jones Motel.

Clark testified that Buchanan spent several hours with him at the motel the day after the shooting,

and that he fell asleep while she was still in the room. Buchanan testified that she only went to the

motel parking lot to see if Clark’s car was there, and that she did not see or visit Clark while she was

there. Regardless, on the morning of April 9, 2006, Buchanan called the police and told Officer

Eddie McClain that Clark was at the motel, for which she collected a $200 police reward.

       After receiving the information on Clark’s whereabouts from Buchanan, McClain and several

other officers met at the motel on the morning of April 9, 2006. When the first officers arrived,

Clark was in the parking lot of the motel, and they followed him to his room. Once in the room, the

officers cuffed Clark, searched him, and searched the room. McClain and Officer Alan Randolph

testified at the suppression hearing that Clark gave the officers verbal consent to search his rental

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car, parked in the motel parking lot, which fit Buchanan’s description of the car Clark was driving

the night of the shooting. Clark testified that he never gave consent to search the vehicle and that

none of the officers even asked for his consent or mentioned a search of the vehicle.

       Next, Randolph went to the parking lot, unlocked the rental car with Clark’s keys, and

searched the vehicle. He discovered a handgun in the glove compartment, loaded with five live

rounds of ammunition. Randolph then contacted the rental company and waited until one of its

employees came and picked up the vehicle.

B. Procedural background

       A federal grand jury indicted Clark for violating 18 U.S.C. § 922(g) on January 23, 2007.

On June 29, 2007, Clark filed a motion to suppress the handgun found in the glove compartment of

his rental car. On November 26, 2007, the district court held a hearing on the motion to suppress

where Clark and five police officers testified. The court ruled from the bench finding that Clark

consented to the search and therefore denied the motion to suppress.

       The case proceeded to trial on December 18, 2007. Clark stipulated that he was a convicted

felon. His defense rested on two propositions: (1) that despite his prior felony convictions, he was

justified in temporarily possessing the handgun on April 7, 2006, to defend himself from Chandler,

and (2) that either the police or Buchanan planted the gun in his glove compartment. During

Buchanan’s testimony, the Government attempted to introduce a photograph of Chandler sitting in

the hospital bed and two photographs of Chandler’s bullet wound. Clark objected to the introduction

of the photographs as irrelevant and unduly prejudicial. The Court overruled his objection, allowing

the Government to introduce the photograph of Chandler sitting in the hospital bed and one

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photograph of his wound, but excluding the second photograph of the wound as duplicative. During

Clark’s testimony, the defense attempted to introduce evidence that Chandler was also a convicted

felon to support Clark’s assertion that Chandler was the aggressor the night of the shooting. The

court excluded the evidence of Chandler’s convictions as irrelevant and inadmissible character

evidence. Chandler did not testify, as he died from causes unrelated to the shooting prior to trial.

       The jury returned a verdict of guilty on December 19, 2007. On March 25, 2008, the district

court sentenced Clark to 300 months in prison and five years of supervised release. Clark filed a

notice of appeal with the district court on March 31, 2008.

                                          II. ANALYSIS

A. Motion to suppress firearm

       1. Standard of review

       In reviewing a district court’s ruling on a motion to suppress, this Court reviews findings of

fact for clear error and conclusions of law de novo. United States v. Blair, 524 F.3d 740, 747 (6th

Cir. 2008) (citing United States v. Foster, 376 F.3d 577, 583 (6th Cir. 2004)). In doing so, “the

evidence must be reviewed ‘in the light most likely to support the district court’s decision.’” Foster,

376 F.3d at 583 (quoting United States v. Navarro-Camacho, 186 F.3d 701, 705 (6th Cir. 1999)).

“Consent is a question of fact, to be determined from the totality of the circumstances, and reviewed

for clear error.” United States v. Hurst, 228 F.3d 751, 757 (6th Cir. 2000). A finding of fact is

clearly erroneous only when this Court “is left with the definite and firm conviction that a mistake

has been committed.” Id. at 756. Finally, “[f]indings of fact anchored in credibility assessments are

generally not subject to reversal upon appellant review. . . . ‘Where there are two permissible views

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of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’” United States

v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992) (en banc) (quoting United States v. Rose, 889 F.2d

1490, 1494 (6th Cir. 1989)).

       2. Consent

       Clark’s first argument on appeal is that the district court erred in finding that he consented

to the search of the vehicle because his consent was not given voluntarily and intelligently. A

warrantless search “conducted pursuant to a valid consent is constitutionally permissible,” but the

prosecution “has the burden of proving that the consent was, in fact, freely and voluntarily given.”

Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973) (internal quotation marks omitted). We have

recognized a number of factors that militate against a finding that consent was voluntary, including:

“[y]outh, minimal schooling, or low intelligence; repeated and prolonged questioning; physical

punishment such as the deprivation of food or sleep; and promises made . . . by the police officers.”

United States v. Crowder, 62 F.3d 782, 788 (6th Cir. 1995).

       Clark’s argument on appeal—that his consent was involuntary—fails because it directly

contradicts his suppression hearing testimony. Clark was the only defense witness to testify at the

suppression hearing, and he testified that he never gave consent because the police never asked to

search the vehicle, or even mentioned a search of the vehicle. He also testified that the police did

not threaten him or force him to do anything, besides placing him under arrest. Both McClain and

Randolph testified that they asked Clark for consent to search the vehicle, that Clark gave them

consent, and that they did not threaten or coerce Clark in any way. The district court did not clearly

err by finding that Clark’s consent was voluntary because this conclusion was supported by the

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police officers’ testimony and there was no evidence presented that his consent was involuntary. See

United States v. Elkins, 300 F.3d 638, 648 (6th Cir. 2002) (“A defendant ‘must show more than a

subjective belief of coercion, but also some objectively improper action on the part of the police’ in

order to invalidate consent.” (quoting Crowder, 62 F.3d at 787)). The version of events Clark asks

this Court to believe—that he gave consent, but only under police coercion—is one to which none

of the witnesses at the suppression hearing testified. Moreover, none of the usual factors that

indicate involuntariness are present in this case. See Crowder, 62 F.3d at 788. Most significantly,

despite their contrasting versions of events, both Clark and the police officers testified that Clark was

neither threatened nor coerced.

        Even if Clark made the argument on appeal that is supported by his testimony—that he did

not consent because the police officers never asked to search his car—his argument would fail. The

district court was presented with two conflicting versions of events: (1) the police officers asked to

search Clark’s car and Clark consented, or (2) the police searched Clark’s car without ever asking

him for consent. “‘[W]hen there are two permissible views of the evidence, the fact finder’s choice

between them cannot be clearly erroneous.’” United States v. Lawrence, 308 F.3d 623, 627 (6th Cir.

2002) (quoting United States v. Ivy, 165 F.3d 397, 401-02 (6th Cir. 1998)). Further, the finding of

consent was based primarily on the district court’s determination that the officers’ testimony was

more credible than Clark’s testimony and “‘findings of fact anchored in credibility assessment are

generally not subject to reversal upon appellate review.’” Id. (quoting Ivy, 308 F.3d at 401).

        3. Inevitable discovery

        In an alternative holding, which Clark also challenges, the district court determined that the

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handgun in Clark’s rental car would have been admissible under the inevitable discovery doctrine

even if he had not consented to the search. We do not reach this issue because the district court did

not err in concluding that Clark consented to the search of the vehicle. See Crowder, 62 F.3d at 788.

B. Admission of photographs of Chandler in hospital

       1. Standard of review

       Clark next argues that the district court erred in admitting the photographs taken of Chandler

in the hospital because they were irrelevant and unduly prejudicial. This Court reviews evidentiary

rulings on relevance and prejudice for abuse of discretion. United States v. Franco, 484 F.3d 347,

350-51 (6th Cir. 2007) (citing United States v. Chambers, 441 F.3d 438, 455 (6th Cir. 2006)). In

doing so, “we must look at the evidence in the light most favorable to its proponent, maximizing its

probative value and minimizing its prejudicial effect.” United States v. Newsom, 452 F.3d 593, 603

(6th Cir. 2006) (internal quotation marks omitted). “‘Broad discretion is given to district courts in

determinations of admissibility based on considerations of relevance and prejudice, and those

decisions will not be lightly overruled.’” Franco, 484 F.3d at 351 (quoting Chambers, 441 F.3d at

455). “An abuse of discretion will be found if the district court relies on clearly erroneous findings

of fact, improperly applies the law or uses an erroneous legal standard.” Chambers, 441 F.3d at 455.

       2. Relevance

       Clark contends that the photographs were not relevant, and therefore were inadmissible,

because they did not tend to prove any element of the crime with which he was charged, namely, that

Clark knowingly possessed a firearm. Relevant evidence generally is admissible, while irrelevant

evidence is inadmissible. Fed. R. Evid. 402. Evidence is relevant if it “ha[s] any tendency to make

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the existence of any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Fed. R. Evid. 401. “The standard for

relevancy is ‘extremely liberal’ under the Federal Rules of Evidence.” Dortch v. Fowler, 588 F.3d

396, 400 (6th Cir. 2009) (quoting United States v. Whittington, 455 F.3d 736, 738 (6th Cir. 2006)).

       The photographs were relevant because they tended to show that Chandler was shot the night

of April 7, 2006, which corroborated Buchanan’s testimony that Clark possessed the gun and shot

Chandler that night. “To convict a defendant under 18 U.S.C. § 922(g)(1), the government must

prove beyond a reasonable doubt that: (1) the defendant had a previous felony conviction; (2) the

defendant knowingly possessed a firearm or ammunition; and (3) the firearm or ammunition had

traveled in or affected interstate commerce.” United States v. Sanders, 404 F.3d 980, 984-85 (6th

Cir. 2005). Photographs showing Chandler in the hospital and Chandler’s gunshot wound tend to

make it more probable that Clark knowingly possessed a firearm that night because Chandler could

not have been shot unless someone present possessed a firearm and because the photographs

corroborated Buchanan’s testimony that Clark shot Chandler. Cf. United States v. Mackey, 249 F.

App’x 420, 426 (6th Cir. 2007) (holding that a photograph of gun found on defendant’s cell phone

that resembled the gun he was charged with illegally possessing under § 922(g) was relevant because

it “ha[d] some tendency to demonstrate [the defendant’s] power and intent to exercise dominion and

control over that item”); United States v. Wright, 102 F. App’x 972, 979 (6th Cir. 2004) (holding that

admissions made by defendant in a related state court proceeding were relevant in his § 922(g) trial

because they “provided support to [an eyewitness’s] testimony and thus potentially added to the

credibility of her statements in the eyes of the jurors”). The photographs also corroborated Officer

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Steven Story’s later testimony that he visited Chandler at the hospital that night to photograph and

interview him. Given the broad discretion afforded to district courts in determining relevancy and

the nexus between photographs of Chandler’s gunshot wound and Clark’s possession of the gun, we

conclude that the district court did not abuse its discretion in finding that the photographs of

Chandler were relevant.

       3. Probative value versus danger of unfair prejudice

       Clark next avers that the district court erred in admitting the photographs because their

probative value was outweighed by their tendency to unfairly prejudice the jury against him.

Relevant evidence “may be excluded if its probative value is substantially outweighed by the danger

of unfair prejudice.” Fed. R. Evid. 403. “‘Unfair prejudice does not mean the damage to a

defendant’s case that results from the legitimate probative force of the evidence; rather it refers to

evidence which tends to suggest a decision on an improper basis.’” United States v. Johnson, 581

F.3d 320, 327 (6th Cir. 2009) (quoting Paschal v. Flagstar Bank, 295 F.3d 565, 579 (6th Cir. 2002)).

Because the Government was the proponent of the evidence, we must review it in the light most

favorable to the Government, “maximizing its probative value and minimizing its prejudicial effect.”

Newsom, 452 F.3d at 603 (internal quotation marks omitted).

       Clark has provided scant argument or legal support for his assertion that the photographs

were unduly prejudicial. Construing his allegations broadly, there are two possible grounds for

arguing that the prejudicial effect of the photographs outweighed their probative value—their

goriness and their tendency to implicate Clark in a crime for which he was not on trial. The goriness

of the photographs might evoke in the jurors a desire to hold somebody responsible for Chandler’s

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injuries, even though Clark was not being tried for shooting Chandler. However, the district court

addressed this issue, noting that none of the photographs were especially gory and excluding as

duplicative the bloodier of the two photographs showing Chandler’s wound. Given the district

court’s broad discretion on these matters, we conclude that these photographs were not unduly

prejudicial on these grounds. See United States v. McClain, 56 F.3d 65, 1995 WL 319088, at *2-*3

(6th Cir. 1995) (unpublished); United States v. Brady, 595 F.2d 359, 361-62 (6th Cir. 1979).

       Second, evidence that Clark shot Chandler—a crime separate from the charge of being a

felon in possession of a firearm—might bias jurors against Clark impermissibly by leading them to

believe that Clark had a propensity to commit crimes. This argument fails because the Government’s

case against Clark for gun possession was inextricably linked to his shooting of Chandler. See

United States v. Hardy, 228 F.3d 745, 748 (6th Cir. 2000); see also United States v. Till, 434 F.3d

880, 883-84 (6th Cir. 2006). This is not a case where the challenged evidence has the tendency to

encourage the jurors to convict the defendant on a propensity theory based on an earlier, unrelated

crime. See, e.g., United States v. Kellogg, 306 F. App’x 916, 925-27 (6th Cir. 2009). Rather, while

the photographs were “certainly inconsistent with the contention” that Clark did not possess a

firearm, “any ‘prejudice’ in this sense is not ‘unfair’ as contemplated by Rule 403.” Wright, 102 F.

App’x at 981; see United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986) (“‘Unfair

prejudice,’ as used in Rule 403, does not mean the damage to the defendant’s case that results from

the legitimate probative force of the evidence; rather, it refers to evidence which tends to suggest

decision on an improper basis.”) The fact that Clark later testified that he indeed possessed the gun

and shot Chandler decreases any risk of unfair prejudice even further.

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       Finally, Clark’s assertion that the photographs had no probative value is unpersuasive. At

trial, the Government twice offered not to introduce the photographs if Clark would stipulate that

Chandler had been shot that evening, but Clark did not accept the offer. Further, it bears noting that

because Chandler passed away prior to the trial, Buchanan was the only witness who could testify

to seeing Clark shoot Chandler. Therefore, evidence that corroborated her story, in the form of

photographs of Chandler, was highly probative. The importance of corroborating Buchanan’s

testimony only grew as the defense attempted to impeach her and as Clark offered a contrasting

version of events.

C. Exclusion of Chandler’s convictions

       During his direct examination at trial, Clark attempted to introduce evidence that Chandler

had been convicted of violent felonies prior to the shooting. The court excluded the evidence under

Federal Rule of Evidence 404(b). On appeal, Clark argues that the district court erred in excluding

the evidence because (1) character evidence about a victim’s propensity towards violence is an

exception to the propensity rule, and (2) showing that Clark was afraid of Chandler because of his

violent character was an essential element of Clark’s justification defense.

       1. Standard of review

       This Court reviews rulings admitting or excluding evidence of other crimes, wrongs, or acts

under Federal Rule of Evidence 404(b) for abuse of discretion. United States v. Haywood, 280 F.3d

715, 720 (6th Cir. 2002); see also United States v. Love, 254 F. App’x 511, 513-14 (6th Cir. 2007).

       2. Admissibility under Rule 404(b)

       The use of character evidence “for the purpose of proving action in conformity therewith on

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a particular occasion” is generally prohibited. Fed. R. Evid. 404(a). However, the character of an

alleged victim is a specific exception to this prohibition on propensity evidence. Fed. R. Evid.

404(a)(2). Still, even when character evidence is admissible to show propensity, as with the alleged

victim exception, the type of evidence that can be used to show propensity is limited. See Fed. R.

Evid. 404(b), 405. Specifically, “[e]vidence of other crimes, wrongs, or acts” is not admissible “to

show action in conformity therewith,” even though it may be admissible for other purposes. Fed.

R. Evid. 404(b).

       We conclude that the district court correctly ruled that the evidence of Chandler’s past

convictions was not admissible to show he had a propensity for violence under Rule 404(b).

Disputes over the admissibility of evidence under Rule 404(b) usually concern evidence of a criminal

defendant’s past acts introduced by the prosecution. By attempting to introduce evidence of

Chandler’s past crimes, Clark has presented the Court with a case of “reverse 404(b)” evidence. See

United States v. Lucas, 357 F.3d 599, 605 (6th Cir. 2004). Reverse 404(b) evidence is “evidence

of a prior act by another [that] is offered as exculpatory evidence by the defendant, instead of being

used by a prosecutor against a defendant.” Lucas, 357 F.3d at 605 (citing United States v. Hill, 322

F.3d 301, 308 (4th Cir. 2003)). Despite the different implications raised by the admission or

exclusion of reverse 404(b) evidence, we have applied our standard Rule 404(b) analysis in

addressing the admissibility of such evidence. See id. at 605-06; see also United States v. Daulton,

266 F. App’x 381, 386-87 (6th Cir. 2008); United States v. Robinson, 272 F. App’x 421, 429-31 (6th

Cir. 2007).

       Clark was prohibited from presenting evidence of Chandler’s past convictions to show that

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Chandler was the aggressor on the night of the shooting because this evidence went to Chandler’s

character, specifically, his alleged propensity toward violence. See Robinson, 272 F. App’x at 430.

Even assuming that Chandler qualifies as an alleged victim under Rule 404(a)(2), which would

permit Clark to present character evidence about Chandler for propensity purposes, Clark still was

not permitted to present evidence of Chandler’s past crimes for propensity purposes. Rule 404(b)’s

prohibition on using evidence of past crimes to show propensity is clear. At best, Clark was limited

to offering reputation and opinion evidence to show that Chandler had a propensity toward violence.

See Fed. R. Evid. 405.

       Even though evidence of Chandler’s convictions was not admissible for propensity purposes,

it is possible that it could have been admitted for a permissible, non-propensity purpose under Rule

404(b). See United States v. Blankenship, 775 F.2d 735, 739 (6th Cir. 1985). Clark argues on appeal

that evidence of Chandler’s convictions was admissible to prove that Clark had a well-grounded fear

of Chandler, justifying his possession of the firearm, at least temporarily. Indeed, if Clark knew of

Chandler’s convictions at the time of the shooting, he may have been able to introduce evidence of

the convictions to show that his knowledge of Chandler’s violent behavior made him fear Chandler.

See United States v. Saenz, 179 F.3d 686, 688-89 (9th Cir. 1999); Virgin Islands v. Carino, 631 F.2d

226, 229-30 (3d Cir. 1980). However, at trial, Clark did not seek to introduce Chandler’s

convictions as evidence of Clark’s state of mind. Clark’s attorney specifically stated that the purpose

of introducing Chandler’s convictions was to support “[Clark’s] testimony that [Chandler] was the

first aggressor” and “to show that [Chandler] was acting violently at the time.” (Appeal Transcript

206-07.) Introducing evidence of Chandler’s past crimes to show that he was the aggressor the night

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of the shooting is using the evidence to show propensity—not Clark’s state of mind.

       Moreover, even if Clark had offered Chandler’s convictions for the purpose of showing his

state of mind at the time of the shooting, the evidence still would have been subjected to a Rule 403

balancing test. See United States v. Bell, 516 F.3d 432, 440-41 (6th Cir. 2008). Given the fact that,

of all types of character evidence, evidence of specific instances of conduct “possesses the greatest

capacity to arouse prejudice, to confuse, to surprise, and to consume time,” Fed. R. Evid. 405

advisory committee’s note, it would not have been an abuse of discretion for the district court to

exclude the evidence of Chandler’s convictions under Rule 403 instead.

       3. Admissibility under Rule 405(b)

       Clark next argues that the evidence of Chandler’s past convictions was admissible because

it was an essential element of his justification defense. “In cases in which character or a trait of

character of a person is an essential element of a charge, claim, or defense, proof may . . . be made

of specific instances of that person’s conduct.” Fed. R. Evid. 405(b). Thus, if Clark can show that

Chandler’s character was an “essential element” of his justification defense, then he might be able

to show that the district court erred in excluding the evidence of Chandler’s convictions. See United

States v. Franco, 484 F.3d 347, 352 (6th Cir. 2007).

       While a justification defense is available against gun-possession charges “in rare situations,”

United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990), the character of a shooting victim is

not an essential element of such a defense. The elements required to make out such a justification

defense are: (1) that the 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”;

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(2) that the 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 the defendant “had no

reasonable, legal alternative to violating the law”; and (4) “that a direct causal relationship may be

reasonably anticipated between the criminal action taken and the avoidance of the threatened harm.”

Id. (internal quotation marks and brackets omitted). Subsequent decisions of this Court have also

required that the defendant show that he or she “did not maintain the illegal conduct any longer than

absolutely necessary.” See United States v. Ridner, 512 F.3d 846, 851 (6th Cir. 2008).

       Clark argues that he needed to introduce the evidence of Chandler’s past crimes to show that

his fear under the first prong was well-grounded. However, in determining whether evidence of

Chandler’s character was an “essential element” of this defense,“[t]he relevant question should be:

would proof, or failure of proof, of the character trait by itself actually satisfy an element of the

charge, claim, or defense?” United States v. Keiser, 57 F.3d 847, 856 (9th Cir. 1995). In Keiser, the

Ninth Circuit concluded that a shooting victim’s character was not an essential element of the

defendant’s justification defense because

       [e]ven had [the defendant] proven that [the victim] is a violent person, the jury would
       still have been free to decide that [the victim] was not using or about to use unlawful
       force, or that the force [the victim] was using was not likely to cause death or great
       bodily harm, or that [the defendant] did not reasonably believe force was necessary,
       or that [the defendant] used more force than appeared reasonably necessary. On the
       other hand, a successful defense in no way depended on [the defendant’s] being able
       to show that [the victim] has a propensity toward violence.

Id. at 857; see also United States v. Gulley, 526 F.3d 809, 818-19 (5th Cir. 2008) (following Keiser’s

holding and noting similar decisions from the Seventh and Eighth Circuits). The same reasoning

applies here. Even if Clark could prove that Chandler had a propensity toward violence, the jury still

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      Case: 08-5412       Document: 006110626397            Filed: 05/12/2010      Page: 17



No. 08-5412
United States v. Clark

could have rejected his justification defense for any number of legitimate reasons, the two most

obvious being that Buchanan’s testimony directly contradicted his justification theory and that the

gun in question was found in Clark’s rental car two days later. Moreover, Clark’s justification

defense could have been effective without showing that Chandler had a propensity toward violence.

Therefore, Chandler’s character was not an essential element of Clark’s justification defense, and

the district court did not err by excluding evidence of Chandler’s convictions. See United States v.

Seymour, 468 F.3d 378, 387 (6th Cir. 2006) (holding that evidence of the victim’s character was not

admissible under Rule 405(b) because it was not an essential element of the charge against the

defendant).

       4. Due process

       Finally, Clark argues that the exclusion of Chandler’s convictions violated his due process

rights by preventing him from presenting a full defense. This argument fails because the exclusion

of the evidence in question did not prevent Clark from exploring his justification theory and

presenting it to the jury through his own testimony. See Lucas, 357 F.3d at 606. Further, the

evidence was excluded properly, and “a complete defense does not imply a right to offer evidence

that is otherwise inadmissible under the standard rules of evidence.” Id.

                                      III. CONCLUSION



       For the reasons set forth above, we AFFIRM Clark’s conviction under 18 U.S.C. § 922(g).




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