                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 13a0982n.06

                                              Case No. 12-5572
                                                                                                     FILED
                              UNITED STATES COURT OF APPEALS                                 Nov 15, 2013
                                   FOR THE SIXTH CIRCUIT                                 DEBORAH S. HUNT, Clerk

 UNITED STATES OF AMERICA,                                    )
                                                              )
            Plaintiff-Appellee,                               )       ON APPEAL FROM THE
                                                              )       UNITED STATES DISTRICT
                   v.                                         )       COURT FOR THE WESTERN
                                                              )       DISTRICT OF TENNESSEE
 TIMOTHY TAPPLIN,                                             )
                                                              )
       Defendant-Appellant.                                   )
 _______________________________________                      )

BEFORE: BATCHELDER, Chief Judge; COOK and O’MALLEY, Circuit Judges.*

        ALICE M. BATCHELDER, Chief Judge. Timothy Tapplin appeals the judgment of

conviction from his guilty plea to being a felon in possession of ammunition. We affirm.

        On March 24, 2009, the police were looking for Tapplin to question him concerning an

alleged battery. They located him outside his house and discovered that he had five .38 caliber

bullets in his pants pocket. Tapplin explained that he had found the bullets on the ground just

moments before and had picked them up as a precaution to protect innocent children playing nearby.

        When the government charged Tapplin with being a felon in possession of ammunition, he

sought to present an affirmative defense of justification. The justification defense for otherwise

unlawful possession of a firearm or ammunition by a felon is construed narrowly and has five

elements, all of which must be present:




        *
           The Honorable Kathleen M. O’Malley, Circuit Judge for the United States Court of Appeals for the Federal
Circuit, sitting by designation.
12-5572, USA v. Tapplin


        1.      That the defendant, or a third party, was under a “present, imminent, and impending”
                threat of death or serious bodily injury;
        2.      That the defendant had not recklessly or negligently placed himself in the situation;
        3.      That the defendant had no reasonable, legal alternative to violating the law;
        4.      That a direct causal relationship existed between the criminal action taken and the
                avoidance of the threatened harm; and
        5.      That the defendant did not maintain possession any longer than necessary.

United States v. Singleton, 902 F.2d 471, 472-73 (6th Cir. 1990); United States v. Newcomb, 6 F.3d

1129, 1136 (6th Cir. 1993).

        The district court found that the circumstances that Tapplin described did not satisfy the first

element of the defense because, the nearby children were not actually under a “present, imminent,

and impending” threat of death or serious bodily injury. The district court, therefore, found the

justification defense unavailable to Tapplin and forbid defense counsel from raising any justification

argument, questioning any witnesses about it, producing any evidence in support of it, or receiving

any jury instruction concerning it. Based on this ruling, Tapplin entered a guilty plea with a right

to appeal this particular ruling.

        On appeal, Tapplin argues that the threat to the nearby children was unquestionably present

and imminent. Appellant’s Brief at 18. The government responds that:

                The presumable threat to the children was a possibility that they would find
        the rounds, retrieve them, and mishandle them in such a way that would cause
        serious injury or death. No part of this sequence of action was on the point of
        happening. The proffer simply stated that there were live rounds in the front yard,
        and that there were children ‘nearby,’ an ill-defined proximity. There was no proof
        that the children were in possession of the rounds, on their way to retrieving the
        rounds, or even aware that the rounds were in [Tapplin]’s yard. The mere presence
        of the children in the same general, undefined area as the rounds creates only a
        possibility or at best, a likelihood, that the threat will become realized. Therefore,
        it cannot be said that the threat of injury or death was reasonably certain to occur.

                                                   2
12-5572, USA v. Tapplin


        Rather, the threat is uncertain and depends upon contingencies: that the children will
        become aware of the ammunition and at the very least, appear willing to retrieve
        them.

Appellee’s Brief at 13-14.

        The question of whether the defendant has established a prima facie case of the affirmative

defense of justification is a question of law that we review de novo. United States v. Johnson, 416

F.3d 464, 468 (6th Cir. 2005). But it must be supported with evidence, not merely based on

“suspicion or speculation.” United States v. Hargrove, 416 F.3d 486, 489 (6th Cir. 2005).

        Tapplin speculates about the possibility of harm, but the alleged harm was not actually

“present, imminent, and impending.” The district court correctly concluded that Tapplin has not

satisfied the first element. We also note, based on our review of the record evidence and the narrow

reading of the elements required by our precedent, that Tapplin has not satisfied the third or fifth

elements either. That is, Tapplin has not demonstrated that he had no reasonable, legal alternative

to violating the law, or that he did not maintain possession of the bullets any longer than was

necessary. The defense of justification is not available on the facts presented in this record.

        We AFFIRM.




                                                  3
