                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0091n.06
                           Filed: November 16, 2004

                                            No. 03-5678

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


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




       Before: MERRITT, DAUGHTREY, and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Convicted under 18 U.S.C. § 922(g) for possession of ammunition

by a felon, Raymond Tate raises one issue on appeal: Did the district court correctly instruct the

jury that Tate bore the burden of proving his affirmative defense of necessity by a preponderance

of the evidence? A decision of our Court, United States v. Brown, 367 F.3d 549 (6th Cir. 2004),

recently resolved this precise question, holding that a defendant bears the burden of proving his

affirmative defense of necessity by a preponderance of the evidence. In view of this decision and

in view of our disagreement with Tate’s position that courts have flexibility in engrafting affirmative

defenses onto criminal statutes but no flexibility in determining who bears the burden of proof under

these defenses, we affirm.
No. 03-5678
United States v. Tate

       Standing outside his home, Raymond Tate saw two men in a car talking to a third man.

Recognizing some of them and apparently sensing an opportunity for humor, Tate yelled, “Police.”

The men were not amused. One of the car’s occupants made a threatening comment to Tate, then

left the scene. Concerned for his safety, Tate asked a passing friend for a gun. The friend obliged

and lent his weapon to Tate. Tate’s fears materialized minutes later when the car returned and the

men fired at Tate, hitting him in the arm. Tate returned fire. Everyone survived the cross-fire,

including a ten-year-old bystander hit by a stray bullet.


       Because Tate previously had been convicted of a felony, the police charged him with

possessing ammunition (spent shell casings found near his home, since the gun could not be found)

in violation of 18 U.S.C. § 922(g). Without objection from either party, the judge gave the

following instruction regarding Tate’s necessity defense: “The defendant’s actions were justified

and therefore he is not guilty, only if the defendant has shown by a preponderance of the evidence

that each of the [ ] five elements [of the affirmative defense] is true.” JA 32. The jury returned a

guilty verdict.


       Having failed to object below, Tate must demonstrate that the jury instruction on the burden

of proof constituted plain error. See United States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004).

He cannot make this showing, first and foremost because the instruction was not in error. In United

States v. Singleton, 902 F.2d 471 (6th Cir. 1990), we held that the defense of justification by

necessity may, in rare occasions, apply to § 922(g) charges. “Although the language of 18 U.S.C.

§ 922 gives no hint of an affirmative defense of justification,” we explained, “Congress enacts

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No. 03-5678
United States v. Tate

criminal statutes ‘against a background of Anglo-Saxon common law.’” Id. at 472 (quoting United

States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). After finding that the affirmative defense applied,

we concluded that the defendant bore the burden of proof in asserting the defense. Singleton, 902

F.2d at 472–73. Most recently in Brown, we removed any lingering doubt about the standard of

proof applicable to a necessity defense by holding that a defendant “may be required to prove that

defense by a preponderance of the evidence.” 367 F.3d at 556.


       Although Singleton and Brown address the same question that Tate raises, Tate presents an

argument not specifically foreclosed by these cases. Legislatures, not courts, he argues, have the

sole authority to assign the burden of proof with respect to an affirmative defense. In support, Tate

invokes Chief Justice Rehnquist’s concurrence in United States v. Gaudin, 515 U.S. 506 (1995),

where he wrote that “[f]ederal and state legislatures may reallocate burdens of proof by labeling

elements as affirmative defenses,” id. at 525. By negative implication, Tate reasons, courts may not

allocate a burden of proof for an affirmative defense. Not true. As Singleton demonstrates, the only

reason Tate may raise an affirmative defense in this case is that a court engrafted the defense onto

the statute in view of the common-law backdrop against which Congress enacted the law. See

Singleton, 902 F.2d at 472 (“the language of 18 U.S.C. § 922 gives no hint of an affirmative defense

of justification”). When a court construes a statute to include a common-law defense, it is both

appropriate and necessary for the court to assign the burden of proof regarding that defense.

“Where courts have engrafted a traditional common-law defense onto a statute that itself is silent

as to the applicability of traditional defenses, it is within the province of the courts to determine



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No. 03-5678
United States v. Tate

where the burden of proof on that defense is most appropriately placed.” United States v. Dodd, 225

F.3d 340, 345 (3d Cir. 2000).


       To rule otherwise would force us to accept one of two implausible propositions. Proposition

one: federal courts may engraft common-law affirmative defenses onto federal criminal statutes but

have no authority to determine the quantum of proof applicable to the defense or to assign the

burden of proof to one party or the other. Proposition two: federal courts may determine the burden

of proof but it always will be a beyond-a-reasonable-doubt standard that the government invariably

must satisfy. The first approach could never be implemented in a criminal trial. And the second

approach would make little sense when applied to common-law affirmative defenses that imposed

the burden of proof on the defendant. For how could one fairly say that a federal criminal statute

silently incorporates a common-law affirmative defense but not the common-law burden of proof

that goes with it? To ask the question, it seems to us, is to answer it.


       We affirm.




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