UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.                                                                      No. 95-5366

MICHAEL MCMANUS,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Claude M. Hilton, District Judge.
(CR-94-445-A)

Argued: May 10, 1996

Decided: May 31, 1996

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Drewry Bacon Hutcheson, Jr., Alexandria, Virginia, for
Appellant. Steve Semeraro, OFFICE OF THE UNITED STATES
ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:
Helen F. Fahey, United States Attorney, Francis C. Kiley, Special
Assistant United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Michael McManus, an inmate at the Maximum Security Facility at
Lorton Reformatory, appeals his conviction for possession of a shank
in violation of 18 U.S.C. § 13, assimilating Virginia Code § 53.1-
203(4). McManus contends that the district court erred in: (1) wrong-
fully admitting a photocopy of the shank into evidence, (2) failing to
instruct the jury as to his affirmative defenses, and (3) failing to
instruct the jury as to the intent element of the crime. Finding no
reversible error, we affirm.

I.

The facts of this case are highly disputed.

The government introduced evidence at trial that on August 23,
1993, Corporal Lonny Bish, a corrections officer at the Lorton Refor-
matory, observed McManus half-way down a cell-block tier talking
to another inmate, Leon Hunter. Following a brief altercation between
McManus and Hunter, Bish saw Hunter running down the tier with
McManus chasing him. Bish ordered them both to stop but neither
obeyed his orders. As Hunter ran, he flung plastic chairs and an ice
cooler behind him to impede McManus. McManus chased Hunter to
the recreation room and around the weight machine. Bish then called
for assistance and again ordered the two inmates to stop. When they
ignored his orders, Bish attempted to restrain McManus by grabbing
him from behind. As McManus struggled to free himself, he stabbed
Bish in the arm with a shank until Bish released him. McManus then
told Bish that he would "do" Bish if Bish did not leave him alone. At
that point, another corrections officer, Officer Jones, entered the rec-
reation room and restrained Hunter. McManus, who was by then free,
ran down the tier and Bish chased after him. When they reached the
end of the tier, Bish told McManus to relinquish the shank. "If you

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want it," McManus answered, "come and get it." Other officers soon
arrived on the tier to find McManus brandishing the shank. After sev-
eral minutes, McManus finally dropped the shank.

McManus' version of the facts is quite different. He testified that
Hunter, a fellow inmate, had picked a fight with him on the basketball
court earlier that day. McManus walked away from the fight, believ-
ing the confrontation with Hunter to be over. However, later that day
when McManus was on his way to take a shower, Hunter approached
his cell threatening to kill him. When McManus saw something that
he believed looked like a nail in Hunter's hand, McManus "rushed"
him. At that point, the shank fell to the floor and McManus retrieved
it. Hunter then ran down the tier and McManus followed in the same
direction. McManus claims that he was not pursuing Hunter, but
rather that he was bringing the shank to a corrections officer. On his
way to turn in the shank, McManus explains, Hunter hit him in the
head with an ice cooler and he was "pretty much dazed" by the
impact. Hunter then proceeded to attack McManus, who swung the
shank in defense and stabbed him. During the struggle, Officer Bish
came between them and McManus accidentally stabbed the officer in
the arm. McManus, who was still frightened from the encounter with
Hunter, ran down the tier. He admits that Bish chased after him and
asked him to relinquish the shank. McManus asserts that he was
reluctant to give Bish the shank until he was sure that Hunter had
been restrained. McManus claims that he did not see any other offi-
cers enter the recreation room before he left and was not sure whether
Hunter had been secured. When other officers appeared on the tier
and reassured McManus that Hunter was secured, McManus no lon-
ger felt threatened and placed the shank on the ground.

McManus was tried for one count of assault and a second count of
unlawful possession of a dangerous weapon. The judge instructed the
jury as to the elements of each charge. Subsequently, the jury asked
the court to repeat its instructions regarding the assault charge. In par-
ticular, the jury was concerned about "the instruction regarding intent
versus accident." The court responded that in order to convict
McManus on the assault charge, the jury had to find that he know-
ingly, willfully, and intentionally committed the act. McManus never
requested instructions regarding any affirmative defense or the intent
requirement for the possession charge. The jury convicted McManus

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on the possession charge but was deadlocked as to the assault charge.
McManus now appeals his conviction for possession.

II.

McManus first contends that the trial court erred in admitting into
evidence a photocopy of the shank, asserting it was not properly
authenticated and did not satisfy the "best evidence" and "chain of
custody" rules. We review a district court's determination as to
admissibility of evidence under an abuse of discretion standard. See
United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir.), cert.
denied, 495 U.S. 874 (1982).

McManus' argument that the photocopy of the shank did not sat-
isfy the "best evidence" rule is wholly misplaced, because the rule
applies only to documents, recordings, and photographs. Federal Rule
of Evidence 1002, better known as the "best evidence" rule, states that
"[t]o prove the content of a writing, recording, or photograph, the
original writing, recording or photograph is required, except as other-
wise provided." Even if the best evidence rule was applicable here
(and it is not), it would not have been violated. The rule permits the
admission of a copy if the original object has been lost or destroyed,
unless the proponent of the evidence lost or destroyed the original in
bad faith. Fed.R.Evid. 1004(1). See also United States v. Ross, 33
F.3d 1507, 1513 (11th Cir. 1994), cert. denied , ___ U.S. ___, 115 S.
Ct. 2558 (1995). In the case at hand, the original shank was inadver-
tently destroyed by the government; there was no evidence that it was
destroyed in bad faith.

McManus also contends that the admission of the photocopy was
inconsistent with the "chain of custody" rule. This argument is also
meritless. The "chain of custody" rule is a variation of the require-
ment under Fed.R.Evid. 901(a) that evidence must be properly
authenticated or identified prior to being admitted. United States v.
Turpin, 65 F.3d 1207, 1213 (4th Cir. 1995) (citing Howard-Arias, 679
F.2d at 366), cert. denied, ___ U.S. ___, 116 S. Ct. 1324 (1996). The
"chain of custody" rule therefore requires that admitted exhibits "be
preceded by `evidence sufficient to support a finding that the matter
in question is what its proponent claims.'" United States v. Ricco, 52

                    4
F.3d 58, 61 (4th Cir.) (quoting Fed. R. Evid. 901), cert. denied, ___
U.S. ___, 116 S.Ct. 254 (1995).

This requirement has clearly been satisfied in the instant case. The
government offered sufficient evidence to show that the photocopy of
the shank accurately represented the shank used by McManus. Corpo-
ral Bish, the officer who was stabbed by McManus, described the
shank used in the attack and identified the photocopy as a depiction
of that weapon. Captain Washington testified that the photocopy
looked like the one used by McManus "in all respects." A third offi-
cer, Captain Steward, testified that he tagged the shank in his own
handwriting and photocopied it after retrieving it from the area of the
attack. Steward also testified that photocopying the shank was part of
the standard procedure following an assault, permitting a copy of the
weapon to be placed in the inmate's disciplinary file. Finally, Stewart
identified the photocopy as the one that he had made and the tag seen
in the photocopy as the one that he placed on the shank. Because such
testimony is more than sufficient to authenticate the evidence, the dis-
trict court did not abuse its discretion in admitting the photocopy.

III.

McManus argues that the district court erred in failing to instruct
the jury regarding affirmative defenses for unlawful possession of a
shank. Because McManus failed to request these instructions, we
review the district court's instructions for plain error. United States
v. Olano, 507 U.S. 725 (1993); United States v. Morgan, 942 F.2d
243, 247 (4th Cir. 1991), cert. denied, 506 U.S. 1040 (1992), and
cert. denied, 506 U.S. 1061 (1993).

The government argues that McManus was not entitled to the
instructions regarding the defenses of justification, coercion, or duress
because he did not present sufficient evidence to support these
defenses so as to warrant the instructions. We agree.

In United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989), we
held that in order to be entitled to the defense of justification for the
unlawful possession of a weapon, a defendant must produce evidence
that would allow the factfinder to conclude that he:

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          (1) was under unlawful and present threat of death or serious
          bodily injury; (2) did not recklessly place himself in a situa-
          tion where he would be forced to engage in criminal con-
          duct; (3) had no reasonable legal alternative (to both the
          criminal act and the avoidance of the threatened harm); and
          (4) [that there existed] a direct causal relationship between
          the criminal action and the avoidance of the threatened
          harm.

Id. at 330 (citation omitted). In Crittendon, we found that the defen-
dant was not entitled to the instruction on justification because he had
not met the first element. Id. The defendant's explanation that he was
carrying a gun because he had been shot several months earlier, "[did]
not support a conclusion that he was under a present or imminent
threat of death or injury." Id. See also United States v. Perrin, 45 F.3d
869 (4th Cir. 1995) (defendant not entitled to instruction where his
explanation for carrying weapon was that a man with a shotgun had
been looking for him at his cousin's house two days earlier), cert.
denied, ___ U.S. ___, 115 S. Ct. 2287 (1995).

Other courts have similarly rejected a defendant's arguments of
entitlement to a justification instruction when any of the four
Crittendon factors have not been met. See United States v.
Blankenship, 67 F.3d 673, 678 (8th Cir. 1995) (instruction not war-
ranted where defendant "recklessly placed himself in the situation"
and "had reasonable alternatives" to possession); United States v.
Singleton, 902 F.2d 471 (6th Cir.) (defendant who claimed he had
been kidnapped was not entitled to instruction when he failed to relin-
quish weapon well after escaping from kidnapping), cert. denied, 498
U.S. 872 (1990); United States v. Harper, 802 F.2d 115 (5th Cir.
1986) (defendant who purchased gun after robberies of his store not
entitled to instruction because he was not in imminent danger). Cf.
United States v. Paolello, 951 F.2d 537 (3d Cir. 1991) (defendant
entitled to instruction where imminent danger was evidenced by the
fact that he wrestled a gun away from an attacker following a heated
argument); United States v. Panter, 688 F.2d 268 (5th Cir. 1982)
(instruction warranted where the illegal firearm possession occurred
while defendant was in imminent danger where "in the actual physical
course of a conflict," defendant had already been stabbed in the abdo-
men).

                     6
McManus' claim that he was entitled to instructions on justification
must also be rejected. Even under McManus' version of the facts,
McManus "rushed" Hunter to pre-empt an attack after he saw some-
thing in Hunter's hand. When the shank fell from Hunter's hand to
the floor, Hunter ran away. At that point, McManus, who had
retrieved the shank, followed Hunter. Although McManus claims that
he was not planning to harm Hunter, it is clear that at that point,
McManus could have dropped the shank and sought out the authori-
ties. In fact, McManus could have run away from the altercation,
rather than "rushing" Hunter to obtain the shank. These facts defeat
McManus' claim that his possession of the shank was justified. Even
if McManus' initial possession of the shank would have warranted a
justification instruction, his continued possession rendered such an
instruction unwarranted.

The facts in the instant case resemble those in Singleton, 902 F.2d
471, and Blankenship, 67 F.3d 673. In Singleton the court found that
the defendant was not entitled to a justification instruction even
though he claimed that he obtained a gun while escaping from a kid-
napping. The court emphasized that "the keystone of the analysis is
that the defendant must have no alternative -- either before or during
the event -- to avoid violating the law." Singleton, 902 F.2d at 473
(citing United States v. Bailey, 444 U.S. 394, 410 (1980)). Because
the defendant continued his possession of the weapon even after he
had successfully escaped from the alleged kidnapping, he was not
entitled to the instruction on justification. Similarly, in Blankenship,
the court found that the defendant was not entitled to the instruction
simply because an assailant approached his trailer threatening to harm
him. When the confrontation escalated between defendants and the
assailant, the defendant went to a nearby trailer, obtained a shotgun,
and returned to the confrontation. The court held that the defendant
had reasonable alternatives because he could have gone for help or
sent his wife to contact the police. Blankenship , 67 F.3d at 678.
McManus, like the defendants in Singleton and Blankenship, chose to
retain possession of the shank, despite other lawful alternatives even
after escaping from the alleged incident with Hunter. Consequently,
he was not entitled to the justification instruction.

For the same reason, McManus was not entitled to jury instructions
regarding coercion and duress. Both of these defenses require that the

                    7
defendant show that he violated the law only to the extent necessary
to avoid death or serious bodily injury. Thus, a defense of coercion
is not available to "[o]ne who has full opportunity to avoid the act
without danger of [death or serious bodily injury]." Blankenship, 67
F.3d at 677-78 (citation omitted); United States v. Simpson, 979 F.2d
1282 (8th Cir. 1992) (citation omitted), cert. denied, 507 U.S. 943
(1993). Similarly, a defense of duress requires a showing that a genu-
ine effort to stop the illegal action was made as soon as the claimed
force of duress had ceased. United States v. Sarno, 24 F.3d 618, 621
(4th Cir. 1994). Because McManus had the opportunity to surrender
the shank well before he did, he has failed to establish coercion or
duress.

IV.

Finally, McManus asserts that he was entitled to a jury instruction
that conviction of possession of a shank requires a finding of criminal
intent. Again, his failure to request this instruction subjects the district
court's decision to review only for plain error. Any error committed
by the district court in failing to give the desired instruction was cer-
tainly not plain.

There can be no doubt, even if we accept the facts as McManus
describes them, that his possession of the shank was knowing and
willful. McManus' own testimony proves that he knew what the
shank was when he took hold of it. During trial he explained: "As I
rushed him and he tried to grab me, that's when the shank fell. So,
I retrieved the shank. And then he ran." Indeed, McManus' entire
defense -- that he took hold of the shank to protect himself during
a confrontation with an inmate -- assumes willful possession. See
Connecticut v. Johnson, 460 U.S. 73, 87 (1983) (Blackmun, J., writ-
ing for a plurality) ("In presenting a defense such as alibi, insanity,
or self-defense, a defendant may in some cases admit that the act
alleged by the prosecution was intentional, thereby sufficiently reduc-
ing the likelihood that the jury applied the erroneous instruction as to
permit the appellate court to consider the error harmless."). Having
conceded the element of intent in arguing his defense, McManus can-
not now complain that the jury was not clearly instructed to find
intent.

                     8
Furthermore, although the jury did not receive specific instructions
from the court regarding intent on the possession charge, it did
receive a copy of the indictment, which charged McManus with "un-
lawfully, knowingly, and willfully" possessing a shank. Moreover, the
court explained to the jury -- albeit in the context of providing
instructions regarding the assault charge -- that an act had to be
knowing and willful in order to be intentional. Consequently, the jury
could infer that if the possession also had to be knowing and willful,
it too had to be intentional. Accordingly, the district court's failure to
instruct the jury regarding intent on the possession charge was not
plain error.

V.

For the foregoing reasons, McManus' conviction is hereby

AFFIRMED.

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