                                                                      F I L E D
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                                    PU BL ISH
                                                                      May 7, 2007
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                                TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

       Plaintiff - Appellee,

 v.                                                     No. 06-5027

 JUAN DESHAN NON BUTLER,

       Defendant - Appellant.



                 Appeal from the United States District Court
                     for the District of N.D. Oklahom a
                         (D.C. No. 05-CR-4-01-CVE)


Douglas Edward Snow , Assistant United States Attorney (David E. O’M eilia,
United States Attorney, and Kevin Danielson, Assistant United States Attorney,
on the briefs) Tulsa, Oklahoma, for Plaintiff - Appellee

Robert A. Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal
Public Defender, on the briefs), Tulsa, Oklahoma, for Defendant - Appellant


Before O ’B RIE N, SE YM OU R and TYM KOVICH, Circuit Judges.


O’BRIEN, Circuit Judge.




      A jury convicted Juan Butler of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1), and an armed career criminal in possession of
a firearm and ammunition, in violation of 18 U.S.C. § 924(e)(1). The district

judge refused Butler’s request to instruct the jury on justification, but made a

downward departure from the sentencing guidelines in recognition of the unique

circumstances of this case. Butler appeals. W e affirm.

                                   I. Background

      On October 27, 2004, Federal Bureau of Investigation Agent M att

Lotspeich and Tulsa Police Detective Paul Hutter were investigating an armed

robbery. Believing Butler might have some information about suspects, the

officers met with him at his apartment and arranged to again meet with him for

additional questioning. On November 4, 2004, that meeting occurred in an

unmarked police car outside Butler’s apartment. During the meeting Butler went

into his apartment and returned to the car with a loaded gun. He said he needed

to be rid of the gun.

     At trial, Butler testified about the circumstances of his possession of the

gun. For purposes of this appeal we accept his testimony as true and relate his

version of events. One day, when his wife and daughter were home, there was a

knock at the back door of the apartment. W hen he opened the door, two men

were outside. Butler knew one, Jermaine Link, but not the other, later identified

as Rudy Gomez. He admitted the men because he knew Jermaine, who said he

had a business proposition. W hen Butler asked the nature of the proposition,

Gomez explained he was having a problem w ith a person named A lvin. Gomez

                                          -2-
said he had been assaulted by Alvin and wanted Butler to kill Alvin. Gomez

pulled out a gun and told Butler to use it to murder Alvin. Shocked and afraid,

Butler agreed. He felt he had no choice; if he refused, Gomez would shoot him

and his family. His fear was well founded because Gomez pointed the gun at

Butler while explaining the Alvin problem, changed the tone of his voice, and

acted as if he had another gun in his pants.

      Although Butler knew it was illegal for him to possess the gun, he did not

take it to the authorities because Gomez and Jermaine would be coming back and

he would be in danger if they discovered it was missing. The next evening,

Gomez and Jermaine returned to the apartment. They drove Butler to A lvin’s

house and parked inconspicuously behind it to discuss the layout. Butler

acquiesced because he wanted to avoid violence against him and his family.

      Gomez wanted an “airtight alibi,” such as being incarcerated, so he

instructed Butler to delay the murder until he could make such arrangements. In

the interim Gomez stayed in contact with Butler via cell phone. Knowing Gomez

and others believed cell phones operated by the local mobile phone company were

constantly monitored, Butler tried to “spill information” – that is, mention

information linking Gomez to the plot – hoping Gomez would believe he could be

connected to the murder regardless of what alibi he might arrange. Thus, Butler

hoped, Gomez would call off the plot.

      Finally, Gomez changed his mind about the murder. W hen he so advised

                                          -3-
Butler he allowed Butler to keep the gun. At this point, Butler decided to turn the

gun over to the authorities. Knowing the agents (with whom he had now

established a relationship) were due to visit him again, he waited for them to

come to his apartment to surrender the gun. The elapsed time between aborting

the murder and surrendering the gun was two to four days; Butler possessed the

gun for a total of four to six w eeks.

                                 II. Standard of Review

      If supported by the evidence and the law , a criminal defendant is entitled to

jury instructions concerning his theory of defense, United States v. Visinaiz, 428

F.3d 1300, 1308 (10th Cir. 2005), cert. denied, 126 S.Ct. 1101 (2006), in this

case, justification. “‘For the purposes of determining the sufficiency of the

evidence to raise the jury issue, the testimony most favorable to the defendant

should be accepted.’” United States v. Al-Rekabi, 454 F.3d 1113, 1121 (10th Cir.

2006) (quoting United States v. Scull, 321 F.3d 1270, 1275 (10th Cir. 2003)).

But, “it is essential that the testimony given or proffered meet a minimum

standard as to each element of the defense so that, if a jury finds it to be true, it

would support an affirmative defense— here that of duress or necessity.” United

States v. Bailey, 444 U.S. 394, 415 (1980). W hen the trial judge refuses to

instruct on a specific defense, we review for an abuse of discretion. Al-Rekabi,

454 F.3d at 1121.




                                          -4-
                                   III. Discussion

      In this case, Butler sought an instruction on a justification defense. 1 Such a

defense requires the defendant to demonstrate the following:

      (1) that 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;
      (2) that 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 defendant had no reasonable, legal alternative to violating
      the law , a chance both to refuse to do the criminal act and also to
      avoid the threatened harm; and
      (4) that a direct causal relationship may be reasonably anticipated

      1
         Courts have used the terms duress, necessity, and justification
interchangeably. See United States v. Leahy, 473 F.3d 401, 406 (3d Cir. 2007).
This may be due to the development of the defense by drawing upon comm on
law. Id. "While the defense of duress covered the situation where the coercion
had its source in the actions of other human beings, the defense of necessity, or
choice of evils, traditionally covered the situation where physical forces beyond
the actor's control rendered illegal conduct the lesser of two evils." Bailey, 444
U.S. 394, 409-410 (1980). In modern times, “‘[t]he traditionally separate
defenses of necessity and duress have become increasingly blurred in modern
decisions, to the point of merger.’” United States v. Holliday, 457 F.3d 121, 127
(1st Cir. 2006), cert. denied, 127 S.Ct. 1317 (2007) (quoting United States v.
Nelson-Rodriguez, 319 F.3d 12, 40 n.9 (1st Cir. 2004)). The defense requested by
Butler, as we defined it in United States v. Vigil, 743 F.2d 751, 755 (10th Cir.
1984), is spoken of in terms of justification and necessity. W e use that
terminology in this opinion. Leahy, 473 F.3d at 406 (“[E]ase in administration
favors treating [the common law defenses of duress, necessity, and self-defense],
in a federal felon-in-possession case, under a single, unitary rubric:
justification.”); United States v. Salgado-Ocampo, 159 F.3d 322, 327 n.6 (7th Cir.
1998) (“[N]ecessity, justification, duress and self-defense are interchangeably
lumped together under the rubric of the justification defense.”); United States v.
Gomez, 92 F.3d 770, 774 (9th Cir. 1996) (where defendant argued he was entitled
to a duress or necessity defense, the N inth Circuit noted such cases “have almost
always been analyzed in terms of justification,” and analyzed accordingly).


                                         -5-
       between the [criminal] action taken and the avoidance of the
       [threatened] harm.

Vigil, 743 F.2d at 755 (citations and internal quotations omitted).

       Another principle overarches and qualifies the four factors announced in

Vigil. It is temporal – if justification is established by evidence of all four

factors, the defense is available only so long as all of those factors continue to

exist. Al Rekabi, 454 F.3d at 1123. W e rest our decision on the first of Vigil’s

four factors. 2

       A. Imminent and Impending Threat of Death or Serious Bodily Injury

       To satisfy the first prong of a justification defense, “[t]he defendant must

show an imminent danger – a real risk of death or serious bodily injury.” Al-

Rekabi, 454 F.3d at 1125. 3 And the imminent danger must persist throughout the

possession. Id. at 1125-26. The Supreme Court’s decision in Bailey is both

instructive and compelling. 4 The Court clearly conditioned a justification


       2
         “If, as we here hold, an affirmative defense consists of several elements
and testimony supporting one element is insufficient to sustain it even if believed,
the trial court and jury need not be burdened with testimony supporting other
elements of the defense.” Bailey, 444 U.S. at 416.


       3
        In Al-Rekabi the defendant argued he should be entitled to a justification
instruction because he had taken the firearm from his 12-year-old brother. Id.
Although the situation was “potentially very dangerous,” the defendant was not
entitled to a justification instruction because “the danger . . . was not clearly
‘imminent.’” Id. (emphasis added).
       4
       In Al Rekabi we analogized the elements of the escape in Bailey to the
elements of a felon in possession of a weapon. Id. at 1124.

                                           -6-
instruction on the defendant’s proof of abandonment of illegal conduct at the

earliest possible opportunity. In Bailey, prison escapees requested an instruction

on duress or necessity, claiming their escape from prison was due to intolerable

conditions. Reversing the Court of Appeals for the District of Columbia, the

Supreme Court affirmed the district court’s refusal to instruct the jury on such a

defense. “[W]here a criminal defendant is charged with escape and claims that he

is entitled to an instruction on the theory of duress or necessity, he must proffer

evidence of a bona fide effort to surrender or return to custody as soon as the

claimed duress or necessity had lost its coercive force.” Bailey, 444 U.S. at 415.

Because the Bailey defendants failed to turn themselves in at the “earliest possible

opportunity,” which was “an indispensable element of the defense of duress or

necessity,” they were not entitled to the instruction. 5 Id.

      Butler’s account of the facts – relating Gomez’s threatening manner, his

tone of voice, and pointing a gun at Butler – arguably presented a jury question as

to a present, imminent and impending threat of death or serious bodily injury

during the initial meeting. But as Butler’s narrative continued the possible

inference of imminent danger eroded to the point where, as the trial judge

      5
         “The requirement of a threshold showing on the part of those w ho assert
an affirmative defense to a crime is by no means a derogation of the importance
of the jury as a judge of credibility. Nor is it based on any distrust of the jury's
ability to separate fact from fiction. On the contrary, it is a testament to the
importance of trial by jury and the need to husband the resources necessary for
that process by limiting evidence in a trial to that directed at the elements of the
crime or at affirmative defenses.” Bailey, 444 U.S. at 416.

                                           -7-
decided, the evidence, considered as a whole and viewed most charitably to the

defendant, simply did not sustain the required inference. It is a working example

of the proper exercise of the trial judge’s role as gatekeeper – deciding if the

evidence passes the threshold for a justification instruction.

      Butler failed to relinquish the gun at the “earliest possible opportunity.”

The standard announced in Al-Rekabi, while not unforgiving, is demanding. It

appears the district court was not convinced, nor are we, that “imminent” danger

persisted the entire four to six weeks Butler possessed the firearm. Certainly it

was not an abuse of discretion for the district court to so consider the evidence.

But, one need not dwell on lingering danger because Gomez called off the murder

plot and told Butler to keep the gun. At that point the danger had clearly

dissipated, yet, according to Butler’s undisputed testimony, he continued to

possess the gun for two to four days. Objectively considered, the duress or

necessity, even if initially present, had “lost its coercive force.” See id. at 415.

Since Bailey’s predicate for a justification instruction, presently extant coercive

force, was not met the instruction was properly refused.

      Butler cites several cases from other circuits arguing for a contrary result.

Of course those cases, even if persuasive, cannot substitute for Tenth Circuit

precedent. But they are inapposite or only marginally relevant in any event.




                                           -8-
      The first is United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). 6 In

Deleveaux, the government and the defendant presented different version of

events. According to Deleveaux: his wife was under attack from a neighbor

wielding a firearm; he reacted by obtaining a 9mm handgun from a place she had

hidden it in the attic and exchanged fire with the intruder; he knew his wife

owned a gun and where she kept it in her house (they had been estranged and

living apart when he came to that knowledge – he later moved back into the

home); he had never handled the gun until the day of the incident; after the

altercation, he placed the gun back in the attic. Id. at 1294. The trial judge

thought a justification instruction “was a ‘close question.’ . . . [but] decided to

‘err [ ] on the side of giving the defendant the opportunity to argue this matter to

the jury.’” Id. at 1295. The government, having obtained a conviction, did not

appeal from that decision. The only issue before the Seventh Circuit was whether

justification is an affirmative defense, placing the burden of proof on the

defendant (the court concluded it was). Since the propriety of the justification

instruction given by the trial judge was not argued or decided in Deleveaux and

the issue the Deleveaux court did decide is not present here, we fail to see the

      6
        “Since the language of § 922(g)(1) prohibits a convicted felon from even
possessing a firearm, the first question is w hether a justification defense is
available to a § 922(g)(1) charge. W e join the other circuits addressing this issue
and hold that the defense of justification may be available to a § 922(g)(1)
charge.” Deleveaux, 205 F.3d at 1297 (citations omitted). “How ever, we also
agree with those circuits that this defense is available in § 922(g)(1) cases in only
extraordinary circumstances.” Id. (citations omitted).

                                          -9-
relevance of that case.

      Butler next points to United States v. Paolello, 951 F.2d 537 (3d Cir.

1991). Paolello testified he was attacked, disarmed his assailant, and ran away

with the gun – an act of self preservation. A police officer on the scene saw

Paolello fleeing down an alley and ordered him to stop. Paolello discarded the

gun but kept running until apprehended by another officer. Id. at 538-39. The

district court refused to give a justification instruction; the Third Circuit reversed.

Id. at 539, 544. The court of appeals applied the equivalent of our four-part Vigil

test, Id. at 540, and adopted the rule “an interdicted person may possess the

firearm no longer than absolutely necessary.” Id. at 541 (citations omitted). It

concluded Paolello was entitled to a justification instruction

      “[b]ecause w e must accept in the procedural posture of this case
      Paolello’s version of the facts in the record, it appears that Paolello
      did not maintain possession of the weapon any longer than absolutely
      necessary. Thus, even if we find Paolello’s testimony unpersuasive,
      his credibility should be judged by the jury.”

Id. at 543. Paolello hardly equates with this case. First, there is no factual

dispute here, as there was in Paolello. W e accept Butler’s version of events,

without regard to conflicting evidence. Second, possession of a firearm for a few

moments in an adrenalin rush while fleeing from a violent encounter is a world

apart from Butler’s continued possession of the firearm for weeks and especially

for a period of two to four days after any credible threat had been eliminated.

      Finally, Butler refers us to United States v. Gomez, 92 F.3d 770 (9th Cir.

                                          -10-
1996). Gomez was acquitted of state law charges. Knowing he would soon be

released from the jail, one of the other inmates solicited Gomez to kill a number

of people in exchange for substantial sums of money. Gomez reported the

solicitation to the guards and cooperated with law enforcement in gathering

evidence against the inmate. Id. at 772. Although the government promised to

keep his identity secret and to protect him, it failed; Gomez’s full name w as

disclosed in the indictment against the inmate. Gomez began to receive written

and verbal death threats and learned there was a contract out for his life. W hen

he reported this to federal agents, they refused to take him into protective

custody. Id. at 773. He also went to the sheriff, his parole officer, and local

churches for help. He went to the newspaper with his story. Gomez moved from

one house to another, and even went homeless in an attempt to avoid danger.

Finally, Gomez went to his parole officer and lied, claiming he was using illegal

drugs. That led to his incarceration, where he received a written death threat

from an inmate. Upon release, he received yet another death threat. On the same

day, Gomez took possession of a 12-gauge shotgun to protect himself. Id. at 773-

74. Two days later, federal agents served him with a subpoena and found him

with the shotgun. The Ninth Circuit reversed Gomez’s conviction because the

district court failed to instruct the jury on justification. Id. at 778.

      Butler argues his predicament was on the same order as that of Gomez.

Unlike Butler, however, Gomez received several death threats, both in person and

                                           -11-
in writing. See id. at 776. Gomez behaved as if he was concerned for his safety –

he moved from home to home and sought protection from federal agents, the local

sheriff, and his parole officers. See Al-Rekabi, 454 F.3d at 1125 (considering

defendant’s response to alleged threat as evidence of whether the defendant

believed the threat to be imminent). Butler did nothing of the sort and after the

murder plot was called off, Butler conceded he was no longer afraid. In Gomez

the critical question, whether the danger “had lost its coercive force,” was

sufficiently in doubt to require jury resolution. The factual landscape here is

entirely different.

      W e must take care not to transform the narrow, non-statutory justification

exception to the federal anti-felon law into something permitting a felon to

possess a w eapon for extended periods of time in reliance on some vague “fear”

of street violence. Indeed, “[i]f ex-felons who feel endangered can carry guns,

felon-in-possession laws will be dead letters.” United States v. Perez, 86 F.3d

735, 737 (7th Cir. 1996). By insisting that the evidence of a threat of serious

injury or death is actually “present, imminent and impending,” w e will avoid this

undesirable result. See Vigil, 743 F.2d 755.

      The district court did not err in denying a justification instruction because

Butler’s evidence was insufficient to permit the jury to reasonably find the

continuing urgent danger required by our cases. The circumstances of Butler’s




                                         -12-
case are better considered as mitigation of punishment 7 than exoneration of

criminal behavior.

      B. Reasonable, legal alternatives to violating the law

      Butler failed on the first prong of the Vigil test and that is sufficient to end

the matter. However, to be thorough we address the third prong in response to

Butler’s arguments. It requires Butler to show he had no reasonable, legal

alternatives to possessing the gun. Id. at 755. Gom ez serves as a possible

example of an arguable case for a thorough and principled exhaustion of available

legal alternatives to illegal possession of a firearm – one grounded in self defense.

By comparison, Butler’s evidence clearly appears wanting. Nevertheless, he

claims it to be sufficient, relying on United States v. Newcomb, 6 F.3d 1129 (6th

Cir. 1993). Newcomb provides cold comfort.

      Newcomb w as charged with unlawful possession of a firearm and

ammunition. Id. at 1130. A police officer observed a group of three people in an

alley. Id. at 1130-31. Someone the officer identified as the tallest of the three

placed a two foot long dark object into an abandoned couch in an alley. W hen the

officer patted down Newcomb, he found four 12-gauge shotgun shells. He then

      7
        In a global view of the criminal justice process, the fact a felon
voluntarily, albeit belatedly, surrendered a firearm to the police is not irrelevant.
Surely it is a factor for prosecutors in the exercise of charging discretion. It is
also a consideration for judges in the exercise of their discretion in crafting a
reasonable sentence. See United States v. Booker, 543 U.S. 220, 260-62, 265
(2005). That safety valve is evident here, where the court made a downward
departure.

                                         -13-
found a sawed-off 12-gauge shotgun in the couch. The officer identified

Newcomb, the tallest person, as the one w ho put the gun in the couch. Defense

witnesses testified Newcomb had gone out with others to find and dissuade his

girlfriend’s son, who was in a murderous rage, from killing another with a

shotgun. They found the son and Newcomb managed to wrest the gun from him.

After Newcomb removed the shells, the son again took possession of the gun and

placed it in the couch, vowing to get another gun to shoot his intended victim.

      In N ew com b, as it does here, the government argued the defendant had

other, plausible alternatives to violating the statute – including having someone

else possess the weapon or calling law enforcement to handle the problem. Id. at

1137. The Sixth Circuit held the jury might reasonably find Newcomb had no

reasonable alternatives to illegal possession of the gun if it found he was faced

with an emergency situation. But in doing so, the Newcomb court noted that

usually, when a defendant’s conduct spans a period of time, there are other

alternatives to the illegal conduct.

      That point was not lost here. According to the district court:

      [W ]e don’t even have to assume that he could have gone to the
      police. He met with the police on October 27th and didn’t mention
      it. And it wasn’t until the second meeting that he said I have
      something to give you. The defendant had six weeks to contact the
      police and say, look, someone wants to kill someone else; they gave
      me a gun to do it; I want to turn them in, and along the way, I want
      to give you the gun. He did not do that. He sat back and continued
      to possess the gun for six weeks.



                                         -14-
(R . Vol. III at 172-73.)

       Butler conceded he never asked the officers for protection from Gomez. In

explanation for that failure he claimed not to trust the officers to protect him and

his family. He claimed such protection only happens “in the movies.” (Id. at 91.)

W e cannot fully imagine the difficulty faced by someone in the situation Butler

described. Nevertheless, Congress has declared that felons are not to be in

possession of firearms. 18 U .S.C. § 922. Although, along with other courts, we

have applied an exception to this general rule, 8 the exception is narrow and is

appropriate only in extraordinary circumstances. See, e.g., Al-Rekabi, 454 F.3d at

1121 (“The necessity defense is a narrow exception to stringent federal firearms

law s.”); Deleveaux, 205 F.3d at 1297 (“[T]his defense is available in § 922(g)(1)

cases in only extraordinary circumstances.”); Paolello, 951 F.2d at 542 (“The

restrictive approach [to the justification defense] is sound.”).

       Butler’s experiences may well have led him to be hesitant in trusting law

enforcement to keep him and his family safe, 9 but such distrust does not eliminate

prompt relinquishment of the gun and disclosure of the circumstances to the

police as a reasonable legal alternative. W ithout substantial and compelling


       8
         See Al-Rekabi, 454 F.3d at 1122 n.7 (noting courts have assumed a
justification defense applies, although the statute does not explicitly provide for
such a defense).
       9
        Butler explained he “didn’t believe in the protection of the police force,”
and explained he believed Gomez’s “homeboys” could get to him even if the
police arrested Gomez. (R. Vol. III at 95.)

                                         -15-
proof, as in Gomez, distrust of officials is much too convenient as a post hoc

rationalization for illegal possession. Cf. United States v. Harper, 466 F.3d 634,

648 (8th Cir. 2006) (where a defendant claimed he had no faith in law

enforcement because he was threatened by a deputy, the court applied the rule “a

defendant's subjective belief that going to law enforcement would prove futile is

insufficient to meet the objective standard that there was no reasonable, legal

alternative to violating the law.”), cert. denied, 127 S.Ct. 1504 (2007); United

States v. Hudson, 414 F.3d 931, 934 (8th Cir. 2005) (w here defendant claimed to

be afraid of a “rogue” police officer, “[o]ne reasonable alternative for [defendant]

was to report her alleged fear of the rogue officer to responsible law enforcement

authorities.”), cert. denied, 126 S.Ct. 1769 (2006); Gomez, 92 F.3d at 777 (noting

that defendant sought help from federal agents, the sheriff, his parole officer and

local churches).

      Difficult choices may emanate from federal firearms laws, which “impose

something approaching absolute liability.” United States v. Adkins, 196 F.3d

1112, 1115 (10th Cir. 1999) (internal quotations omitted). It is one of the burdens

of a felony conviction. W hile Butler’s alternatives may have been uncomfortable,

a prompt surrender of the firearm was not impossible.

      A FFIR ME D.




                                         -16-
