In the
United States Court of Appeals
For the Seventh Circuit

Nos. 01-2103, 01-2286 & 01-2295

United States of America,

Plaintiff-Appellee,

v.

Joseph L. Tokash, Mitchell E. Kolb,
and John Derel Usher,

Defendants-Appellants.

Appeals from the United States District Court
for the Southern District of Illinois.
Nos. 99-CR-40045, 99-CR-40047, 99-CR-40049--
J. Phil Gilbert, Judge.

Argued December 5, 2001--Decided March 11, 2002



  Before Coffey, Ripple, and Diane P. Wood,
Circuit Judges.

  Coffey, Circuit Judge. A systemwide
search of inmates at the United States
Penitentiary at Marion, Illinois,
prompted by the May 18, 1999, racially
motivated murder of an inmate, revealed
that inmates Joseph Tokash, Mitchell
Kolb, and John Derel Usher had concealed
weapons in their rectal cavities. Tokash,
Kolb, and Usher were charged with
possessing weapons in a federal prison in
violation of 18 U.S.C. sec. 1791(a)(2).
The government filed similar pre-trial
motions in limine to preclude each of the
defendants, who were tried individually,
from introducing evidence in support of a
defense of necessity or other
justification defenses at trial. The
trial judge granted the government’s
motions, and juries convicted each of the
three defendants. In this consolidated
appeal, the individual defendants-
appellants argue that the trial judge
erred in prohibiting them from
introducing the defense of necessity. We
affirm.

I.   Factual Background

  On May 18, 1999, Terry Lamar Walker, a
black inmate at USP-Marion, was stabbed
to death by two white inmates associated
with the Dirty White Boys prison gang and
its ally, the Aryan Brotherhood. Prison
officials promptly took steps to secure
the safety of its guards and inmates and
conducted a thorough "shakedown" at the
institution in an effort to locate
additional weapons and weapon-making
tools. During the shakedown USP-Marion
officials employed the use of x-ray and
digital examinations of individual
inmates in an attempt to discover any
internally concealed contraband.

  On May 19, 1999, one day after the
murder, x-ray and digital examinations
revealed that five inmates had concealed
weapons, steel or plastic knives, in
their rectal cavities. Appellants Tokash
and Kolb were two of those five inmates.
One week later, on May 26, 1999, the same
search methods uncovered a steel knife
that appellant Usher had hidden in his
rectal cavity. On June 9, 1999, a grand
jury sitting in the Southern District of
Illinois charged Tokash, Kolb, and
Usher,/1 in separate indictments, with
one count of possessing weapons in a
federal prison contrary to 18 U.S.C. sec.
1791(a)(2). Prison officials later
discovered each of the appellants with
additional weapons and grand juries
returned superseding indictments adding
additional counts charging each of them
with multiple violations of sec.
1791(a)(2), which punishes an inmate who
"makes, possesses, or obtains, or
attempts to make or obtain, a prohibited
object," including any object that
"threatens the order, discipline, or
security of a prison, or the life,
health, or safety of an individual."/2
18 U.S.C. sec. 1791(a)(2) & (d).

  In the three appellants’ individual
cases, the government filed a pre-trial
motion in limine to preclude the
defendant from introducing evidence in
support of a defense of necessity or
other justification defense at trial,
unless he made a prima facie showing that
he satisfied the legal requirements to
raise such a defense. According to the
government, the defendants could
establish neither that they faced an
imminent threat nor that they had availed
themselves of all reasonable legal
alternatives. The appellants, all white
inmates, filed responses and offers of
proof in which they complained about the
manner in which USP-Marion officials
administered the prison, including prison
officials’ refusal to maintain racially
segregated housing units, and about
previous racially motivated incidents of
violence at USP-Marion. Tokash further
proffered that other inmates at USP-
Marion would testify that "it was
generally believed by inmates that
appeals to the Prison Administration
regarding threats made and dangerous
persons would have been futile." The
defendants further filed motions for
subpoenas duces tecum in order to procure
Bureau of Prisons documents that they
speculated would help establish their
theory that racial tension so permeated
USP-Marion that they had no choice other
than to violate the law by arming
themselves. In addition, the defendants
sought deposition testimony from other
inmates in support of their allegations
regarding the racially charged atmosphere
at USP-Marion.

  The trial judge, accepting the facts in
the offers of proof as true, agreed with
the government that the appellants
alleged only a generalized fear of attack
by some unknown or unspecified assailant
at some unknown time in the future, and
that such allegations were legally
insufficient to support a necessity or
other justification defense. The trial
judge further noted that the appellants
failed to avail themselves of available
legal alternatives prior to arming
themselves. Thus the trial judge granted
the government’s motions in limine to
preclude evidence or argument regarding a
necessity or other justification defense.
After ruling in favor of the government
on its motions in limine, the trial judge
went on to deny the defendants’ motions
for depositions and subpoenas duces
tecum, ruling that the information the
defendants sought was not relevant
because the defendants were precluded
from introducing evidence regarding a
necessity or duress defense.

  In separate trials, juries convicted all
three defendants on all counts, except
that a jury failed to convict Kolb on the
second count of unlawfully possessing a
weapon in a federal prison arising from
the knife found in his cell on October 5,
1999. The defendants-appellants appeal.

II.   Issues
  Appellants contend that the trial judge
committed error in granting the
government’s motions in limine, raising
several arguments in support. Initially,
the appellants argue that the trial judge
erred in granting the motions in limine
because a motion in limine was not the
proper mechanism for the government to
challenge the legal sufficiency of their
proposed defenses and, as such, the
court’s order violated their rights to
trial before a jury. Next, appellants
argue that the trial judge erred in
precluding them from advancing their
necessity defenses at trial, contending
both that the judge erred in requiring
them to demonstrate that they faced an
imminent threat and that, when taken as
true, their offers of proof did
demonstrate that they availed themselves
of all reasonable legal alternatives
prior to arming themselves. Finally,
appellants contend that the trial court
erred in preventing them from taking the
depositions of other inmates regarding
conditions at USP-Marion.

III.   Analysis

A.   Standards of Review

  The legal sufficiency of a proffered
defense is a question of law and
therefore is reviewed de novo. United
States v. Simmons, 215 F.3d 737, 740-41
(7th Cir. 2000); United States v.
Santiago-Godinez, 12 F.3d 722, 726 (7th
Cir. 1993). Generally, whether or not an
affirmative defense is available to a
defendant requires the resolution of
factual issues, and thus, where a court
rules on the availability of a pre-trial
motion in limine, the trial court must
accept as true the evidence proffered by
the defendants. See Santiago-Godinez, 12
F.3d at 727. Nevertheless, where the
evidence proffered in response to the
motion in limine is insufficient as a
matter of law to support the affirmative
defense a pre-trial ruling precluding the
presentation of the defense at trial is
appropriate. Id. To entitle a defendant
to present an affirmative defense to the
jury, his proffer must meet the minimum
standard as to each element of the
defense, so that if a jury finds it to be
true, it would support the defense. Id.
In so doing, the defendant must present
"more than a scintilla of evidence" that
demonstrates that he can satisfy the
legal requirements for asserting the
proposed defense. United States v.
Blassingame, 197 F.3d 271, 279 (7th Cir.
1999).

  We review a district court’s pre-trial
discovery rulings under an abuse of
discretion standard. Sattar v. Motorola,
Inc., 138 F.3d 1164, 1171 (7th Cir.
1998); United States v. Moore, 115, F.3d
1348, 1359 (7th Cir. 1997).

B.   Propriety of the Motions in Limine

  Initially, the appellants argue that the
trial judge’s order granting the
government’s motions in limine were
premature and effectively deprived the
defendants of their Fifth and Sixth
Amendment rights to due process and to
have a jury of their peers determine
their guilt beyond a reasonable doubt.
According to the appellants, the jury
ought to have heard their evidence
regarding the racial tension at USP-
Marion and decide for itself whether the
defendants had satisfied all the elements
of their proposed defense. Appellants
argue that to remove such a determination
from the purview of the jury violated
their rights to jury trials. Appellants
fail to cite even one case, from any
jurisdiction or court, that adheres to
the philosophy that a trial court’s
ruling on a motion in limine to preclude
a defense trammels a defendant’s
constitutional rights. Instead,
appellants seize upon language in a 1987
article from the Stanford Law Review to
suggest that when a court grants a motion
that precludes a defense "it jeopardizes
an accused’s constitutional rights . . .
." 39 Stan. L. Rev. 1271.

  In our opinion the appellants’ arguments
are without merit and mistake the basic
function of a jury. It is a basic premise
of our legal system that juries are the
triers of fact only; it is for the judge,
not the jury, to interpret the law. See,
e.g., McNair v. Coffey, No. 00-1139, 2002
WL 111362, *12 (7th Cir. January 29,
2002) (Coffey, J., concurring). In this
instance, the trial judge accepted as
true all of the statements made in the
defendants’ offers of proof, thus erasing
any factual issues, and determined
whether the defendants had proffered
sufficient evidence as a matter of law to
support their proposed affirmative
defense of necessity. See Blassingame,
197 F.3d at 279; Santiago-Godinez, 12
F.3d at 727. Motions in limine are well-
established devices that streamline
trials and settle evidentiary disputes in
advance, so that trials are not
interrupted mid-course for the
consideration of lengthy and complex
evidentiary issues. See United States v.
Haynes, 143 F.3d 1089, 1090 (7th Cir.
1998); Blassingame, 197 F.3d at 279;
United States v. Mauchlin, 670 F.2d 746,
748 (7th Cir. 1982). The Supreme Court
has stated unequivocally that

[t]he requirement of a threshold showing
on the part of those who assert an
affirmative defense to a crime is by no
means a derogation of the importance of
the jury as a judge of credibility. 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. 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.

United States v. Bailey, 444 U.S. 394,
416 (1979) (emphasis added).

"Were we to hold . . . that the jury
should be subjected to this potpourri
even though a critical element of the
proffered defenses was concededly absent,
we undoubtedly would convert every trial
. . . into a hearing on the current state
of the federal penal system." Id. at 417.
"A judge may, and generally should, block
the introduction of evidence supporting a
proposed defense unless all of its
elements can be established." Haynes, 143
F.3d at 1090. Thus, the trial judge did
not err in ruling on the government’s
motions in limine, and, as we explain
below, we hold that the judge’s decisions
to exclude any evidence or argument
regarding the defenses of necessity or
duress were proper.

C. Merits of the Government’s Motions in
Limine
  Appellants next argue that the trial
judge erred in granting the government’s
motions in limine. The appellants desired
to present evidence of the affirmative
defense of necessity to the jury. In
Bailey, the Supreme Court announced that
a defendant was not entitled to claim a
defense of necessity or duress unless he
could demonstrate that "given the
imminence of the threat, violation of
[the law] was his only reasonable
alternative." 444 U.S. at 411. Appellants
contend that the trial judge erred in
ruling that the test set forth in Bailey
required them to demonstrate that they
faced an imminent threat of death or
serious bodily harm in order to advance a
justification defense. Appellants further
contend that, even if the Bailey Court
required them to demonstrate imminence,
the trial judge erred in ruling that the
facts set forth in their offers of proof
were insufficient to allow them to
advance their proposed defense.

  Appellants’ initial claim, that the
trial judge committed error in requiring
them to demonstrate that they feared an
imminent threat, urges us to adopt a rule
stating that imminence is not an
essential element of the lesser-evil
defenses. According to appellants’
theory, lesser-evil defenses should be
available to defendants who can establish
either that they face an imminent threat
of serious bodily harm or that they
reasonably believe they have no legal
alternatives to violating the law. In
support of their theory, appellants read
United States v. Bailey and this court’s
precedent following Bailey to suggest
that "imminence was one factor which
could be considered in an analysis of
whether ’reasonable alternatives’ were
available," but that it was not a
necessary element of a justification
defense.

  But the appellants cleverly misread the
Supreme Court’s doctrine in Bailey and go
on to misapply our precedent that relies
upon Bailey. The Supreme Court held that
escaped convicts were not entitled to an
instruction on the defense of necessity
or duress because the convicts did not
immediately turn themselves in once they
had escaped. In so holding, the Court
noted that once the inmates had escaped,
they no longer faced an imminent threat
at the hands of allegedly abusive guards.
Bailey, 444 U.S. at 416-17. We have
repeatedly and unquestioningly held that
a defendant claiming a defense of
necessity or duress must establish that
he was under imminent fear of death or
serious bodily harm. See, e.g., United
States v. Jocic, 207 F.3d 889, 892 (7th
Cir. 2000); United States v. Salgado-
Ocampo, 159 F.3d 322, 326 (7th Cir.
1998); United States v. Haynes, 143 F.3d
1089, 1090 (7th Cir. 1998); United States
v. Elder, 16 F.3d 733, 738 (7th Cir.
1994); United States v. Schulte, 7 F.3d
698, 699-700 (7th Cir. 1993). We decline
appellants’ invitation to revisit this
long line of precedent and reaffirm our
holding that a criminal defendant seeking
to invoke a justification defense must,
as a condition precedent, establish that
he faced an imminent threat and had no
reasonable legal alternatives to avoid
that threat.

  Appellants, nevertheless, contend that
they did face an imminent threat and that
they did avail themselves of all legal
alternatives. They argue that prison
officials were unresponsive to the
concerns they expressed regarding racial
tensions in the cells and that their
requests for racially segregated housing
were denied. They further argue that they
believed that any recourse through other
channels-- prison grievances being one
example--would have been fruitless, and
indeed might have further exacerbated the
danger they faced.

  Despite appellants’ creative
characterization of the threat they
faced, none of the appellants alleged
anything remotely resembling an "imminent
threat." Instead, they made only vague
and conclusory allegations about the
state of USP-Marion and their generalized
fears regarding future threats. We have
noted in the past that "future" or
"later" and "imminent" are opposites.
Salgado-Ocampo, 159 F.3d at 327; Haynes,
143 F.3d at 1090. In this case, Kolb
alleged primarily that he was assaulted
by a black prisoner in December 1995 and
February 1997, the latter more than two
years prior to his possession of the
knife in this case. Kolb further alleged
that he had heard of attacks involving
white and black inmates and that he
feared the possibility that he might be
moved to a unit in the prison where he
might fear for his safety because he
might be housed with or near black
inmates as opposed to being housed in an
all-white environment. Tokash made
similar allegations, complaining that he
was a victim of racially motivated
assaults in 1996 and 1997, again more
than two years prior to his possession of
the knife in this case. Usher, unlike
Kolb and Tokash, failed to allege that he
was ever a victim of racially motivated
assaults, though he does complain that he
feared being moved to an environment
where he might be subjected to racially
motivated assaults.

  Appellants’ allegation notwithstanding,
we note again that prisons are inherently
dangerous places and are inhabited by
violent people, but that does not mean
that all persons housed in a federal
penitentiary, even one filled with the
most dangerous prisoners of the land,
face an imminent threat of physical
assault. See Haynes, 143 F.3d at 1091;
United States v. Sotelo, 94 F.3d 1037,
1040 (7th Cir. 1996). If fear of
potential future violence were the
appropriate standard, as appellants urge
us to hold, the absurd result would be
that every inmate in any prison across
the country could justify their
possession of a weapon simply by
articulating a fear of some future,
possible, and generalized threat. Indeed,
we have previously rejected precisely
such a formulation, holding that "[i]f
prisoners could decide for themselves
when to seek protection from the guards
and when to settle matters by violence,
prisons would be next to impossible to
regulate. The guards might as well throw
the inmates together, withdraw to the
perimeter, and let them kill one another
. . . ." Haynes, 143 F.3d at 1091.
Appellate courts are ill-equipped to
consider and adopt policies and practices
to maintain the safety and security of
this country’s penitentiaries. Indeed,
the operation of our correctional
facilities is "peculiarly the province of
the Legislative and Executive Branches of
our government, not the Judicial." Bell
v. Wolfish, 441 U.S. 520, 548 (1979).

  Aside from appellants’ failure to have
alleged an imminent threat, they also
failed to take advantage of alternative
legal remedies prior to violating the law
by arming themselves. It is telling that
although Tokash, Kolb, and Usher claim to
have brought their concerns to the USP-
Marion warden and another prison
official, not one of them ever filed any
sort of administrative grievance,
alleging that they were housed in a
condition that prison officials knew to
be unsafe or were being detained in an
area of imminent danger. Equally telling
is the fact that none of the appellants
have ever requested protective custody to
escape the alleged threat. Indeed, Tokash
was offered protective custody following
a 1997 fight and he refused such housing.
Cf. Sotelo, 94 F.3d at 1040 (denying
defense of duress to inmates who failed
to seek protection from prison
authorities). We are convinced that the
trial judge properly determined that
Tokash, Kolb, and Usher feared only a
generalized and unspecified possible
future threat and that none of them ever
availed himself of other adequate and
reasonable legal remedies before arming
themselves.

  For completeness’ sake, we comment that
legal terms, like "imminence," can and do
have different meanings in different
contexts. In the context of the defense
of necessity to a criminal charge of
possession of a weapon in a prison,
imminence means that a prisoner must
demonstrate that the threat was immediate
and that there was no reasonable
alternative to violating the law. We
observe that, in the context of the
Prison Litigation Reform Act, see 28
U.S.C. sec. 1915(g), which makes an
exception to the three-strikes provisions
for prisoners who face an "imminent
danger of serious physical injury,"
"imminent" may not be so narrowly defined
as we have defined it in this case. By no
means do we mean to suggest that the
definition of imminence in the context of
a justification defense is the same as
the definition of imminence in the
context of the PLRA.

C. Denial of Subpoena Duces Tecum &
Depositions

  The appellants lastly challenge the
trial judge’s denial of their motions for
subpoenas duces tecum, which they sought
in order that they might discover
evidence somewhere in USP-Marion records
to support their necessity defenses. The
trial judge denied the motion because the
information sought by the appellants was
nothing but a fishing expedition and was
not relevant to any available defense.
Furthermore the trial judge ruled that
the requested mountain of documents was
an oppressive and unreasonable burden.
The Supreme Court identified a four-part
test to guide trial courts in the
issuance of subpoenas in criminal cases
pursuant to Fed. R. Crim. P. 17(c).
First, the documents sought must be
evidentiary and relevant. Second, the
defendant must be unable through the
exercise of due diligence to otherwise
procure the documents reasonably in
advance of trial. Third, the documents
must be essential to prepare for trial.
Finally, the application must be made in
good faith and not intended as a general
"fishing expedition." United States v.
Nixon, 418 U.S. 683, 699-700 (1974);
United States v. Ashman, 979 F.2d 469,
495 (7th Cir. 1992).

  It is clear that appellants have failed
to meet this test. They speculated the
records would "document the racial
tension, and inadequate remedies
available at the Marion prison, as well
as, repercussions following the attempt
to utilize administrative procedures."
The trial court, however, had ruled
explicitly that the defendants were not
entitled to proceed under a theory that
their possession of the weapons was
justified by necessity because they
failed to make a threshold showing that
they faced an imminent threat that
necessitated disregard of the law
prohibiting possession of weapons in
federal penitentiaries.

  The appellants argue that the trial
court’s ruling created a "chicken or egg"
dilemma--that they could not establish
the threshold showing of the required
elements of their proposed necessity
defense unless they were allowed their
fishing expedition through the records of
the Bureau of Prisons. But Rule 17(c) is
not a discovery device to allow criminal
defendants to blindly comb through
government records in a futile effort to
find a defense to a criminal charge.
Instead, it allows only for the gathering
of specifically identified documents
which a defendant knows to contain
relevant evidence to an admissible issue
at trial. Nixon, 418 U.S. at 700; Ashman,
979 F.2d at 495.
IV.   Conclusion

  We reiterate that prisons are violent
places that are populated by violent
individuals and as such are at times
dangerous. The possession of weapons by
inmates, such as the appellants, does not
as they suggest lessen the danger and
violence of penitentiaries, but instead
contributes to it. "[C]entral to all
other corrections goals is the
institutional consideration of internal
security within the corrections
facilities themselves." Wolfish, 441 U.S.
at 546-47. Prison administrators should
be accorded wide-ranging deference in the
adoption and execution of policies and
practices that in their judgment are
needed to preserve internal order and
discipline and to maintain institutional
security, and we as an appellate court
are ill-equipped to assume that
responsibility. Id. at 547-48; see also
McCoy v. Gilbert, 270 F.3d 503, 509-10
(7th Cir. 2002); Colon v. Schneider, 899
F.2d 660, 668-69 (7th Cir. 1990). The
operation of our correctional facilities
is "peculiarly the province of the
Legislative and Executive Branches of our
Government; not the Judicial." Wolfish,
441 U.S. at 548.

  In this case, the appellants chose to
disregard the law and armed themselves
before testing available legal
alternatives, such as filing grievances
or seeking protective custody. Their
claim that the racial tension in the
prisons necessitated their hasty resort
to self-help is without merit. Were we to
be foolish enough to hold otherwise, we
might as well hand the inmates the keys
to their cell doors and allow them to
govern themselves.

AFFIRMED.

FOOTNOTES

/1 The other three inmates found in possession of
weapons during the May 19 search were also
charged by the grand jury with violating
sec. 1791(a)(2), though their cases are not
relevant to this appeal.

/2 Tokash was ultimately charged in a three-count
indictment as a result of two additional weapons
or weapon-making tools. On August 9, 1999, USP-
Marion officials discovered in Tokash’s cell a
stainless steel clasp from a watch band embedded
in a plastic handle, which could be used as a
cutting tool to fashion prison-made knives. On
June 9, 2000, Tokash was found with a homemade
plastic knife. Officials found a homemade steel
knife in a pouch of tobacco in Kolb’s cell on
October 5, 1999, and he was charged in a super-
seding indictment with two counts of violating
sec. 1791(a)(2). On June 9, 2000, Usher was taken
from his cell to the USP-Marion hospital for an
x-ray examination to search for internally con-
cealed weapons. When Usher arrived at the x-ray
table, he forcibly resisted the correctional
officers attempting to move his restraints so
that the x-rays could be taken, and the x-ray
pictures were blurred. A rectal digital examina-
tion revealed a hard foreign object. Usher was
taken to a "dry cell," one with no running water
or other means to dispose of contraband, where he
ultimately defecated an object into a bed pan.
Rather than bring the object to prison officials,
which turned out to be a plastic knife, Usher
attempted to destroy it by breaking it on the
edge of a concrete bed. The superseding indict-
ment charged Usher with two counts of possessing
a weapon in a federal prison, 18 U.S.C.
sec. 1791(a)(2) and one count, under the Assimi-
lative Crimes Act, 18 U.S.C. sec.sec. 7(3) & 13
and Illinois Criminal Code, 720 ILCS 5/31-4(a),
of destruction of evidence relating to his at-
tempt to destroy the plastic knife concealed in
his rectal cavity on June 9, 2000.
