                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                              MAY 10, 2007
                               No. 06-15729                 THOMAS K. KAHN
                           Non-Argument Calendar                CLERK
                         ________________________

                    D. C. Docket No. 06-00032-CR-4-SPM

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                    versus

MARLON POLLOCK,

                                                           Defendant-Appellant.


                         ________________________

                 Appeal from the United States District Court
                     for the Northern District of Florida
                       _________________________

                                (May 10, 2007)

Before DUBINA, CARNES and BARKETT, Circuit Judges.

PER CURIAM:

     Martin Pollock was convicted of possession of a firearm by a convicted
felon, 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and appeals the district court’s denial

of his request for a modified jury instruction. On appeal, Pollock argues that the

district court denied him a fair trial with due process by refusing to modify the

pattern jury instruction to allow for the justification defense based on his

reasonable — even if erroneous — fear of immediate death or serious bodily harm

when considered in light of the totality of the evidence.

                                           I.

      We review a district court’s refusal to give a particular jury instruction for

abuse of discretion. United States v. Yeager, 331 F.3d 1216,1223 (11th Cir. 2003).

The failure of a district court to give an instruction is reversible error where the

requested instruction (1) was correct, (2) was not substantially covered by the

charge actually given, and (3) dealt with some point in the trial so important that

failure to give the requested instruction seriously impaired the defendant's ability to

conduct his defense. Id. “[W]e will only reverse if we are left with a substantial

and eradicable doubt as to whether the jury was properly guided in its

deliberations.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006)

(citations omitted).

      We have held that the defense of necessity is available to justify committing

the offense of felony in possession of a firearm, 18 U.S.C. § 922(g)(1). United



                                            2
States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000). However, the

justification defense is only available in § 922(g)(1) cases in “extraordinary

circumstances.” Id. The felon-in-possession statute provides in relevant part that

“[i]t shall be unlawful for any person . . . who has been convicted in any court of, a

crime punishable by imprisonment for a term exceeding one year . . . to . . .

possess in or affecting commerce, any firearm . . . .” 18 U.S.C. § 922(g)(1). In

order to convict a defendant for possession of a firearm by a convicted felon, in

violation of § 922(g)(1), the government must prove beyond a reasonable doubt:

“(1) that the defendant was a convicted felon, (2) that the defendant was in

knowing possession of a firearm, and (3) that the firearm was in or affecting

interstate commerce.” Deleveaux, 205 F.3d at 1297. The prosecution need not

prove that the defendant knew that his possession was unlawful. Id. at 1298.

      Furthermore, the burden is on the defendant to prove his justification

defense by a preponderance of the evidence. Id. at 1299. In Deleveaux, we

expressly stated that a defendant must show, among other things, two elements to

establish the justification defense in the § 922(g)(1) context: (1) he was under an

unlawful and present, imminent, and impending threat of death or serious bodily

injury; and (2) he did not negligently or recklessly place himself in a situation

where he would be forced to engage in criminal conduct. Id. at 1297. Moreover,



                                           3
since our decision in Deleveaux, we have stated, “[t]he first prong requires nothing

less than an immediate emergency.” United States v. Rice, 214 F.3d 1295, 1297

(11th Cir. 2000).

        Upon review of the record and consideration of the parties’ briefs, we

discern no reversible error. In this case, undisputed testimony at trial showed that

on December 20, 2005, at 11:30 p.m., Pollock and his brother rode in his brother’s

car to a pool hall. Pollock was aware that his brother kept a firearm in the car.

Pollock testified that he and his brother proceeded to consume approximately four

to seven pitchers of a mixed alcoholic beverage, that he was “pretty much

intoxicated,” and that he was unsure about the events in question because he had

too much to drink. In the early morning hours of December 21, 2005, Pollock and

his brother exited the pool hall toward the car. At the same time, Stephanie

Powell, a driver operator with the Tallahassee Fire Department, two firefighters,

and a fourth individual, the fiancée of one of the firefighters, also exited the pool

hall.

        The two parties engaged in a conversation stopped alongside their vehicles

in the parking lot, and Pollock began to urinate on Powell’s leg. Powell warned

Pollock that he was urinating on her leg, but he continued to do so. Powell

testified that “it made me mad, and I . . . kicked at him.” Powell testified that



                                           4
neither she nor any other individuals in her party chased or tried to further attack

Pollock. Apparently Pollock misunderstood that Powell and the others were

firefighters, because he testified that he believed that they were some kind of very

aggressive sport fighters.

      Pollock retreated to his brother’s car and retrieved a firearm. Pollock held

the firearm to his chest and told the others that they needed to leave, which they

did. Soon after, a police officer arrived at the scene. Officer Butler of the

Tallahassee Police Department testified that he observed Pollock standing in the

passenger doorway of the car, get into the car, and attempt to drive off. Officer

Butler ordered the car to stop and arrested Pollock and his brother. After the

officer seized a firearm from Pollock’s brother’s car, Pollock denied having a

firearm, owning a firearm, or using a firearm in self defense.

      We find that the district court did not abuse its discretion by denying

Pollock’s request for a modified jury instruction to provide for a reasonable belief

element in the justification defense. First, the pattern jury instruction does not

allow for the consideration of the defendant’s subjective reasonable belief that he

was under an unlawful and present, imminent, and impending threat of death or

serious bodily injury. In addition, we have affirmed the pattern jury instruction in

published cases. Furthermore, Pollock does not cite to any binding case law to



                                           5
show otherwise.

      Moreover, it is questionable whether Pollock was entitled to the pattern jury

instruction for the justification defense at all. Consideration of the record evidence

applicable to the second element of the justification defense (which was not

affected by the modification requested by Pollock) raises substantial doubt that he

meet his burden on this element. The undisputed fact that Pollock urinated in

public on another person, and continued to do so after he was warned about that

conduct, does not lend itself to allowing him to prove that he did not negligently or

recklessly place himself in a situation where he would be forced to engage in

criminal conduct. Accordingly, we affirm the denial of Pollock’s requested

modified jury instruction.



AFFIRMED.




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