                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3109
                                   ___________

United States of America,           *
                                    *
            Appellee,               *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * District of Minnesota.
Edith Madora Hudson, also known     *
as Edith Madora Spicer,             *
                                    *
            Appellant.              *
                               ___________

                             Submitted: March 16, 2005
                                Filed: July 15, 2005
                                 ___________

Before WOLLMAN, HANSEN, and COLLOTON, Circuit Judges.
                         ___________

COLLOTON, Circuit Judge.

      Edith Hudson was convicted of unlawful possession of a firearm as a
previously convicted felon, in violation of 18 U.S.C. § 922(g)(1). The district court1
determined that Hudson had been convicted previously of three qualifying violent
felonies for purposes of the Armed Career Criminal Act, 18 U.S.C. § 924(e), and




      1
      The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.
sentenced her accordingly to the mandatory minimum term of fifteen years’
imprisonment. Hudson appeals her conviction and sentence, and we affirm.

                                            I.

       The firearm charge against Hudson was initiated after Minneapolis police,
responding to a report of a vehicle idling in the middle of the street, found Hudson
sleeping in the driver’s seat. Hudson exited the vehicle, and officers recovered a
pistol from her waistband. Hudson was a convicted felon, and the government
obtained an indictment that charged her with violating the statute that prohibits
possession of firearms by felons, 18 U.S.C. § 922(g)(1). Hudson was convicted
following a jury trial.

        In challenging her conviction, Hudson argues that the district court erred when
it precluded her from presenting evidence of a “necessity” or “justification” defense
at trial. Hudson was a street prostitute, and during the course of her activities, she
twice had been picked up by a rogue police officer who drove her to isolated
locations and photographed her in the nude. Hudson testified that she later “heard on
the street” that a police officer was looking for her, and she assumed that it was the
same rogue officer, although it turned out that the officer in question was an internal
affairs officer who was investigating the rogue officer. According to Hudson, she
feared that the rogue officer was going to kill her, and her defense at trial was that she
planned to brandish the weapon to frighten the rogue officer. Hence, the argument
goes, she was justified in possessing the firearm because the possession was
necessary to prevent a greater harm, i.e., serious injury or death to Hudson at the
hands of the rogue officer.

      This circuit has not recognized a defense of legal justification to a violation of
§ 922(g). E.g., United States v. Thompson, 403 F.3d 533, 536-37 (8th Cir. 2005). We
find again in this case that we need not resolve whether such a defense is available

                                           -2-
in the context of § 922(g), because we agree with the district court that Hudson failed
to present sufficient evidence in support of such an instruction, even assuming it is
generally available.

      Where available, the defense of justification requires the defendant to establish
several elements:

      In general, to establish a justification defense a defendant must show
      that: 1) he 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 he had not recklessly or
      negligently placed himself in a situation in which it was probable that
      he would be forced to commit a criminal act; 3) that he had no
      reasonable, legal alternative to violating the law; and 4) that a direct
      causal relationship may be reasonably anticipated between the
      commission of the criminal act and the avoidance of the threatened
      harm.

United States v. Lomax, 87 F.3d 959, 961 (8th Cir. 1996).

       We have said that a defendant is entitled to a jury instruction concerning an
available justification defense if she shows “an ‘underlying evidentiary foundation’
as to each element of the defense, ‘regardless of how weak, inconsistent or dubious’
the evidence on a given point may seem.” United States v. Kabat, 797 F.2d 580, 590-
91 (8th Cir. 1986) (quoting United States v. Goss, 650 F.2d 1336, 1345 (5th Cir.
1981)). “We have never held, however, that a defense must be submitted to the jury
even when it cannot be said that a reasonable person might conclude the evidence
supports the defendant’s position.” Kabat, 797 F.2d at 591 (internal quotations
omitted). We review de novo a district court’s decision whether there is sufficient
evidence to submit an affirmative defense to a jury. United States v. Jankowski, 194
F.3d 878, 882 (8th Cir. 1999). In this case, we agree with the district court that
Hudson failed to present sufficient evidence for at least the first and third elements

                                         -3-
of the justification defense, and thus a justification instruction was unwarranted as a
matter of law.

       To prove the first element, Hudson was required to show that she 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. The district
court found that, even if Hudson believed that her life was in danger, that belief was
unreasonable, because there was no indication that the rogue officer made any threats
to harm Hudson, let alone to kill her. As the Fourth Circuit has explained, “[w]hether
a defendant’s principal motivation for carrying a firearm is genuine is not the critical
inquiry, for generalized fears will not support the defense of justification. A
defendant must show that a real and specific threat existed at the time of the unlawful
possession.” United States v. Perrin, 45 F.3d 869, 874 (4th Cir. 1995) (internal
quotations omitted) (emphasis in original).

       We agree with the district court that the evidence does not establish that
Hudson was under an imminent threat of harm at the time of her arrest. There was
no showing that the rogue officer threatened to harm or kill Hudson. Hudson had
moved from the area of the city where she was approached by the officer, and there
was no evidence that he ever attempted to contact her in this new territory. At most,
therefore, Hudson had a generalized fear of the rogue officer based on rumors that she
misinterpreted. This is insufficient to satisfy the first element required for a
justification instruction.

        The third element of the defense requires the defendant to establish that she had
no reasonable, legal alternative to violating the law to establish the third element.
“[I]f there was a reasonable, legal alternative to violating the law, a chance both to
refuse to do the criminal act and also to avoid the threatened harm,” the third element
required for a justification instruction has not been satisfied. United States v. Bailey,
444 U.S. 394, 410 (1980) (internal quotations omitted). One reasonable alternative

                                          -4-
for Hudson was to report her alleged fear of the rogue officer to responsible law
enforcement authorities. The district court found, however, that Hudson did not
immediately go to the police, and that when she did, she complained only about the
rogue officer’s photography and not about any fear of injury or death.

        We recognize that police corruption may create an understandable reluctance
on the part of the citizenry to have confidence in the police, but we cannot endorse
the proposition that the behavior of a single rogue officer authorizes a convicted felon
to possess a firearm under the circumstances of this case. Other alternatives were
reasonably available. The record demonstrates that the police department, through
its internal affairs bureau, was prepared to take action against the rogue officer, and
Hudson acknowledged communication about the problem with an officer whom she
characterized as a “good cop.” (Hrg. Tr., 1/19/04, at 23). There is likewise no
indication that Hudson made any effort to seek assistance from other entities
independent of the police, such as the local sheriff, federal or state law enforcement
agencies, or community groups. Cf. United States v. Gomez, 92 F.3d 770, 773-77
(9th Cir. 1996). And given our conclusion that Hudson did not have an objectively
reasonable basis to fear imminent harm, the district court aptly observed that she had
yet another reasonable alternative: “She could not have gotten the gun. She could
have stayed where she was.” (Hrg. Tr., 1/19/04, at 50).

      Assuming that a justification defense is available in a prosecution under
§ 922(g), we agree with the district court that Hudson failed to produce sufficient
evidence to warrant a jury instruction on the defense. We thus conclude that
Hudson’s conviction should be affirmed.

                                          II.

      In a challenge to her sentence, Hudson argues that her prior conviction for
felony theft from a person should not count as one of the three predicate “violent

                                          -5-
felony” convictions that triggers the mandatory minimum sentence of the Armed
Career Criminal Act. See 18 U.S.C. § 924(e). We review de novo whether a prior
offense constitutes a violent felony under § 924(e). United States v. Childs, 403 F.3d
970, 971 (8th Cir. 2005).

       Hudson pled guilty to “felony theft from a person” in Minnesota in 1992. (PSR
¶ 32).2 The criminal complaint alleged that Hudson had grabbed an elderly woman’s
purse from her hand and fled the scene, only to be pursued by a male witness. (Id.)
The complaint further alleged that while the male witness restrained Hudson until
police arrived, she bit the man’s thumb and caused it to bleed. (Id.)

      An offense constitutes a “violent felony” for purposes of § 924(e) if it “is
burglary, arson, or extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii). We held in United States v. Griffith, 301 F.3d 880, 885 (8th Cir.
2002), that the crime of theft from a person qualifies as a violent felony. We
explained that this offense “involves conduct that presents a serious risk that a person
may be physically injured,” and reasoned that “[b]y its very nature, this crime
involve[s] a substantial risk that the victims . . . would be harmed when their property
was taken from them.” Griffith, 301 F.3d at 885. We borrowed from the Sixth
Circuit’s cogent analysis of the offense as follows:


      2
       The Minnesota statute in effect at the time provided that a person commits the
offense of theft if she “intentionally and without claim of right takes, uses transfers,
conceals, or retains possession of movable property of another without the other’s
consent and with intent to deprive the owner permanently of possession of the
property.” Minn. Stat. § 609.52, subd. 2(1). Such an offense was punishable by
imprisonment of not more than five years, and/or a fine of not more than $10,000, if
the value of the property taken was not more than $500, and if “the property [was]
taken from the person of another or from a corpse, or grave or coffin containing a
corpse.” Minn. Stat. § 609.52, subd. 3(3)(d)(i).

                                          -6-
      This is clearly the type of situation that could result in violence. Any
      person falling victim to a crime involving such an invasion of personal
      space would likely resist or defend in a manner that could lead to
      immediate violence. Whether or not violence or harm actually results
      in any given instance is not relevant. We agree with the First Circuit
      that although larceny from the person typically involves no threat of
      violence, the risk of ensuing struggle is omnipresent.

Id. at 885 (quoting United States v. Payne, 163 F.3d 371, 375 (6th Cir. 1998))
(internal quotations omitted).

      Hudson argues that in light of Leocal v. Ashcroft, 125 S. Ct. 377 (2004), we
should revisit Griffith and conclude that a conviction for theft from a person does not
qualify as a violent felony. In Leocal, the Supreme Court held that felony driving
under the influence causing serious bodily injury is not a “crime of violence” within
the meaning of a different statute, 18 U.S.C. § 16. Hudson argues that the Court’s
reasoning in Leocal, which distinguished between actively employing physical force
against another person and negligently or accidentally causing harm, undermines the
holding in Griffith.

       We are not persuaded that Leocal effectively overrules Griffith. Leocal
interpreted a different statutory term (“crime of violence”) with a different operative
definition. “Crime of violence,” for purposes of the statute at issue in Leocal, means
“any other offense that is a felony and that, by its nature, involves a substantial risk
that physical force against the person or property of another may be used in the course
of committing the offense.” 18 U.S.C. § 16(b) (emphasis added). Focusing on the
text of this provision, the Supreme Court reasoned that because the formulation
required a substantial risk that force “may be used,” the statute required a higher mens
rea than accidental or negligent conduct. The Court then concluded that the ordinary
meaning of “crime of violence,” together with the definition’s emphasis on the “use”



                                          -7-
of force, suggested “a category of violent, active crimes” that does not include driving
while intoxicated. 125 S. Ct. at 383.

       Section 924(e), by contrast, defines “violent felony” in terms of the possible
effect of a person’s conduct: the question is whether the offense “involves conduct
that presents a serious potential risk of physical injury to another.” 18 U.S.C.
§ 924(e)(2)(B)(ii) (emphasis added). In a telling footnote, the Court in Leocal
suggested this very distinction. The Court observed that “crime of violence” in
§ 16(b) “does not encompass all offenses which create a ‘substantial risk’ that injury
will result from a person’s conduct,” and explained that “the ‘substantial risk’ in
§ 16(b) relates to the use of force, not to the possible effect of a person’s conduct.”
125 S. Ct. at 383 n.7. The Court contrasted § 16(b) with the definition of “crime of
violence” in USSG § 4B1.2(a)(2), which is similar to the definition of “violent
felony” in § 924(e), and which includes “conduct that presents a serious risk of
physical injury to another.” USSG § 4B1.2(a)(2) (emphasis added). We believe that
the differing texts of § 16(b) and § 924(e) demonstrate that the analysis in Griffith
properly focused on the possible effect of the conduct of a person who commits theft
from a person. We thus conclude that the analysis of Leocal does not undermine our
governing precedent.

       Hudson’s remaining arguments concerning her sentence are without merit. We
disagree that our court’s “categorical approach” to determining which crimes qualify
as “violent felonies” under § 924(e) is an unconstitutional usurpation of a legislative
function that violates the non-delegation doctrine. Our cases, including Griffith,
simply interpret and apply the language that Congress enacted in § 924(e)(2)(B)(ii),
and this is a proper function of the judiciary. See United States v. Mohr, 407 F.3d
898, 902 (8th Cir. 2005). We have rejected Hudson’s contention that § 924(e) is
unconstitutionally vague. Childs, 403 F.3d at 972. And we have held that the
determination whether a particular offense of conviction satisfies the definition of
“violent felony” is a legal matter for the court that does not require judicial fact-

                                          -8-
finding prohibited by the Sixth Amendment. United States v. Patterson, No. 04-1178,
2005 WL 1123555, at *2 (8th Cir. May 13, 2005).

      The judgment of the district court is affirmed.
                     ______________________________




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