                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-20-2008

USA v. Alston
Precedential or Non-Precedential: Precedential

Docket No. 06-1559




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                                          PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT



                        No. 06-1559



             UNITED STATES OF AMERICA

                             v.

                    ROBERT ALSTON,
                               Appellant



       On Appeal from the United States District Court
          for the Eastern District of Pennsylvania
                D.C. Criminal No. 03-cr-0179
               (Honorable Legrome D. Davis)



              Argued January 28, 2008
           Before: SCIRICA, Chief Judge,
RENDELL, Circuit Judge, and THOMPSON, District Judge *


   *
    The Honorable Anne E. Thompson, United States District
Judge for the District of New Jersey, sitting by designation.
                    (Filed: May 20, 2008)

MARK D. MUNGELLO, ESQUIRE (ARGUED)
Two Penn Center, Suite 200
Philadelphia, Pennsylvania 19102
      Attorney for Appellant

ERIC B. HENSON, ESQUIRE (ARGUED)
JOSEPH A. LaBAR, ESQUIRE
ROBERT A. ZAUZMER, ESQUIRE
Office of United States Attorney
615 Chestnut Street, Suite 1250
Philadelphia, Pennsylvania 19106
       Attorneys for Appellee



                 OPINION OF THE COURT



SCIRICA, Chief Judge.

       Robert Alston entered a conditional plea of guilty to
possession of a firearm by a convicted felon, 18 U.S.C. §
922(g)(1), and was sentenced to the mandatory minimum
sentence of 15 years incarceration, id. § 924(e). On appeal, he
contends the District Court erred by precluding him from
presenting evidence in support of a justification defense had he



                               2
gone to trial.1 We will affirm.

                                  I.

       Alston admitted to possessing a firearm but he claimed
it was necessary for self-defense. The uncontested facts are
these. Alston was arrested on September 30, 2002, at
approximately 10 p.m., as a result of coordinated police efforts
involving police helicopter surveillance responding to a report
of gunshots in the area of 19th and Tasker Streets in
Philadelphia, Pennsylvania. When arrested, Alston was wearing
a bulletproof vest. Officers recovered a .32 caliber revolver in
a nearby alley where Alston had thrown it a minute earlier.
Alston told an arresting officer the gun was his and the gun and
vest were necessary for self-defense. Alston was fearful
because earlier that day he had seen a man who shot him one
year earlier in 2001.

       Alston was charged with possession of a firearm by a
convicted felon. 18 U.S.C. § 922(g)(1). Before this incident,
Alston had been convicted of two violent felony offenses and
one serious drug offense as defined in 18 U.S.C. §
924(e)(2)(A)–(B).

      The Government filed a motion in limine to preclude
Alston from presenting a justification defense at trial. At the
evidentiary hearing, Alston testified that in June 2001, he was
robbed and shot five times at 45th and Sansom Streets in

   1
       We have jurisdiction under 28 U.S.C. § 1291.

                                  3
Philadelphia.     After returning home from the hospital,
Philadelphia police officers asked him to prosecute. On the
basis of Alston’s identification, two men were arrested and tried.
Alston testified against the men at the preliminary hearing and
at trial, having received police assurances of protection. The
two defendants were acquitted of all charges.

        After the acquittal, various people told Alston “to watch
[his] back because they heard [the defendants were] out looking
for [him], to get revenge from [him] getting them arrested.”
Nevertheless, Alston did not change his address and eventually
returned to work after recovering from his injuries.

        On the day he was arrested, September 30, 2002, around
4:45 p.m., Alston was transporting his daughter home on his
mountain bike and rode past Louis Bentley, one of the acquitted
suspects against whom he had testified. According to Alston: “I
was riding past with my daughter but [Bentley] was talking to
somebody and I heard him, he said he’s gonna get me, he said
that’s the dude that got me arrested in 2001, he said he was
gonna get me.” Alston immediately took his daughter home
then secured a revolver from his mother’s house, in order, he
said, to protect himself from Bentley. Alston left his mother’s
house on his bicycle, carrying the gun and wearing a bulletproof
vest.2 As noted, Alston was arrested around 10 p.m. that same

   2
    Alston had been carrying the gun once or twice a week for
one to two months prior to his arrest, especially if he knew he
was going to an area where he might encounter one of the

                                4
night.

        At the evidentiary hearing, the District Court granted the
Government’s motion in limine to preclude Alston from offering
a justification defense. Alston entered a conditional guilty plea
and timely appealed.

                               II.

       18 U.S.C. § 922(g) does not provide for a justification
defense. Although the Supreme Court has questioned “whether
federal courts ever have authority to recognize a necessity
defense not provided by statute,” United States v. Oakland
Cannabis Buyers’ Coop., 532 U.S. 483, 490 (2001),3 several



acquitted men. He had been continuously wearing the
bulletproof vest for a month prior to his arrest because of prior
warnings regarding Bentley.
    3
     The defenses of duress, necessity, and justification have
generally all been analyzed in terms of justification. See United
States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991) (“While the
defenses of justification and duress were at one time distinct . .
. ‘[m]odern cases have tended to blur the distinction between
duress and necessity.’” (quoting United States v. Bailey, 444
U.S. 394, 410 (1980)); see also United States v. Leahy, 473 F.3d
401, 406 (1st Cir. 2007); United States v. Salgado-Ocampo, 159
F.3d 322, 327 n.6 (7th Cir. 1998); United States v. Stover, 822
F.2d 48, 49–50 (8th Cir. 1987); United States v. Gomez, 92 F.3d

                                5
courts of appeals, including our own, have recognized that
justification is a valid defense to a felon-in-possession charge
under 18 U.S.C. 922(g).4 See generally Paolello, 951 F.2d at


770, 774 (9th Cir. 1996); United States v. Butler, 485 F.3d 569,
572 n.1 (10th Cir. 2007). The Sixth Circuit found the terms are
not interchangeable, but still used the “broader term of
justification in discussing [defendant’s] proferred defense in an
attempt to avoid confusion.” United States v. Newcomb, 6 F.3d
1129, 1133 (6th Cir. 1993). We agree with other circuits that
“ease 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.” Leahy, 473 F.3d at 406.
   4
     All of our sister circuits that have reached the issue have
recognized a justification defense under 922(g). See, e.g.,
United States v. Mooney, 497 F.3d 397, 404 (4th Cir. 2007);
United States v. Panter, 688 F.2d 268, 269–72 (5th Cir. 1982)
(found a justification defense exists under predecessor statute to
18 U.S.C. § 922); United States v. Singleton, 902 F.2d 471, 472
(6th Cir.), cert. denied, 498 U.S. 872 (1990); United States v.
Perez, 86 F.3d 735, 737 (7th Cir. 1996); United States v. Lemon,
 824 F.2d 763, 764 (9th Cir. 1987); United States v. Vigil, 743
F.2d 751, 755 (10th Cir. 1984); United States v. Deleveaux, 205
F.3d 1292, 1297 (11th Cir. 2000); United States v. Mason, 233
F.3d 619, 623 (D.C. Cir. 2000).
       The First, Second, and Eighth Circuits have chosen not

                                6
540–43; United States v. Dodd, 225 F.3d 340 (3d Cir. 2000).

        In Paolello, we carefully traced the history of the
justification defense, finding it “available under this statute.”
951 F.2d at 541. Nevertheless we followed other courts finding
the justification defense should be construed narrowly.5 See id.



to rule on the validity of a justification defense until they are
faced with evidence sufficient to support the requested defense.
See United States v. Holliday, 457 F.3d 121, 128 (1st Cir. 2006)
(“We too will simply assume arguendo that Congress intended
to allow the defenses of necessity, duress, and self defense in a
section 922 prosecution.”); United States v. Williams, 389 F.3d
402, 404–05 (2d Cir. 2004) (“Although the language of 18
U.S.C. 922(g)(1) does not provide for a necessity defense, we
will assume, without deciding, that persons charged with
violating 18 U.S.C. 922(g)(1) may assert such a defense.”);
United States v. Poe, 442 F.3d 1101, 1104 (8th Cir. 2006)
(“[W]e conclude that we need not reach the issue of whether
justification is available as a defense to a violation of § 922(g)
because Poe cannot satisfy the necessary elements.”).
   5
    The defense is rarely granted. See United States v. Perrin,
45 F.3d 869, 874 (4th Cir. 1995) (“It has only been on the rarest
of occasions that our sister circuits have found defendants to be
in the type of imminent danger that would warrant the
application of a justification defense.”); see also Perez, 86 F.3d
at 737 (“[O]nly in the most extraordinary circumstances . . . will

                                7
at 542 (“The restrictive approach is sound. Congress wrote
section 922(g) in absolute terms, banning any possession of
firearms by all convicted felons.”). The defendant has the
burden of proving this affirmative defense by a preponderance
of the evidence. Dodd, 225 F.3d at 342.

      In Paolello, we incorporated a test for justification that
had been adopted by other courts of appeals:

       (1) he was under unlawful and present threat of
       death or serious bodily injury;
       (2) he did not recklessly6 place himself in a


th[is] defense entitle the [person prohibited from possessing a
weapon] to arm himself in advance of a crisis merely because he
fears, however sincerely and reasonably, that he is in serious
danger of deadly harm.”).
  6
    Although our sister circuits have adopted what is essentially
the same test, some circuits have found this element also extends
to negligent conduct. See United States v. Dixon, 413 F.3d 520,
523 (5th Cir. 2005); United States v. Singleton, 902 F.2d 471,
472 (6th Cir), cert. denied, 498 U.S. 872 (1990); United States
v. Vigil, 743 F.2d 751, 755 (10th Cir. 1984); United States v.
Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000); see also
United States v. Poe, 442 F.3d 1101, 1103 (8th Cir. 2006)
(“Although the Eighth Circuit has never recognized justification
as a defense to a violation of § 922(g) . . . we have indicated that
if such a defense were available, we would follow the Fifth

                                 8
       situation where he would be forced to engage in
       criminal conduct;
       (3) he had no reasonable legal alternative (to both
       the criminal act and the avoidance of the
       threatened harm); and
       (4) there is a direct causal relationship between
       the criminal action and the avoidance of the
       threatened harm.

Paolello, 951 F.2d at 540 (footnote added). The District Court
found Bentley’s statement could reasonably be perceived to be
a threat, but occurring four to five hours before Alston’s arrest,
it was not a present threat. The Court also found Alston failed
to exhaust his legal alternative – contacting the police.

       Crediting his testimony, it is difficult to second guess or
to ignore Alston’s fear of Bentley, one of the persons who
robbed and shot him five times, and against whom he pressed


Circuit’s articulation of the elements of the defense.”(citations
omitted)).
       Other circuits have adopted our approach, which requires
reckless conduct. See United States v. Mooney, 497 F.3d 397,
404 (4th Cir. 2007); United States v. Salgado-Ocampo, 159 F.3d
322, 326 (7th Cir. 1998); United States v. Lemon, 824 F.2d 763,
764 (9th Cir. 1987); United States v. Mason, 233 F.3d 619, 623
(D.C. Cir. 2000); see also United States v. Leahy, 473 F.3d 401,
409 n.8 (1st Cir. 2007) (noting the division among circuits but
choosing not to reach a conclusion).

                                9
charges that eventually resulted in an acquittal, and who
apparently lived in sufficient proximity that total avoidance was
impossible or at least unlikely. It may be argued that Alston
should have pulled up stakes and moved to a location where he
would be unlikely to encounter Bentley. But economic or
family circumstances may foreclose such an option. In any
event, a victim should not have to relocate because of fear of
possible retaliation. And so, crediting his testimony, we cannot
find Alston had an unreasonable fear of retaliation from Bentley,
perhaps even deadly retaliation. Nor would it appear that riding
his bicycle in his neighborhood was reckless action although we
see no evidence that would “force[] [him] to engage in criminal
conduct.” Id.

       Although Alston may have been under an unlawful threat
of death or serious bodily injury, it is clear that at the time he
was arrested, there was no evidence that Alston was under a
present threat, that is, it was not an imminent threat.7


  7
    Only in rare circumstances will anything but an “immediate
emergency” constitute a present threat. United States v. Bell,
214 F.3d 1299, 1301 (11th Cir. 2000); see also Paolello, 951
F.2d at 541 (“[A]n interdicted person may possess the firearm
no longer than absolutely necessary.” (citations omitted)); Perez,
86 F.3d at 737 (finding a justification defense “will rarely lie in
a felon-in-possession case unless the ex-felon, not being
engaged in criminal activity, does nothing more than grab a gun
with which he or another is being threatened . . .”); United States

                                10
Furthermore, there was no direct causal relationship between the
criminal action (possession of a firearm) and avoidance of the
threatened harm (retaliation by Bentley).            The causal
relationship in these circumstances is attenuated at best. The
avoidance of the threatened harm lacks the requisite imminence.
To hold otherwise would immunize a convicted felon from
prosecution for carrying a firearm solely based on a legitimate
fear for life or limb. Someone in Alston’s circumstances must
show more than a legitimate fear of life and limb, as possession
of a firearm by a convicted felon in the hope of deterring an
assault is unlawful. Congress has not allowed it, and courts
have only allowed the defense where the immediacy and
specificity of the threat is compelling, and other conditions are
met.8 See, e.g., Paolello, 951 F.2d at 539; Newcomb, 6 F.3d at


v. Mahalick, 498 F.3d 475, 479 (7th Cir. 2007) (“In practice, the
defense has only applied to the individual who in the heat of a
dangerous moment disarms someone else, thereby possessing a
gun briefly in order to prevent injury to himself . . . , or to
another.” (citations omitted)).
   8
       As noted, the entire test specifies:
         (1) he was under unlawful and present threat of
         death or serious bodily injury;
         (2) he did not recklessly place himself in a
         situation where he would be forced to engage in
         criminal conduct;
         (3) he had no reasonable legal alternative (to both

                                 11
1135–36, 38 (defendant briefly possessed shotgun and shells
after disarming a dangerous person); Panter, 688 F.2d at 269–72
(defendant, while pinned to the floor after being stabbed in the
stomach, reached for a club but instead grabbed a gun). Other
cases have rejected the defense where the threat is diminished.
See, e.g., United States v. Parker, 566 F.2d 1304, 1305–06 (5th
Cir. 1978) (defendant retained possession of a gun for thirty
minutes after being attacked in his home); United States v.
Wofford, 122 F.3d 787, 790–91 (9th Cir. 1997) (most recent
specific threat had occurred five months before possession of
gun); Perrin, 45 F.3d at 875 (last threat came two days prior to
possession of gun); Holliday, 457 F.3d at 128 (defendant
wrestled firearm out of a police officer’s hands but failed to
“renounc[e] the gun as soon as any danger to his life had
passed”).

       Alston faced no immediate danger. Bentley was
speaking to a third party when he said he was going to “get”
Alston, and Alston was able to safely ride away. Alston
obtained the firearm from his mother’s house based on a
generalized threat of future danger. The immediacy of the threat



       the criminal act and the avoidance of the
       threatened harm); and
       (4) there is a direct causal relationship between
       the criminal action and the avoidance of the
       threatened harm.
Paolello, 951 F.2d at 540.

                              12
is also undermined by Alston’s actions in the months prior to his
arrest. Alston testified that he would often carry the same
firearm whenever he went to an area where Bentley or the other
acquitted suspect might frequent. His possession of the firearm
on the night in question appears to be another instance of his
reliance on the weapon when faced with the possibility of
danger. “We 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 weapon for extended
periods of time in reliance on some vague ‘fear’ of street
violence.” Butler, 485 F.3d at 575. The defendants who have
been granted the defense faced split-second decisions where
their lives, or the lives of others, were clearly at risk. Alston did
not face such a situation.

        Alston made no attempt to seek a legal alternative.
Instead of contacting the police, Alston relied on his firearm as
protection, not just on the night in question, but for over a
month. “[A] defendant cannot claim justification as a defense
for an illegal action that he chose to pursue in the face of other
potentially effective, but legal options.” United States v. Lomax,
87 F.3d 959, 962 (3d Cir. 1996) (citation omitted); see also
Singleton, 902 F.2d at 473 (“[T]he keystone of the analysis is
that the defendant must have no alternative–either before or
during the event–to avoid violating the law.” (citations
omitted)).

      Alston cites two cases in support. The first, Paolello, is
an example of an “immediate emergency.” Bell, 214 F.3d at

                                 13
1301. In Paolello, where we allowed a justification defense,
Paolello was followed out of a bar by a customer who demanded
Paolello buy him a drink. 951 F.2d at 539. The customer struck
one of Paolello’s friends, then shot a gun in the air. Paolello
grabbed the man’s hand because he believed the attacker was
aiming the gun at his friend. Paolello and the attacker struggled
for the gun, but Paolello seized it and ran. The police
apprehended him as he ran away. Id. Paolello mirrors the
“immediate emergencies” that other courts have found
constituted a present threat. None existed here.

       Alston also cites United States v. Gomez, 92 F.3d 770
(9th Cir. 1996), but the unique facts in that case are
distinguishable. A major drug dealer offered Gomez his choice
of money or heroin to kill a number of people after learning
Gomez would soon be released from prison. Id. at 772. Gomez
reported this solicitation to the authorities, who told Gomez to
accept the offer in order to assist with the investigation. Id.
After Gomez obtained more information and relayed it to federal
agents, the Government indicted the drug dealer, but revealed
Gomez’s name in the indictment, despite having promised to
keep his identity secret. Id. at 773. Gomez received death
threats and learned there was a contract out for his life. He
sought help from federal agents, the county sheriff, his parole
officer, local churches, even telling his story to the media, but
no help was forthcoming. Id. To stay in hiding, Gomez jumped
from one house to another, even sleeping in parks and riding
buses for hours. Id. He lied to his parole officer, claiming he


                               14
took illegal drugs, which led to another incarceration, where he
received a written death threat from an inmate. Id. Upon
release, he received another death threat. Id. That same day, he
obtained a gun to protect himself. Id. Two days later federal
agents served him with a subpoena and found him with the gun.
Id. at 773–74. After trial, the Ninth Circuit reversed the district
court for failing to instruct the jury on justification. It explained
the drug dealer was unlikely to “cool off and lose interest” in the
defendant, as he had “amply demonstrated his willingness to kill
to avoid conviction.”          Id. at 776. Other courts have
distinguished Gomez because of its unique facts:

       [O]nly in the most extraordinary circumstances,
       illustrated by United v. Gomez . . . , where the
       defendant had sought protection from the
       authorities without success, will the defense
       entitle the ex-felon to arm himself in advance of
       the crisis merely because he fears, however
       sincerely and reasonably, that he is in serious
       danger of deadly harm.

Perez, 86 F.3d at 737, quoted in Wofford, 122 F.3d at 791 and
Bell, 214 F.3d at 1312.

       Alston did not face such extraordinary circumstances.
Alston has not presented evidence that he was under a present
threat of death or bodily harm, that there was a direct causal
relationship between the criminal act and the avoidance of the
threatened harm, or that he had no reasonable legal alternative.


                                 15
                            III.

      Accordingly, we will affirm the judgment of conviction
and sentence.




                            16
