United States v. Brown

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Brown No. 02-6205 ELECTRONIC CITATION: 2004 FED App. 0127P (6th Cir.) File Name: 04a0127p.06 Appellant. Stephen P. Hall, ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Appellee. UNITED STATES COURT OF APPEALS _________________ FOR THE SIXTH CIRCUIT OPINION _________________ _________________

UNITED STATES OF AMERICA , X ALAN E. NORRIS, Circuit Judge. Defendant Don Brown appeals from a jury verdict that found him guilty of a single Plaintiff-Appellee, - count of knowingly possessing a firearm despite a prior - - No. 02-6205 felony conviction, in violation of 18 U.S.C. § 922(g). v. - Defendant testified at trial and conceded that he briefly had > his brother’s .25 caliber pistol in his possession but contended , that he took it because his brother was intoxicated and he DON BROWN , - Defendant-Appellant. - wished to make certain that the gun was safely stored away. N On appeal defendant has designated four assignments of Appeal from the United States District Court error: 1) he should have been provided with street clothes for the Western District of Tennessee at Memphis. during the trial; 2) the district court erred in permitting No. 02-20102—Julia S. Gibbons, Circuit Judge. testimony that the firearm was loaded at the time that it was confiscated from him; 3) the district court gave the jury an Argued: February 3, 2004 improper instruction concerning the burden of proof with respect to a defense of “necessity”; and 4) he was entitled to Decided and Filed: May 6, 2004 a reduction for acceptance of responsibility despite his decision to go to trial. Before: NORRIS, GILMAN, and ROGERS, Circuit Judges. I.

_________________ According to defendant’s trial testimony, his troubles stemmed from his decision to accompany his brother, COUNSEL Timothy, on January 29, 2002, to a club in Memphis to “check on [Timothy’s] girlfriend.” The brothers left around ARGUED: Stephen R. Leffler, LAW OFFICE OF 9:30 that evening in Timothy’s van, visited the club for 10 to STEPHEN R. LEFFLER, Memphis, Tennessee, for 15 minutes, and then left when they failed to locate the Appellant. Stephen P. Hall, ASSISTANT UNITED STATES girlfriend. Although they did not drink at the club, they had ATTORNEY, Memphis, Tennessee, for Appellee. already been drinking beer that Timothy kept in the van. ON BRIEF: Stephen R. Leffler, LAW OFFICE OF STEPHEN R. LEFFLER, Memphis, Tennessee, for

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Defendant went on to testify that, not long thereafter, walk home with me or you get in there and go to sleep, Timothy “just got down on his accelerator and the van sped but you don’t need to drive.” up and got away from him and he hit the under beam of the overpass right there at the interstate where you go off the off- Defendant went on to explain that he was concerned that his ramps there.” Timothy told defendant not to get out of the brother might have quarreled with his girlfriend, and he took van, although it was clear that the front bumper was bent and the gun with the intention of placing it in his aunt’s house for the windshield cracked where defendant’s head had struck it safekeeping. on impact. Timothy attempted to drive off despite the fact that a back tire went flat as they pulled away. According to Timothy did not take kindly to his brother’s concerns. defendant, he told his brother to stop a number of times but he Instead, he stopped the van, jumped out, and approached refused. Defendant testified as follows with respect to the Memphis police officer Brad Savage. According to Savage’s gun: trial testimony, “He told me that him and his brother had gotten into an argument in the van, and his brother jumped . . . I looked down at the beer and stuff, I said, “I’m out of the van, grabbed a pistol and was walking westbound fixing to get out . . . .” Then I looked over and got the on Chelsea from Evergreen.” This encounter occurred at beer, I said, “You don’t need this.” And I noticed the about 11:15 p.m. pistol was in the little thing right there at the little cockpit thing, what you put cups and stuff at. And I reached and Timothy pointed his brother out to Savage, who radioed for grabbed it. He was reaching for it, and I grabbed it from help and then approached defendant: him like this here and got out the van. He was still, “Give me the gun, give me the gun.” I said, “What you I got on my loud speaker, and I instructed [defendant] – doing with this here in the first place,” know what I’m He was carrying a 40-ounce bottle of beer, and I saying. And so I got the gun and the beer and got out the instructed him to put it down . . . . I told him to put his van and he got out the van with me. I said, “Man, you hands up on the wall at which time he did, and I don’t need to have this stuff in here, you are already in approached him at that time. enough trouble as it is,” know what I’m saying. .... .... I then patted that pocket down. I could feel something, I was concerned that he was going to hurt hisself [sic] so I reached in there and there was a small caliber pistol or somebody else, you know what I’m saying, driving the in his pocket. way he is. He was obviously drunk because he had the wreck. And I didn’t know what he was going to do at Savage also testified that defendant told him the location of that point in time because he refused to stop the van. So the gun when asked. I got out, I was already out, and I took the beer and Shortly thereafter, police officer Dwayne Johnson arrived what’s you call it, he constantly trying to follow me on the scene. Johnson took possession of the pistol and asking me for the gun and whatever. I said, “No, you emptied it. At trial, he testified that he removed a live round don’t need this.” I said, “You either lock the van up and of ammunition from the gun’s chamber and that the clip contained an additional five rounds. No. 02-6205 United States v. Brown 5 6 United States v. Brown No. 02-6205

A grand jury returned a one-count indictment on April 10, negate the presence of compulsion necessary to establish 2002, charging defendant with being a felon in possession of a constitutional violation. a firearm, 18 U.S.C. § 922(g). Prior to trial, the parties stipulated to the fact that defendant had previously been Id. at 512-13 (footnote omitted). In other words, a convicted of four felonies and to the fact that the firearm in defendant’s fundamental liberty interest under the Fourteenth question – a Bryco Arms .25 caliber pistol – had traveled Amendment prevents the State from denying the accused the across state lines. After a two-day trial, the jury returned a option of wearing something other than prison garb. Id. at guilty verdict. Defendant received a sentence of 235 months 503-04. However, the mere fact that a defendant appears in of imprisonment, three years of supervised release, and a prison attire during his trial does not necessarily mean that his special assessment of $100. right to a fair trial has been compromised. As the Court observed, “The cases show . . . that it is not an uncommon II. defense tactic to produce the defendant in jail clothes in the hope of eliciting sympathy from the jury.” Id. at 508. 1. Prison Clothing Accordingly, the only constitutional prohibition is that a defendant cannot be forced to wear prison clothes and, even On the first day of trial, defense counsel told the court that then, he must object to that directive to preserve his claim. his client had tried to obtain clothes from his family but had received no response to his request. The judge replied, “If Defendant concedes in his brief to this court that “[t]here is you’ve got a reasonable way of getting them here, you know, nothing in the record to indicate that the jurors were, in fact, in a timely, reasonably timely way, I would by happy to wait, affected by what they saw.” Furthermore, he does not argue but it just doesn’t seem like there is any basis for waiting that the State compelled him to wear prison-issued clothing under th[e current] circumstances.” The court went on to note or prohibited him from obtaining other attire. that, “[I]f at some later point Mr. Brown . . . is able to get some clothes here, I would be happy to allow him an Under the circumstances, we conclude that there simply opportunity to change, but of course . . . the jury will have was no compulsion. If anything, the remarks that the district already seen him . . . .” Other than expressing the general court addressed to defendant when he mentioned the issue desire that his client have access to non-prison attire, defense prior to trial demonstrate a general willingness to counsel did not object to the district court’s resolution of the accommodate him. Defendant did not otherwise object when problem, nor did he ask for a continuance. the court determined that, in the absence of a viable plan to obtain clothing, it would begin the trial. This failure to object In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme negates any claim of compulsion. Estelle at 512-13. Court held as follows: 2. Testimony Concerning Whether the Pistol was Loaded [A]lthough the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial During trial, officer Savage testified that fellow officer before a jury while dressed in identifiable prison clothes, Johnson “cleared the weapon” when he arrived at the scene. the failure to make an objection to the court as to being Defense counsel objected to testimony concerning whether or tried in such clothes, for whatever reason, is sufficient to not the pistol at issue was loaded at the time it was No. 02-6205 United States v. Brown 7 8 United States v. Brown No. 02-6205

confiscated; in his view, that fact was “irrelevant.” The court We disagree. The district court correctly recognized that overruled the objection based on the following rationale: the evidence had some relevance to defendant’s necessity defense. Moreover, this evidence was not overly prejudicial: Well, it may not be relevant whether it’s loaded or not the fact that the gun was loaded bolstered defendant’s for purposes of the legality or illegality of the conduct. argument that it was necessary to secure it temporarily from On the other hand, the fact that it’s loaded, and frankly, his brother. We find no abuse of discretion on the part of the the defense [of necessity] you are trying to present, it district court in permitting the introduction of this evidence. may not have much to do with the likelihood of the factual scenario of either party, but it generally has 3. Jury Instructions with Respect to Necessity Defense something to do with the overall fact situation. So I mean it’s relevant also. Defendant next maintains that the jury instruction explaining his affirmative defense of necessity improperly This court reviews evidentiary rulings concerning relevance shifted the burden of proof to him. We review jury and admissibility for an abuse of discretion. See United instructions as a whole to determine whether they fairly and States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993) (“We adequately submitted the issues and applicable law to the review the trial court’s admission of testimony and other jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir. evidence under the abuse of discretion standard.”). Under this 1991). standard, we take a “maximal view” of the evidence’s probative effect and a “minimal view of its unfairly After instructing the jury on the government’s burden of prejudicial effect.” United States v. Sassanelli, 118 F.3d 495, proof, the district court gave it the following guidance 498 (6th Cir. 1997). concerning defendant’s affirmative defense:

The statute of conviction reads in part as follows: If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the It shall be unlawful for any person . . . (1) who has been crime as charged, you must then consider whether the convicted in any court of, a crime punishable by defendant should nevertheless be found not guilty imprisonment for a term exceeding one year . . . to ship because his actions were justified by necessity. The or transport in interstate or foreign commerce, or possess defendant’s actions were justified and therefore he is not in or affecting commerce, any firearm or ammunition; or guilty only if the defendant has shown by a to receive any firearm or ammunition which has been preponderance of the evidence that each of the following shipped or transported in interstate or foreign commerce. five elements is true. . . . 18 U.S.C. § 922(g). Because the statute does not require that The five elements which the defendant must prove by the firearm be loaded, defendant takes the position that the a preponderance of the evidence to establish the defense introduction of such evidence runs afoul of Federal Rule of are as follows: Number one, the defendant was under an Evidence 403 because its probative value was “substantially unlawful present imminent and impending threat of such outweighed by the danger of unfair prejudice.” nature as to induce a well-grounded fear of death or serious bodily injury to himself or another. And two, the defendant had not recklessly or negligently placed No. 02-6205 United States v. Brown 9 10 United States v. Brown No. 02-6205

himself in a situation in which it was probable that he affirmative defense in § 922(g) prosecution). Proving would be forced to choose the criminal conduct. And necessity does not necessarily undercut the element of three, the defendant had no reasonable legal alternative “knowing possession;” one can knowingly possess a firearm either before or during the event to violating the law, that but still do so under circumstances of necessity that justify an is, he had no reasonable opportunity to avoid the threat otherwise illegal act. to harm. And number four, a reasonable person would believe that by committing the criminal action he would In our view, the district court correctly instructed the jury directly avoid the threat and harm. And five, the in light of Singleton, which specifically placed the burden to defendant did not maintain the illegal conduct any longer show the elements of the necessity defense on defendant. than absolutely necessary. Singleton, 902 F.2d at 472 (stating “a defendant must show” before listing the requirements of the necessity defense). This court has held that “a defense of justification may arise in rare situations” when the charge of being a felon in 4. Acceptance of Responsibility possession of a firearm has been alleged. United States v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990). However, this Finally, defendant contends that he should have been defense must be “construed very narrowly.” Id. In Singleton, accorded a reduction to his offense level based upon we expressly adopted the requirements imposed by the Fifth acceptance of responsibility. U.S.S.G. § 3E1.1. Application Circuit upon a defendant in order to make out such a defense. Note 2 to this section states that it should not generally apply Id. (adopting United States v. Gant, 691 F.2d 1159 (5th Cir. to a defendant “who puts the government to its burden of 1982)). These requirements track those set forth by the proof at trial by denying the essential factual elements of district court in its jury instructions. guilt, is convicted, and only then admits guilt and expresses remorse.” U.S.S.G. § 3E1.1, comment. (n.2). We generally Defendant argues that the elements of the affirmative review the district court’s judgment on this issue for clear defense, which he was obliged to prove by a preponderance error. United States v. Webb, 335 F.3d 534, 538 (6th Cir. of the evidence, go to an essential element of the offense that 2003). Even when this Guideline’s section is applied to the government must prove: that he “knowingly possessed uncontested facts, we review the lower court’s decision with the firearm.” It is axiomatic, of course, that the government deference, not de novo. Id. at 537 (noting a change in the must prove all elements of a crime beyond a reasonable circuit’s standard of review in light of Buford v. United doubt. See In re Winship, 397 U.S. 358, 364 (1970). States, 532 U.S. 59, 63-66 (2001)). Here, however, the facts Furthermore, if an affirmative defense bears a necessary were contested and therefore a clear error standard of review relationship to an element of the charged offense, the burden applies. of proof does not shift to defendant. Patterson v. New York, 432 U.S. 197, 210-11 (1977). However, where, as here, Defendant takes the position that he never denied his felony defendant asserts an affirmative defense that does not negate convictions, possession of a firearm, or the fact that the any element of the offense, he may be required to prove that firearm had traveled in interstate commerce. He sought a trial defense by a preponderance of the evidence. Id. In this case, in order to assert an affirmative defense, which does not a felon in possession charge only requires proof of general, negate an element of the crime. rather than specific, intent. United States v. Bennett, 975 F.2d 305, 308 (6th Cir. 1992) (voluntary intoxication not an No. 02-6205 United States v. Brown 11

In denying the benefit of acceptance of responsibility, the district court reasoned as follows: . . . I do not think Mr. Brown is entitled to points for acceptance of responsibility. I think that possibly in a given case an individual who asserted a defense such as this might . . . still be entitled to points for acceptance of responsibility, but when I – when one evaluates Mr. Brown’s credibility, the fact that his explanation of events was not accepted by the jury and, frankly, I did not find Mr. Brown to be credible under all the circumstances of the case. I don’t think he can be given points for acceptance of responsibility because he did not in my judgment fully accept responsibility. The district court properly recognized that putting the government to its burden did not automatically preclude a reduction under § 3E1.1; it merely found that the facts as adduced at trial made such a finding inappropriate in this case, which is precisely the kind of determination that we review for clear error. No such error occurred in this case. III. For the foregoing reasons, we affirm the judgment of the district court.