United States v. Rice

214 F.3d 1295, 2000 U.S. App. LEXIS 14063, 2000 WL 774913
Court of Appeals for the Eleventh Circuit·Decided June 16, 2000·No. 99-4106·Published·Cited by 33 cases

Opinion

RONEY, Senior Circuit Judge:

Defendant Otis Lee Rice appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His most persuasive argument is that the district court erred in excluding evidence supporting a defense of justification. According to Rice’s proffer, he possessed the gun to protect himself against a local gang that had repeatedly *1297 beaten and threatened him. We affirm on the ground that the facts proffered were insufficient to establish a justification defense.

The criminal offense of being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is a strict liability offense, which ordinarily renders a defendant’s state of mind irrelevant. See United States v. Funches, 135 F.3d 1405, 1407 (11th Cir.1998); United States v. Thompson, 25 F.3d 1558, 1563-64 (11th Cir.1994). We stated in a recent opinion, however, that a justification defense to a § 922(g)(1) charge would be established if the defendant could show the following four elements: (1) that the defendant was under an unlawful and present, imminent, and impending threat of death or serious bodily injury; (2) that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) that the defendant had no reasonable legal alternative to violating the law; and (4) that there wás a direct causal relationship between the criminal action and the avoidance of the threatened harm. See United States v. Deleveaux, 205 F.3d 1292, 1297-98 (11th Cir.2000) (holding that evidence warranted jury instruction on justification defense and that defendant was properly required to prove defense by preponderance of the evidence), petition for cert. filed, No. 99-8842 (U.S. March 24, 2000).

The defense, however, is reserved for “extraordinary circumstances.” See Deleveaux, 205 F.3d at 1298. The first prong requires nothing less than an immediate emergency. In United States v. Parker, 566 F.2d 1304, 1305-06 (5th Cir.1978) 1 , the defendant retained possession of a gun for thirty minutes after being attacked in his home. In United States v. Scales, 599 F.2d 78, 80 (5th Cir.1979), the defendant purchased a gun and gave it to- his wife after their home had been burglarized. In neither of these cases was the defense of justification established. See Parker, 566 F.2d at 1306-07; Scales, 599 F.2d at 81.

Similarly, other circuits do not allow a justification defense to a § 922(g)(1) prosecution ' in the absence of an immediate emergency. Compare, e.g., United States v. Newcomb, 6 F.3d 1129, 1135-36, 1138 (6th Cir.1993) (justification defense allowed where defendant briefly possessed shotgun and shells after disarming dangerous individual), United States v. Paolello, 951 F.2d 537, 541-43 (3rd Cir.1991) (justification defense allowed where, after knocking gun out of attacker’s hand to protect third person, defendant picked gun up off ground and ran with it to prevent attacker from getting it), and United States v. Panter, 688 F.2d 268, 269-72 (5th Cir.1982) (defendant, who while pinned to floor after being stabbed in stomach reached for club in self defense but instead grabbed gun, allowed to assert justification defense to prosecution under predecessor statute to § 922(g)(1)), with United States v. Wofford, 122 F.3d 787, 790-91 (9th Cir.1997) (no justification defense where most recent specific threat occurred five months before possession of firearm), and United States v. Perrin, 45 F.3d 869, 875 (4th Cir.1995) (no defense where shotgun-wielding antagonist’s most recent visit to defendant’s apartment occurred two days prior to defendant’s possession of firearm).

The facts, as proffered by the defendant, do not meet the standard of an immediate emergency. Prior to obtaining the gun, Rice had been repeatedly harassed and threatened by members of a neighborhood gang called “The Thug Life,” In September 1996, Rice was beaten and robbed as he was leaving a grocery store. In December 1996, gang members robbed Rice as he was making a phone call from a pay phone. In April 1997, Rice was beaten with a baseball bat. After Rice reported the April 1997 attack and the *1298 Thug Life’s drug dealing to police, he was threatened for being a snitch. In May 1997, gang members confronted Rice at the beach, accused him of being a snitch, and hit him in the head with a beer bottle, causing lacerations that required hospital treatment. In September 1997, he was beaten by gang members “for no reason.” In December 1997, Rice was surrounded by gun-wielding gang members at a laundromat, but the gang fled when bystanders threatened to call the police. Once, in December 1997, gang members went to Rice’s home when Rice was not present.

In response, Rice “changed his address” and attempted to avoid the gang. In January 1998, Rice obtained a firearm.

On February 20, 1998, Rice was walking to his job to pick up his paycheck when he encountered members of the gang. He returned home, retrieved his gun, and departed again for his job. On the way home after picking up his check, he saw gang members approaching and shot his gun in the air to frighten them away.

On February 21, 1998, while walking to a store, Rice was verbally threatened by gang members. He returned home to get his gun, and departed again for the store. Shortly thereafter, police officers, who were looking for Rice for a separate offense, found him leaned over a parked car, chatting with someone inside and drinking beer. The officers discovered the gun and arrested him.

There was no error in the district court’s determination that Rice failed to establish a justification defense. Rice was not under an “unlawful and present, imminent, and impending threat of death or serious bodily injury.” Deleveaux, 205 F.3d at 1297; see Parker, 566 F.2d at 1306-07; Scales, 599 F.2d at 80.

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United States v. Rice, 214 F.3d 1295, 2000 U.S. App. LEXIS 14063, 2000 WL 774913 (11th Cir. 2000).

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