282 F.3d 962 (7th Cir. 2002), 01-2103, United States v. Tokash

Docket Nº:01-2103, 01-2286 & 01-2295
Citation:282 F.3d 962
Party Name:United States of America, Plaintiff-Appellee, v. Joseph L. Tokash, Mitchell E. Kolb, and John Derel Usher, Defendants-Appellants.
Case Date:March 11, 2002
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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282 F.3d 962 (7th Cir. 2002)

United States of America, Plaintiff-Appellee,


Joseph L. Tokash, Mitchell E. Kolb, and John Derel Usher, Defendants-Appellants.

Nos. 01-2103, 01-2286 & 01-2295

In the United States Court of Appeals For the Seventh Circuit

Decided March 11, 2002

December 5, 2001

Appeals from the United States District Court for the Southern District of Illinois. Nos. 99-CR-40045, 99-CR-40047, 99-CR-40049--J. Phil Gilbert, Judge.

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Before Coffey, Ripple, and Diane P. Wood, Circuit Judges.

Coffey, Circuit Judge.

A systemwide search of inmates at the United States Penitentiary at Marion, Illinois, prompted by the May 18, 1999, racially motivated murder of an inmate, revealed that inmates Joseph Tokash, Mitchell Kolb, and John Derel Usher had concealed weapons in their rectal cavities. Tokash, Kolb, and Usher were charged with possessing weapons in a federal prison in violation of 18 U.S.C. sec. 1791(a)(2). The government filed similar pre-trial motions in limine to preclude each of the defendants, who were tried individually, from introducing evidence in support of a defense of necessity or other justification defenses at trial. The trial judge granted the government's motions, and juries convicted each of the three defendants. In this consolidated appeal, the individual defendants- appellants argue that the trial judge erred in prohibiting them from introducing the defense of necessity. We affirm.

I. Factual Background

On May 18, 1999, Terry Lamar Walker, a black inmate at USP-Marion, was stabbed to death by two white inmates associated with the Dirty White Boys prison gang and its ally, the Aryan Brotherhood. Prison officials promptly took steps to secure the safety of its guards and inmates and conducted a thorough "shakedown" at the institution in an effort to locate additional weapons and weapon-making tools. During the shakedown USP-Marion officials employed the use of x-ray and digital examinations of individual inmates in an attempt to discover any internally concealed contraband.

On May 19, 1999, one day after the murder, x-ray and digital examinations revealed that five inmates had concealed weapons, steel or plastic knives, in their rectal cavities. Appellants Tokash and Kolb were two of those five inmates. One week later, on May 26, 1999, the same search methods uncovered a steel knife that appellant Usher had hidden in his rectal cavity. On June 9, 1999, a grand jury sitting in the Southern District of Illinois charged Tokash, Kolb, and Usher,1 in separate indictments, with one count of possessing weapons in a federal prison contrary to 18 U.S.C. sec. 1791(a)(2). Prison Page 966

officials later discovered each of the appellants with additional weapons and grand juries returned superseding indictments adding additional counts charging each of them with multiple violations of sec. 1791(a)(2), which punishes an inmate who "makes, possesses, or obtains, or attempts to make or obtain, a prohibited object," including any object that "threatens the order, discipline, or security of a prison, or the life, health, or safety of an individual."2 18 U.S.C. sec. 1791(a)(2) & (d).

In the three appellants' individual cases, the government filed a pre-trial motion in limine to preclude the defendant from introducing evidence in support of a defense of necessity or other justification defense at trial, unless he made a prima facie showing that he satisfied the legal requirements to raise such a defense. According to the government, the defendants could establish neither that they faced an imminent threat nor that they had availed themselves of all reasonable legal alternatives. The appellants, all white inmates, filed responses and offers of proof in which they complained about the manner in which USP-Marion officials administered the prison, including prison officials' refusal to maintain racially segregated housing units, and about previous racially motivated incidents of violence at USP-Marion. Tokash further proffered that other inmates at USP- Marion would testify that "it was generally believed by inmates that appeals to the Prison Administration regarding threats made and dangerous persons would have been futile." The defendants further filed motions for subpoenas duces tecum in order to procure Bureau of Prisons documents that they speculated would help establish their theory that racial tension so permeated USP-Marion that they had no choice other than to violate the law by arming themselves. In addition, the defendants sought deposition testimony from other inmates in support of their allegations regarding the racially charged atmosphere at USP-Marion.

The trial judge, accepting the facts in the offers of proof as true, agreed with the government that the appellants alleged only a generalized fear of attack by some unknown or unspecified assailant at some unknown time in the future, and that such allegations were legally insufficient to support a necessity or other justification defense. The trial judge further noted that the appellants failed to avail themselves of available legal alternatives prior to arming themselves. Thus the trial judge granted Page 967

the government's motions in limine to preclude evidence or argument regarding a necessity or other justification defense. After ruling in favor of the government on its motions in limine, the trial judge went on to deny the defendants' motions for depositions and subpoenas duces tecum, ruling that the information the defendants sought was not relevant because the defendants were precluded from introducing evidence regarding a necessity or duress defense.

In separate trials, juries convicted all three defendants on all counts, except that a jury failed to convict Kolb on the second count of unlawfully possessing a weapon in a federal prison arising from the knife found in his cell on October 5, 1999. The defendants-appellants appeal.

II. Issues

Appellants contend that the trial judge committed error in granting the government's motions in limine, raising several arguments in support. Initially, the appellants argue that the trial judge erred in granting the motions in limine because a motion in limine was not the proper mechanism for the government to challenge the legal sufficiency of their proposed...

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