U.S. v. Agard, 828

• Decision Date: 17 September 1979
• Docket Number: D,No. 828,828
• Parties: UNITED STATES of America, Appellee, v. Henry AGARD, Defendant-Appellant. ocket 78-1385.
• Court: U.S. Court of Appeals — Second Circuit

Page 665

605 F.2d 665

UNITED STATES of America, Appellee, v. Henry AGARD, Defendant-Appellant.

No. 828, Docket 78-1385.

United States Court of Appeals, Second Circuit.

Argued April 11, 1979.

Decided Sept. 17, 1979.

Steven Lloyd Barrett, New York City (The Legal Aid Society, of counsel), for defendant-appellant.

Judith Pierce, Asst. U. S. Atty., Eastern District of New York Brooklyn, N. Y. (Edward R. Korman, U. S. Atty., Mary McGowan Davis, Asst. U. S. Atty., Eastern District of New York, Brooklyn, N. Y., of counsel), for the United States of America.

Before OAKES and GURFEIN, Circuit Judges, and PIERCE, District Judge. ^*

PIERCE, District Judge:

Henry Agard, the appellant, was charged in the United States District Court for the Eastern District of New York, with, Inter alia, having had unlawful possession of firearms, though he had been convicted of a felony, on two occasions in violation of 18 U.S.C. § 1202(a)(1) (Appendix 1976). ¹ The first trial ended in the declaration of a mistrial by Judge Costantino when the jury was unable to agree upon a verdict. Upon a retrial before the same judge, Agard was convicted of these offenses by a jury. He appeals from the judgment of conviction.

Appellant contends that the district court erred in refusing to instruct the jury regarding the defense of duress and coercion. He asserts that since the district court had instructed the jury on this defense in the first trial and since he had designed his defense in the second trial in anticipation of that instruction, the court's failure to instruct the jury as to that defense upon the retrial constituted denial of due process. An issue is raised by this appeal as to whether the evidence produce at trial was sufficient to warrant an instruction on that defense. For the reasons which follow, the judgment of conviction is affirmed.

FACTS

On the evening of May 27, 1977, appellant was working in his pizza shop when three men entered and ordered food. ² An altercation between appellant and these three patrons ensued when appellant "leaped" over the counter which normally separated him from his patrons and tried to put them out of the shop. Appellant contends that he attempted to compel them to leave because they were talking about using guns and because he was afraid that they intended to rob him. One of these men allegedly made a threatening movement which suggested that he had a weapon in his pocket. Appellant, however, did not see any weapon. Some time after the altercation began, appellant grabbed a Colt AR-15 rifle which had been hidden behind the counter. ³ His opponents quickly dispersed, but not before he was able to apprehend one of them and to discharge several shots from the rifle.

Attracted by the sound of gunfire, several police officers soon arrived. Appellant, who had the rifle pointed at his captive's chest, was ordered to lower the firearm. The police took the rifle from him but did not arrest him.

About seven months later, on December 15, 1977, appellant's second encounter with firearms occurred. Appellant was again working in the shop. At three o'clock in the morning, several police officers entered his establishment and ordered food. He was informed by one of the officers that they were conducting a search for a certain individual who had allegedly shot another officer.

Later, as the police officers were leaving his shop, one of the officers allegedly said, "I know you probably still have guns on the premises. Maybe you can help us out." Appellant contends that he interpreted this to mean that there was an immediate crisis in the neighborhood and that the police needed his support at that time. He subsequently took a bag which contained a shotgun to a group of police officers who were located a block away from his shop. He was arrested when they discovered that the bag contained a shotgun and that there were other weapons at his shop. He admitted at trial that none of the police officers had asked him to produce a firearm for their use.

On July 18, 1978, appellant was first tried on the charges of having had unlawful possession of firearms on these occasions and also of conspiring to violate federal law.

His wife, in whose name the weapons were registered, was also tried as a co-conspirator and was also charged with aiding and abetting the appellant in unlawfully obtaining possession of firearms. The district court declared a mistrial when the jury could not reach a verdict with respect to both appellant and his wife. At that trial, the district court instructed the jury regarding the defense of duress and coercion.

The appellant and his wife were subsequently tried again on the same charges, and, on July 31, 1978, the jury returned a verdict of guilty against the appellant for having had unlawful possession of firearms on the two occasions. He was acquitted on the charge of conspiring to violate federal law; his wife was acquitted of all of the charges against her.

During the second trial, the district court declined to instruct the jury as to the defense of duress and coercion.

DISCUSSION

Appellant's primary contention on appeal is that the district court erred when, at the second trial, it refused to instruct the jury regarding the defense of duress and coercion. He contends that the court should have instructed the jury regarding this defense since he had submitted sufficient evidence at that trial to warrant the instruction and because, under the circumstances, he had presented a defense which was designed in justifiable expectation of that instruction. The evidence he submitted at trial consisted of appellant's testimony that during the altercation, he feared for his life when he took possession of the rifle. With respect to the incident which took place on December 15, 1977, appellant's evidence consisted of his testimony that the statements of one of the police officers who visited his shop that morning led him to believe that there was an emergency and that his assistance was needed. This evidence was presented at both trials. Appellant asserts that, at the second trial, he admitted having had possession of firearms because he expected that the court would grant his request for an instruction to the jury regarding the defense of duress and coercion.

A claim of duress and coercion constitutes a legal excuse for criminal conduct when, at the time the conduct occurred, the defendant was subject to actual or threatened force of such a nature as to induce a well-founded fear of impending death or serious bodily harm from which there was no reasonable opportunity to escape other than by engaging in the otherwise unlawful activity. United States v. Housand, 550 F.2d 818 (2d Cir.), Cert. denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977); Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935). However, such a claim will not constitute a valid legal excuse when the defendant has recklessly or negligently placed himself in a situation in which it was probable that he would be subject to duress. Model Penal Code § 2.09(2) (Ten.Draft No. 1960); 22 C.J.S. Criminal Law § 44 at 136 (1961). Moreover, where a defendant fails to produce evidence which would support the defense of duress and coercion, the trial court is not required to instruct the jury on that defense. United States v. Saettele, 585 F.2d 307, 309 (8th Cir....