U.S. v. Alston

• Citation: 526 F.3d 91
• Decision Date: 20 May 2008
• Docket Number: No. 06-1559.,06-1559.
• Parties: UNITED STATES of America v. Robert ALSTON, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

526 F.3d 91

UNITED STATES of America v. Robert ALSTON, Appellant.

No. 06-1559.

United States Court of Appeals, Third Circuit.

Argued January 28, 2008.

Filed: May 20, 2008.

Mark D. Mungello, Esquire, (Argued), Philadelphia, PA, Attorney for Appellant.

Eric B. Henson, Esquire, (Argued), Joseph A. Labar, Esquire, Robert A. Zauzmer, Esquire, Office of United States Attorney, Philadelphia, PA, Attorneys for Appellee.

Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge, and THOMPSON, District Judge.^*

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 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 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 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, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001),³ several 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 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. 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 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 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 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 1135-36, 1138 (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 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...