U.S. v. Beasley

• Decision Date: 06 October 2003
• Docket Number: No. 02-10395.,02-10395.
• Citation: 346 F.3d 930
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Willie BEASLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

346 F.3d 930

UNITED STATES of America, Plaintiff-Appellee, v. Willie BEASLEY, Defendant-Appellant.

No. 02-10395.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 12, 2003 — San Francisco, California.

Filed October 6, 2003.

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Shawn Halbert and Lara S. Vinnard, Federal Public Defender's Office, San Francisco, CA, for the Defendant-Appellant.

Christopher J. Steskal, United States Attorney's Office, San Francisco, CA, for the Plaintiff-Appellee.

Appeal from the United States District Court for the Northern District of California; Maxine M. Chesney, District Judge, Presiding. D.C. No. CR-01-00204-MMC.

Before: CYNTHIA HOLCOMB HALL, DIARMUID F. O'SCANNLAIN, and EDWARD LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

Willie Beasley appeals his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Beasley asserts error in the district court's jury instructions regarding his defense of justification. This appeal requires us to decide which party has the burden of proof when a defendant raises a justification defense to the federal charge of being a felon in possession of a firearm. We hold that the court properly instructed the jury that Beasley must prove justification by a preponderance of the evidence.

I. Facts and Procedural History

At least nine men were involved in a late night street fight in the Tenderloin District of San Francisco. Beasley was one of the men involved in the fight, and, during the fight, he grabbed a handgun that one of his companions was waving around. Beasley stuck the gun in his pants pocket. Just as Beasley was walking away, a police car with two officers arrived on the scene. One officer got out of his car and told Beasley to stop, but Beasley started running. After running about a block, Beasley threw the gun on the ground between some parked cars. The second officer followed Beasley by car, and, within minutes arrested him.

Beasley was charged and later convicted by a jury in the United States District Court for the Northern District of California of one count of being a felon in possession of a firearm. Beasley stipulated to his status as a convicted felon.

Prior to trial, the government moved in limine requesting that the district court preclude Beasley from presenting a justification defense as a matter of law. The court denied the government's motion, but allowed the defense to delay its opening statement until after the close of the government's case in chief. After hearing the government's case, the court, over the government's objection, allowed Beasley to present a justification defense.

Beasley testified that he grabbed the gun during the fight because he was afraid that his companion, who had been drinking, might shoot someone. Beasley stated, "Anything can happen with a bullet. It can go in any direction." Beasley testified that he did not display the gun when he first saw the police because he was scared and he was afraid the police might shoot him if they saw the gun.

The court instructed the jury that "the defendant has the burden of proving each of the elements of the defense of justification by a preponderance of the evidence."¹ The court declined to give Beasley's proposed jury instruction on justification that "the burden of proof remained on the government to negate beyond a reasonable doubt the defense of justification."

Following the jury's guilty verdict, the court entered the judgment, and Beasley timely appealed.

II. Jurisdiction and Standard of Review

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's determination that the defendant has the burden of proving a defense. United States v. Dominguez-Mestas, 929 F.2d 1379, 1381 (9th Cir.1991).

III. Analysis

This circuit has established that justification is an available defense in felon in possession cases. United States v. Gomez, 92 F.3d 770, 775 (9th Cir.1996).² This circuit has not, however, specifically reached the question of which party bears the burden of proving justification in felon in possession cases.

Beasley argues that his firearm possession involved the "defense of himself and others;" therefore, the government is required to negate self-defense beyond a reasonable doubt. Beasley argues that without an express statutory allocation of the burden of proof, the burden must remain on the government to negate this defense beyond a reasonable doubt. We reject Beasley's arguments.

Our analysis begins with the statute under which Beasley was charged. To establish a violation of § 922(g)(1), the government must prove three elements beyond a reasonable doubt: (1) that the defendant was a convicted felon; (2) that the defendant was in knowing possession of a firearm; and (3) that the firearm was in or affecting interstate commerce. 18 U.S.C. § 922(g)(1).³ To establish that a defendant acted "knowingly," the prosecution need not prove that the defendant knew that his possession of a firearm was unlawful; the prosecution need only prove that the defendant consciously possessed what he knew to be a firearm. See United States v. Sherbondy, 865 F.2d 996, 1002-03 (9th Cir.1988); see also United States v. Dodd, 225 F.3d 340, 344 (3d Cir.2000). Commission of the crime requires no "act" other than knowing possession of a firearm by a convicted felon. See United States v. Canon, 993 F.2d 1439, 1441 (9th Cir.1993). Accordingly, the felon in possession statute, § 922(g)(1), has no specific criminal intent element. Therefore, a defense to § 922(g)(1) that is based on additional facts and circumstances distinct from the underlying offense is an affirmative defense that can excuse the charged conduct, but does not disprove any of the three elements of the offense.

Beasley contends that the allocating of the burden of proof is a legislative, not judicial, function. Beasley urges us to follow United States v. Talbott, 78 F.3d 1183, 1185 (7th Cir.1996), where the defendant, charged with being a felon in possession of a firearm, raised the defense that he justifiably possessed the firearm to prevent harm to himself and his wife. The Seventh Circuit determined that, absent a statute explicitly allocating to the defendant the burden of proving an affirmative defense, a court has no power to allocate this burden to the defendant. Id. at 1186. The reasoning in Talbott, however, has been rejected by two circuits. Dodd, 225 F.3d at 344 ("We do not find Talbott's reasoning persuasive."); United States v. Deleveaux, 205 F.3d 1292, 1299 (11th Cir. 2000) ("We decline to follow Talbott ...").

Like the Third and Eleventh Circuits, we decline to follow Talbott. Talbott is inconsistent with Dominguez-Mestas, in which we specifically rejected the argument that the Due Process Clause prohibits the judiciary from allocating the burden of proof on an affirmative defense to the defendant. We determined that duress was an affirmative defense that could excuse the charged criminal conduct, rather than disprove the 14852 elements of the charged offense. Therefore, placing the burden of proving duress upon the defendant did not impermissibly shift an element of the prosecution's case. Dominguez-Mestas, 929 F.2d at 1382. We then held that "it is proper to place the burden of proving that defense by a preponderance of the evidence on the defendant." Id. at 1384.

The analysis of Dominguez-Mestas is applicable here. As concluded above, the affirmative defense of justification does not involve the refutation of any of the elements of § 922(g)(1), but requires proof of additional facts and circumstances distinct from the evidence relating to the underlying offense. It is immaterial whether an affirmative defense to § 922(g)(1) is termed "justification," "necessity," "duress," or "self-defense;" however, the broader term of "justification" will usually encompass all of these defenses to § 922(g)(1). See Gomez, 92 F.3d at 774, n. 5, n. 9; United States v. Lemon, 824 F.2d 763, 765 (9th Cir.1987) (defendant charged under § 922(g)(1) asserting self-defense and defense of a third person must present evidence demonstrating the four elements of the justification defense). Accordingly, we hold that the district court did not err in placing the burden of proving the defense of justification by a preponderance of the evidence on the defendant.

This holding is in accord with decisions of the Third and Eleventh Circuits. In Dodd, 225 F.3d at 344-49, the Third Circuit first determined that it had the capacity to allocate the burden of proof for a justification defense, and then held that when a defendant raises a justification defense to a § 922(g)(1) charge, the defendant must prove the elements of the affirmative defense by a preponderance of the evidence. Dodd, 225 F.3d at 350 ("We conclude that a rule that places the burden of persuasion on the defendant with regard to a justification defense to a felon-in-possession charge is constitutionally permissible, consonant with the common law, preferable for practical reasons, and faithful to the strictness of the statute into which we have read this justification defense.").

Similarly, Deleveaux, 205 F.3d at 1301, the Eleventh Circuit held that the defendant bore the burden of proving by a preponderance of the evidence his justification defense to a § 922(g)(1) charge. See also United States v. Diaz, 285 F.3d 92, 96 (1st Cir.2002) (affirming on plain error review the placement of the burden of proof on defendant of a justification defense to a § 922(g)(1) charge).

IV. Remaining Arguments

A. Jury Instructions

Beasley also argues that the district court erred by failing to instruct the jury that he was entitled to a "reasonable period of time" to dispose of the firearm if he were justified in taking possession of it, citing Gomez and United States v. Singleton, 902 F.2d 471 (6th Cir.1990). In both Gomez and Singleton, the question on appeal was whether the...