U.S. v. Deleveaux, No. 98-5685
| Decision Date | 09 March 2000 |
| Docket Number | No. 98-5685 |
| Citation | 205 F.3d 1292 |
| Parties | (11th Cir. 2000) UNITED STATES of America, Plaintiff-Appellee, v. James Vincent DELEVEAUX, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Appeal from the United States District Court for the Southern District of Florida.
Before BLACK and HULL, Circuit Judges, and GOODWIN*, Senior Circuit Judge.
Defendant-Appellant James Vincent Deleveaux appeals his conviction and 46-month sentence for being a convicted felon in possession of a firearm. Deleveaux challenges the district court's jury instructions regarding his justification defense. After review, we find that justification is available as an affirmative defense to this strict liability offense and that the court properly instructed the jury that Deleveaux must prove justification by a preponderance of the evidence.
A one-count indictment charged Deleveaux with being a convicted felon in possession of a Mack 11, semiautomatic pistol on May 23, 1997, in violation of 18 U.S.C. 922(g)(1). At trial, the parties stipulated that Deleveaux had been convicted of a felony prior to May 23, 1997, and that the pistol described in the indictment was a firearm in and affecting commerce.
At trial, Deleveaux testified and acknowledged that as a convicted felon he was not supposed to possess a firearm. Deleveaux also admitted knowing that, prior to May 23, 1997, this pistol had been placed in the attic crawl space that was accessible through the master bedroom of his residence. According to Deleveaux, the gun belonged to his wife, and he first learned that his wife kept the gun in the attic crawl space of their home in December 1996. At that time, however, Deleveaux was not residing in the home. Deleveaux stated that he had moved out in October 1996 and was just there for a visit when his wife showed him the gun. Deleveaux moved back to the home in February 1997. Deleveaux claimed that he did not see the gun again until May 23, 1997.
It is undisputed that, on May 23, 1997, Deleveaux pulled the pistol out of the attic crawl space, ran down the stairs of his two-story home with the pistol in his hand, fired the pistol, and later returned the pistol to the crawl space. Deleveaux's theory of defense was that he was justified in possessing the pistol on May 23, 1997, in response to a threat of death or serious injury to himself and his family. However, the Government and Deleveaux presented conflicting evidence about the events that spurred Deleveaux to use the pistol.
Deleveaux testified that he heard banging at his front door while he was upstairs, getting his children ready for bed. From downstairs, Mrs. Deleveaux called out that she would answer the door. Deleveaux then heard his wife scream and a shot. After locking his children in their room, Deleveaux ran to the master bedroom, stood on the night stand, opened the attic crawl space, patted around, and found his wife's gun. Deleveaux then ran downstairs with the gun in his hand.
According to Deleveaux, a man standing in the doorway shot at him while he was coming down the stairs. Deleveaux then noticed his wife laying on the floor inside the house, trying to close the front door with her feet. As Deleveaux tried to close the front door, one bullet came through that door and another came through a nearby window. Deleveaux then saw that Willy Timmons, a neighbor, and at least one other man had guns and were shooting. Deleveaux stated that he "lost it," fired at Timmons and the others, and told his wife to call 911. Deleveaux testified that he never left his porch and did not pursue Timmons or the others down the street as they fled. Instead, Deleveaux walked upstairs to the master bedroom, placed the gun back in the attic crawl space, and rejoined his children.
In contrast, the Government's evidence showed Deleveaux as the aggressor. Timmons testified that he went to the Deleveaux residence with his wife, his sons, and a friend to resolve a misunderstanding. Mrs. Deleveaux answered the door, appeared very upset, and was rude. Timmons noticed that she appeared to be hiding something behind her back in her right hand.
Then, according to Timmons, "everything started getting out of hand." Mrs. Deleveaux started to move her hand out from behind her back. Mrs. Timmons yelled "watch out." Timmons saw Deleveaux running down the stairs inside the home, firing a gun, and shouting for Mrs. Deleveaux to "use that shit." Timmons instructed everyone with him to run. Timmons also pushed Mrs. Deleveaux, causing her to fall. Timmons testified that when Mrs. Deleveaux fell, she dropped the gun she had been holding behind her back. Timmons claims he grabbed that gun and fired two or three shots towards the door of the Deleveaux residence. Before taking cover behind cars in the parking lot, Timmons threw his gun back towards the Deleveaux residence as a signal to Deleveaux that he did want to fight anymore. Timmons avers that Deleveaux continued shooting as they fled.1
When the police arrived, Deleveaux informed them that he was a convicted felon and consented in writing to a search of his home, but did not volunteer any information about a gun. The officers found the loaded, Mack 11, nine-millimeter, semiautomatic pistol, with the safety off, in the attic crawl space.
Officers also recovered thirteen nine-millimeter bullet casings, which a firearms examiner determined were fired by this Mack 11 pistol. Four casings were on the front porch of the Deleveaux home; one was on the walkway leading from the home to the parking lot; and eight were in the parking lot. No casings were found inside the Deleveaux home.
Officers observed two bullet holes in the front door of the Deleveaux home and another bullet hole in a front window. Officers determined that these three holes were made by three bullets fired into the home from outside. The officers recovered one spent projectile that came through the front window and lodged in a wall and other spent projectiles and bullet fragments from a car in the parking lot. A firearms examiner determined that three of the spent projectiles and bullet fragments were fired by a .38 caliber weapon and not by this Mack 11 pistol.
The Government objected to Deleveaux's proposed jury instructions about his justification defense, arguing that even Deleveaux's version of the events did not warrant an instruction on that defense. The Government argued that even after the shooting ceased, Deleveaux did not relinquish the gun but continued to possess it and hid it back in the attic crawl space of his home. The district court observed that whether Deleveaux was entitled to assert a justification defense was a "close question." The court decided to "err[ ] on the side of giving the defendant the opportunity to argue this matter to the jury."
However, the district court declined to give Deleveaux's proposed instruction that the Government bore the burden of proving beyond a reasonable doubt that Deleveaux did not act under duress or necessity in possessing the firearm. Deleveaux, the Government, and other circuits have termed this the "justification defense" in 922(g)(1) cases.2 After reviewing case law from this and other circuits, the court concluded that Deleveaux's justification defense was an affirmative defense, and thus, the burden was on Deleveaux to prove that defense by a preponderance of the evidence. The district court instructed the jury accordingly.3 After the jury's guilty verdict, Deleveaux timely appealed.
On appeal, Deleveaux principally contends that the trial court's jury instructions incorrectly placed the burden on him to prove his justification defense. This Court reviews de novo whether the district court misstated the law when instructing the jury or misled the jury to the prejudice of the defendant. See United States v. Chirinos, 112 F.3d 1089, 1096 (11th Cir.1997), cert. denied, 522 U.S. 1052, 118 S.Ct. 701, 139 L.Ed.2d 644 (1998); United States v. Chandler, 996 F.2d 1073, 1085 (11th Cir.1993). In making this determination, we look at the entire jury charge in the context of the trial record. See Chandler, 996 F.2d at 1085.4
Whether a justification defense is available in a 922(g)(1) case and, if so, who bears the burden of proving justification are questions of first impression in this circuit. We first examine the elements of the felon-in-possession offense under 922(g)(1) and then the availability and nature of the justification defense in the context of this particular strict liability offense. After doing so, we conclude that the district court's instructions properly placed the burden on Deleveaux to prove his justification defense by a preponderance of the evidence.
A.Justification Defense to 922(g)(1)
The felon-in-possession statute, 18 U.S.C. 922(g)(1), provides in relevant part that "[i]t shall be unlawful for any person-(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; ... to ... possess in or affecting commerce, any firearm."5 To establish a violation of 922(g)(1), the government must prove beyond a reasonable doubt three elements (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. See United States v. Billue, 994 F.2d 1562, 1565 n. 2 (11th Cir.1993).
Since the language of 922(g)(1) prohibits a convicted felon from even possessing a firearm, the first question is whether a justification defense is available to a 922(g)(1) charge. We join the other circuits addressing this issue and hold that the defense of justification may be available to a 922(g)(1) charge.6 See United States v. Gomez, 92 F.3d 770, 774-75 (9th Cir.1996); United States v. Paolello, 951 F.2d 537, 541 (...
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