U.S. v. Diaz, 01-1446.

• Decision Date: 26 March 2002
• Docket Number: No. 01-1446.,01-1446.
• Parties: UNITED STATES of America, Appellee, v. Aldrin DIAZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 92

285 F.3d 92

UNITED STATES of America, Appellee, v. Aldrin DIAZ, Defendant, Appellant.

No. 01-1446.

United States Court of Appeals, First Circuit.

Heard January 10, 2002.

Decided March 26, 2002.

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Eileen F. Shapiro, by Appointment of the Court, for appellant.

Donald C. Lockhart, Assistant U.S. Attorney, with whom Stephanie S. Browne, Assistant U.S. Attorney, and Margaret E. Curran, United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, COFFIN, Senior Circuit Judge, and LIPEZ, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Aldrin Diaz seeks reversal of his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He asserts that the district court committed plain error by placing the burden on him to prove his defense of justification. He alternatively challenges the district court's decision to depart upward from the Sentencing Guidelines. We find no plain error in the instruction, but detect flaws in the sentencing that require reconsideration of the departure. We therefore affirm the conviction, vacate the term of imprisonment, and remand for re-sentencing.

I. Factual Background

Although certain particulars of the episode underlying this appeal are disputed, the differences are largely irrelevant to the issues before us. The essential facts, as the jury could have found them, are as follows. In the early morning hours of January 28, 2000, appellant and his girl-friend, Christa Calder, dropped off two friends at a fast-food restaurant in Providence, Rhode Island, so they could use the restroom. When appellant and Calder drove back to the restaurant a few minutes later, they found the two women, Brenda Ruiz and Jenny Vazquez, involved in a dispute with two other women in the restaurant's vestibule. Appellant stepped from the car and placed himself between the two pairs of women. Ruiz reached around him and struck one of the other women, Stephanie Zoglio, in the face. Ruiz held a broken glass and also may have possessed a pen with a concealed knife inside it. Zoglio may have possessed a box cutter, although appellant testified that he never saw it.

Unsuccessful in his efforts to separate the combatants, appellant moved back toward Calder's car. Shortly thereafter, someone—perhaps the fourth woman, Diana Villafane—threw two objects that hit the car's hood.¹ At that point, appellant walked over to Villafane and shoved her, causing her to fall backward. A friend of Villafane's, Wayne Pemberton, responded by rushing at appellant. During the ensuing struggle, Pemberton pushed appellant onto the hood of Calder's car and fell onto the hood himself. Appellant rolled onto the ground and yelled to Calder for her gun. Calder retrieved the loaded gun from the car's glove compartment and handed it to him. Appellant waved the gun at the crowd that had gathered, yelling several times "you better run." Pemberton slipped behind a nearby truck, while making motions suggesting that he, too, was reaching for a weapon, although he did not have one. Calder testified that the scene was chaotic, the noise level was loud, and both Ruiz and Vazquez had blood on them.

Appellant, Calder, and their two friends got back into the car, with appellant at the wheel while holding the gun.² Before he could drive off, uniformed Providence police officers arrived and directed appellant to drop the gun. He tossed it onto Calder's lap, complied with the officers' instructions to get on the ground, and began crawling toward the police. At about the same time, Cornell Young, an off-duty police officer in plain clothes, emerged from the restaurant with his gun drawn. The uniformed officers—apparently not recognizing Young as a fellow officer—also ordered him to drop his weapon. He was fatally shot when he failed to comply.

The gun wielded by appellant was purchased by Calder in Gray, Maine, in November 1999. She testified that appellant had pointed the gun at her during an argument in their apartment on January 26, 2000—two days before the restaurant incident—and also had taken the gun to his mother's house on or about January 7.

At trial, appellant sought to justify his use of the weapon during the fracas at the restaurant as an attempt to break up the escalating fight. He testified that he felt surrounded, dazed from having been punched in the face, and in fear for his life because he thought he saw Pemberton reaching for a gun. The district court charged the jury that appellant had asserted a defense of justification and that he was obliged to prove the defense by a fair preponderance of the evidence. When discussing the issue at the charging conference, the judge specifically referred to conflicting precedent on whether the defendant or government bore the burden of proof on the justification defense, concluding that circuit and Supreme Court precedent required that affirmative defenses be proven by the defendant. Neither the government nor defense counsel objected to the instruction, either at the charging conference or after the actual charge was given to the jury.

Appellant was sentenced to the statutory maximum of 120 months in prison. The district court relied on three separate guidelines provisions for a four-level departure in the base offense level, which represented an increase of at least thirty-three months in appellant's sentence.

On appeal, appellant first claims that the district court erred in placing the burden on him to prove justification. He acknowledges that, having failed to object at trial to the instruction, he must demonstrate that the error was plain. If he fails to meet this standard, he seeks review of his sentence, asserting that the district court had no legitimate basis to depart upward from the guidelines. We address these issues in sequence.

II. Justification and the Burden of Proof

Appellant's effort to set aside his conviction based on the district court's justification instruction is severely hampered by his failure to interpose a contemporaneous objection. To vault the high hurdle imposed by the plain error standard, appellant must demonstrate that an error occurred and that it was clear or obvious. United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993); United States v. Paniagua-Ramos, 251 F.3d 242, 246 (1st Cir.2001).³ To obtain relief from his conviction, therefore, appellant must show not only that the justification instruction was incorrect but also that it was obviously so. The state of the law forecloses such a conclusion.

Three circuit courts have explicitly considered whether the prosecution or defense bears the burden of proof on a justification defense to a felon-in-possession charge, and they have reached different conclusions. See United States v. Dodd, 225 F.3d 340, 350 (3d Cir.2000); United States v. Deleveaux, 205 F.3d 1292, 1300 (11th Cir.2000); United States v. Talbott, 78 F.3d 1183, 1186 (7th Cir.1996) (per curiam). The Third and Eleventh Circuits held that the defendant must prove the defense by a preponderance of the evidence, while the Seventh Circuit ruled that the government must negate the defense beyond a reasonable doubt. If a circuit conflict exists on a question, and the law is unsettled in the circuit in which the appeal was taken, any error cannot be plain or obvious. United States v. Gerrow, 232 F.3d 831, 835 (11th Cir.2000); see United States v. Gilberg, 75 F.3d 15, 21-22 (1st Cir.1996).

Appellant asserts that this sudden-death principle is inapplicable here because First Circuit law is settled in his favor. He invokes two decisions that involved a defense of duress to drug charges, United States v. Arthurs, 73 F.3d 444, 448 (1st Cir.1996), and United States v. Amparo, 961 F.2d 288, 291 (1st Cir.1992). We held in Amparo that if the defendant produces sufficient evidence to warrant a duress instruction, the government must prove beyond a reasonable doubt that the defendant's criminal acts were not in fact the product of duress. See 961 F.2d at 291. The same result was reached in Arthurs, in reliance on Amparo. See 73 F.3d at 448. Appellant cites, in addition, the First Circuit's pattern jury instructions, which state that the government has the burden of disproving the defenses of self-defense and duress once they have been properly raised. First Circuit Pattern Criminal Jury Instructions §§ 5.04 and 5.05 (1998) ("First Circuit Instructions").

While these First Circuit authorities seem facially apropos to appellant's position, closer scrutiny reveals their shortcomings. The court in Amparo explicitly limited its holding on the government's burden of disproving duress to those cases in which "the charged crime requires mens rea," 961 F.2d at 291. In both Amparo and Arthurs, the defendants were charged, inter alia, with "knowingly or intentionally" possessing cocaine with the intent to distribute it. The pattern jury instructions reflect a similar limitation; although some portions of the instructions express a broader proposition,⁴ the Comment to the provision on "Duress," § 5.05, echoes the Amparo qualification that "[t]he burden of persuasion remains with the government, at least if the charged crime requires mens rea." This allocation of the burden is logical in light of the government's obligation to prove all elements of a crime, including the specified criminal intent.⁵

Whether Amparo's articulation of the burden extends to a case in which the only charge is possession of a firearm by a felon—a strictly worded crime without a specific mens rea—is at least debatable in light of its qualifying language. Indeed, were we to reach the merits, we think it problematic whether Amparo's holding would survive in this different context. We particularly note the thoughtful analyses of the Third and Eleventh circuits, which led those courts to conclude that the burden to prove justification constitutionally and pragmatically is...