U.S. v. Gant

• Decision Date: 09 November 1982
• Docket Number: No. 82-2168,82-2168
• Citation: 691 F.2d 1159
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Edgar Cherry GANT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1159

691 F.2d 1159

UNITED STATES of America, Plaintiff-Appellee, v. Edgar Cherry GANT, Defendant-Appellant.

No. 82-2168.

United States Court of Appeals,

Fifth Circuit.

Nov. 9, 1982.

Hugh J. Plummer, Don Bradshaw, Michael D. Farmer, Houston, Tex., for defendant-appellant.

Daniel K. Hedges, U.S. Atty., James R. Gough, Sam G. Longoria, Asst. U.S. Attys., Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before INGRAHAM, REAVLEY and POLITZ, Circuit Judges.

INGRAHAM, Circuit Judge:

Edgar Cherry Gant was charged in the United States District Court for the Southern District of Texas with violating 18 U.S.C. app. Sec. 1202(a)(1), ¹ which prohibits convicted felons from possessing firearms. Gant waived a jury trial and the case proceeded primarily upon an agreed stipulation of facts. Gant stipulated to a prior felony conviction and the interstate commerce jurisdictional requirement but asserted the justification defenses of duress and necessity. After considering the evidence and supplemental briefs addressing these defenses, the district court entered a general verdict of guilty ² and made specific findings "[t]hat at the time of the possession charged, the defendant Gant had reason to believe that he was in danger of his life or serious bodily harm or loss of property; that he did not institute that situation himself." On appeal Gant contends that the common-law defenses of duress and necessity are available against a charge of violating 18 U.S.C. app. Sec. 1202(a)(1) and that the evidence adduced in support of these defenses entitles him to acquittal. While our recent decision in United States v. Panter, 688 F.2d 268 (5th Cir.1982), recognizes the general availability of common-law defenses to such a charge, we disagree that the evidence in the record entitles Gant to an acquittal and therefore affirm the conviction.

The government contends that Sec. 1202(a)(1) is unambiguous and has no express justification exemptions, and that duress and necessity should be considered, if at all, in mitigating the penalty assessed after conviction. The teachings of the Supreme Court in United States v. Bailey, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980), and of this court in Panter indicate otherwise. In Bailey the Court determined that the justification defenses of duress and necessity are generally available in an 18 U.S.C. Sec. 751(a) prosecution for escape from a federal prison, despite the statute's absolute language and lack of a mens rea requirement. We followed these teachings in Panter and recognized that since "Congress in enacting criminal statutes legislates against a background of Anglo-Saxon common law," Sec. 1202(a)(1) did not preclude the assertion of the common-law doctrine of self defense. Panter, 688 F.2d at 271-72 (quoting from Bailey, 444 U.S. at 415 n. 11, 100 S.Ct. at 637 n. 11). Since our analysis in Panter disposes of the government's contention, we assume that on sufficient facts the common-law defenses of duress and necessity would justify a violation of 18 U.S.C. app. Sec. 1202(a)(1). See United States v. Agard, 605 F.2d 665 (2d Cir.1979).

Having clarified this apparent uncertainty, the remaining issue is whether the record contains sufficient evidence to support the conviction, Hall v. United States, 286 F.2d 676 (5th Cir.1960), cert. denied, 366 U.S. 910, 81 S.Ct. 1087, 6 L.Ed.2d 236 (1961), or whether the evidence establishes the defense of duress or necessity. ³ Accordingly, we review the record in a light most favorable to the government and accept all reasonable inferences and credibility choices that tend to support the verdict. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed.2d 680 (1942); United States v. Zweig, 562 F.2d 962 (5th Cir.1977). Since Gant stipulated the elements of the substantive crime, ⁴ the inquiry focuses on the facts as they relate to the justification defenses.

At 8:30 p.m. on Thursday, November 12, 1981, Officers Lewis and Byrd of the Harris County Sheriff's Department entered the business offices of Texas Transportation Company, which is owned and operated by Gant. When the officers entered the premises, they were acting in an undercover capacity and were dressed in blue jeans, sport shirts, windbreakers, and tennis shoes. The officers offered to sell Gant a .45 caliber machine gun. After he refused to purchase the gun, Gant summoned Andrews, an employee, from the storage area. Andrews inspected the gun and renewed the refusal to purchase. When the officers continued their sales efforts, Andrews and Gant excused themselves and retreated to the storage area to confer. Having been subjected to a robbery attempt a few weeks earlier, they speculated that another was in the making and decided to prevent the attempt by running the two men off the premises. Andrews felt capable of enforcing this effort since he was carrying a pistol, but Gant was unarmed. Although confident of his ability to evict the men, Andrews desired a back-up and suggested that Gant retrieve a pistol from the second drawer of a filing cabinet in Gant's office. Unfortunately, Gant complied with his employee's request. Upon reentering the drivers' room with the pistol butt protruding from his pants pocket, the officers identified themselves, pulled out their revolvers, and placed everyone under arrest.

Gant contends that these facts entitle him to acquittal based upon duress or necessity. He stresses the district court's specific findings as supporting his claim. These findings alone, however, are insufficient to establish either affirmative defense. To interpose a justification defense to a charge of violating 18 U.S.C. app. Sec. 1202(a)(1), defendant must show (1) that defendant was under an unlawful and "present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury," United States v. Bailey, 585 F.2d 1087, 1110 (D.C.Cir.1978) (Wilkey, J., dissenting), rev'd, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); see Model Penal Code Sec. 3.02(1)(a) (1974); ⁵ (2) that defendant had not "recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct]," United States v. Agard, 605 F.2d 665, 667 (2d Cir.1979); see Model Penal Code Secs. 2.09(2), 3.02(2) (1974); (3) that defendant had no "reasonable, legal alternative to violating the law, 'a chance both to refuse to do the criminal act and also to avoid the threatened harm,' " United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980); and (4) "that a direct causal relationship may be reasonably anticipated between the [criminal] action taken and the avoidance of the [threatened] harm." United States v. Cassidy, 616 F.2d 101, 102 (2d Cir.1979); United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972); see Model Penal Code Sec. 3.02(1), (2) (1974) (requiring an objective appraisal of whether criminal conduct was necessary to avoid the threatened harm). ⁶ Although the district court made specific findings addressing the imminent threat ⁷ and innocent victim ⁸ requisites, there are no specific findings concerning lack of alternatives or direct causal relationship. ⁹ Because Gant waived his right to specific findings of fact by not requesting them pursuant to Fed.R.Crim.P. 23(c), we must imply findings to support the judgment if the evidence, viewed in a light most favorable to the government, so warrants. United States v. Ochoa, 526 F.2d 1278, 1282 n. 6 (5th Cir.1976).

As the Supreme Court emphasized in Bailey, "one principle of these justification defenses remains constant: if there was a reasonable, legal alternative to violating the law, ... the defense will fail." Bailey, 444 U.S. at 410, 100 S.Ct. at 634. In demonstrating that he had no reasonable alternative to violating Sec. 1202, Gant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative. See id. at 410-11 & n. 8, 100 S.Ct. at 634-35 & n. 8 (citing People v. Richards, 269 Cal.App.2d 768, 75 Cal.Rptr. 597 (1969), and United States v. Boomer, 571 F.2d 543, 545 (10th Cir.), cert. denied sub nom., Heft v. United States, 436 U.S. 911, 98 S.Ct. 2250, 56 L.Ed.2d 411 (1978), for the minimum showings needed to justify a prison escape). The most obvious legal remedy that Gant failed to pursue was simply to call the police. See R.I. Recreation Center, Inc. v. Aetna Casualty & Surety Co., 177 F.2d 603 (1st Cir.1949) (denying the duress defense because defendant did not call the police when he had an opportunity to do so). Since the officers had remained in the drivers' room, Gant had a chance to call the police during the time that he was meeting with Andrews in the storage room or was retrieving the pistol from his office. Gant testified on cross examination that he did not call the police because they had been slow to respond to a call made during a previous robbery attempt. A single contact, however, does not establish a history of futile attempts that indicate an illusionary benefit. See United States v. Colacurcio, 659 F.2d 684 (5th Cir.1981), cert. denied, --- U.S. ----, 102 S.Ct. 1635, 71 L.Ed.2d 869 (1982) (determining that the alternative was not foreclosed even though on two prior occasions defendant's complaints filed with the police had received no satisfaction, but instead had provoked a law suit by one of the policemen). As the Tenth Circuit has observed:

The [justification defense] does not arise from a "choice" of several sources of action; it is instead based on a real emergency. It may be asserted only by a defendant who was confronted with a crisis as a personal danger, a crisis that did not permit a selection from among several solutions, some of which would not have involved criminal acts.

United...