U.S. v. Hargrove, 04-3338.

Decision Date19 July 2005
Docket NumberNo. 04-3338.,04-3338.
Citation416 F.3d 486
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Wesley HARGROVE, Defendant-Appellant.
CourtU.S. Court of Appeals — Sixth Circuit

W. Kelly Johnson, Office of the Federal Public Defender, Cincinnati, Ohio, for Appellant.

Timothy D. Oakley, United States Attorney, Cincinnati, Ohio, for Appellee.

Before: KEITH, CLAY, and FARRIS,* Circuit Judges.

OPINION

CLAY, Circuit Judge.

Wesley Hargrove was convicted by a jury of being a felon in possession of a firearm, 18 U.S.C. § 922(g)(1), and sentenced as an armed career criminal for having been convicted of three violent felonies in the past. Id. § 924(e)(1). He appeals his conviction on the grounds that the district court improperly denied his request for a jury instruction on the defense of necessity and that remarks made by the government in its closing argument constitute reversible misconduct. He appeals his sentence on the grounds that his prior felonies were not violent within the meaning of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), and that the Sentencing Guidelines are now advisory under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). We affirm Hargrove's conviction but vacate his sentence and remand for re-sentencing because we conclude that his prior felonies, three Ohio sexual battery convictions, Ohio Rev.Code § 2907.03(A)(5) (1994), were not violent felonies under the ACCA.

I. BACKGROUND

A jury in the Northern District of Ohio convicted Wesley Hargrove of possessing a firearm as a thrice-convicted violent felon. 18 U.S.C. §§ 922(g)(1), 924(e)(1). The prior felonies were three counts of sexual battery in Ohio, OHIO REV. CODE § 2907.03(A)(5), for which Hargrove was convicted in 1981. Before trial, the district judge determined that these prior felonies were violent for purposes of § 924(e), the ACCA. The judge accordingly denied Hargrove's motion to dismiss the ACCA count of the indictment. At sentencing, the district judge again rejected Hargrove's contention that the ACCA did not apply. Hargrove challenges his conviction and 188-month sentence on various grounds.

On February 14, 2003, the Cincinnati police arrested Hargrove after stopping him for a traffic violation and discovering during the course of the stop an outstanding warrant for his arrest. The police searched Hargrove's car and uncovered a Davis Industries, Model-0-22, two shot .22 caliber derringer pistol. At trial, Hargrove testified that his cousin, Art Swint, offered him the gun for protection after Hargrove was robbed at gunpoint in November 2001. Swint testified that he gave the gun to Hargrove pursuant to his deceased father's wishes. According to Swint, his father instructed him to give the gun to Hargrove. Hargrove testified that the robber warned him not to return to the neighborhood. After the robbery, Hargrove carried the gun whenever he heard that the unidentified robber would be "around."

Hargrove's defense consisted of his own testimony to the effect that the gun was necessary for his protection. After the robbery, Hargrove testified, he was the victim of multiple threats and attempted and successful violent crimes. In addition, he testified that a friend of his was tortured and murdered in Dayton. According to Hargrove, people or a person he encountered on the streets of Cincinnati warned him and others that the same fate might befall them. Hargrove testified that he viewed his friend's murder as being linked to the November 2001 robbery. Finally, Hargrove testified to two events in the days and hours immediately prior to his arrest. First, on February 12, 2003, two days before his arrest, he was again robbed. Second, on the morning of his arrest on February 14, 2003, while Hargrove was on a building-inspection assignment in the Madisonville area of Cincinnati, a man approached and threatened to carry out a drive-by shooting against Hargrove's family if he did not leave Madisonville. Hargrove reported that he fled.

Hargrove testified that the combination of the Madisonville threat and his other recent experiences prompted him to immediately retrieve the gun from his nephew, Ken Mitchell, to whom he had pledged it as collateral for a loan. Hargrove testified to having a particularized fear for his safety in several Cincinnati neighborhoods, some of which he intended to visit for errands that day. According to Hargrove he was doing one such errand — going to the Cincinnati post office for his nephew — when the police arrested him and seized the gun. Hargrove also testified repeatedly that self-defense was a tenet of his religion.

II. DISCUSSION
A. Jury Instruction on the Necessity Defense

Hargrove contends he was entitled to a jury instruction on the defense of necessity. This Court "review[s] jury instructions as a whole to determine whether they fairly and adequately submitted the issues and applicable law to the jury." United States v. Brown, 367 F.3d 549, 555 (6th Cir.2004) (citing United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.1991)). "A refusal to give requested instructions is reversible error only if (1) the instructions are correct statements of the law; (2) the instructions are not substantially covered by other delivered charges; and the failure to give the instruction impairs the defendant's theory of the case." United States v. Newcomb, 6 F.3d 1129, 1132 (6th Cir.1993); see also United States v. Sassak, 881 F.2d 276 (6th Cir.1989). Finally, a jury instruction is not warranted if "it lacks evidentiary support or is based upon mere suspicion or speculation." United States v. James, 819 F.2d 674, 675 (6th Cir.1987) (citation omitted). Applying these standards, it is clear that Hargrove's claim is without merit; the district court properly denied his request for a necessity instruction.

Under case law in this circuit, a defendant in a prosecution for possession of a firearm as a felon may assert the defense of necessity or justification. United States v. Singleton, 902 F.2d 471 (6th Cir.1990). However, the defense is appropriate only in "rare situations[,] . . . should be construed very narrowly[,] . . . [and must not go to the jury] if the evidence could not support a verdict based on it." Id. at 472-73 (citing in part United States v. Bailey, 444 U.S. 394, 398-99, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980)). Instructions on the defense are proper if the defendant has produced evidence upon which a reasonable jury could conclude by a preponderance of the evidence that each of the following five circumstances exist:

(1) 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;

(2) 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;

(3) 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;

(4) a direct causal relationship may be reasonably anticipated between the criminal action taken and the avoidance of the threatened harm; [and]

[(5)] [defendant] did not maintain possession any longer than absolutely necessary.

Singleton, 902 F.2d at 472-73 (citations and quotations omitted); Newcomb, 6 F.3d at 1134-35.

The district court denied Hargrove's request for a necessity instruction on the grounds that he failed to meet any of the five requirements. Specifically, the court found that the threat Hargrove claimed to be protecting himself against — the comments made to him by an unknown man in Madisonville — was not "present, imminent, and impending." The court further found that Hargrove was under no compulsion to go to the areas of Cincinnati where he claimed to be in danger. As a consequence, the district court concluded that no reasonable jury could view Hargrove's conduct as not reckless or negligent. As for the third requirement, the court concluded that Hargrove offered no evidence as to why he had no choice but to arm himself. The district court similarly found insufficient evidence with respect to the other two elements of the Singleton test.

The district court did not err. Hargrove failed to satisfy at least the first element of the Singleton test and consequently was not entitled to a jury instruction on the defense of necessity. It is undisputed that Hargrove was not armed on the morning of February 14, 2003, when, according to his testimony, a man approached and told him "he wasn't supposed to be" in the Madisonville neighborhood. According to Hargrove, the man said something to the effect of "Do you want a drive-by or your family to go down or something?" Upon hearing this, Hargrove immediately went to his car and drove away. Hargrove does not contend that the unidentified threatener followed him. Nor does Hargrove suggest that the man possessed a weapon of any kind. Under the case law, these circumstances fall short of constituting a "present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury." Singleton, 902 F.2d at 472 (citation omitted).

In Singleton, the defendant testified that he procured a firearm during his escape from the clutches of a kidnapper who had threatened to kill him. 902 F.2d at 472. It was undisputed that the defendant was at the home of the alleged kidnapper when he procured the gun. Id. This Court appeared to view this evidence as sufficient to satisfy the first prong of what we now term the Singleton test. See id. at 472-73. However, the Court upheld the denial of a jury instruction because the defendant continued to possess the firearm after successfully escaping. Id. In any event, the alleged threat against Hargrove is of an entirely different character than the...

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