U.S. v. Leahy

• Citation: 473 F.3d 401
• Decision Date: 19 January 2007
• Docket Number: No. 05-1670.,05-1670.
• Parties: UNITED STATES of America, Appellee, v. Jesse LEAHY, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

473 F.3d 401

UNITED STATES of America, Appellee, v. Jesse LEAHY, Defendant, Appellant.

No. 05-1670.

United States Court of Appeals, First Circuit.

Heard November 8, 2006.

Decided January 19, 2007.

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Michael R. Schneider, with whom Salsberg & Schneider was on brief, for appellant.

F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

This appeal calls upon us to confront a question explicitly reserved in United States v. Diaz, 285 F.3d 92, 97 (1st Cir. 2002), concerning the allocation of the burden of proof when a criminal defendant in a federal felon-in-possession case attempts to exonerate himself by claiming that he took possession of the firearm purely in self-defense.¹ We hold that there is a justification defense available in felon-in-possession cases, which typically encompasses duress, necessity, and self-defense. Relatedly, we hold that where, as here, proof of the justification defense does not negate an element of the charged crime, the burden of proof in connection with that defense rests with the defendant. These holdings, coupled with our rejection of a variety of other proffered assignments of error, lead us to affirm the judgment below.

I. BACKGROUND

While the factual scenario portrayed at trial is littered with testimonial conflicts and is at some points shrouded in ambiguity, the facts relevant to this appeal are comparatively straightforward.

On July 27, 2003, defendant-appellant Jesse Leahy, a convicted felon, had an altercation with a group of teenagers near his mother's home in Kezar Falls, Maine. According to Leahy, he withdrew from the scene, but the youths followed him and attempted forcibly to enter his mother's house. Ostensibly fearing the maddened crowd, Leahy grabbed an Astra 9mm pistol that he knew his mother kept in a kitchen drawer. He emerged from the residence armed and confronted his tormentors.

During the ensuing imbroglio, Leahy admittedly fired the weapon. The protagonists' versions of what happened differ materially. Leahy asserts that he did no more than fire warning shots into the ground to scare away attackers who were attempting to inflict serious bodily injury on him. Other witnesses describe Leahy as the aggressor and assert that he chased after the youths, shot towards them, and pistol-whipped two of their number.

In all events, the youths fled. Once that occurred, Leahy went back into the dwelling and hid the gun. Police soon arrived at the scene. After a twelve-hour standoff, they entered the premises and arrested Leahy. A search revealed not only the hidden pistol but also a Marlin rifle stashed in a pantry closet. Male DNA profiles found on the rifle were consistent with those found on the pistol (although no DNA was specifically matched to Leahy). In due season, a federal grand jury handed up an indictment that charged Leahy with being a felon in possession of a firearm. See 18 U.S.C. § 922(g)(1). The indictment referenced both the pistol and the rifle.

Leahy's criminal record included felony convictions for assault and carrying a dangerous weapon. At trial, his then-counsel did not press for a stipulation that Leahy was a previously convicted felon (one exchange with the judge suggests that counsel may not have realized that he could compel the government to stipulate to this point). In the absence of a stipulation, the prosecutor was able to introduce independent evidence of the prior convictions.

Once both sides had rested, Leahy proffered a proposed instruction on self-defense — one that placed the burden of proof on the prosecution to disprove self-defense beyond a reasonable doubt. The government rejoined that the facts did not warrant a self-defense instruction. The district court took a middle path: over Leahy's objection, it gave an instruction on "justification" (defined so as to encompass self-defense), in which it told the jury, in effect, that Leahy's possession of a firearm would be justified (and, therefore, a guilty verdict would be unwarranted) if (i) Leahy was under an unlawful and present threat of death or serious bodily injury; (ii) he did not recklessly place himself in a situation in which he would be forced to engage in criminal conduct; (iii) he had no reasonable legal alternative but to engage in that conduct; and (iv) there was a direct causal relationship between his criminal conduct and the need to avoid the threatened harm. This instruction treated justification as an affirmative defense, see United States v. Willis, 38 F.3d 170, 179 (5th Cir.1994), and placed the burden on Leahy to prove that affirmative defense by a preponderance of the evidence.

Following deliberations, the jury found Leahy guilty. At the disposition hearing the district court, finding that in the past Leahy had thrice been convicted of violent felonies, classified him as an armed career criminal. See 18 U.S.C. § 924(e). The court also determined that Leahy was subject to two separate sentencing enhancements, one for possessing the firearm in connection with an uncharged crime of violence and the other for obstruction of justice arising out of perjurious trial testimony. After making a series of other findings and computations, the court imposed a 262-month incarcerative sentence. This timely appeal followed.

II. BURDEN OF PROOF

Leahy's flagship claim is that, once he had made a threshold showing of self-defense, the district court erred in requiring him to prove self-defense rather than requiring the government to negate his colorable claim. The proper allocation of the burden of proof on such a defense, however denominated, is an open question in this circuit with respect to felon-in-possession cases. See Diaz, 285 F.3d at 97. The Constitution permits us to answer this question either way; there is no constitutional requirement that the burden of disproving self-defense reside with the prosecution. See Patterson v. New York, 432 U.S. 197, 210-211, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977) (upholding murder statute that placed burden of proving affirmative defense on defendant when proof of that defense did not negate an element of the offense). Because the question turns on what is essentially a matter of statutory interpretation — what Congress intended — we afford de novo review. See United States v. Hartsock, 347 F.3d 1, 4 (1st Cir. 2003).

We introduce our analysis in case-specific terms. The principal issue at trial was whether Leahy, as a convicted felon, was legally justified in taking possession of the handgun. The government argued that Leahy was not so justified because he was the aggressor and, moreover, he was never under any realistic threat of imminent harm. Leahy, in contrast, argued that his bona fide fear of imminent harm justified him in taking possession of the handgun and defensively using it to repel his attackers. Cf. United States v. Holliday, 457 F.3d 121, 127 (1st Cir.2006) (explaining that a felon possessing a gun to "avoid the imminent danger of his own death" is "the classic scenario in a self-defense case"). This issue calls into question whether justification is a defense to a felon-in-possession charge and if so, which party bears the burden of proof.

The federal felon-in-possession statute itself, 18 U.S.C. § 922(g), makes no express provision for any affirmative defenses. Thus, the logical starting place is the Supreme Court's recent decision in Dixon v. United States, ___ U.S. ___, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006). There, the Court assumed arguendo that duress would be a viable defense to a section 922 charge² and, on that assumption, ruled that the defendant should bear the burden of proving duress. Id. at 2447. The Court noted that the court of appeals had distilled the defense into four elements. See id. at 2440 n. 2. With one exception, discussed infra note 8, those four elements were nearly identical to the elements of "justification" delineated by the trial court in this case.

Although the Dixon Court, for this purpose, used the term "duress," that usage appears to have been a carry-over of the usage employed below. See United States v. Dixon, 413 F.3d 520, 525 (5th Cir.2005) (using "duress" and "justification" interchangeably). This imprecision is understandable. Since the federal felon-in-possession statute does not explicitly admit of any affirmative defenses, courts have been able only to infer the availability of such defenses, though in appropriate circumstances they have not hesitated to do so. See, e.g., United States v. Deleveaux, 205 F.3d 1292, 1297 & n. 7 (11th Cir.2000) (collecting cases from six other circuits). We ourselves have intimated that, in appropriate circumstances, we would recognize a justification defense to a federal felon-in-possession charge. See United States v. Holt, 464 F.3d 101, 107 & n. 4 (1st Cir.2006); see also Holliday, 457 F.3d at 127 (assuming, arguendo, the availability of a justification defense of self-defense in a § 922(g) case).

This inferential process, which requires courts to draw on common law doctrines, has produced confusion over nomenclature. See, e.g., United States v. Panter, 688 F.2d 268, 272 n. 7 (5th Cir. 1982) (discussing whether "necessity" or "self-defense" is the appropriate label for a defense to a federal felon-in-possession charge). Many courts have sought to avoid this confusion by treating a compendium of common law defenses — duress, necessity, and self-defense — as interchangeable in this context (that is, in a felon-in-possession case in which proof of the affirmative defense will not negate any element of the charged crime) and lumping them under the rubric of "justification."³ See, e.g., United States v. Beasley, 346 F.3d 930, 934-35 (9th Cir.2003); see also Deleveaux, 205 F.3d at 1295 n. 2 (collecting cases). Our canvass of...