U.S. v. Talbott

• Citation: 78 F.3d 1183
• Decision Date: 08 March 1996
• Docket Number: No. 95-2503,95-2503
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Dale TALBOTT, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1183

78 F.3d 1183

UNITED STATES of America, Plaintiff-Appellee, v. Richard Dale TALBOTT, Defendant-Appellant.

No. 95-2503.

United States Court of Appeals Seventh Circuit.

Argued Jan. 17, 1996.

Decided March 8, 1996.

Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division, No. NA 94-21-CR-H/H; David F. Hamilton, Judge.

Mark D. Stuaan (argued), Office of United States Attorney, Indianapolis, IN, for United States.

Linda M. Wagoner (argued), Indiana Federal Community Defenders, Inc., Indianapolis, IN, for Richard Dale Talbott.

Before BAUER, EASTERBROOK, and MANION, Circuit Judges.

PER CURIAM.

A jury convicted Richard Dale Talbott of being a felon in possession of a firearm and of being a felon in possession of ammunition. 18 U.S.C. § 922(g)(1). The district court sentenced Talbott to 327 months' imprisonment, to be followed by five years of supervised release. He appeals his convictions and sentence. We have jurisdiction under 28 U.S.C. § 1291.

I

In the evening of November 19, 1984, Lori Klingsmith and Milton Ferrell drove to the Bridge Liquors store in New Albany, Indiana. Ferrell entered the store, while Klingsmith waited in the car with her grandson. At about the same time, the defendant and his wife, Trudy Talbott, entered the store. While there, they encountered the defendant's cousin, Clarence Fuller.

Ferrell purchased a case of beer. He left the beer at the check-out counter while he went to pick out a bottle of bourbon. Fuller took the case of beer out of the store and placed it in the Talbotts' car. When Ferrell realized that his beer no longer was at the check-out counter, he exited the store and confronted the defendant. An argument ensued, during which Ferrell removed a knife from his pocket. Upon seeing the knife, Trudy Talbott handed the defendant a rifle from inside their car. The defendant pointed the rifle at Ferrell, who reentered the store and telephoned the police. The defendant thereupon returned the rifle to his wife.

At this point, Fuller approached the Talbotts' car to retrieve the case of beer. A struggle over the rifle developed among the defendant, Fuller, and Trudy Talbott. During the struggle, Fuller was shot in the neck and fell to the ground. The defendant took the rifle from his wife, ejected the spent casing, stood over Fuller, and threatened to kill him if he got up.

Fuller drove himself to the hospital for treatment of his gunshot wound. The defendant and his wife also went to the hospital, where the police arrested Trudy Talbott for attempted murder. The police recovered the loaded rifle and some ammunition from the Talbotts' car. The defendant told the police that he owned the rifle.

The following Monday, November 21, 1994, the defendant went to the Floyd County Courthouse, where his wife was being charged. Shortly after he arrived there, a detective arrested him for his involvement in the November 19 altercation. Following the arrest, the detective searched the defendant and found 24 rounds of ammunition in his pocket. Because Talbott had been convicted of felony battery in 1991, the federal government charged the defendant with two counts of being a felon in possession (of a weapon and of ammunition), in violation of 18 U.S.C. § 922(g)(1).

II

At trial, the theory of defense was that the defendant justifiably possessed the rifle in order to prevent harm to himself and to his wife, and that he justifiably possessed the ammunition because he carried it to the courthouse to surrender it as evidence. The defendant tendered a self-defense instruction and what he termed a "good faith defense" instruction. The tendered instructions stated that the government had the burden to negate the defenses beyond a reasonable doubt. The district court determined that the defendant had raised both defenses sufficiently ¹ and that instructions therefore were appropriate on each. In instructing the jury, however, the court stated that the defendant bore the burden of proving the defenses by a preponderance of the evidence. The defendant argues on appeal that the instructions, by shifting the burden of proof to him, amounted to reversible error. In reviewing jury instructions to which objections properly were raised in the proceedings below, we must determine, from looking at the charge as a whole, "whether the jury was misled in any way and whether it had understanding of the issues and its duty to determine those issues." United States v. Donovan, 24 F.3d 908, 916-17 (7th Cir.) (citation omitted), cert. denied, --- U.S. ----, 115 S.Ct. 269, 130 L.Ed.2d 187 (1994). We conclude that the challenged instructions misled the jury by impermissibly shifting the burden of proof to Talbott.

The United States Constitution requires the government to prove beyond a reasonable doubt "every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368 (1970); Mason v. Gramley, 9 F.3d 1345, 1349 (7th Cir.1993). A jury instruction that shifts to the defendant the burden of disproving an element of the charged offense is unconstitutional. United States v. Toney, 27 F.3d 1245, 1250 (7th Cir.1994), citing Patterson v. New York, 432 U.S. 197, 215, 97 S.Ct. 2319, 2329, 53 L.Ed.2d 281 (1977). However, federal and state legislatures may reallocate the burden of proof by labeling elements as affirmative defenses and stating that criminal defendants bear the burden of proving those defenses. Martin v. Ohio, 480 U.S. 228, 233, 107 S.Ct. 1098, 1101, 94 L.Ed.2d 267 (1987); Patterson, 432 U.S. at 210, 97 S.Ct. at 2327; Eaglin v. Welborn, 57 F.3d 496, 500-01 (7th Cir.1995) (en banc); Mason, 9 F.3d at 1350. The Supreme Court has upheld this shifting of the burden of proof against constitutional challenges, reasoning that the federal Constitution requires that the government bear the burden only as to the elements of the charged crime and that the legislature's definition of the elements of a criminal offense usually is dispositive. Martin, 480 U.S. at 232-33, 107 S.Ct. at 1101; McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S.Ct. 2411, 2415, 91 L.Ed.2d 67 (1986); Patterson, 432 U.S. at 201-02, 97 S.Ct. at 2322.

Using this power, Congress has shifted the burden of proving the affirmative defense of insanity. See 18 U.S.C. § 17(b) ("[t]he defendant has the burden of proving the defense of insanity by clear and convincing evidence"). Similarly, 18 U.S.C. § 2320(c) states that "[i]n a prosecution [for trafficking in counterfeit goods or services], the defendant shall have the burden of proof, by a preponderance of the evidence, of any [applicable] affirmative defense." See also 18 U.S.C. § 373(b) (defines "voluntary and complete" renunciation defense to charge of solicitation to commit a crime of violence, and states that defendant has burden of proving the defense by a preponderance of the evidence). Compare 18 U.S.C. § 3146(c) (defines affirmative defense to charge of failing to appear, but does not allocate to defendant burden of proving defense).

Nevertheless, the fact that the Constitution allows Congress or state legislatures to enact laws allocating to criminal defendants the burden of proving affirmative defenses does not mean that, absent a statute actually doing so, the burden shifts automatically. In other words, though it may be constitutionally permissible to enact a burden-shifting statute, some affirmative legislative action must trigger that shift. See Mason, 9 F.3d at 1350 (noting that Supreme Court has approved state statutory schemes that "do not require the State to disprove every affirmative defense but that instead allocate to a defendant the burden of establishing his affirmative defense by a preponderance of the evidence"). Absent such a statute, the burden of proof remains on the government to negate beyond a reasonable doubt the affirmative defense properly raised by the defendant. See, e.g., Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535, 1540, 118 L.Ed.2d 174 (1992) (entrapment defense); Mullaney v. Wilbur, 421 U.S. 684, 701, 704, 95 S.Ct. 1881, 1890, 1892, 44 L.Ed.2d 508 (1975) (heat of passion defense); United States v. Read, 658 F.2d 1225, 1236 (7th Cir.1981) (withdrawal from conspiracy defense); United States v. Jackson, 569 F.2d 1003, 1008 n. 12 (7th Cir.), cert. denied, 437 U.S. 907, 98 S.Ct. 3096, 57 L.Ed.2d 1137 (1978) (self-defense). Thus, although a defendant may bear the burden of production as to an affirmative defense (that is, he must produce sufficient evidence to require its submission to the jury), see Toney, 27 F.3d at 1248, the burden of proof (or the burden of persuasion ) remains on the government to negate that defense beyond a reasonable doubt, unless a statute affirmatively reallocates that burden of proof to the defendant.

We have not found, nor has counsel presented, any statutory predicate for the affirmative defenses raised in this case. "Self-defense" is not defined in the federal criminal code as a defense to the crime charged, that is, the crime of being a felon in possession. Instead, some circuits have recognized it as a matter of common law. ² See United States v. Elder, 16 F.3d 733, 738-39 (7th Cir.1994); see also United States v. Singleton, 902 F.2d 471, 472 (6th Cir.), cert. denied, 498 U.S. 872, 111 S.Ct. 196, 112 L.Ed.2d 158 (1990); United States v. Lemon, 824 F.2d 763, 765 (9th Cir.1987); United States v. Panter, 688 F.2d 268, 271 (5th Cir.1982). Just as Congress has not defined the defenses by statute, neither has it enacted any statute allocating to the defendant the burden of proving the defenses asserted here. Because no law reallocated the burden of proof to Talbott, the prosecution had the burden not only of proving beyond a reasonable doubt the elements of the charged offenses, but also of negating beyond a reasonable doubt the affirmative defenses raised by him. See Jackson, ...