U.S. v. Wofford

• Decision Date: 21 August 1997
• Docket Number: No. 96-10008,96-10008
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brett Wayne WOFFORD, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 787

122 F.3d 787

UNITED STATES of America, Plaintiff-Appellee, v. Brett Wayne WOFFORD, Defendant-Appellant.

No. 96-10008.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Feb. 11, 1997.

Decided May 7, 1997.

As Amended Aug. 21, 1997.

Kathy M. Chavez, Berkeley, CA, for defendant-appellant.

William P. Keane, Assistant United States Attorney, San Jose, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California, James Ware, District Judge, Presiding. D.C. No. CR-95-10055-JW.

Before: SCHROEDER, ALARCON, and O'SCANNLAIN, Circuit Judges.

O'SCANNLAIN, Circuit Judge.

We must decide whether the judge in a felon-in-possession trial properly barred the defendant from presenting a justification defense to the jury and whether a California conviction for grand theft from a person is a violent felony for mandatory minimum sentencing purposes.

I

Wofford was convicted in 1976 for robbery, in 1979 for grand theft from a person, and in 1982 for assault. As a felon, he was prohibited from possessing a firearm or ammunition. Nonetheless, when Wofford was arrested at his mother's house where he was living in 1995, a police search uncovered a .357 magnum caliber six-shot revolver and a box of ammunition. The weapon and ammunition were in a grocery bag wrapped with tape, which was found in the attic crawl-space accessed by a ladder from the garage. Wofford was thereafter indicted and tried on one count of felon-in-possession of a firearm and one count of felon-in-possession of ammunition, both in violation of 18 U.S.C. § 922(g)(1).

Evidence at trial showed that Wofford purchased the revolver in early 1991. He claimed that he initially kept the gun under his mattress, and later gave it to his girlfriend's next door neighbor. While in jail in July 1991 on an unrelated matter, Wofford had his mother retrieve the gun from the neighbor and store it in a bedroom closet in her house where he returned to live after his release from jail in mid-1992. The government presented evidence establishing that Wofford had placed the weapon and ammunition in the bag, sealed it, and hid it in his mother's attic.

Wofford took the stand and offered a justification defense, testifying that after his arrest for murder of members of the "Hell's Angels" gang in 1985, he had received continuing threats on his life. After interrupting his testimony and conducting a hearing, the district court ruled that Wofford could not satisfy the elements of a justification defense as a matter of law.

Wofford also contended that the mandatory minimum sentence of 15 years imprisonment under 18 U.S.C. § 924 did not apply to him because his prior conviction for grand theft from a person was not a "violent felony." Before trial, he moved to strike the enhancement allegations in the indictment. The district court denied his motion, ruling that "taking property directly from another is 'conduct that presents a serious potential risk of physical injury to another,' since it is likely that a struggle will ensue resulting in physical injury to the victim."

The jury convicted Wofford of both counts of felon-in-possession, and the district court sentenced him to the mandatory minimum of fifteen years imprisonment. He filed this timely appeal from both his convictions and his sentence.

II

During a break in Wofford's testimony supporting his justification defense, the district court entertained argument on whether Wofford could, as a matter of law, satisfy the requirements for the defense. After allowing Wofford to make an offer of proof, the district court ruled that the justification defense was not available. It thereafter instructed the jury to disregard Wofford's testimony on justification.

Wofford argues that the district court improperly took the justification defense away from the jury. He is correct to the extent that a criminal defendant has the right to have a jury resolve disputed factual issues. United States v. Dorrell, 758 F.2d 427, 430 (9th Cir.1985). Wofford is entitled to "instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Lemon, 824 F.2d 763, 764 (9th Cir.1987). "A 'mere scintilla' of evidence supporting a defendant's theory, however, is not sufficient to warrant a defense instruction." United States v. Morton, 999 F.2d 435, 437 (9th Cir.1993).

There are four elements to a justification defense ¹ to a charge of felon in possession of a firearm [The defendant] must demonstrate that: (1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.

Lemon, 824 F.2d at 765; see United States v. Gomez, 92 F.3d 770, 775 (9th Cir.1996).

The government does not seriously dispute the second element. We must decide, however, whether Wofford could satisfy the other three elements of the defense.

A

Was Wofford "under unlawful or present threat of death or serious bodily injury"? Wofford claims that he received threats beginning when he was charged in 1985 with the death of three "Hell's Angels" gang members. At trial, he testified that he had received numerous written and verbal threats, had been assaulted several times, had dodged gunfire twice, and that his wife had received a rape threat. These incidents occurred between 1985 and January 1991. In his offer of proof to the court, Wofford later stated that he continued to receive threats throughout 1991 and 1992, and had received threats while in custody awaiting trial, although he provided no details regarding threats received after January 1991. Wofford was charged with possession of a firearm between July 26, 1991 and October 26, 1992. Wofford contends that, if viewed in the light most favorable to him, he adduced sufficient evidence to satisfy the requirement that he be under "present threat of death or serious bodily injury." We disagree.

The most recent specific threat Wofford identified occurred in January 1991-five months before the charged conduct began. We have previously held that a "present threat" must be much more recent than that. See United States v. Sahakian, 965 F.2d 740, 741 (9th Cir.1992) (holding that threat occurring 36 days before possession of firearm not "present threat"); Lemon, 824 F.2d at 765 (ruling that "present threat" ceased when Lemon's assailant left scene).

Wofford's vague testimony during his offer of proof that the threats were "continuing" does not change our conclusion. He was unable to provide any details whatsoever about threats received after January 1991. ² The bald assertion that he was threatened throughout the relevant period is not enough to entitle Wofford to a jury instruction. Indeed, unless a defendant presents evidence of a specific threat or a specific instance when he was threatened, it is impossible for the court to determine whether the four elements to the justification defense have been met. In such circumstances, the justification defense is unavailable as a matter of law.

Wofford places great reliance on two cases: United States v. Gomez, 92 F.3d 770 (9th Cir.1996), and United States v. Contento-Pachon, 723 F.2d 691 (9th Cir.1984). Both of those cases involved exceptional circumstances, and both defendants had presented specific evidence of very recent threats that had not yet abated.

In Gomez, the defendant was a confidential informant in the prosecution of one Mir. Mir had solicited the murder of several witnesses to a different criminal case. The government mistakenly released Gomez's name to Mir, and Mir had proceeded to threaten Gomez and had even taken out a contract on Gomez's life. Gomez turned for help to federal agents, local law enforcement, his parole agent, and two churches, all to no avail. He then attempted to hide by living with a series of friends and family members. After receiving another death threat, he eventually took possession of a friend's firearm and was arrested two days later. The court held that, although two days had elapsed between the latest threat and Gomez's possession, Gomez was nonetheless under a "present threat" because the clear, highly specific, and credible danger to him had not ceased. Id. at 776.

As Chief Judge Posner observed in United States v. Perez, 86 F.3d 735 (7th Cir.1996), Gomez is limited to extraordinary cases.

The defense of necessity will rarely lie in a felon-in-possession case unless the ex-felon, not being engaged in criminal activity, does nothing more than grab a gun with which he or another is being threatened.... [O]nly in the most extraordinary circumstances, illustrated by United States v. Gomez, where the defendant had sought protection from the authorities without success, will the defense entitle the ex-felon to arm himself in advance of the crisis merely because he fears, however sincerely and reasonably, that he is in serious danger of deadly harm.

Id. at 737 (citation omitted).

Likewise, Contento-Pachon, 723 F.2d at 691, a duress case, is distinguishable. Contento-Pachon was a Colombian citizen who swallowed balloons filled with cocaine and then flew to the United States. He testified that he and his family had been threatened by a Colombian drug trafficker named Jorge, who forced Contento-Pachon to swallow the balloons and transport them to America. Jorge told Contento-Pachon that he would be watched at all times during the trip; if he failed to follow Jorge's instructions, Jorge would kill his family. Contento-Pachon did not go to the police since he believed the Colombian police were corrupt. When he was stopped by U.S. customs agents and taken out of...