United States v. Purvis

• Decision Date: 12 February 2013
• Docket Number: No. 09–3044.,09–3044.
• Citation: 706 F.3d 520
• Parties: UNITED STATES of America, Appellee v. Everett M. PURVIS, also known as Man–Man, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

706 F.3d 520

UNITED STATES of America, Appellee

v.Everett M. PURVIS, also known as Man–Man, Appellant.

No. 09–3044.

United States Court of Appeals,District of Columbia Circuit.

Argued Oct. 5, 2012.

Decided Feb. 12, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:08–cr–00245–1).

Sandra G. Roland, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A.J. Kramer, Federal Public Defender. Neil H. Jaffee and Lisa B. Wright, Assistant Federal Public Defenders, entered appearances.

James A. Petkun, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, and Roy W. McLeese III, Matthew P. Cohen, and Courtney Denise Spivey, Assistant U.S. Attorneys. Elizabeth Trosman, Assistant U.S. Attorney, entered an appearance.

Before: ROGERS and GARLAND, Circuit Judges, and RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge:

Everett Purvis appeals his convictions for assault with a dangerous weapon, possession of a firearm during dangerous offenses, and being a felon in possession of a firearm. Purvis appeals on the ground that the district court improperly instructed the jury with respect to his claim of self-defense. We affirm the judgment of the district court.

I

On May 14, 2008, a gunfight broke out in front of an apartment building in the Anacostia neighborhood of Washington, D.C. Appellant Everett Purvis was one of the shooters; the other was Phillip Blake. Although neither man was hit, a witness to the confrontation was injured when a stray bullet shattered a window and grazed her face. Purvis was subsequently indicted by a federal grand jury on two counts of assault with intent to kill while armed, in violation of D.C.Code §§ 22–401 and 22–4502; one count of assault with a dangerous weapon, in violation of D.C.Code § 22–402; three counts of possession of a firearm during a crime of violence or dangerous offense, in violation of D.C.Code § 22–4504(b); and one count of possession of a firearm and ammunition by a person previously convicted of a felony, in violation of 18 U.S.C. § 922(g)(1).

At trial, Blake testified that Purvis walked over to him, accused him of being a government snitch, and pointed a gun at his head. Trial Tr. 89–90 (Feb. 3, 2009 p.m.). When Purvis told Blake he was going to kill him, Blake began backing away. Id. at 90–91. When Blake turned around to run, Purvis started shooting at him. Id. at 91. “[T]hat's when I managed to get my gun from my pocket,” Blake said, “and I shot at him ..., behind my back while I was running.” Id. at 92. The injured witness gave testimony corroborating this account; she, too, said that Purvis had called Blake a snitch and then fired the first shot. Trial Tr. 31–32, 37–38 (Feb. 4, 2009 p.m.).

Purvis also testified. According to his testimony, it was Blake who initiated a verbal confrontation and the resulting shootout. Trial Tr. 104–07 (Feb. 4, 2009 p.m.). Purvis testified that Blake approached him and “said something—he was like, after—I can't remember exactly what he said.” Id. at 104. After a couple of minutes of argument, Purvis said, Blake “walk[ed] off and like when he got a distance, he just turned around and started firing.” Id. at 107. Purvis testified that he then grabbed a gun from a friend and started shooting back at Blake in self-defense. Id. at 108–09.

The district court instructed the jury that self-defense could be a defense to a number of the charges against Purvis.¹ And it told the jury the following with respect to Purvis' claim of self-defense:

Mr. Purvis is not required to prove that he acted in self-defense. Where evidence of self-defense is present, the government must prove beyond a reasonable doubt that the defendant did not act in self-defense. If the government has failed to do so, you must find the defendant not guilty of the applicable offense.

There has been testimony both that Phillip Blake was the aggressor and that the defendant was the aggressor. You must first determine from the evidence whether, in fact, the defendant was the aggressor. If you find that the defendant was the aggressor or if he provoked the conflict himself, he cannot rely upon the right of self-defense to justify his use of force.

Trial Tr. 27–28 (Feb. 9, 2009 a.m.).

After a five-day trial, the jury returned a verdict of guilty on two lesser included offenses of assault with a dangerous weapon, as well as on three possession counts. On April 30, 2009, the district court sentenced Purvis to consecutive 63–month and 48–month terms of imprisonment. Purvis challenges the district court's judgment on the single ground that its self-defense instruction erroneously diluted the government's burden of proof.

II

Purvis did not object to the self-defense instruction in the district court. To the contrary, his trial counsel pronounced himself “satisfied” with the instruction. Trial Tr. 40 (Feb. 6, 2009 a.m.). Accordingly, we review his claim only for plain error. United States v. Simpson, 430 F.3d 1177, 1183 (D.C.Cir.2005). Under that standard: “ ‘[T]here must be (1) error, (2) that is plain, and (3) that affect[s] substantial rights. If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.’ ” Id. (quoting Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)); see alsoFed.R.Crim.P. 52(b).

Purvis challenges only one sentence of the jury instruction: “You must first determine from the evidence whether, in fact, the defendant was the aggressor.” Trial Tr. 28 (Feb. 9, 2009 a.m.).² He contendsthat, rather than requiring the jury to decide whether the government had proven beyond a reasonable doubt that he did not act in self-defense, this sentence erroneously suggested that the jury should engage in a “simple weighing of each party's evidence against the other,” Appellant's Br. 18, in order to “determine [the] historical truth ... as [to] whether Mr. Purvis shot first,” id. at 19. This, Purvis maintains, “sent the jury veering away from the more subtle and complex inquiry whether the government had ... disproved Mr. Purvis' self-defense claim” beyond a reasonable doubt, thereby violating Purvis' right to due process. Id. at 22; see id. at 16.

At oral argument, Purvis' counsel acknowledged that he would not have claimed error if the challenged sentence had read: “You must first determine beyond a reasonable doubt whether, in fact, the defendant was the aggressor.” Oral Arg. Recording at 10:20; see also supra note 2. But that is effectively what the judge did charge. As set out in Part I above, just three sentences earlier the court had stated in unequivocal terms that “the government must prove beyond a reasonable doubt that the defendant did not act in self-defense.” Trial Tr. 27–28 (Feb. 9, 2009 a.m.). The follow-up instruction to determine “whether, in fact, the defendant was the aggressor,” id. at 28, merely highlighted what Purvis acknowledges was the only element of his self-defense claim that was in dispute at trial. Oral Arg. Recording at 24:40.³

In urging the contrary position, Purvis necessarily asks us to view a single sentence of the court's jury instructions in isolation. This we may not do. To the contrary, “[i]t is well established that [an] instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (internal quotation marks omitted); see United States v. Toms, 396 F.3d 427, 436 (D.C.Cir.2005). Here, not only did the district court specifically instruct the jury that the government bore the burden of proving the absence of self-defense beyond a reasonable doubt, Trial Tr. 27–28 (Feb. 9, 2009 a.m.), it repeatedly instructed that the government bore the burden of proving each of the elements of the charged offenses beyond a reasonable doubt, see, e.g., id. at 9–10. It also specifically instructed that the “burden of proof never shifts throughout the trial.” Id. at 9.

Moreover, in deciding whether a jury instruction was erroneous, we must consider not only “the content of the entire jury instruction,” but also “the arguments of counsel.” United States v. Chan Chun–Yin, 958 F.2d 440, 444 (D.C.Cir.1992). And here, the closing arguments of both the prosecution and the defense specifically referenced the government's burden to disprove Purvis' self-defense claim beyond a reasonable doubt. See Trial Tr. 43, 57 (Feb. 9, 2009 a.m.). Given this context, it would be hard to conclude there was a “reasonable likelihood” that the jury “applied the challenged instruction in a way that violates the Constitution.” Jones v. United States, 527 U.S. 373, 390, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) (internal quotation marks omitted).

Even if the district court's instruction were in error, Purvis could still prevail only if the error were plain, in the sense of being “ ‘clear’ or ‘obvious.’ ” United States v. Bryant, 523 F.3d 349, 353 (D.C.Cir.2008). This would be so if the instruction “failed to follow [an] absolutely clear legal norm,” United States v. Andrews, 532 F.3d 900, 909 (D.C.Cir.2008) (internal quotation marks omitted), or “tread upon a well-established constitutional or legal principle,” United States v. Laureys, 653 F.3d 27, 33 (D.C.Cir.2011) (internal quotation marks omitted). But that did not happen here. The district court's self-defense instruction reproduced verbatim language from the then-current version of the model Criminal Jury Instructions for the District of Columbia (colloquially known as the “Redbook”). SeeYoung Lawyers Section of the Bar Ass'n of the District of Columbia, Criminal Jury...