United States v. Brown

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 00-4282

ROBERT LEWIS BROWN,

Defendant-Appellant.



Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Frederic N. Smalkin, District Judge.

(CR-99-423)

Argued: February 28, 2001

Decided: March 15, 2001

Before MICHAEL, MOTZ, and TRAXLER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

COUNSEL

ARGUED: Beth Mina Farber, Assistant Federal Public Defender,

Baltimore, Maryland, for Appellant. Andrew George Warrens Nor-

man, Assistant United States Attorney, Baltimore, Maryland, for

Appellee. ON BRIEF: James Wyda, Federal Public Defender, Balti-

more, Maryland, for Appellant. Lynne A. Battaglia, United States

Attorney, Baltimore, Maryland, for Appellee.

2 UNITED STATES v. BROWN

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

OPINION

PER CURIAM:

In this appeal, Robert Lewis Brown challenges his conviction for

being a felon in possession of a firearm in violation of 18 U.S.C.

§ 922(g)(1) (1994) on the ground that the district court erroneously

denied his request for a jury instruction on the defense of justification.

We affirm.

I.

In May 1999, Janiece Miller and her son, Willie Forrest, lived with

Gloria Miller, Janiece’s mother, in a Baltimore apartment. Gloria did

not approve of her daughter’s boyfriend, Leonard Swanigan; in fact,

because Swanigan assertedly had abused Janiece and Willie, Gloria

forbade her daughter from inviting Swanigan into the apartment.

Nevertheless, on May 13, 1999, while Gloria was at work, Janiece

allowed Swanigan into the apartment. That night, at approximately

8:00 p.m., Gloria called the apartment and spoke to Willie, her grand-

son, who informed her of Swanigan’s presence. Gloria asked to speak

with her daughter and, once Janiece was on the line, ordered her to

tell Swanigan to leave the apartment immediately. Janiece complied

with her mother’s demand and Swanigan left the apartment some time

after 8:00 p.m.

Concerned about her daughter and grandson’s well-being, Gloria

called her brother, Robert L. Brown, and asked him to go to the apart-

ment to ensure that Swanigan had vacated the premises. Brown com-

plied and arrived at the apartment well before 9:00 p.m. Once inside,

Brown confronted his niece, Janiece, about inviting Swanigan into the

apartment. A heated argument erupted during which Brown assertedly

struck Janiece. At various times during Brown’s visit, Janiece called

911 for help. At one point, while Janiece was on the phone with an

UNITED STATES v. BROWN 3

emergency operator, Willie exclaimed that Brown had a gun. Janiece

reiterated Willie’s observation to the 911 operator. At trial, Janiece

testified that she did not see a gun, but that she heard "something hard

hit the floor" before her son cried out.

Police officers arrived at the apartment around 9:00 p.m., but

Brown was no longer there. They spoke with Janiece briefly, obtained

a physical description of Brown and his car, ensured that the apart-

ment was safe, and then left to comb the surrounding neighborhood

for Brown. A few minutes later, Brown reappeared at the apartment,

knocked on the door, and, when Janiece answered, suggested that she

talk to him. Janiece refused and Brown left again. Janiece again called

911.

Thereafter, police officers found Brown reclining in his car with

the seat back on a nearby street. They questioned Brown briefly and,

after determining his identity, asked him to step outside of his car.

When Brown opened the car door, the interior light illuminated,

revealing a handgun protruding from under the driver’s seat. The

police officers arrested Brown and confiscated the handgun at approx-

imately 9:20 p.m. During the arrest, Brown stated that the gun

belonged to his niece’s boyfriend and that he had taken it from the

boyfriend during an altercation.

Brown was indicted and tried for violating 18 U.S.C. § 922(g)(1),

which provides, in relevant part, that "[i]t shall be unlawful for any

person[,] who has been convicted in any court of a crime punishable

by imprisonment for a term exceeding one year[,] to . . . possess in

or affecting commerce, any firearm." At the close of the evidence,

Brown’s counsel requested a jury instruction on the defense of justifi-

cation. The district court rejected the request, finding that there was

insufficient evidence to warrant the instruction. Brown appeals that

ruling.

II.

To assert a justification defense to a § 922(g)(1) charge a defendant

must provide evidence from which a factfinder could conclude that:

(1) he was under unlawful and present threat of death or serious bod-

ily injury; (2) he did not recklessly place himself in a situation where

4 UNITED STATES v. BROWN

he would be forced to engage in criminal conduct; (3) he had no rea-

sonable legal alternative (to both the criminal act and the avoidance

of the threatened harm); and (4) there was a direct causal relationship

between the criminal action and the avoidance of the threatened harm.

See United States v. Perrin, 45 F.3d 869, 873-74 (4th Cir. 1995) (cit-

ing United States v. Crittendon, 883 F.2d 326, 330 (4th Cir. 1989)).

As a general rule, "a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient for a

reasonable jury to find in his favor." Matthews v. United States, 485

U.S. 58, 63 (1988). But a defendant must present sufficient evidence

to create a jury issue as to all four elements to obtain a justification

instruction.

Brown did proffer some evidence as to the second element, that he

did not "recklessly place himself in a situation where he would be

forced to engage in criminal conduct." On this point, Brown offered

the testimony of his sister, Gloria Miller, who stated that Brown went

to the apartment at her request and the testimony of his wife, who

stated that Brown did not leave their home with a gun. The district

court held that "[t]here’s [sic] some evidence that if he went there,

that he did not recklessly do so." The government does not rebut the

court’s finding. Thus, we find that Brown has satisfied the second ele-

ment of the Perrin test. However, Brown has failed to meet his bur-

den as to any of the other elements.

As to the first element, that he was under an unlawful, present

threat of death or serious bodily injury, Brown contends that he acted

to protect Janiece and Willie from Swanigan’s abuse. To be sure, a

defense of justification, and thus a justification instruction, is avail-

able to a defendant who violates § 922(g)(1) in order to protect a third

party under threat of death or serious bodily injury. See United States

v. Newcomb, 6 F.3d 1129, 1135-36 (6th Cir. 1993) (finding that

defendant who disarmed his girlfriend’s son to protect a third party

may assert the defense). However, the defendant bears the burden of

proving that a threat of death or serious bodily injury actually existed,

thus compelling the § 922(g)(1) violation. Here, Brown has proffered

insufficient evidence even to create a jury issue on this question.

Brown relies on the testimony of his wife, Wanda, that when he left

for the apartment on the night of May 13, 1999, he was not carrying

UNITED STATES v. BROWN 5

a gun, and on the testimony of his sister, Gloria, that Swanigan had

abused her daughter, Janiece, and her grandson, Willie, and that she

had sent Brown to the apartment to prevent Swanigan from harming

anyone there. Although Brown did not testify at his trial, he also relies

on his statements made to the police during his arrest that he had

obtained the gun from Swanigan in an altercation.

This evidence provides an insufficient basis to find that an alterca-

tion occurred between Brown and Swanigan in which Brown acted to

minimize the threat of death or serious bodily injury to his niece or

her son. None of the evidence adduced at trial establishes that Brown

and Swanigan ever came in contact with one another on the night of

his arrest. Indeed, when the police arrived at the apartment in

response to Miller’s 911 calls, neither Brown nor Swanigan were any-

where to be found. Brown’s counsel even concedes that Janiece, Wil-

lie, and Swanigan testified that Swanigan had left the apartment

before Brown arrived. Brief of Appellant at 7 n.3.* Moreover,

Brown’s own statement during his arrest is self-serving and, absent

cross-examination, unreliable.

We note that the cases on which Brown relies are distinguishable.

For example, in United States v. Newcomb, 6 F.3d 1129, 1131 (6th

Cir. 1993), the defendant, his girlfriend, and his friend testified that

the defendant was watching television when his girlfriend entered the

room and told him that her son had just grabbed a gun and ran out-

side, threatening to kill someone. The defendant then pursued his girl-

friend’s son and confiscated and disposed of the gun. Id. Similarly,

in United States v. Paolelo, 951 F.2d 537, 539 (3d Cir. 1991), the

defendant and his stepson testified that a man struck the stepson in a

bar and that the defendant wrestled a gun away from the assailant to

protect his stepson. Thus, in both Newcomb and Paolello, the defen-

dant not only testified at trial as to the specific life-threatening event

that forced him to violate the law, but also had additional witnesses

testify to the same on his behalf. Here, in contrast, neither Brown nor

*Although we recognize the theoretical possibility that Brown and

Swanigan could have crossed paths somewhere outside the apartment

after Swanigan had left and before Brown had arrived, e.g., on the stoop

or in the street, Brown has failed to offer even a scintilla of evidence to

support a finding that such a scenario occurred.

6 UNITED STATES v. BROWN

any other witness presented first-hand testimony regarding the alleged

altercation with Swanigan. For these reasons, we must conclude that

Brown failed to offer sufficient evidence to create a jury question on

the first element of the Perrin test.

Brown also failed to offer sufficient evidence, as to the third ele-

ment, that he had "no reasonable legal alternative" to fighting and dis-

arming Swanigan. Put simply, without sufficient evidence that an

altercation occurred, there can not be sufficient evidence that Brown

lacked a reasonable alternative to avoiding a violation of § 922(g)(1).

See United States v. Holt, 79 F.3d 14, 17 (4th Cir. 1996) (requiring

defendants seeking a self-defense instruction to provide "evidence

demonstrating a lack of reasonable legal alternatives to committing

the crime").

Moreover, even assuming that the alleged altercation did take

place, Brown’s continued possession of the handgun after the asserted

threat of death or serious bodily injury had dissipated, without

attempting to contact the authorities or safely dispose of the gun,

negates any possible satisfaction of this element. See United States v.

Mason, 233 F.3d 619, 624-25 (D.C. Cir. 2001) ("[I]t is the retention

of [a firearm], rather than the brief possession for disposal . . ., which

poses the danger which is criminalized by felon-in-possession stat-

utes.") (internal quotation marks omitted). Police officers found

Brown in his car around 9:20 p.m., approximately twenty minutes

after they arrived at the apartment in response to Janiece Miller’s 911

calls; Willie noticed that Brown had a gun before the police arrived;

and prior to Willie’s observation, Brown and Janiece Miller had been

engaged in a hostile argument for a period of time. Thus, Brown was

in possession of the firearm for at least twenty minutes without

attempting to rid himself of it. Accordingly, Brown failed to proffer

sufficient evidence to create a jury question as to the third element of

the Perrin test.

Finally, because Brown has failed to demonstrate that an alterca-

tion with Swanigan took place, there can be no direct causal link

between the act of disarming Swanigan and the avoidance of harm to

Janiece Miller and her son. Thus, Brown also failed to offer sufficient

evidence to create a jury question as to the fourth element of the Per-

rin test.

UNITED STATES v. BROWN 7

III.

Accordingly, the judgment of district court is

AFFIRMED.