United States v. Aaron Taylor

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 11-2875

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UNITED STATES OF AMERICA

v.

AARON TAYLOR,

Appellant

_____________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-07-cr-00288-001)

District Judge: Honorable Paul S. Diamond

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Argued May 22, 2012

Before: RENDELL, FUENTES and HARDIMAN,

Circuit Judges

(Opinion Filed : July 25, 2012 )

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Mark E. Cedrone, Esq. [ARGUED]

Law Offices of Mark E. Cedrone

123 South Broad Street, Suite 810

Philadelphia, PA 19109

Counsel for Appellant

Virgil B. Walker, Esq. [ARGUED]

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee

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OPINION OF THE COURT

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RENDELL, Circuit Judge.

This case requires us to consider whether, by including

“without just cause or excuse” in the federal assault with a

dangerous weapon statute, 18 U.S.C. § 113(a)(3), Congress

intended to convert justification, ordinarily a common-law

defense, into an element of the offense as to which the

government bears the burden of proof beyond a reasonable

doubt. Applying relevant Supreme Court precedent, we

conclude that the existence of just cause or excuse is an

affirmative defense to a § 113(a)(3) violation, and the

defendant bears the burden of proving it by a preponderance

of the evidence. Taylor also raises two issues relating to his

testimony and offers of proof regarding justification for the

assault and complains that he was selectively prosecuted. We

conclude, however, that none of those arguments has merit.

We will affirm the judgment of the District Court.

2

I.

A. Factual Background

In the fall of 2006, defendant Aaron Taylor, who had

been convicted of drug and weapons charges, was an inmate

at the Federal Detention Center (FDC) in Philadelphia.

Because of some prior disciplinary violations, including

previous prison assaults, Taylor was assigned to the Special

Housing Unit (SHU), separate from the general prison

population.

Prisoners in the SHU are allowed one hour of

recreation a day, five days a week, in a fifteen-by-fifteen foot

yard. Before each session, a guard asks every inmate whether

he would like to take or decline recreation. Two guards then

handcuff each inmate who desires recreation and transport

him to one of five enclosed yards. After the inmate enters the

yard, he turns his back to the locked door and places his

cuffed hands into a slot (also called a “wicket”) so the guards

on the other side of the door can uncuff him. The same

process occurs at the end of the hour: one at a time, the

inmates back up to the wicket so the guards can handcuff

them. Once all of the inmates have been handcuffed, the

guards unlock the door and transport the inmates back to their

cells. According to a prison guard who testified at Taylor‟s

trial, an inmate may decline recreation, and be returned to his

cell, at any time during the hour.

According to Taylor, racial tensions at the FDC were

inflamed in September 2006 when a white, female

psychiatrist told Taylor, who is black, to stop looking at her.

Wayne Maruzin, a white inmate, overheard the exchange and,

according to Taylor, later discussed the incident with Peter

3

Bistrian, another white inmate. Bistrian then threatened

Taylor. About a week later, Taylor filed a complaint with the

warden asserting that the psychiatrist‟s comments were

racially motivated and exacerbated racial tension among the

inmates.

In early October 2006, a guard mistakenly gave Taylor

an extra razor blade. Taylor used the extra blade to fashion a

knife, or “shank.”

Then, on October 12, 2006, Taylor was placed in the

same recreation yard with Bistrian. The guards removed

Taylor‟s handcuffs before they removed Bistrian‟s, and the

two paced the yard for almost the entire hour. Taylor testified

that Bistrian did not make any aggressive move towards him

during the hour, but, after half an hour, Bistrian asked him

what he was looking at and, later, told him he was “going

down,” which Taylor understood to mean that Bistrian was

“going to come after” him.

At the end of the hour, Bistrian backed up to the

wicket to be handcuffed. Taylor, who had not yet been

handcuffed, followed Bistrian, and, as soon as Bistrian was

handcuffed, attacked him. Taylor punched Bistrian and

slashed his face, arms, and legs with the shank. Bistrian fell

to the ground and kicked at Taylor. Taylor ignored the

guards‟ repeated commands to stop and continued attacking

Bistrian for more than two-and-a-half minutes. The guards

used three cans of pepper spray to try to subdue Taylor but

did not succeed until they tossed a “flash bang” grenade into

the yard, stunning him. When the guards entered the yard,

Taylor told them repeatedly that he “had to get” Bistrian

before Bistrian got him. Bistrian was treated at the hospital

4

for deep cuts to his face, arms, and legs. The entire incident

was captured on video by the FDC‟s surveillance cameras.

B. Procedural History

Taylor was indicted and charged with assault with a

dangerous weapon, under 18 U.S.C. § 113(a)(3), and assault

resulting in serious bodily injury, under 18 U.S.C.

§ 113(a)(6), in May 2007. The government ultimately sought

dismissal of the second count, and the case went to trial on a

single count of assault with a dangerous weapon on

November 30, 2010. Taylor did not dispute that he had

attacked Bistrian, but attempted to show that he was justified

in doing so. Taylor was convicted on December 3, 2010, and,

on June 28, 2011, was sentenced to 120 months in prison, to

be served consecutively to the federal sentence he was

serving when the assault occurred.

Before trial, Taylor moved to dismiss the indictment

for selective prosecution. His theory was that the prosecution

was racially motivated because he was charged for this

assault, on a white victim, but had not been charged for an

earlier assault, also using razor blades, on two black inmates.

The District Court denied the motion without ordering the

government to produce discovery or holding a hearing.

Also before trial, the government filed motions in

limine for a hearing on, and then to preclude altogether,

Taylor‟s justification defense. The government argued that

Taylor‟s evidence, which consisted of testimony from Taylor,

several fact witnesses, and an expert on prison culture and

would have described the racial tensions in the prison and

asserted that Bistrian‟s threats against Taylor justified the

attack, failed to establish the defense as a matter of law.

5

In this Circuit, the elements of justification are:

First, that [the defendant] was

under an immediate, unlawful

threat of death or serious bodily

injury to himself or to others;

Second, that [the defendant] had a

well-grounded [or reasonable]

fear that the threat would be

carried out if he did not commit

the offense;

Third, that [the defendant‟s]

criminal action was directly

caused by the need to avoid the

threatened harm and that [the

defendant] had no reasonable,

lawful opportunity to avoid the

threatened harm without

committing the offense; that is,

that [the defendant] had no

reasonable lawful opportunity

both to refuse to do the criminal

act and also to avoid the

threatened harm; and

Fourth, that [the defendant] had

not recklessly placed himself in a

situation in which he would be

forced to engage in criminal

conduct.

Third Cir. Model Crim. Jury Instr. § 8.04.

6

The District Court held a hearing on November 22,

2010, at which Taylor made an offer of proof. Two days

later, the District Court denied the government‟s motion

without prejudice and decided to allow Taylor to testify. The

Court stated, “I‟m going to allow the defendant to testify to

whatever the defendant is going to testify to. . . . [I]f the

defendant testifies to justification, whether or not I allow the

defendant to call any other witnesses to support that will

depend entirely on what the defendant has to say.” At the

same time, the District Court made clear that it was skeptical

of the merits of Taylor‟s proffer:

Mr. Cedrone [Taylor‟s attorney],

as you described [Taylor‟s]

testimony yesterday, it doesn‟t

cover all the elements [of a

justification defense] and the ex

parte submission you‟ve made

today . . . also doesn‟t cover all

the elements. . . . .

However, I‟m not going to —

whatever discretion I may have to

preclude a defendant‟s testimony

with respect to justification, I‟m

not going to exercise that

discretion. I‟m going to allow the

defendant to testify, tell his story,

and at the conclusion of his

testimony we will revisit the issue

of whether or not you may call

any witnesses to corroborate that.

7

Just to give you an idea of what

my thinking is, based on your

proffer, your proffer does not

offer a defense of justification. It

covers, perhaps, one element but

it certainly doesn‟t cover all the

required elements.

The government objected to the District Court‟s ruling,

arguing that, because of the lack of support for his defense,

Taylor should not be allowed to testify as to justification.

At trial, Taylor moved for a judgment of acquittal after

the prosecution rested its case. The District Court denied the

motion. Taylor took the stand and presented his version of

the events surrounding the attack. Before he was allowed to

present additional witnesses, however, the District Court

asked Taylor for a second offer of proof. Taylor proffered the

testimony of five fact witnesses and his prison-culture expert.

None of the proposed witnesses actually saw the assault;

Taylor proposed that they would testify about the earlier

incident with the prison psychiatrist, the resulting racial

tensions, and the fact that Bistrian knew how to escape from

handcuffs and use them as a weapon (to bolster Taylor‟s

theory that Bistrian was more dangerous when cuffed than

when the inmates were pacing together in the yard). After

Taylor‟s proffer, the District Court precluded him from

putting on any of the proffered witnesses. It reasoned as

follows:

I believe [Taylor] had a

reasonable lawful opportunity to

avoid this simply by asking to be

taken out of the cage. I believe

8

that [Taylor] acted recklessly by

remaining in the cage, where

according to [Taylor], he was

being taunted. He was being

taunted a half hour before the

attack, and he remained in the

cage and didn‟t ask to be taken

out.

And so assuming for a moment

that I have to accept the absurd

notion that a man is more

dangerous and creates an

imminent threat when he puts

himself in handcuffs and that

[Taylor‟s] attack on him for . . .

...

Two minutes and thirty-seven

seconds, [Taylor] was attacking

Mr. Bistrian with a deadly

weapon through three cans of OC

spray, I just think you haven‟t

remotely made out justification. I

don‟t think there was an

immediate unlawful threat of

death or serious bodily injury to

himself or others.

I think that taking all the evidence

in the light most favorable to

[Taylor], I don‟t think [Taylor]

thought he was about to attack

9

him. I think [Taylor‟s] testimony

is that he was concerned that he

might, and he was going to get

him first. Taking [Taylor‟s]

testimony as true, I think your

client wanted to do a preemptive

strike, and he thought at some

point, accepting what he says is

true, that Mr. Bistrian was going

to attack him, but certainly not in

that cage, certainly not in that

cage.

And second, that he had a well

grounded fear or a reasonable

belief that the threat would be

carried out if he did not commit

the offense. Each time he cut Mr.

Bistrian, that could be construed

as a separate assault. And

certainly by the time Mr. Bistrian

was on the ground, and [Taylor]

continued to cut him with the

knife, he couldn‟t possibly have

had a well grounded or reasonable

fear that the threat would be

carried out if he didn‟t keep

knifing him.

But perhaps, perhaps most

significantly, that Mr. Taylor‟s

criminal action was directly

caused by the need to avoid the

threatened harm, and that Mr.

10

Taylor had no reasonable lawful

opportunity to avoid the

threatened harm without

committing the offense. I think

he plainly did, and he didn‟t avail

himself of that opportunity. He

didn‟t even try. He never asked

the guard to be taken out. And I

don‟t think that — I don‟t think he

availed himself of that reasonable

lawful opportunity.

And so although I would allow

[Taylor] to call Mr. Bistrian

because he‟s the victim of this

case, [Taylor has] elected not to

call Mr. Bistrian, and the other

witnesses, I believe down to the

expert, do not provide . . . ,

accepting everything they say is

true, don‟t provide [Taylor] with a

complete defense of justification,

and so I have the discretion to

preclude the presentation of that

defense.

The District Court instructed the jury that the government

bore the burden of proving beyond a reasonable doubt that

Taylor: (1) struck Bistrian intentionally; (2) used a dangerous

weapon, i.e., a razor, as charged in the indictment; (3) acted

with the intent to cause bodily harm; and (4) intentionally

struck Bistrian within the special maritime and territorial

jurisdiction of the United States. The District Court declined

11

to provide any instruction concerning a just cause or excuse

for the offense.

After his conviction, Taylor moved for acquittal and

for a new trial. The District Court issued a 19-page written

opinion denying the motions and explaining, among other

things, its decisions to preclude Taylor from offering

additional witnesses and not to instruct the jury about

justification. In response to Taylor‟s argument that the

absence of just cause or excuse is an element of an 18 U.S.C.

§ 113(a)(3) offense, the District Court concluded that the

absence of just cause or excuse is an affirmative defense to,

not an element of, a § 113(a)(3) violation.

Taylor now appeals.1

II.

On appeal, Taylor first argues that the District Court

erred in failing to instruct the jury that the absence of just

cause or excuse is an element of an 18 U.S.C. § 113(a)(3)

offense that the government must establish by proof beyond a

reasonable doubt. 18 U.S.C. § 113(a)(3) provides:

Whoever, within the special

maritime and territorial

jurisdiction of the United States,

is guilty of an assault shall be

punished as follows . . . Assault

1

The District Court had jurisdiction over this case under 18

U.S.C. § 3231. Our jurisdiction to review the judgment of

conviction arises under 28 U.S.C. § 1291.

12

with a dangerous weapon, with

intent to do bodily harm, and

without just cause or excuse, by a

fine under this title or

imprisonment for not more than

ten years, or both.

(emphasis added). The language of this provision is unique in

the federal assault statute, 18 U.S.C. § 113: of the seven

types of assault listed, only this provision, for assault with a

dangerous weapon, includes a specific reference to “just

cause or excuse.” Although we cannot be sure why Congress

included those words in subsection (a)(3), but not in the other

subsections of the statute, the weight of the authority and

relevant Supreme Court precedent support the District Court‟s

conclusion that they refer to an affirmative defense that the

defendant bears the burden of proving by a preponderance of

the evidence.

Few cases have discussed this point in any detail. But,

as both parties acknowledge, the great majority of cases

describing the elements of § 113(a)(3) or its predecessor,

§ 113(c), state (without much, or any, supporting analysis)

that a conviction under that subsection requires proof of only

three elements: (1) assault; (2) with specific intent to inflict

bodily harm; and (3) use of a “dangerous weapon.” See, e.g.,

United States v. Herron, 539 F.3d 881, 886 (8th Cir. 2008)

(“The elements of Assault with a Dangerous Weapon require

that the defendant: 1) assault the victim; 2) intend to do

bodily harm; and 3) use a dangerous weapon to commit the

assault.”); United States v. Smith, 520 F.3d 1097, 1101 (9th

Cir. 2008) (stating that assault with a dangerous weapon

under 18 U.S.C. § 113(a)(3) “has three elements: (1) that the

defendant intentionally struck or wounded the victim; (2) that

13

the defendant acted with the specific intent to do bodily harm;

and (3) that the defendant used a „dangerous weapon‟”); see

also United States v. Estrada-Fernandez, 150 F.3d 491, 494

(5th Cir. 1998) (per curiam); United States v. Sturgis, 48 F.3d

784, 786 (4th Cir. 1995); United States v. Johnson, 967 F.2d

1431, 1433 (10th Cir. 1992), abrogated on other grounds by

Lewis v. United States, 523 U.S. 155, 162 (1998). These

cases do not list the lack of a just cause or excuse as an

element of the offense.

Another line of cases acknowledges the statute‟s

“without just cause or excuse” language and explicitly

concludes that the government does not need to plead or

prove the absence of a just cause or excuse to secure a

conviction under § 113(a)(3). The most recent of these, and

the one on which the District Court primarily relied, is United

States v. Guilbert, 692 F.2d 1340 (11th Cir. 1982). In that

case, after reciting the three elements of assault with a

dangerous weapon listed above, the court said, “[t]he

existence of „just cause or excuse‟ for the assault is an

affirmative defense, and the government does not have the

burden of pleading or proving its absence.” Id. at 1343. The

opinion cites a string of cases for that proposition, the most

substantive of which is Hockenberry v. United States, 422

F.2d 171 (9th Cir. 1970). There, the court reasoned:

It was not necessary [for the

indictment] to recite that the

assault was „without just cause or

excuse.‟ If there was such cause

or excuse, the defendant could

show it; the government did not

have the burden of pleading or

proving its absence. By a rule of

14

long standing, „an indictment or

other pleading founded on a

general provision defining the

elements of an offense, or of a

right conferred, need not negative

the matter of an exception made

by a proviso or other distinct

clause, whether in the same

section or elsewhere, and * * * it

is incumbent on one who relies on

such an exception to set it up and

establish it.‟

Id. at 173 (quoting McKelvey v. United States, 260 U.S. 353,

357 (1922)). Although the reasoning in these cases is not

extensive, they support the District Court‟s conclusion.2

2

Taylor seeks to distinguish these cases by pointing out that

Hockenberry, which arose out of a challenge to indictment,

concerned which party bears the burden of pleading

justification, not which party bears the burden of proving that

issue. He does not explain the significance of that distinction,

but he presumably intends to argue that, by including the

“without just cause or excuse” language in the statute,

Congress set up a burden-shifting scheme in which the

defendant bears the burden of raising a justification that the

government must then disprove beyond a reasonable doubt.

As we discuss below, the Supreme Court‟s decision in Dixon

v. United States, 548 U.S. 1 (2006), forecloses any such

argument. Moreover, even though Taylor is right that

Hockenberry involved a pleading question, Guilbert did not:

the issue in that case was whether the evidence was sufficient

to support a conviction, which necessarily entails the question

15

To counter all of this authority, Taylor cites a single

case: United States v. Bordeaux, 570 F.3d 1041 (8th Cir.

2009). In Bordeaux, the Eighth Circuit Court of Appeals,

considering a sufficiency-of-the-evidence challenge to a

§ 113(a)(3) conviction, included “acted without just cause or

excuse” in a list of elements of the offense, and analyzed

whether the government “presented sufficient evidence that

Bordeaux acted without just cause or excuse.” Id. at 1047-48.

But the court did not consider whether that element should

more properly be treated as an affirmative defense, and the

government does not appear to have raised the issue.

Additionally, as the government points out here, the court‟s

interpretation of the offense in Bordeaux is inconsistent with

another of its cases from the previous year, in which it

omitted the “just cause or excuse” language from a recitation

of the elements of the offense. See Herron, 539 F.3d at 886.

Given these facts, Bordeaux does not present an especially

compelling counterpoint to the numerous cases suggesting

that “just cause or excuse” is an affirmative defense.3

of the burden of proof. Thus, even if Hockenberry is

distinguishable on the ground Taylor suggests, Guilbert is

not.

3

United States v. Wycoff, 545 F.2d 679 (9th Cir. 1976),

which Taylor raised in a post-argument submission, is

similarly unhelpful. There, the court merely affirmed a

defendant‟s assault-with-a-dangerous-weapon conviction over

a challenge that the district court failed properly to notify the

defendant of a change in the jury instructions. Id. at 683.

The district court had decided, at the last minute, to include

the absence of just cause or excuse as an element of the

16

Relevant Supreme Court precedent also supports the

District Court‟s interpretation. Specifically, in McKelvey v.

United States, 260 U.S. 353 (1922), the Supreme Court

rejected an argument that the government erred in failing to

charge in an indictment that the defendant did not fall within

an exception contained in the statute.4 It stated:

offense in its instructions. The government did not dispute,

and the court did not analyze, the substance of that decision.

4

McKelvey involved a charge of unlawfully obstructing free

passage over unoccupied public lands of the United States.

The relevant statute stated:

That no person, by force, threats,

intimidation, or by any fencing or

inclosing, or any other unlawful

means, shall prevent or obstruct,

or shall combine and confederate

with others to prevent or obstruct,

any person from peaceably

entering upon or establishing a

settlement or residence on any

tract of public land subject to

settlement or entry under the

public land laws of the United

States, or shall prevent or obstruct

free passage or transit over or

through the public lands:

Provided, this section shall not be

held to affect the right or title of

persons, who have gone upon,

17

By repeated decisions it has come

to be a settled rule in this

jurisdiction that an indictment or

other pleading founded on a

general provision defining the

elements of an offense, or of a

right conferred, need not negative

the matter of an exception made

by a proviso or other distinct

clause, whether in the same

section or elsewhere, and that it is

incumbent on one who relies on

such an exception to set it up and

establish it.

Id. at 357. Although McKelvey dealt solely with the

sufficiency of an indictment, the last sentence of the quoted

passage suggests that a defendant relying on an exception

must both raise the exception and “establish it.” In other

words, where the statute contains such an exception, the

defendant bears the burden of proving it.5

improved or occupied said lands

under the land laws of the United

States, claiming title thereto, in

good faith.

260 U.S. at 356 (quoting 23 Stat. 321 (Comp. St. § 4999)).

5

We use McKelvey to illustrate our point here because it is

often cited as the source of this rule. See, e.g., Dixon, 548

U.S. at 13-14. In fact, however, numerous Supreme Court

decisions before McKelvey, dating back at least to 1841, held

18

Of course, that is not the end of the analysis: applying

the McKelvey rule in this case naturally begs the question

whether the “just cause or excuse” language in § 113(a)(3)

qualifies as an “exception made by a proviso or other distinct

clause.” Whether a particular statutory phrase constitutes a

defense or an element of the offense under McKelvey turns on

whether “the statutory definition is such that the crime may

not be properly described without reference to the exception.”

United States v. Prentiss, 206 F.3d 960, 973 (10th Cir. 2000)

(citing United States v. Cook, 84 U.S. 168, 173-74 (1872)),

aff’d in relevant part, 256 F.3d 971, 980 (10th Cir. 2001) (en

banc). If so, the exception is an element of the crime. If not,

the exception is a defense. We conclude that, under the plain

language of McKelvey as supplemented by this test, the “just

cause or excuse” is a defense to, rather than an element of,

§ 113(a)(3).

As McKelvey requires, the “without just cause or

excuse” language in § 113(a)(3) appears in a “distinct

clause,” set off by commas from the rest of the statute. This

alone is not dispositive, however, since the phrase “with

that the party who wishes to rely on an exception to an Act of

Congress must raise it and establish it. See, e.g., Schlemmer

v. Buffalo, Rochester & Pittsburgh Ry., 205 U.S. 1, 10 (1907)

(holding that a defendant who “wishe[s] to rely upon [a]

proviso” bears “the burden . . . to bring itself within an

exception”) (internal quotation marks omitted)) (Holmes, J.);

United States v. Dickson, 40 U.S. 141, 165 (1841) (“In short,

a proviso carves special exceptions only out of the enacting

clause; and those who set up any such exception, must

establish it as being within the words as well as within the

reasons thereof.”).

19

intent to do bodily harm,” which does set forth an element,

also appears in a distinct clause. More importantly, the

former clause falls outside of the “definition” test set forth

above because the offense may properly be described as an

“[a]ssault with a dangerous weapon, with intent to do bodily

harm,” without referencing the “just cause or excuse”

language.6 Indeed, as discussed above, most cases that have

identified the elements of the offense have done precisely

that. Thus, we have no problem concluding that the “without

just cause or excuse” language in § 113(a)(3) is an “exception

made by a . . . distinct clause,” such that, under McKelvey, “it

is incumbent on” the defendant, “who relies on” the

exception, “to set it up and establish it.” 260 U.S. at 357.

Another, more recent Supreme Court case, Dixon v.

United States, 548 U.S. 1 (2006), reinforces our conclusion

that Taylor bore the burden of establishing the existence of a

just cause or excuse in this case. In Dixon, the defendant,

who was indicted and tried on federal firearms charges,

asserted a duress defense. She argued that as the defendant,

she bore the burden of production on the defense, but that the

burden then shifted to the government to disprove it beyond a

reasonable doubt.

The Supreme Court disagreed. It first concluded that

placing the burden of proving duress on the defendant did not

6

Taylor effectively concedes this point in his brief, when he

states that the statute “requires the government to prove the

absence of „just cause or excuse‟ when applicable under the

facts of a given case.” Appellant‟s Br. 31 (emphasis added).

If, as Taylor suggests, the “just cause or excuse” language

does not apply in every case, then, plainly, the absence of a

just cause or excuse is not an essential element of the offense.

20

violate the Due Process Clause of the Constitution because

proof of duress could “in no way disprove[] an element” of

the firearm-possession charge, including the requisite

“knowing” mens rea. Id. at 7; see also United States v. Dodd,

225 F.3d 340, 344 (3d Cir. 2000) (“Although the Due Process

Clause requires the government to prove all elements of the

charged offense beyond a reasonable doubt, and therefore

requires the government to disprove beyond a reasonable

doubt any defenses that negate an element of the charged

offense, there is no constitutional bar to the defendant‟s

bearing the burden of persuasion on defenses that do not

negate an element of the offense.”).

The Dixon Court also held that placing the burden of

proving duress on the defendant in that case comported with

federal common law. It noted that, “at common law, the

burden of proving affirmative defenses—indeed, all . . .

circumstances of justification, excuse or alleviation—rested

on the defendant.” Dixon, 548 U.S. at 8 (internal quotation

marks and citations omitted). This rule, the Court went on to

explain, “accords with the general evidentiary rule that the

burdens of producing evidence and of persuasion with regard

to any given issue are both generally allocated to the same

party” and “the doctrine that where the facts with regard to an

issue lie peculiarly in the knowledge of a party, that party has

the burden of proving the issue.” Id. (internal quotation

marks and citations omitted). The Court then reasoned that,

even though the firearm offense statute “does not mention the

defense of duress,” it could “safely assume that the 1968

Congress [that enacted the firearm statute] was familiar with

both the long-established common-law rule and the rule

applied in McKelvey” and that Congress “would have

expected federal courts to apply a similar approach to any

21

affirmative defense that might be asserted as a justification or

excuse for violating the new law.” Id. at 13-14 (footnote

omitted). In other words, the Court “presume[d] that

Congress intended the petitioner to bear the burden of proving

the defense of duress by a preponderance of the evidence.”

Id. at 17.

The same logic applies in this case. The existence of

just cause or excuse does not disprove the elements of assault

under § 113(a)(3), namely, physical attack, intent to do bodily

harm, and use of a dangerous weapon. Accordingly, under

the rule of Dixon and Dodd, placing the burden of proving the

absence of just cause or excuse on the defendant does not run

afoul of the Due Process Clause.

And, as Dixon makes clear, placing the burden of

proving justification on Taylor in this case also is consistent

with common law and basic principles of statutory

interpretation. The same common-law rule that places the

burden of proving duress on the defendant also applies to

issues involving justification or excuse. Id. at 8. That rule

makes sense here for the same reasons the Court noted in

Dixon: it allocates the burdens of production and persuasion

to the same party, and it places those burdens on the party

with peculiar knowledge of the relevant facts. In this case,

Taylor‟s justification defense depended on his testimony that

he feared that Bistrian would attack him first and that he

feared Bistrian would slip out of his handcuffs and use them

as a weapon. Particularly given its inability to compel Taylor

to testify, the government would have had a difficult time

obtaining that information on its own.

Moreover, the inference about congressional intent the

Court relied on in Dixon — that, absent some indication to

22

the contrary, Congress intended that the “long-established

common-law rule” that the defendant bears the burden of

proving justification or excuse and “the rule applied in

McKelvey” would guide federal courts‟ analyses — applies

with even greater force in this case.7 If we are to presume, as

the Court did in Dixon, that Congress legislates with those

rules in mind, then surely more than a simple reference to a

particular defense, as in § 113(a)(3), is needed to evince

Congress‟s intent to convert a traditional common-law

defense into an element of the government‟s affirmative case.

Indeed, given that the Dixon Court considered the absence of

any reference to a duress defense in the firearm statute to be a

weakness, see, e.g., 548 U.S. at 13-14 (“Even though the Safe

Streets Act does not mention the defense of duress, we can

safely assume that the 1968 Congress was familiar with both

the long-established common-law rule and the rule applied in

McKelvey and that it would have expected federal courts to

apply a similar approach to any affirmative defense that might

be asserted as a justification or excuse for violating the new

law.” (emphasis added) (footnote omitted)), the same

inferences must apply even more forcefully in a case like this

one, in which the statute specifically mentions the defense.

Accordingly, we interpret § 113(a)(3)‟s reference to a

justification or excuse as a reference to common-law

7

We are aware that McKelvey was decided in 1922, whereas

the relevant statutory language in this case was enacted

earlier, in 1909. But, as noted above, the principle for which

McKelvey stands was established and applied in numerous

pre-1909 Supreme Court decisions. Thus, the substance of

Dixon‟s presumption retains its force in this case.

23

justification and excuse defenses, which the defendant bears

the burden of proving by a preponderance of the evidence.8

We do not lightly dismiss Taylor‟s textual argument,

that reading the statute in this way renders the words “without

just cause or excuse” superfluous because courts have

allowed defendants to raise common-law justification

defenses to the other subsections of § 113 that do not contain

8

For similar reasons, Dixon also forecloses Taylor‟s

alternative argument that the reference to just cause or excuse

in § 113(a)(3) implies a complicated burden-shifting

paradigm, in which the burden shifts to the government to

disprove justification beyond a reasonable doubt after the

defendant raises the issue and adduces some evidence to

support it. See Appellant‟s Reply Br. 5-6 (citing United

States v. Lawrence, 349 F.3d 109, 122 (3d Cir. 2003)). For

one thing, nothing in the text of the statute suggests such an

approach. It would run counter to Dixon‟s presumption that

Congress legislates with common-law principles in mind to

conclude that Congress intended to set up a burden-shifting

scheme when all it did was use the words “without just cause

or excuse.” More directly, this is precisely the argument that

the Supreme Court rejected in Dixon. Dixon conceded that

she bore the burden of production on her duress defense, 548

U.S. at 4, but argued that “modern common law” requires the

government to disprove affirmative defenses beyond a

reasonable doubt in criminal cases, see id. at 8. The Supreme

Court rejected that argument and applied “[t]he long-

established common-law rule . . . that the burden of proving

duress rests on the defendant” instead. Id. at 15. Taylor has

offered us no reason to conclude, contrary to Dixon, that the

ordinary common-law rule does not govern this case as well.

24

that phrase. Indeed, we confess that, given the complete

absence of legislative history and the fact that the language

was first added to the statute in 1909, we cannot be entirely

sure what Congress had in mind. But two additional points

bolster our conclusion that “without just cause or excuse” is

not an element of a § 113(a)(3) offense. First, although

mindful of the general principle that we should avoid

interpretations that effectively read words out of a statute, see,

e.g., Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir.

2001), we believe that the specific, on-point Supreme Court

cases in this area, McKelvey and Dixon, take precedence over

that broad, generally applicable canon of statutory

interpretation here.

Second, we question the foundations of Taylor‟s

argument. Taylor presumes that defendants charged with

assaults under subsections of § 113 other than § 113(a)(3)

may pursue common-law defenses, and, indeed, the

government admits that its practice has been not to object to

self-defense or other justification instructions in cases

prosecuted under other subsections of § 113. But the

government‟s practice is not conclusive evidence of

congressional intent. Because “federal crimes are defined by

statute rather than by common law,” United States v. Oakland

Cannabis Buyers’ Coop., 532 U.S. 483, 490 (2001), the

availability of common-law defenses to federal crimes is not a

foregone conclusion, cf. id. at 491 (reserving the question

whether common-law necessity “can ever be a defense when

the federal statute does not expressly provide for it”); see also

Dixon, 548 U.S. at 13 & n.7 (assuming, without deciding, that

common-law duress defense is available to federal statutory

firearm crime). Perhaps, by including the “without just cause

or excuse” language in the predecessor versions of

25

§ 113(a)(3), but not in the other subsections of § 113,

Congress intended to make common-law justification and

excuse defenses available for assaults with a dangerous

weapon, but not for the other assault offenses set forth in

§ 113. We need not reach any definitive conclusion on this

issue, however, because we are satisfied that the other reasons

set forth above adequately support our conclusion as to the

meaning of those words in § 113(a)(3).

In light of McKelvey, Dixon, and for the reasons

discussed above, we agree with the District Court that in this

case the burden of proving a “just cause or excuse” for the

assault rested with Taylor, the defendant.

III.

Taylor raises three additional issues, none of which

warrants reversal. First, Taylor challenges the District

Court‟s exclusion of certain additional witnesses related to his

justification defense and its refusal to instruct the jury on

justification. But, as the District Court correctly found, the

evidence plainly does not support such a defense. Second,

Taylor argues that the District Court infringed his Fifth

Amendment right against self-incrimination by “forcing” him

to testify as a condition precedent to admitting the remaining

evidence of his justification defense. In fact, though, the

District Court did not force Taylor to testify at all, and it

clearly informed him from the outset that the proffered

evidence was insufficient to establish justification as a matter

of law. Third, and finally, Taylor appeals the District Court‟s

denial of his motion to dismiss the indictment for selective

prosecution. Taylor‟s theory here — that he was prosecuted

for an assault on a white inmate, but not for an earlier assault

on two black inmates — does not suggest, let alone provide

26

the required “clear evidence” of, discriminatory intent or

effect.

A.

The District Court did not err in precluding Taylor

from offering additional witnesses to support his justification

defense or in refusing to include the defense in its jury

charge. The tests for precluding a defendant from offering a

defense and for denying an instruction on a particular defense

are the same: whether the evidence presented (or proffered)

is legally sufficient to support the defense. See United States

v. Mike, 655 F.3d 167, 175 (3d Cir. 2011) (defendant whose

evidence does not support a particular affirmative defense is

not “entitled” to a jury instruction on that defense); United

States v. Miller, 59 F.3d 417, 421-22 (3d Cir. 1995) (district

court did not err in precluding defendant from offering

evidence of duress where proffered evidence was insufficient

to establish duress as a matter of law); cf. Mathews v. United

States, 485 U.S. 58, 63 (1988) (“As a general proposition 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.” (emphasis added)).

The District Court properly analyzed Taylor‟s proffer

under the Model Jury Instructions,9 and concluded that his

9

Taylor‟s argument on appeal that the District Court applied

the wrong test to evaluate his justification defense is

meritless. The model instruction applies broadly across all

types of cases. Moreover, although Taylor argues that the

District Court should have evaluated his defense according to

“general justification principles,” he does not articulate what

27

proposed defense did not satisfy any of the required elements,

as follows. First, Taylor was not facing an immediate threat

of attack because Bistrian was handcuffed. Second, Taylor

did not have a reasonable fear that the threat would be carried

out if he did not attack Bistrian. Taylor‟s assertion that

Bistrian was more dangerous in handcuffs, since he knew

how to escape them and use them as a weapon, was belied by

the fact that Taylor did not feel the need to attack Bistrian

when he was handcuffed at the beginning of the recreation

hour. Third, Taylor‟s attack was not directly caused by a

need to avoid harm because it was not made in response to

any immediate threat by Bistrian. Despite Bistrian‟s alleged

verbal threat to Taylor during the recreation time, Bistrian

and Taylor had been pacing together in the same cage without

any physical contact for almost an hour before Taylor

attacked. Moreover, Taylor did not take any steps to avoid

any perceived threat, e.g., he did not report the threats to

prison staff or ask to be removed from the yard at any time.10

Fourth, and finally, by choosing to remain in the yard with

Bistrian, rather than asking the authorities to take him back to

his cell (which the prison guards testified they would have

those principles are or how they differ from the model-

instruction standard the District Court applied.

10

Also, as the District Court pointed out in its oral decision,

the attack continued for two minutes and thirty-seven

seconds, despite the guards‟ use of three cans of pepper spray,

and only ended when the guards used a “flash bang” grenade

to stun Taylor. All of those facts are inconsistent with

limited, defensive action that is necessary to avoid imminent

harm.

28

done), Taylor recklessly placed himself in the situation that

gave rise to the assault.

The District Court‟s conclusions are manifestly

correct. Moreover, as the District Court also noted, none of

the testimony Taylor proffered would have remedied the

defects the District Court identified. On this record, it is

difficult to imagine any reasonable person reaching a contrary

result.

B.

Taylor argues that the District Court violated his Fifth

Amendment rights by requiring him to take the stand as a

condition precedent to the presentation of his justification

defense. To support his argument, Taylor relies primarily on

Brooks v. Tennessee, 406 U.S. 605 (1972), in which the

Supreme Court held that a Tennessee statute that required

defendants who intended to testify to take the stand as the

first defense witness violated the Fifth Amendment. Noting

that a defendant “cannot be absolutely certain that his

witnesses will testify as expected or that they will be effective

on the stand,” the Court held that the Tennessee statute “cast[]

a heavy burden on a defendant‟s otherwise unconditional

right not to take the stand” by forcing him to testify before the

precise contours of the other witnesses‟ testimony were

known. Id. at 609-11. The same thing happened in this case,

Taylor argues, because the District Court suspended its ruling

on the merits of his justification defense until after he

testified, thereby denying Taylor the choice to remain silent

depending on the testimony of the other witnesses.

That argument fails on the facts. The District Court

did not force Taylor to testify. Instead, it denied the

29

government‟s request to preclude Taylor from testifying.11

And, unlike in Brooks, the District Court here was not

enforcing a blanket rule about defendant‟s testimony; it made

a careful, case-specific and well founded decision after

considering the defendant‟s proffer. Furthermore, the District

Court made clear from the outset, before Taylor testified, that

it did not believe that Taylor‟s testimony, standing alone or as

corroborated by the proposed additional witnesses, would

establish all of the necessary elements of a justification

defense, allowing Taylor to make an informed decision as to

whether he should testify. Thus, this case simply does not

raise the same type of concerns as Brooks.

Moreover, as the District Court pointed out (and

Taylor‟s counsel acknowledged), the testimony of the other

witnesses, none of whom observed the actual assault, was

offered only to “corroborate or support” Taylor‟s version of

events. Absent Taylor‟s testimony, then, none of the other

witnesses‟ testimony would even have been relevant to the

case.12 Thus, the alternative to the District Court‟s ruling in

11

Under the circumstances of this case, we need not, and do

not, evaluate the District Court‟s statement that it could have

precluded Taylor from testifying altogether.

12

In that respect, this case is like United States v. Singh, 811

F.2d 758 (2d Cir. 1987), in which the Second Circuit Court of

Appeals rejected a defendant‟s argument based on Brooks.

There, the district court had precluded the defendant from

pursuing certain lines of cross examination based on hearsay

until the defendant offered a first-hand account of the

underlying events. The Second Circuit concluded that “the

[district] court did not compel appellant to testify at all”;

30

this case was not that Taylor would have remained silent until

all of the other witnesses testified, as the Court envisioned in

Brooks; it was that all of the testimony, including Taylor‟s,

would have been excluded.13 We do not find any Fifth

Amendment violation in this case.

C.

Finally, Taylor appeals the District Court‟s decisions

denying his motion to dismiss the indictment for selective

prosecution and denying him discovery on that motion. His

theory is that he was improperly selected for prosecution

because his victim in this case was white. To support that

instead, “[i]t merely refused to accept the proffered testimony

of other witnesses until a proper foundation was laid.” Id. at

762. The same is true here: Taylor‟s testimony provided the

necessary foundation for the testimony of the other proposed

witnesses. See generally Geders v. United States, 425 U.S.

80, 86 (1976) (trial judge in a criminal case “may determine

generally the order in which parties will adduce proof”; “may

refuse to allow cumulative, repetitive, or irrelevant

testimony”; and must “exert substantial control over the

proceedings”).

13

We note, further, that Taylor did not suffer any prejudice

from the District Court‟s ruling. This is not a case in which

the defendant would have been acquitted absent his

purportedly forced testimony. Because the entire assault was

captured on prison videotape, there was no question as to

what happened or who was responsible for the assault; the

only question was whether Taylor‟s actions were justified.

And, as discussed above, the evidence Taylor proffered on

that issue was legally insufficient to support his defense.

31

claim, he pointed out that he was not prosecuted for an earlier

assault on two black victims.

When analyzing selective prosecution claims, we

review district courts‟ findings of facts for clear error and the

application of legal precepts de novo. United States v.

Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989). The district

court‟s denial of discovery on such a motion is reviewable for

abuse of discretion. United States v. Hedaithy, 392 F.3d 580,

605 (3d Cir. 2004).

To establish selective prosecution, the defendant must

“provide evidence that persons similarly situated have not

been prosecuted” and that “the decision to prosecute was

made on the basis of an unjustifiable standard, such as race,

religion, or some other arbitrary factor.” Schoolcraft, 879

F.2d at 68. The defendant bears the burden of proof, id., and

must establish each of these elements with “clear evidence”

sufficient to overcome the presumption of regularity that

attaches to decisions to prosecute, United States v. Armstrong,

517 U.S. 456, 464 (1996). “The required threshold to obtain

discovery” on such a motion is “some evidence tending to

show the existence of the essential elements of the defense,

discriminatory effect and discriminatory intent.” Hedaithy,

392 F.3d at 607 (internal quotation marks omitted).

Given these high standards, it is clear that the District

Court in this case did not abuse its discretion by denying

Taylor discovery or err in denying his motion to dismiss.

That Taylor was prosecuted for one assault, but not for

another, does not, without more, provide “clear evidence” of

a discriminatory effect or discriminatory intent. Taylor has

not offered any other examples of defendants who assaulted

both white and black inmates, but were only prosecuted for

32

assaulting the white inmates. And Taylor-after-the-second-

assault is not “similarly situated” to Taylor-after-the-first-

assault for the obvious reason that the incident that gave rise

to the charges in this case occurred against the backdrop of

Taylor‟s history of disciplinary problems, including the

previous assault on the black inmates. Accordingly, Taylor

did not present sufficient evidence to satisfy the threshold for

obtaining discovery on his selective prosecution claim, let

alone dismissal of the indictment on those grounds, and this

argument does not provide any basis on which we could or

should reverse the judgment of the District Court.

IV.

For the foregoing reasons, we will affirm the judgment

of the District Court.

33