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Necessity Defense and the Fleeting Moment Defense - Jury Instructions

Defenses to Possession of Firearm After Prior Conviction of Felony or Possession of Controlled Drug: Necessity Defense and the Fleeting Moment Defense

U.S. v. HAYDAR HAMEED AL-REKABI, No. 03-4158 (10th Cir. July 17, 2007)

A defendant is entitled to a theory of defense instruction when that instruction articulates a correct statement of the law and sufficient evidence has been presented to support the jury’s finding in defendant’s favor on that theory. See United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999); United States v. Swallow, 109 F.3d 656, 658 (10th Cir. 1997).

The Fifth Circuit earlier emphasized the knowledge or intent element of the fleeting possession theory when it discussed it in the context of a drug possession case: “[Defendant’s] possession of the one [marijuana] cigarette was a mere fleeting possession, not inconsistent with honest intention or mere curiosity, and his throwing the cigarette away upon being ordered to stop is not, in our opinion, substantial evidence of a guilty knowledge or intent. Criminal intent is a sine qua non of criminal responsibility.” Rent v. United States, 209 F.2d 893, 900 (5th Cir. 1954); see also United States v. Parker, 566 F.2d 1304, 1306 (5th Cir. 1978) (“That possession is momentary is immaterial” to prosecution for possession of unregistered firearm). Moreover, in an unpublished order and judgment addressing 18 U.S.C. § 922(g), this court noted “federal firearms laws impose ‘something approaching absolute liability.’” United States v. Marquez, No. 90-1230, 1991 WL 145264, at *2 (10th Cir. Aug. 1, 1991) (cited as persuasive authority pursuant to 10th Cir. R. 36.3) (quoting United States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983)).

“If, however, a felon who momentarily possessed a firearm genuinely lacked knowledge that he possessed a firearm or had a legally justifiable reason for possessing it, the fleeting possession theory would apply because the government would have failed in its burden of proving intent. Therefore, the court need only give a fleeting possession instruction when the evidence at trial supports a possible finding that the defendant only momentarily possessed the contraband, and in so doing, lacked either knowledge he possessed contraband or criminal intent to possess it.” See, United States v. Adkins, 196 F.3d 1112 (10th Cir. 1999).

Consider United States v. Panter, 688 F.2d 268 (5th Cir. 1982), one of the principle cases relied upon by Adkins. 196 F.3d at 115. There, the Fifth Circuit held the defendant, a former felon, who reached under a bar to grab a handgun to fend off a convicted murderer who was assailing him by stabbing him in the abdomen was justified in doing so. 688 F.3d at 269, 272. Based on our precedent, such conduct, if adequately established, would clearly fall under the necessity defense, as it did in Panter itself. 688 F.3d at 272 n.7 (discussing the differences between a "self-defense" and "necessity" justification and concluding defendant met both). Panter's discussion of the temporary nature of the defendant's otherwise illegal possession of the firearm was tied to the necessity defense. The court pointed out that "our holding protects a . . . defendant only for possession during the time he is endangered. Possession either before the danger or for any significant period after it remains a violation." Id. at 272. We find Panter's discussion of the temporary nature of the necessity defense in accord with our own view.

1 comment:

Unknown said...

Consider the "justification" defense or the "necessity" defense as referenced although over-ruled in:

U.S. v. Ronnie Vigil, 743 F.2d 751(10th Cir. 1984):

one of his defenses to the charge of possession of a firearm by a felon would be the "defense of necessity" or "justification" defense spelled out in United States v. Gant, 691 F.2d 1159, 1162-64 (5th Cir.1982) (footnotes omitted):

To interpose a justification defense to a charge of violating 18 U.S.C. app. Sec. 1202(a)(1), defendant must show (1) that defendant was under an unlawful and 'present, imminent, and impending [threat] of such a nature as to induce a well-grounded apprehension of death or serious bodily injury,' United States v. Bailey, 585 F.2d 1087, 1110 (D.C.Cir.1978) (Wilkey, J., dissenting), rev'd, 444 U.S. 394, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980); see Model Penal Code Sec. 3.02(1)(a) (1974); (2) that defendant had not 'recklessly or negligently placed himself in a situation in which it was probable that he would be [forced to choose the criminal conduct],' United States v. Agard, 605 F.2d 665, 667 (2d Cir.1979); see Model Penal Code Secs. 2.09(2), 3.02(2) (1974); (3) that defendant had no 'reasonable, legal alternative to violating the law, "a chance both to refuse to do the criminal act and also to avoid the threatened harm." ' United States v. Bailey, 444 U.S. 394, 410, 100 S.Ct. 624, 634, 62 L.Ed.2d 575 (1980); and (4) 'that a direct causal relationship may be reasonably anticipated between the [criminal] action taken and the avoidance of the [threatened] harm.' United States v. Cassidy, 616 F.2d 101, 102 (4th Cir.1979); United States v. Simpson, 460 F.2d 515, 518 (9th Cir.1972); see Model Penal Code Sec. 3.02(1), (2) (1974) (requiring an objective appraisal of whether criminal conduct was necessary to avoid the threatened harm)....

As the Supreme Court emphasized in Bailey, "one principle of these justification defenses remains constant: if there was a reasonable, legal alternative to violating the law, ... the defense will fail." Bailey, 444 U.S. at 410, 100 S.Ct. at 634. In demonstrating that he had no reasonable alternative to violating Sec. 1202, Gant must show that he had actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefit of the alternative.... As the Tenth Circuit has observed:

"The [justification defense] does not arise from a 'choice' of several sources of action; it is instead based on a real emergency. It may be asserted only by a defendant who was confronted with a crisis as a personal danger, a crisis that did not permit a selection from among several solutions, some of which would not have involved criminal acts."

United States v. Lewis, 628 F.2d 1276, 1279 (10th Cir.1980), cert. denied, 450 U.S. 924, 101 S.Ct. 1375, 67 L.Ed.2d 353 (1981).