NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 04a0091n.06
Filed: November 16, 2004
No. 03-5678
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
)
v. ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
RAYMOND TATE, ) WESTERN DISTRICT OF TENNESSEE
)
Defendant-Appellant. )
Before: MERRITT, DAUGHTREY, and SUTTON, Circuit Judges.
SUTTON, Circuit Judge. Convicted under 18 U.S.C. § 922(g) for possession of ammunition
by a felon, Raymond Tate raises one issue on appeal: Did the district court correctly instruct the
jury that Tate bore the burden of proving his affirmative defense of necessity by a preponderance
of the evidence? A decision of our Court, United States v. Brown, 367 F.3d 549 (6th Cir. 2004),
recently resolved this precise question, holding that a defendant bears the burden of proving his
affirmative defense of necessity by a preponderance of the evidence. In view of this decision and
in view of our disagreement with Tate’s position that courts have flexibility in engrafting affirmative
defenses onto criminal statutes but no flexibility in determining who bears the burden of proof under
these defenses, we affirm.
No. 03-5678
United States v. Tate
Standing outside his home, Raymond Tate saw two men in a car talking to a third man.
Recognizing some of them and apparently sensing an opportunity for humor, Tate yelled, “Police.”
The men were not amused. One of the car’s occupants made a threatening comment to Tate, then
left the scene. Concerned for his safety, Tate asked a passing friend for a gun. The friend obliged
and lent his weapon to Tate. Tate’s fears materialized minutes later when the car returned and the
men fired at Tate, hitting him in the arm. Tate returned fire. Everyone survived the cross-fire,
including a ten-year-old bystander hit by a stray bullet.
Because Tate previously had been convicted of a felony, the police charged him with
possessing ammunition (spent shell casings found near his home, since the gun could not be found)
in violation of 18 U.S.C. § 922(g). Without objection from either party, the judge gave the
following instruction regarding Tate’s necessity defense: “The defendant’s actions were justified
and therefore he is not guilty, only if the defendant has shown by a preponderance of the evidence
that each of the [ ] five elements [of the affirmative defense] is true.” JA 32. The jury returned a
guilty verdict.
Having failed to object below, Tate must demonstrate that the jury instruction on the burden
of proof constituted plain error. See United States v. DeJohn, 368 F.3d 533, 540 (6th Cir. 2004).
He cannot make this showing, first and foremost because the instruction was not in error. In United
States v. Singleton, 902 F.2d 471 (6th Cir. 1990), we held that the defense of justification by
necessity may, in rare occasions, apply to § 922(g) charges. “Although the language of 18 U.S.C.
§ 922 gives no hint of an affirmative defense of justification,” we explained, “Congress enacts
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No. 03-5678
United States v. Tate
criminal statutes ‘against a background of Anglo-Saxon common law.’” Id. at 472 (quoting United
States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). After finding that the affirmative defense applied,
we concluded that the defendant bore the burden of proof in asserting the defense. Singleton, 902
F.2d at 472–73. Most recently in Brown, we removed any lingering doubt about the standard of
proof applicable to a necessity defense by holding that a defendant “may be required to prove that
defense by a preponderance of the evidence.” 367 F.3d at 556.
Although Singleton and Brown address the same question that Tate raises, Tate presents an
argument not specifically foreclosed by these cases. Legislatures, not courts, he argues, have the
sole authority to assign the burden of proof with respect to an affirmative defense. In support, Tate
invokes Chief Justice Rehnquist’s concurrence in United States v. Gaudin, 515 U.S. 506 (1995),
where he wrote that “[f]ederal and state legislatures may reallocate burdens of proof by labeling
elements as affirmative defenses,” id. at 525. By negative implication, Tate reasons, courts may not
allocate a burden of proof for an affirmative defense. Not true. As Singleton demonstrates, the only
reason Tate may raise an affirmative defense in this case is that a court engrafted the defense onto
the statute in view of the common-law backdrop against which Congress enacted the law. See
Singleton, 902 F.2d at 472 (“the language of 18 U.S.C. § 922 gives no hint of an affirmative defense
of justification”). When a court construes a statute to include a common-law defense, it is both
appropriate and necessary for the court to assign the burden of proof regarding that defense.
“Where courts have engrafted a traditional common-law defense onto a statute that itself is silent
as to the applicability of traditional defenses, it is within the province of the courts to determine
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No. 03-5678
United States v. Tate
where the burden of proof on that defense is most appropriately placed.” United States v. Dodd, 225
F.3d 340, 345 (3d Cir. 2000).
To rule otherwise would force us to accept one of two implausible propositions. Proposition
one: federal courts may engraft common-law affirmative defenses onto federal criminal statutes but
have no authority to determine the quantum of proof applicable to the defense or to assign the
burden of proof to one party or the other. Proposition two: federal courts may determine the burden
of proof but it always will be a beyond-a-reasonable-doubt standard that the government invariably
must satisfy. The first approach could never be implemented in a criminal trial. And the second
approach would make little sense when applied to common-law affirmative defenses that imposed
the burden of proof on the defendant. For how could one fairly say that a federal criminal statute
silently incorporates a common-law affirmative defense but not the common-law burden of proof
that goes with it? To ask the question, it seems to us, is to answer it.
We affirm.
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