United States v. Dodd

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

8-24-2000

United States v. Dodd
Precedential or Non-Precedential:

Docket 99-1530

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2000

Recommended Citation
"United States v. Dodd" (2000). 2000 Decisions. Paper 175.
http://digitalcommons.law.villanova.edu/thirdcircuit_2000/175

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2000 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed August 24, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 99-1530

UNITED STATES OF AMERICA

v.

REGINALD DODD,
Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Criminal No. 97-cr-00483-1)
District Judge: Honorable Robert S. Gawthrop, III

Argued May 25, 2000

Before: ALITO and RENDELL, Circuit Judges,
and DUHE, Senior Circuit Judge*

(Filed: August 24, 2000)

Shari E. Lewis [ARGUED]
Craig D. Margolis
Office of United States Attorney
615 Chestnut Street
Philadelphia, PA 19106
Counsel for Appellee

_________________________________________________________________
* The Honorable John M. Duhe, Jr., United States Court of Appeals
Judge for the Fifth Circuit, sitting by designation.
 David L. McColgin [ARGUED]
Defender Association of Philadelphia
Federal Court Division
437 Chestnut Street
Lafayette Building, Suite 800
Philadelphia, PA 19106-2141
Counsel for Appellant

OPINION OF THE COURT

RENDELL, Circuit Judge.

The sole issue presented in this appeal is the difficult
question of who must bear the burden of persuasion when
a criminal defendant raises a justification defense to the
federal charge of being a felon in possession of afirearm in
violation of 18 U.S.C. S 922(g)(1) (1994). We specifically
reserved this question in United States v. Paolello, 951 F.2d
537 (3d Cir. 1991), in which we defined the elements of the
justification defense to S 922(g)(1). See Paolello, 951 F.2d at
544. We now conclude that, in a case such as this one,
given the nature of the justification defense and of the
crime charged, the defendant must prove the elements of
this affirmative defense by a preponderance of the evidence.
We will therefore affirm the District Court's order of
conviction and sentence.

I. Facts and Procedural History

Reginald Dodd was convicted by a jury in the United
States District Court for the Eastern District of
Pennsylvania of one count of being a felon in possession of
a firearm. During the trial, Dodd stipulated to his status as
a convicted felon and did not dispute that he had possessed
a firearm for a short period of time on December 3, 1996.
The only question at trial was whether Dodd was justified
in possessing the gun for the purpose of preventing harm
to others. The justification defense in our court has four
elements: (1) that the defendant or someone else was under
unlawful and present threat of death or serious bodily
injury; (2) that the defendant did not recklessly place
himself in a situation where he would be forced to engage

2
in criminal conduct; (3) that the defendant had no
reasonable legal alternative that would avoid both the
criminal conduct and the threatened death or injury; and
(4) that there was a direct causal relationship between the
criminal act and the avoidance of the threatened harm. See
Paolello, 951 F.2d at 540-41.

Dodd and two other eyewitnesses, his neighbors Hazel
Flood and Cynthia Reed, testified in Dodd's defense. Dodd
and Flood testified that they had spotted a gun lying in the
street, and that Dodd had picked it up in order to keep it
out of the hands of a group of young children who were
coming down the street. Dodd testified that he took the gun
in order to prevent the children from hurting themselves.
After Dodd picked up the gun, he put it in his pocket and
walked back toward his nearby home; Dodd testified that
his "intention[ ] was to pick this gun up and take it to the
house and call the police and report it." A. at 157. Before
Dodd could reach his house, two plainclothes police
officers, who were responding to a radio call, 1 stopped and
frisked him, finding the .25 caliber automatic pistol.

At trial, much of the testimony concerned the issue
underlying the third element of the justification defense:
whether Dodd had a reasonable legal alternative to picking
up the gun. Flood, who discovered the gun initially, testified
that she was unwilling to pick up the gun herself. Dodd
and Flood both testified that they saw no alternative to
Dodd's picking up the gun in order to prevent the
approaching children from getting their hands on it. The
government, whose witnesses included the arresting
Philadelphia police officers, Todd Lewis and Kevin Lewis,
argued that Dodd could have pursued other courses of
action, such as asking Flood or Reed to call the police while
Dodd stood over the gun to prevent the children from
taking it, covering the gun to hide it, or kicking the gun
down the nearby sewer.
_________________________________________________________________

1. This call described a robbery suspect with a physical description
resembling Dodd's. The government was not able to produce evidence
linking the robbery with Dodd, or showing that he was the suspect
described in the radio call.

3
During the jury charge conference, defense counsel
argued that the defendant should bear only the initial
burden of production on the justification defense, while the
government should bear the ultimate burden of persuasion.
According to the defense's theory, Dodd need only present
some evidence to support each element of the defense;
should he do so, the government would then bear the
burden of disproving at least one element of the defense
beyond a reasonable doubt. The government argued that
where the justification defense did not negate one of the
elements of the crime charged, the defendant should be
required to prove each element of the defense by a
preponderance of the evidence. The District Court
concluded that the government had correctly described the
placement of the burden of persuasion; the District Court
relied principally on the reasoning of the United States
Court of Appeals for the Ninth Circuit in United States v.
Dominguez-Mestas. See United States v. Dominguez-Mestas,
929 F.2d 1379, 1380 (9th Cir. 1991) (per curiam) (holding
that the defendant bears the burden of proving a duress
defense to a federal charge of unlawful importation of
narcotics). The District Court, therefore, gave a jury charge
that placed the burden of persuasion on the affirmative
defense of justification on the defendant, by a
preponderance of the evidence. The Court included an
explicit description of the burden of persuasion:

[A]s to this defense the burden of proof is upon, not the
Government, but upon the defendant to prove by a fair
preponderance of the evidence, that is to say, to prove
the defense, factually and legally, more likely than not,
has been made out. Burden of proof by a
preponderance of the evidence is more likely than not.

A. at 257. In her closing argument, government counsel
specifically referred to "the defendant's burden to show you
there was nothing else that he could have done." A. at 239.

During its deliberations, the jury clearly was grappling
with the issues raised by the justification defense. On the
first day of deliberations, the jury asked Judge Gawthrop:
"Do we have to consider [Dodd's] perception of legal
alternatives?" A. at 266. The jury also requested a
handwritten copy of Judge Gawthrop's instructions on the

4
justification defense. See A. at 271, 273-74. The jury
returned a guilty verdict on the second day of deliberations.

At sentencing, the District Court granted an unopposed
downward departure motion based on overrepresentation of
criminal history, and imposed a sentence of 15 years'
imprisonment, the mandatory minimum sentence provided
by the Armed Career Criminal Act, 18 U.S.C. S 924(e)(1).
Dodd now appeals his conviction and sentence.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction over this federal
criminal case pursuant to 18 U.S.C. S 3231. We have
appellate jurisdiction over the District Court'sfinal decision
pursuant to 28 U.S.C. S 1291. We review de novo the
District Court's legal determination as to the appropriate
placement of the burden of persuasion. See Walden v.
Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997) ("We
generally review jury instructions for abuse of discretion,
but our review is plenary when the question is whether the
instruction misstates the law.").

III. Discussion

The question of the appropriate placement of the burden
of persuasion can be broken down into two subsidiary
questions: (1) Can this court constitutionally place the
burden of persuasion on the defendant? (2) If we can place
the burden of persuasion on the defendant, should we?

The first question is easily answered in the affirmative.
Although the Due Process Clause requires the government
to prove all elements of the charged offense beyond a
reasonable doubt, see In re Winship, 397 U.S. 358, 364
(1970), and therefore requires the government to disprove
beyond a reasonable doubt any defenses that negate an
element of the charged offense, see Patterson v. New York,
432 U.S. 197, 210, 215 (1977), 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, see
Patterson, 432 U.S. at 210-11. To show that Dodd was a
felon in possession of a firearm in violation ofS 922(g)(1),
the government was required to prove the following
elements beyond a reasonable doubt: (1) that Dodd had

5
previously been convicted of a crime punishable by
imprisonment for a term exceeding one year; (2) that Dodd
knowingly possessed a firearm; and (3) that thefirearm had
passed in interstate commerce. The factual basis for Dodd's
justification defense, if accepted, would not serve to negate
any of these elements. The requirement that the
government must show that the defendant "knowingly
possessed a firearm" means only that the government must
prove the defendant's awareness that he possessed the
firearm; the government need not demonstrate that the
defendant possessed the firearm with an intent to cause
harm, or with knowledge that such possession was
unlawful. Thus, the justification defense would not negate
the mens rea element of the felon-in-possession statute.
See Paolello, 951 F.2d at 544 ("[T]he fact that a person acts
for an innocent reason in no way detracts from the knowing
quality of his act.").

Dodd essentially concedes that placing the burden of
persuasion on him is not constitutionally prohibited.
However, he urges us to follow United States v. Talbott, 78
F.3d 1183 (7th Cir. 1996) (per curiam), in which the United
States Court of Appeals for the Seventh Circuit determined
that, absent a statute explicitly allocating to the defendant
the burden of proving an affirmative defense, a court has
no power to allocate this burden to the defendant:

Nevertheless, the fact that the Constitution allows
Congress or state legislatures to enact laws allocating
to criminal defendants the burden of proving
affirmative defenses does not mean that, absent a
statute actually doing so, the burden shifts
automatically. In other words, though it may be
constitutionally permissible to enact a burden-shifting
statute, some affirmative legislative action must trigger
that shift. Absent such a statute, the burden of proof
remains on the government to negate beyond a
reasonable doubt the affirmative defense properly
raised by the defendant.

Talbott, 78 F.3d at 1186 (citation omitted). The Talbott
Court therefore held, in a case involving a justification
defense to a felon-in-possession charge, that the burden of
persuasion must remain with the government because

6
Congress has not allocated the burden to the defendant by
statute. We do not find Talbott's reasoning persuasive.
Talbott cites to cases that either refer to such statutory
burden-shifting in permissive terms, employ statutorily
created placement of the burden of persuasion on the
defense, or allocate the burden of persuasion to the
government as a matter of federal constitutional or common
law for reasons other than the absence of statutory
allocation. Unlike the Seventh Circuit Court of Appeals,
however, we can find nothing in this case precedent that
limits such burden allocation to occur only if Congress has
explicitly ordained it. The felon-in-possession statute does
not contain any mention of a burden of proof on a
justification defense, or indeed, of the defense itself. Rather,
it states simply that "[i]t shall be unlawful for any person --
(1) 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." 18
U.S.C. S 922(g). The justification defense, at least as it
relates to this charge, is a judge-made defense. See Paolello,
951 F.2d at 540-41 (outlining the elements of the
justification defense as it applies to the felon-in-possession
charge). 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 where the burden of proof on
that defense is most appropriately placed. See United States
v. Masters, 978 F.2d 281, 287 (7th Cir. 1992).

We therefore have the capacity to place the burden of
persuasion on either party, despite the lack of explicit
statutory allocation of the burden of proof. The more
difficult question is where we should place the burden of
persuasion regarding this defense to this offense.

This is a question of federal common law. In searching
for potential sources of the answer to this question, we first
look to Supreme Court case law and that of our own Court.
We find no Supreme Court case that clearly speaks to this
question; the Supreme Court case law is more frequently
directed at the problem of constitutional constraints on the
placement of the burden of persuasion, not at the question
of where the burden is best placed when the Constitution
does not constrain the choice.

7
Three opinions of our Court of Appeals, however, bear
some relevance to the issue of the placement of the burden
of persuasion on the justification defense to aS 922(g)
charge. Paolello contains language hinting that, under the
circumstances presented by the strictly worded felon-in-
possession statute, it may well be the defendant who bears
the burden of persuasion on the justification defense: "To
ensure that this strict prohibition [of felons in possession of
firearms] is effectuated, we should require that the
defendant meet a high level of proof to establish the defense
of justification." Paolello, 951 F.2d at 542. However, it is
quite clear that this language is dictum, because we
explicitly reserved the question of the allocation of the
burden of proof:

At oral argument before us the parties agreed that if
there were a new trial it would be Paolello's burden to
produce evidence to support the justification defense
and, if he did so, it would be the government's burden
to disprove that defense beyond a reasonable doubt.
We think, however, that inasmuch as there may be
some question as to whether this agreement accurately
reflects the law and, in view of the further fact that the
briefs understandably do not focus on the issue, that
it would be prudent to leave for determination on the
remand the allocation of burdens on the justification
defense.

Id. at 544.2 Thus, Paolello does not settle the question
before us.

The two other cases, United States v. Santos, 932 F.2d
244 (3d Cir. 1991), and United States v. Smith , 949 F.2d
677 (3d Cir. 1991), both decided before Paolello , do not
present the specific circumstance of the burden of
persuasion on a justification defense to a S 922(g) charge,
but discuss more generally the appropriate placement of
the burden of persuasion for affirmative defenses that do
not negate an element of the crime charged. In Santos, we
reviewed under a plain error standard a jury instruction
_________________________________________________________________

2. Although we stated that the issue should be left "for determination on
the remand," no such determination actually ensued; instead, when the
case was remanded, Paolello entered a guilty plea.

8
regarding the burden of persuasion on a duress defense to
cocaine distribution and conspiracy charges. See Santos,
932 F.2d at 245, 250. We found no plain error in an
instruction that put an initial burden of persuasion on the
defendant to prove the duress defense by a preponderance
of the evidence; were the defendant to make this initial
showing, the burden would then shift to the government to
disprove the defense beyond a reasonable doubt. See id. at
248. Santos herself had requested this instruction; her
objection to the charge on appeal was not that the burden
of persuasion was misplaced, but rather that the trial judge
did not sufficiently explain the meaning of the
"preponderance of the evidence" standard to the jury. While
the government correctly states, and the District Court also
found, that Santos enshrines into the law of our court the
principle that "there is no constitutional bar to placing the
burden upon a defendant to prove the affirmative defense of
duress by a preponderance of the evidence where the crime
charged contains no requirement of mens rea," id. at 249,
it is clear that Santos does not itself announce a general
rule for the appropriate placement of the burden of
persuasion in such cases. Unlike the case before us, Santos
involved a highly deferential standard of review of a jury
charge that was in essence requested by the defendant. We
conclude that Santos, like Paolello, leaves the question
before us unanswered.

Although Smith presents circumstances much different
from those before us, it contains some discussion of the
Santos decision that is worth noting here. In Smith, we held
that, under Virgin Islands law, it was plain error for the
District Court to refuse to give an instruction on the burden
of proof on self-defense; the charges were first degree
murder and unlawful possession of a firearm during the
commission of a crime of violence. See Smith, 949 F.2d at
678-79. Smith speaks broadly of the government's burden
to disprove affirmative defenses, but Smith does not directly
address our situation: Smith dealt with a state law case in
which the defense in question negated the requisite intent
element. The Smith majority, in distinguishing Santos, does
state that the jury instruction in Santos, although
"erroneous," did "correctly place[ ] upon the government the
ultimate burden of proving duress beyond a reasonable

9
doubt." Smith, 949 F.2d at 682 n.5. In fact, even the Smith
dissent refers to the charge given in Santos as being
erroneous, though not plainly erroneous. See Smith, 949
F.2d at 688 (Alito, J., dissenting). However, the Smith
panel's characterization of the Santos decision is dictum,
and, as we have noted earlier, Paolello, decided after Smith,
clearly did not regard the question of the appropriate
burden of proof on affirmative defenses as a settled
question. To the extent that dicta are relevant to our
decision in this case, the dicta in Paolello and in Smith
might be said to point in opposite directions.

We conclude that Paolello, Santos, and Smith do not
answer the question before us. We therefore proceed to
consider the case law of other Courts of Appeals as a guide
to how we might choose the appropriate rule in this case.

Although the parties in our case propose different
characterizations of the appellate case law on the issue
before us (and indeed the parties differ as to how they
characterize the issue itself), they agree that the other
Courts of Appeals are not in complete accord on this topic.
See Dodd Br. at 12 ("The vast majority of the circuits have
held that, absent congressional legislation to the contrary,
the government bears the burden of disproving an
affirmative defense, such as justification or duress, so long
as the defendant has produced some evidence in support of
the defense."); Gov't Br. at 19 ("All but one of the circuits
that have specifically addressed the issue have held that, in
the context of crimes that do not require specific intent or
mens rea, the burden of proof as to justification is properly
placed upon the defendant."). In reflecting on the case law,
we keep in mind that the only issue before us today is the
proper placement of the burden of persuasion on the
justification defense to a felon-in-possession charge, not the
more general question of the placement of the burden of
persuasion on affirmative defenses that do not negate an
element of the offense.

Two Courts of Appeals have addressed the precise issue
before us, and have reached opposite conclusions. We have
already described the Seventh Circuit Court of Appeals'
decision in United States v. Talbott, which rested on the
assumption that Congress's silence as to the burden of

10
persuasion on this defense left the courts powerless to
place the burden on the defendant. As stated above, we
disagree with Talbott's analysis. As we noted above,
Congress was silent not only on the issue of the burden of
persuasion, but also as to whether the defense itself was
available. Just as we have the power to read the traditional
common-law defense into the statute, we have the power to
determine the applicable burden of persuasion. Talbott also
relied upon the existence in its court of a pattern jury
instruction on point, which placed the default burden of
persuasion on the government to disprove affirmative
defenses beyond a reasonable doubt; we have no such
pattern jury instruction in the Third Circuit.3 Because the
Seventh Circuit Court of Appeals' analysis rested almost
entirely on its conclusion that the court was without power
to place the burden of persuasion on the government, and
on the further support of the Seventh Circuit pattern jury
instructions, we decline to follow the Talbott decision.

We view the Eleventh Circuit Court of Appeals as having
adopted a sounder approach. In United States v. Deleveaux,
205 F.3d 1292 (11th Cir. 2000), the United States Court of
Appeals for the Eleventh Circuit ruled that the defendant in
a S 922(g) case bears the burden of proving a justification
defense by a preponderance of the evidence. The Deleveaux
Court emphasized that in the context of a felon-in-
possession charge, the justification defense depends on
"additional facts and circumstances that are distinct from
the offense conduct." Deleveaux, 205 F.3d at 1299. The
Deleveaux Court further explained:

[T]he justification defense is a limited defense to a
strict liability statute,4 which sought broadly to prohibit
_________________________________________________________________

3. Just as the case law in this area is divided as to the appropriate
placement of the burden of persuasion, so are the pattern jury
instructions of those courts that have promulgated such instructions.
See infra note 8.
4. The case law in our court describes the S 922(g) offense as a "general
intent" crime rather than a strict liability crime, United States v.
Williams, 892 F.2d 296, 303 (3d Cir. 1989), superseded by statute on
other grounds as indicated in Stinson v. United States, 508 U.S. 36, 39
n.1 (1993). However, the general intent contained in the S 922(g) offense
is merely the baseline intent to possess the firearm; thus, the
distinction
between our nomenclature and that of the Eleventh Circuit Court of
Appeals does not obviate the applicability of the reasoning of the
Deleveaux Court.

11
 possession of firearms by convicted felons. The
justification defense also does not negate any element
of this offense, but requires proof of additional facts
and circumstances distinct from the evidence relating
to the underlying offense. . . . The defendant will
usually be best-situated to produce evidence relating to
each element of this affirmative defense.

Id. at 1300.

The reasoning in Deleveaux dovetails nicely with the case
law already existing in our court, most notably Paolello.
While Paolello did not speak to the precise issue before us
today, in that case we did clearly indicate that we should
adopt a narrow view of the justification defense as
employed in connection with the felon-in-possession
statute. See Paolello, 951 F.2d at 541, 542 (noting that
"several courts have limited the breadth of the justification
defense . . . in the section 922 context in order to achieve
the statute's purposes," and approving this "restrictive
approach"). Deleveaux relies on Paolello for this principle,
see Deleveaux, 205 F.3d at 1297 (quoting Paolello, 951 F.2d
at 541-42), and, although Paolello does not control the
outcome in this case, our imposition of the burden of
persuasion on the defendant would be entirely consistent
with our reasoning there.

We find Deleveaux to be persuasive and consistent with
the background of the common law.5 At common law, the
defendant bore the burden of proving all affirmative
defenses. See Patterson v. New York, 432 U.S. at 202 (1977)
(stating that at common law, the burden of proving
_________________________________________________________________

5. We also note the decision of the United States Court of Appeals for the
Sixth Circuit in United States v. Wolak, 923 F.2d 1193 (6th Cir. 1991).
In Wolak, the Court of Appeals did not explicitly announce a rule as to
the appropriate placement of the burden of persuasion on a "temporary
innocent possession" defense to a S 922(g)(1) charge, but did express its
view that an instruction proffered by the defendant"was fatally flawed
because it erroneously stated that `the Government must prove beyond
a reasonable doubt that this defense [innocent possession] does not
apply to this case.' " Wolak, 923 F.2d at 1198. The innocent possession
defense at issue in Wolak was characterized by the Wolak Court as a
"justification defense" and is similar to the defense at issue here. Id.

12
"affirmative defenses -- indeed, `all . . . circumstances of
justification, excuse or alleviation' -- rested on the
defendant") (quoting 4 William Blackstone, Commentaries
*201); see also Mullaney v. Wilbur, 421 U.S. 684, 693
(1975). Although there has been something of a twentieth-
century trend toward requiring the government to bear the
burden of persuasion on certain affirmative defenses, this
trend has been by no means uniform across jurisdictions or
across types of defenses. See Patterson, 432 U.S. at 207
n.10 ("Even so, the trend over the years appears to have
been to require the prosecution to disprove affirmative
defenses beyond a reasonable doubt. The split among the
various jurisdictions varies for any given defense.")
(citations omitted); George P. Fletcher, Two Kinds of Legal
Rules: A Comparative Study of Burden-of-Persuasion
Practices in Criminal Cases, 77 Yale L.J. 880, 887 (1968);
see also Jay M. Zitter, Construction and Application of 18
U.S.C.A. S 17, Providing for Insanity Defense in Federal
Criminal Prosecutions, 118 A.L.R. Fed. 265, 265 (1994)
(describing how public outcry following John Hinckley's
attempted assassination of President Ronald Reagan led to
Congress's enactment of the Insanity Defense Reform Act of
1984, Pub. L. No. 98-473, 98 Stat. 2057 (codified as
amended at 18 U.S.C. S 17(b) (2000)) (shifting to the
defendant "the burden of proving the defense of insanity by
clear and convincing evidence")). An examination of
appellate decisions concerning the burden of persuasion on
other affirmative defenses reveals a quite divided
jurisprudence, without any clear default rule as to how
affirmative defenses generally should be treated. For
example, in the case of duress or coercion defenses,
appellate courts have set differing rules for allocating the
burden of persuasion in various circumstances.6 Compare,
_________________________________________________________________

6. We include a description of these duress and coercion cases merely as
an example of the variety with which courts have treated the burden of
persuasion on common-law affirmative defenses. We do not believe that
the duress and coercion cases are sufficiently similar to the
justification
scenario so as to be dispositive of this case, even were these duress and
coercion cases to be uniform in their allocation of the burden of
persuasion. Cf. Paul H. Robinson, 1 Criminal Law Defenses S 25(b), at 96
(1984) (placing duress and coercion in the "excuse" category of defenses,
a broad category separate from the "justification" category). For the

13
e.g., United States v. Willis, 38 F.3d 170, 179 (5th Cir.
1994) (stating, in a case involving a duress defense to a
charge of carrying a firearm during the commission of a
drug trafficking crime, that the defendant bears the burden
of proof of "a justification defense such as duress"), and
United States v. Dominguez-Mestas, 929 F.2d 1379, 1380
(9th Cir. 1991) (per curiam) (holding that defendant has the
burden of proving duress defense to a charge of unlawful
importation of merchandise),7with United States v. Arthurs,
73 F.3d 444, 448 (1st Cir. 1996) (stating that, in a case
involving charges of importing cocaine and possessing
cocaine with the intent to distribute it, the government
must disprove a duress defense beyond a reasonable doubt
once the defendant has laid "a predicate warranting a
duress instruction"), United States v. Mitchell, 725 F.2d
832, 836 (2d Cir. 1983) (placing burden of persuasion on
government to disprove duress defense to armed bank
robbery charges, once the defendant has sufficiently placed
the defense in issue), and United States v. Campbell, 609
F.2d 922, 925 (8th Cir. 1979) (holding, in bank robbery and
escape case, that, once the accused has placed before the
court "facts giving rise to a coercion defense," the
government "must rebut the issues of coercion beyond a
reasonable doubt").8
_________________________________________________________________

reasons described above, our own holding in this case is limited to the
circumstances presented here -- the justification defense to a felon-in-
possession charge -- and therefore we consider only the case law on that
issue (Paolello, Talbott, Delevea
ux, and Wolak) to be directly relevant to
our decision.

7. The District Court in the case before us, which rendered its decision
in April 1999 and thus did not have the benefit of the Eleventh Circuit
Court of Appeals' subsequent decision in Deleveaux, relied heavily on the
reasoning of the Ninth Circuit Court of Appeals in Dominguez-Mestas.
See A. at 215-18. Although Dominguez-Mestas has some persuasive
force, we find Deleveaux, which more clearly matches the scenario at
issue in our case, to be the better guide to our decision.

8. The pattern jury instructions cited by both the government and the
defendant similarly reflect the absence of a clear default rule on the
placement of the burden of persuasion on affirmative defenses generally.
See Federal Judicial Center Pattern Criminal Jury Instructions S 56

14
At oral argument, Dodd's counsel suggested that we
should follow the same analytical course in allocating the
burden of persuasion for the justification defense to the
S 922(g) charge as we have for entrapment. We have held,
as has the Supreme Court, that the government bears the
burden of disproving both elements of an entrapment
defense (government inducement of a crime and lack of
predisposition on the part of the defendant). See Jacobson
v. United States, 503 U.S. 540, 548-49 (1992); United States
v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). In light of the
diversity of analytical solutions that the appellate courts
have reached with respect to various affirmative defenses,
however, we reject any argument that consistency demands
we follow the entrapment precedents in this case.
Entrapment is a very different defense from the justification
_________________________________________________________________

(1988) (placing burden of disproving duress defense on government);
First Circuit Pattern Criminal Jury Instructions, intro. cmt. (1998)
(stating that, except in the case of the insanity defense, the burden of
persuasion on affirmative defenses is on the government); id. S 5.05
(stating that government bears burden of disproving duress defense, but
also referring to a case note that says "the burden of proof remains with
the government, at least if the charged crime requires mens rea")
(emphasis added); Fifth Circuit Pattern Criminal Jury Instructions S 1.36
(1997) (placing burden of persuasion on defendant on justification,
coercion and duress defenses, but noting that this practice is "[c]ontrary
to many other circuits"); Sixth Circuit Pattern Criminal Jury Instructions
S 6.05 (1991) (placing burden on the government on coercion and duress
defenses, but noting that "significant modifications must be made in this
instruction" in the case of a justification defense to a felon-in-
possession
charge); Seventh Circuit Pattern Criminal Jury Instructions S 4.01 (1999)
(stating that, for affirmative defenses other than insanity defense,
burden
of persuasion is on government); Eighth Circuit Model Criminal Jury
Instructions S 3.09 (1996) (similar to Seventh Circuit); Ninth Circuit
Model Criminal Jury Instructions S 6.4.2 (1997) (placing burden of
persuasion on defendant for affirmative defenses that do not negate an
element of the offense). We note that the relevant Eleventh Circuit
pattern instruction, Eleventh Circuit Pattern Criminal Jury Instructions
S 15 (1997), which appears to place the burden of persuasion on the
government, contains language suggesting that such placement is only
appropriate in cases where the offense has a high mens rea requirement;
furthermore, it seems clear that Deleveaux at least partially supersedes
this pattern jury instruction.

15
defense in the instant case; in order to raise the defense of
entrapment, there must be some evidence that government
agents have had an inappropriate role in bringing about the
criminal behavior alleged. It seems reasonable that the
government should bear the burden of disproving a defense
whose very essence is the allegation of illegitimate
government conduct. See Sherman v. United States , 356
U.S. 369, 372 (1958) ("Entrapment occurs only when the
criminal conduct was `the product of the creative activity' of
law-enforcement officials.") (quoting Sorrells v. United
States, 287 U.S. 435, 451 (1932)). In contrast, the
justification defense to a felon-in-possession charge
concerns an exception to a very restrictive statute that, on
its face, forbids possession in all circumstances; the facts
necessary to allege and to prove a justification defense in
this scenario are more easily accessible to the defendant
than to the government. See Deleveaux, 205 F.3d at 1300
("[T]here are strong practical considerations in favor of
requiring the defendant rather than the government to bear
the burden of proving the justification defense to a
S 922(g)(1) charge. . . . The defendant will usually be best-
situated to produce evidence relating to each element of
this affirmative defense.").

We conclude that a rule that places the burden of
persuasion on the defendant with regard to a justification
defense to a felon-in-possession charge is constitutionally
permissible, consonant with the common law, preferable for
practical reasons, and faithful to the strictness of the
statute into which we have read this justification defense.9
_________________________________________________________________

9. We reject Dodd's argument that putting the burden of proof on the
defendant on an affirmative defense will unduly confuse the jury. The
cases cited by Dodd in support of this argument, see Dodd Br. at 21-24,
are not on point. United States v. Mitchell, 725 F.2d 832, 836 (2d Cir.
1983), concerned a defense that tended to negate the mens rea element
of the charged crime. United States v. Watson , 489 F.2d 504, 510-11 (3d
Cir. 1973), referred to jury instructions that placed the burden of
persuasion on one element of a defense on the government, and on
another element on the defendant. While such bifurcated jury
instructions might be confusing, the simpler instruction at issue here
would not be. In this particular case, Judge Gawthrop gave a jury
instruction that clearly placed the burden of persuasion on the
defendant on his justification defense. See supra page 4.

16
We will therefore AFFIRM the District Court's order of
conviction and sentence.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

17