FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 29, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 20-1085
(D.C. No. 1:19-CR-00145-PAB-2)
ARMANDO ROGELIO DURETE, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before LUCERO, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
Armando Rogelio Durete was found guilty by a jury of knowingly possessing a
firearm and ammunition after having been convicted of a felony, in violation of
18 U.S.C. § 922(g)(1). He appeals his conviction, arguing the district court erred in
refusing to instruct the jury on the defense of necessity. Exercising jurisdiction under
28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
I. Background
In the early morning hours of September 16, 2018, a violent altercation
erupted in a parking lot adjacent to the corner of Market and Fifteenth Streets, in
downtown Denver, Colorado. A group had gathered near a taco truck parked on
Market Street. A witness testified that two men were yelling and cursing. One of
them yelled, “We gonna paint the city. . . . Who wants to get painted[?]” R., Vol. IV
at 92 (internal quotation marks omitted). The witness testified that one of these men
was lifting his shirt to show a gun in the waistband of his pants. The second man,
who she described as a stocky Black man with braids, was holding a gun. When that
man hit her friend in the back of his head, the witness ran from the parking lot across
Market Street. As she was fleeing, the witness heard gunfire. Photographic evidence
of Durete’s physical appearance on that day was consistent with the witness’s
description of the man with braids who was holding a gun, but she did not identify
Durete in a photographic line-up.
The evidence, including shell casings found at the scene, indicated that shots
were fired from both sides of Market Street. Durete’s brother was shot and injured.
A surveillance video captured the scene in the parking lot immediately after the
shooting stopped. It showed a man resembling Durete walking from behind the taco
truck across the parking lot to a car, which was later identified as belonging to
Durete’s brother. After briefly entering the car, the man walked a short way to the
edge of a restaurant patio adjacent to the parking lot, where he bent down beside a
pillar.
2
The surveillance video also showed a security guard pointing toward the man
beside the pillar, then following that man across the parking lot, where they both
disappeared behind the taco truck. Several witnesses testified that, shortly thereafter,
that security guard tackled a man and held him until the police arrived and arrested
him. The man the police arrested was later identified as Durete.
After Durete’s arrest, the police found a gun on the restaurant patio next to the
pillar. A witness identified that gun as a Smith & Wesson M&P 9-millimeter
semi-automatic handgun. Another witness testified that Durete’s DNA was found on
that gun. The police also recovered seven spent nine-millimeter cartridge cases near
the entrance to the parking lot on Market Street.
Durete was indicted on one count of violating § 922(g)(1) by knowingly
possessing a firearm and ammunition after previously being convicted of a felony.
At his trial, Durete asked the district court to instruct the jury on the affirmative
defense of necessity. His proposed instruction, which was based on this court’s
pattern jury instruction, included three elements that he would be required to prove
by a preponderance of the evidence:
1. The 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 to himself . . .;
2. The defendant had no reasonable legal alternative to violating the law,
that he had no chance both to refuse to do the criminal act and also to avoid
the threatened harm;
3. A direct causal relationship could have been reasonably anticipated
between engaging in the criminal action and avoiding the threatened harm.
3
R., Vol. I at 168. The district court indicated that, if it were to give a necessity
instruction, it would include a fourth element based upon certain case law in this
circuit: “that the defendant did not recklessly or negligently place himself in a
situation where he would be forced to engage in the criminal conduct.” Id., Vol. IV
at 439. After the close of the evidence, the district court declined to give a necessity
instruction, holding there was insufficient evidence to support any of the four
elements of that defense. The jury found Durete guilty on the single charge of
unlawful possession of a firearm under § 922(g)(1).
II. Discussion
On appeal, Durete argues that the district court erred in denying his request for
a jury instruction on the defense of necessity. We review the court’s denial of a
defense instruction for an abuse of discretion. See United States v. Al-Rekabi,
454 F.3d 1113, 1121 (10th Cir. 2006).
In enacting § 922(g)(1), “Congress has declared that felons are not to be in
possession of firearms.” United States v. Butler, 485 F.3d 569, 577 (10th Cir. 2007).
Although “we have applied an exception to this general rule” by allowing defendants
to raise a necessity defense, “the exception is narrow and is appropriate only in
extraordinary circumstances.” Id.; see also Al-Rekabi, 454 F.3d at 1122 (“The
necessity exception should be strictly and parsimoniously applied.”); United States v.
Vigil, 743 F.2d 751, 756 (10th Cir. 1984) (noting it is “extremely difficult” for a
felon charged with unlawfully possessing a firearm “to successfully raise the defense
of necessity to that charge”).
4
“A criminal defendant is entitled to an instruction on his theory of defense
provided that theory is supported by some evidence and the law.” Al-Rekabi,
454 F.3d at 1121 (internal quotation marks omitted). “Some evidence” in this
context means “sufficient evidence that would permit the jury to find in [his] favor by
a preponderance on each element of the defense.” United States v. Dixon, 901 F.3d
1170, 1177 (10th Cir. 2018); see also id. at 1177 n.4 (confirming applicability of the
preponderance-of-evidence standard). “For the purposes of determining the
sufficiency of the evidence to raise the jury issue, the testimony most favorable to the
defendant should be accepted.” Al-Rekabi, 454 F.3d at 1121 (internal quotation
marks omitted).
Durete maintains the district court should have instructed the jury on the
defense of necessity in light of the evidence showing there was a verbal altercation
that quickly erupted into gunfire; he was with his brother, who was shot multiple
times; he had no other alternative than to defend himself and his brother by returning
fire; there was no time for him to call the police or respond in any other lawful way;
and he gave up possession of the gun within 30 seconds after the gunfire ended.
Thus, Durete’s defense theory was that it was necessary for him to possess a gun
during the shootout and for a minimal amount of time thereafter. He contends there
was sufficient evidence supporting all three elements of the necessity instruction that
he tendered to the district court.1
1
Durete also argues that the district court erred in adding a fourth element to
the necessity defense and did not view the evidence on that element in the light most
5
We need not address Durete’s arguments regarding the evidence on each of the
elements of a necessity defense because we conclude that he presented insufficient
evidence that he lacked a reasonable, lawful alternative to possessing a gun. “The
sine qua non of [the necessity] defense is a lack of a reasonable, lawful alternative.”
Dixon, 901 F.3d at 1178.2 Thus, Durete had to show there was evidence sufficient to
allow a jury to find that he “had no reasonable legal alternative to violating the law,
that he had no chance both to refuse to do the criminal act and also to avoid the
threatened harm.” R., Vol. I at 168. In other words, the evidence had to support a
finding that Durete “took possession of the gun because he lacked any reasonable
lawful alternative.” United States v. Fraser, 647 F.3d 1242, 1246 (10th Cir. 2011).
In making this showing, Durete must point to evidence that he actually tried a
reasonable, legal alternative to unlawfully possessing a gun, that he had no time to do
so, or “that a history of futile attempts revealed the illusionary benefit of the
alternative.” Vigil, 743 F.2d at 756; see also Fraser, 647 F.3d at 1246 (“Before
breaking the law could have possibly become a reasonable course of action, [the
defendant] had to try to comply with it first.”). In assessing what alternatives are
reasonable, we “apply[] an objective lens.” Dixon, 901 F.3d at 1181.
favorable to him. We need not address these contentions because we can resolve his
appeal based solely upon the three elements in the jury instruction he tendered.
2
Although Dixon involved the defense of duress rather than necessity, these
two defenses have essentially the same elements. Dixon, 901 F.3d at 1176 & n.3.
6
The district court concluded Durete’s necessity defense failed on this element
because there was
no evidence that [he] needed to fire back at people as opposed to pulling a
person he was trying to protect out of the way, as opposed to him running
behind the taco truck or some other thing . . . .
...
There is no evidence that he didn’t have the alternative of not
possessing the weapon, ducking, running, getting out of the way of any
gunfire that was being directed in his direction or in the direction of
someone that he was attempting to protect . . . .
R., Vol. IV at 441-42.
On appeal, Durete points to evidence that someone was shooting from the
other side of Market Street at his brother, who was shot and injured, and that “this all
happened in a matter of seconds.” Aplt. Opening Br. at 9. But he fails to identify
any evidence that he tried any of the legal alternatives identified by the district court.
Nor does he show that the very short timeframe of the shootout foreclosed such
alternatives. See Al-Rekabi, 454 F.3d at 1123 (“[A]ll reasonable alternatives must be
foreclosed.”); Dixon, 901 F.3d at 1180 (noting the defendant offered no “compelling
argument as to why [the court] should believe [the cited] alternatives were
unavailable”). Rather, the video evidence at Durete’s trial showed numerous people
running, ducking, and otherwise attempting to hide during the gunfire. Thus, it is
clear that, objectively speaking, there were reasonable courses of action open to
Durete other than unlawfully possessing a firearm. See Dixon, 901 F.3d at 1179.
Durete nonetheless points to this court’s statement in Butler that a case
“grounded in self defense” was “a possible example of an arguable case for a
7
thorough and principled exhaustion of available legal alternatives to illegal
possession of a firearm.” 485 F.3d at 576. He argues there is evidence that he was
acting in defense of himself or his brother by possessing and shooting the gun. But
we did not hold in Butler that simply acting in self-defense was sufficient to
demonstrate a lack of legal alternatives to unlawfully possessing a gun. Rather, we
suggested that a defendant had arguably exhausted all legal alternatives by (among
other things) reporting threats on his life to federal agents, the sheriff, his parole
officer, local churches, and a newspaper, and by moving from one house to another
and resorting to being homeless for a time to avoid the danger, before he acquired a
gun for self-protection. See id. at 575.
The district court did not abuse its discretion in holding there was insufficient
evidence in Durete’s case to support the no-lawful-alternative element of a necessity
defense. Having held that Durete failed to demonstrate there was sufficient evidence
on one of the elements of the defense, we need not address the other elements. See
Butler, 485 F.3d at 576.
III. Conclusion
In the context of a charge under § 922(g), the necessity defense is narrow,
strict, and parsimoniously applied. The district court did not abuse its discretion in
8
holding that Durete failed to meet his burden to produce evidence sufficient to satisfy
all of the elements of that defense. We therefore affirm the district court’s judgment.
Entered for the Court
Gregory A. Phillips
Circuit Judge
9
United States v. Durete
Combined Opinion