[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 19, 2007
No. 07-12201 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00004-CR-3-LAC-MD
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
GREGORY MICHAEL RICE,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(December 19, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Appellant Gregory Michael Rice appeals his conviction for possessing a
firearm while being a convicted felon, 18 U.S.C. § 922(g)(1). Rice argues that the
district court correctly accepted that a justification defense could be based on a
threat to a third party and properly concluded that he had satisfied the first and
second prongs of the defense as laid out in United States v. Deleveaux, 205 F.3d
1292, 1296-97 (11th Cir. 2000). As to the third and fourth prongs of the
jurisdiction defense, Rice claims that the court erred by implicitly finding that he
had to present sufficient evidence to prove the defense, when at that stage he only
had to present “some basis” for it. Rice further argues that he had no reasonable
legal alternative to immediately possessing the gun, and argues that the court erred
by focusing on the subsequent possession and the fact that he pawned the gun.
Finally, he contends that the court erred when it concluded that there was no direct
causal connection between pawning the gun and the threatened harm.
Accordingly, he concludes that the district court erred by granting the
government’s motion in limine.
We review de novo a district court’s ruling on the sufficiency of a
defendant’s proffer of a justification defense. United States v. Dicks, 338 F.3d
1256, 1257 (11th Cir. 2003). “In order to have the defense [of justification]
submitted to a jury, a defendant must first produce or proffer evidence sufficient to
prove the essential elements of the defense.” United States v. Montgomery, 772
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F.2d 733, 736 (11th Cir. 1985).
To establish a defense of justification with regard to a charge under
18 U.S.C. § 922(g)(1), a defendant must show the following “extraordinary
circumstances”:
(1) that the defendant was under unlawful and present, imminent, and
impending threat of death or serious bodily injury; (2) that the
defendant did not negligently or recklessly place himself in a situation
where he would be forced to engage in criminal conduct; (3) that the
defendant had no reasonable legal alternative to violating the law;
and (4) that there was a direct causal relationship between the criminal
action and the avoidance of the threatened harm.
Deleveaux, 205 F.3d at 1297 (emphasis added).
As to the first prong, although we have noted that “the threat of immediate,
serious harm . . . directed at a third person” can support the defense of duress,
United States v. Blanco, 754 F.2d 940, 943 (11th Cir. 1985) (emphasis added), and
although we have implicitly agreed with other Courts of Appeals that the
justification, duress, and necessity defenses are similar, Deleveaux, 205 F.3d
at 1296 n.2, we have never held in a published opinion that a threat to a third
person can support a justification defense.
Regarding the third prong, the Supreme Court has commented that “if there
was a reasonable, legal alternative to violating the law, a chance both to refuse to
do the criminal act and also to avoid the threatened harm, the defense[] will fail.”
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United States v. Bailey, 444 U.S. 394, 410, 100 S. Ct. 624, 635, (1980) (quotation
marks omitted).
Knowing possession of a firearm by a convicted felon, pursuant to 18 U.S.C.
§ 922(g)(1) “can be demonstrated by proof of ‘either actual or constructive’
possession,” and constructive possession is established by showing “ownership,
dominion, or control over the firearm.” United States v. Glover, 431 F.3d 744, 748
(11th Cir. 2005) (internal quotations omitted). Illegal possession of a firearm by a
convicted felon is a continuing offense. See United States v. D’Angelo, 819 F.2d
1062, 1066 (11th Cir. 1987) (reviewing conviction under 18 U.S.C.App.
§ 1201(a)(1)).
Even assuming, arguendo, that a threat to a third person can satisfy
Develeaux’s first prong, that Rice did not place himself in the circumstances of this
case negligently or recklessly, and that Rice had no reasonable legal alternative to
“snatching” the gun away from his fiancee when he first found her with it, because
the offense continued as his possession continued, and because Rice has failed to
prove that he had no reasonable legal alternative to continuing to possess the gun,
see Bailey, 444 U.S. at 412, 100 S. Ct. at 635 (“in order to be entitled to an
instruction on duress or necessity as a defense to the crime charged, an escapee
must first offer evidence justifying his continued absence from custody as well as
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his initial departure”), we conclude that the district court did not err when it
granted the government’s motion in limine and barred Rice from asserting a
defense of justification. Accordingly, we affirm the district court’s order granting
the government’s motion in limine.
AFFIRMED.
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