United States v. Vincent L. Lomax ( 1996 )

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No. 95-3587
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Vincent L. Lomax, *
*
Appellant. *
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Submitted: April 9, 1996
Filed: July 3, 1996
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Before RICHARD S. ARNOLD, Chief Judge, WOLLMAN and HANSEN, Circuit
Judges.
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WOLLMAN, Circuit Judge.
Vincent Lomax appeals his conviction for being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1), arguing that the
district court1 erred in refusing to allow him to present evidence to
support either a justification or a legal ignorance defense and that
prejudicial error was committed when a bench conference was overheard by
the jury. We affirm.
I. Facts and Background
On July 9, 1994, Lomax was pulled over for speeding. When the
officer ran the check necessary to issue Lomax a speeding ticket, the
computer indicated that the car Lomax was driving had been
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
stolen.2 During a search of the vehicle's trunk, the arresting officer
discovered a loaded Colt .45 semiautomatic pistol and a clip filled with
bullets. After a computer check revealed that Lomax was a convicted felon,
he was arrested for possession of the firearm.
Lomax did not deny that he was in possession of the firearm at the
time of his arrest. Instead, he attempted to present evidence that his
possession was justified because he believed that he was in danger and
needed the gun for protection and that he also believed his civil rights
had been restored at the time he possessed the gun, thus making the
possession legal.
II. The Justification Defense
Lomax's justification defense is based on his claim that he had
purchased the gun because he perceived that he was in imminent danger. He
asserts that he had received various threats of physical harm from several
different individuals. These alleged threats stemmed from his relationship
with the ex-wife of one of his antagonists and the fact that his relatives
apparently owed money to several other people who hoped to procure the
money by threatening Lomax.
Although several other circuits have recognized a defense of legal
justification to a violation of section 922(g), we have not done so, and
on the facts of this case and for the reasons discussed below, we decline
to do so now.
In general, to establish a justification defense a defendant
2
Lomax was driving a rental car. Apparently, the car had been
reported stolen because Lomax had rented it with a check drawn on
insufficient funds and had failed to return it for a month. The
car was returned after Lomax's arrest, and he was not prosecuted
for its theft.
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must show that: 1) he 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; 2) that he had not recklessly or
negligently placed himself in a situation in which it was probable that he
would be forced to commit a criminal act; 3) that he had no reasonable,
legal alternative to violating the law; and 4) that a direct causal
relationship may be reasonably anticipated between the commission of the
criminal act and the avoidance of the threatened harm. United States v.
Blankenship, 67 F.3d 673, 677 (8th Cir. 1995) (laying out the elements but
declining to determine whether the defense is available in section 922(g)
cases).
Those circuits which have recognized justification as a defense to
a section 922(g) charge have construed the defense narrowly. See United
States v. Perrin, 45 F.3d 869, 874-75 (4th Cir.) (construing the defense
narrowly and citing other circuits that have done so as well), cert.
denied, 115 S. Ct. 2287 (1995). Moreover, those cases which have allowed
evidence of the defense have involved facts significantly more compelling
than the generalized fear of harm experienced by Lomax. See, e.g., United
States v. Gomez, 81 F.3d 846, 850-54 (9th Cir. 1996) (recognizing defense
for defendant who had received repeated death threats after acting as
government informant against drug conspirator in murder-for-hire indictment
and who had unsuccessfully sought protection from police, from government
officials whom he had assisted, and from churches); United States v.
Newcomb, 6 F.3d 1129, 1135-38 (6th Cir. 1993) (recognizing defense where
defendant took gun from his girlfriend's son who had history of violence
and was threatening to shoot third person, and where defendant possessed
gun only long enough to unload and pocket the shells); United States v.
Paolello, 951 F.2d 537, 542-43 (3d Cir. 1991) (recognizing defense where,
during bar altercation, defendant knocked gun from attacker's hand to
prevent him from shooting third person and then picked up the gun from the
floor to prevent attacker from retrieving it); and
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United States v. Panter, 688 F.2d 268, 269-72 (5th Cir. 1982) (recognizing
defense where defendant, pinned to the floor after being stabbed in the
abdomen by convicted murderer, reached under the bar for a club and instead
retrieved a pistol).
Moreover, a defendant cannot claim justification as a defense for an
illegal action that he chose to pursue in the face of other potentially
effective, but legal, options. See United States v. Kabat, 797 F.2d 580,
591 (8th Cir. 1986), cert. denied, 481 U.S. 1030 (1987). Lomax implicitly
argues that possession of a handgun was the only effective course of
conduct available to thwart the potential physical danger he faced. We
reject this argument, for although Lomax states that he attempted to obtain
a restraining order against one of his antagonists and filed a complaint
against another, he appears to have exerted only minimal effort to act
within the law to remedy his problems.
Because Lomax's proferred evidence was insufficient to establish the
first and third elements of the justification defense, we need not
determine whether (although we doubt that it did) it established the other
two elements. On the facts of this case, then, the district court did not
err in refusing to allow Lomax to present evidence in support of a
justification defense.
III. Ignorance Defense
Lomax next contends that the district court should have permitted him
to present evidence to the jury of his belief that his civil rights had
been restored and that his conduct was, therefore, lawful. In United
States v. Farrell, 69 F.3d 891, 893 (8th Cir. 1995), cert. denied, 116 S.
Ct. 1283 (1996), we held that the "knowingly" element of section 922(g)
applies only to the defendant's underlying conduct, not to his knowledge
of the illegality of his actions. Thus, Lomax's claim that he believed his
possession to be lawful is irrelevant to the mens rea of the
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offense, and the district court therefore properly excluded such evidence.
IV. The Sidebar Conference
Finally, Lomax requests that we remand his case to the district court
for a hearing to determine whether the jury overheard a sidebar conference
and, if so, whether he was prejudiced by this occurrence. The sidebar
conference at issue involved a discussion of evidence that Lomax had
written a bad check to pay for the rental car that he was driving when he
was arrested. This evidence was ultimately excluded.
Because Lomax failed to raise this claim in the district court, we
review for plain error. United States v. Jenkins, 78 F.3d 1283, 1288 (8th
Cir. 1996). We should exercise our discretion to correct a plain error
only when it "``seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.'" United States v. Olano, 113 S. Ct.
1770, 1779 (1993) (alteration in original) (citation omitted).
We find that, even if the alleged error occurred, it did not rise to
the level of plain error, and it was not of the type to seriously influence
the fairness of Lomax's trial. We assume, as we must, that the jury
followed the judge's instruction directing it to consider only the evidence
presented at trial. See United States v. Koskela, No. 95-2829, slip op.
at 2 (8th Cir. June 10, 1996). Hence, if members of the jury did overhear
improper information, we assume that they disregarded the information in
compliance with the judge's instructions. Moreover, we cannot see how
evidence that Lomax had written a bad check for his rental car could
possibly have influenced the outcome of the trial in light of the strong
evidence of guilt and the fact that the jurors heard evidence of Lomax's
past convictions for forgery, burglary, and issuing checks on insufficient
funds.
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The judgment is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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