United States v. Marlon Pollock

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 10, 2007
No. 06-15729 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 06-00032-CR-4-SPM
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLON POLLOCK,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(May 10, 2007)
Before DUBINA, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Martin Pollock was convicted of possession of a firearm by a convicted
felon, 18 U.S.C. §§ 922(g)(1) and 924(e)(1), and appeals the district court’s denial
of his request for a modified jury instruction. On appeal, Pollock argues that the
district court denied him a fair trial with due process by refusing to modify the
pattern jury instruction to allow for the justification defense based on his
reasonable — even if erroneous — fear of immediate death or serious bodily harm
when considered in light of the totality of the evidence.
I.
We review a district court’s refusal to give a particular jury instruction for
abuse of discretion. United States v. Yeager, 331 F.3d 1216,1223 (11th Cir. 2003).
The failure of a district court to give an instruction is reversible error where the
requested instruction (1) was correct, (2) was not substantially covered by the
charge actually given, and (3) dealt with some point in the trial so important that
failure to give the requested instruction seriously impaired the defendant's ability to
conduct his defense. Id. “[W]e will only reverse if we are left with a substantial
and eradicable doubt as to whether the jury was properly guided in its
deliberations.” United States v. Eckhardt, 466 F.3d 938, 948 (11th Cir. 2006)
(citations omitted).
We have held that the defense of necessity is available to justify committing
the offense of felony in possession of a firearm, 18 U.S.C. § 922(g)(1). United
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States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000). However, the
justification defense is only available in § 922(g)(1) cases in “extraordinary
circumstances.” Id. The felon-in-possession statute provides in relevant part that
“[i]t shall be unlawful for any person . . . 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. § 922(g)(1). In
order to convict a defendant for possession of a firearm by a convicted felon, in
violation of § 922(g)(1), the government must prove beyond a reasonable doubt:
“(1) that the defendant was a convicted felon, (2) that the defendant was in
knowing possession of a firearm, and (3) that the firearm was in or affecting
interstate commerce.” Deleveaux, 205 F.3d at 1297. The prosecution need not
prove that the defendant knew that his possession was unlawful. Id. at 1298.
Furthermore, the burden is on the defendant to prove his justification
defense by a preponderance of the evidence. Id. at 1299. In Deleveaux, we
expressly stated that a defendant must show, among other things, two elements to
establish the justification defense in the § 922(g)(1) context: (1) he was under an
unlawful and present, imminent, and impending threat of death or serious bodily
injury; and (2) he did not negligently or recklessly place himself in a situation
where he would be forced to engage in criminal conduct. Id. at 1297. Moreover,
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since our decision in Deleveaux, we have stated, “[t]he first prong requires nothing
less than an immediate emergency.” United States v. Rice, 214 F.3d 1295, 1297
(11th Cir. 2000).
Upon review of the record and consideration of the parties’ briefs, we
discern no reversible error. In this case, undisputed testimony at trial showed that
on December 20, 2005, at 11:30 p.m., Pollock and his brother rode in his brother’s
car to a pool hall. Pollock was aware that his brother kept a firearm in the car.
Pollock testified that he and his brother proceeded to consume approximately four
to seven pitchers of a mixed alcoholic beverage, that he was “pretty much
intoxicated,” and that he was unsure about the events in question because he had
too much to drink. In the early morning hours of December 21, 2005, Pollock and
his brother exited the pool hall toward the car. At the same time, Stephanie
Powell, a driver operator with the Tallahassee Fire Department, two firefighters,
and a fourth individual, the fiancée of one of the firefighters, also exited the pool
hall.
The two parties engaged in a conversation stopped alongside their vehicles
in the parking lot, and Pollock began to urinate on Powell’s leg. Powell warned
Pollock that he was urinating on her leg, but he continued to do so. Powell
testified that “it made me mad, and I . . . kicked at him.” Powell testified that
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neither she nor any other individuals in her party chased or tried to further attack
Pollock. Apparently Pollock misunderstood that Powell and the others were
firefighters, because he testified that he believed that they were some kind of very
aggressive sport fighters.
Pollock retreated to his brother’s car and retrieved a firearm. Pollock held
the firearm to his chest and told the others that they needed to leave, which they
did. Soon after, a police officer arrived at the scene. Officer Butler of the
Tallahassee Police Department testified that he observed Pollock standing in the
passenger doorway of the car, get into the car, and attempt to drive off. Officer
Butler ordered the car to stop and arrested Pollock and his brother. After the
officer seized a firearm from Pollock’s brother’s car, Pollock denied having a
firearm, owning a firearm, or using a firearm in self defense.
We find that the district court did not abuse its discretion by denying
Pollock’s request for a modified jury instruction to provide for a reasonable belief
element in the justification defense. First, the pattern jury instruction does not
allow for the consideration of the defendant’s subjective reasonable belief that he
was under an unlawful and present, imminent, and impending threat of death or
serious bodily injury. In addition, we have affirmed the pattern jury instruction in
published cases. Furthermore, Pollock does not cite to any binding case law to
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show otherwise.
Moreover, it is questionable whether Pollock was entitled to the pattern jury
instruction for the justification defense at all. Consideration of the record evidence
applicable to the second element of the justification defense (which was not
affected by the modification requested by Pollock) raises substantial doubt that he
meet his burden on this element. The undisputed fact that Pollock urinated in
public on another person, and continued to do so after he was warned about that
conduct, does not lend itself to allowing him to prove that he did not negligently or
recklessly place himself in a situation where he would be forced to engage in
criminal conduct. Accordingly, we affirm the denial of Pollock’s requested
modified jury instruction.
AFFIRMED.
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