United States v. Russell Douglas Harmon

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JAN 12, 2007
No. 06-12017 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00244-CR-WS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUSSELL DOUGLAS HARMON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(January 12, 2007)
Before BLACK, CARNES and MARCUS, Circuit Judges.
PER CURIAM:
On July 9, 2005, Russell Douglas Harmon, a convicted felon, received a call
while at his friend’s house from Vincent Pickering. Pickering threatened to hurt
Harmon. Harmon and his friend then left the house and went to meet up with some
others, including Pickering. Once there, Pickering came up to the car Harmon was
in, swung a machete in Harmon’s direction, and threatened to kill Harmon.
Harmon and his friend then left for Harmon’s sister’s house. While there,
Pickering called Harmon and again threatened to kill him. Harmon then got a gun
from his sister’s house and left for a nearby trailer park. Pickering arrived at the
trailer park soon after and came at Harmon with a gun. Harmon then shot and
killed Pickering.1
Harmon was indicted for one count of possessing a firearm while a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Prior to his trial, the
government filed a motion in limine seeking to exclude all references to the
Pickering shooting. Harmon responded that this was inappropriate because he
intended to prove that he was justified in possessing the firearm in order to protect
himself from Pickering. The district court granted the government’s motion,
noting that the only reason to introduce evidence of the shooting was to prove
justification, and Harmon had not met his burden to show by a preponderance of
1
This is Harmon’s version of the events of July 9, 2005, as proffered to the district court,
which we take to be true for the purposes of this appeal. We note, however, that the government
presented evidence at Harmon’s trial that Harmon had been in possession of the same gun used
to shoot Pickering on numerous occasions in the months before the shooting.
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the evidence that he was entitled to the justification defense.
The case then proceeding to a jury trial. Harmon was convicted and the
district court sentenced him to 120 months in prison and three year of supervised
release.
This is Harmon’s appeal of his conviction. His sole contention on appeal is
that the district court erred in excluding evidence of the Pickering shooting because
it prevented him from presenting his justification defense. The government
responds that Harmon’s evidentiary proffer of his entitlement to the justification
defense, even if true, did not establish by a preponderance of the evidence that he
was entitled to the defense.
If Harmon’s proffer established that he was entitled to the justification
defense, the district court erred in granting the government’s motion to exclude
references to the Pickering shooting at trial, because it deprived Harmon of a viable
defense. We review de novo the district court’s decision to grant an in limine
motion based on the defendant’s failure to establish that an affirmative defense
applies to the facts of his case. See United States v. Thompson, 25 F.3d 1558,
1563 (11th Cir. 1994).
In order for a defendant to avail himself of the justification defense, he must
prove by a preponderance of the evidence: (1) that he was faced with an unlawful
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and present, imminent, and impending threat of death or serious bodily injury; (2)
he did not negligently or recklessly place himself in a situation where he would be
forced to engage in criminal conduct; (3) he had no reasonable legal alternative to
violating the law; and (4) there was a direct causal relationship between the
criminal action and the avoidance of the threatened harm. United States v.
Deleveaux, 205 F.3d 1292, 1297–99 (11th Cir. 2000).
The imminency prong “requires nothing less than an immediate emergency.”
United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000). In United States v.
Rice, 214 F.3d 1295 (11th Cir. 2000), for example, we held that the defendant in
that case did not face an immediate emergency because after he was threatened by
a local gang (with whom he had a history of run-ins), he was able to leave, get his
gun, and return to same spot where he had been threatened. Id. at 1297–99.
“Indeed, at the time of his arrest,” we said, “the [gang] was nowhere to be seen.”
Id. at 1299.
Likewise, Pickering was nowhere to be seen when Harmon got the gun from
his sister’s house. Pickering had not chased Harmon after the machete incident,
even though he knew where Harmon was, as evidenced by his phone call to
Harmon’s sister’s house. Harmon never called the police to report the machete
incident. Instead, his response was to get the gun, leave the safety of his sister’s
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house and drive to the trailer park where the fatal encounter occurred.
Accordingly, under Harmon’s proffer he could not establish that he was in
imminent harm when he took possession of the gun at his sister’s house, and that
failing is fatal to the defense under Deleveaux. Harmon was therefore not entitled
to pursue the justification defense at his trial, and consequently, the district court
did not err in excluding all references to the Pickering shooting.
AFFIRMED.
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