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The Honorable Robert W. Pratt, United States District Judge for the Southern

District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-2914

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United States of America, *

*

Plaintiff - Appellee, *

 * Appeal from the United States

v. * District Court for the Southern

* District of Iowa.

Tommy Lee Poe, *

*

Defendant - Appellant. *

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Submitted: January 11, 2006

Filed: April 6, 2006

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Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.

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JOHN R. GIBSON, Circuit Judge.

Tommy Lee Poe appeals from his conviction for being a felon in possession of

a firearm, in violation of 18 U.S.C. § 922(g)(1). Based on his criminal history, he was

classified as an armed career criminal under 18 U.S.C. § 924(e), and the district court1

sentenced him to 235 months' imprisonment. Poe argues that the district court erred

in refusing to instruct the jury on his proposed affirmative defense of justification.

We affirm.
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I.

At approximately 6:10 a.m. on May 18, 2003, the Bettendorf, Iowa Police

Department received a 911 call from Michelle Scott. Scott reported that Poe, her

boyfriend, had stolen a weapon from her the previous day and was now standing

outside her apartment building. She said she was afraid to go outside, and then told

the dispatcher that Poe had entered the basement of her building. Three police officers

responded to the scene and entered the basement, where they found Poe standing

under the stairs. The officers handcuffed Poe, removed him from the building, and

then searched the rest of the basement. They found a yellow plastic bag between some

two-by-fours near the water heater, approximately 10 feet from where Poe had been

standing. The bag contained a Smith and Wesson .38 caliber revolver and .38

ammunition.

After receiving Miranda warnings, Poe stated that he would speak to Sergeant

Fink. According to Fink, Poe initially denied any knowledge of the weapon, but then

explained that he and Scott had an argument the night before and she had pointed the

gun at him and threatened him. Poe told Fink that he took the gun from Scott,

removed it overnight, and returned it to the apartment that morning. The officers also

interviewed Scott, who denied pointing the weapon at Poe the previous night.

Poe was charged with possessing a firearm on or about May 18, 2003 in

violation of 18 U.S.C. § 922(g)(1). He filed a notice stating that he intended to

present a justification defense and moved that the jury be instructed to consider the

defense. In his brief before the district court, Poe argued that the only issue in the case

would be his defense of justification and admitted that he "possessed a firearm on or

about the night of May 17, 2003 perhaps continuing until the early morning hours of

May 18, 2003." In the brief, Poe provided an account of the events that differed from

what he initially told the police at the scene. He claimed that he hid the gun in the

basement when he left Scott's apartment on the night of May 17, rather than keeping
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it overnight. He stated that he returned the following morning "to retrieve work boots

he had in the basement and, if Ms. Scott had calmed sufficiently, to perhaps return her

gun to her." After considering briefs from Poe and the government, the district court

ruled prior to trial that an instruction on the justification defense was not warranted.

Scott's trial testimony presented a different version of events from the one she

recounted to the police. She stated that the reason she called the police and denied

pulling the gun on Poe was because she was angry that he was leaving her for his exwife and she wanted to "hurt him." She then admitted to pulling her gun out during

the argument with Poe in an effort to prevent him from leaving. She testified that Poe

grabbed the gun from her, told her she was crazy, and immediately left the apartment.

She testified that she saw Poe go down into the basement before leaving, and that Poe

later called her to tell her the gun was in the basement. Scott said she tried to correct

her story with the police, but was unable to get in contact with Sergeant Fink and was

also concerned that she could go to jail for admitting that she pulled the gun on Poe.

At the close of all the evidence, defense counsel again requested an instruction

on justification, which the district court denied. The jury returned a verdict of guilty.

II.

A district court has broad discretion when formulating jury instructions, and a

defendant is entitled to a requested instruction only if "it correctly states the law and

is supported by the evidence." United States v. Johnson, 278 F.3d 749, 751-52 (8th

Cir. 2002). Whether there is sufficient evidence to support the submission of an

instruction on an affirmative defense is a question of law which we review de novo.

United States v. Hudson, 414 F.3d 931, 933 (8th Cir. 2005).

Although the Eighth Circuit has never recognized justification as a defense to

a violation of § 922(g), United States v. Luker, 395 F.3d 830, 832 (8th Cir. 2005), we
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have indicated that if such a defense were available, we would follow the Fifth

Circuit's articulation of the elements of the defense. United States v. Stover, 822 F.2d

48, 50 n.3 (8th Cir. 1987). That is, the defense would require proof of the following

four elements:

(1) that 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," (2) that defendant had

not "recklessly or negligently placed himself in a situation in which it

was probable that he would be [forced to choose the criminal conduct],"

(3) that defendant had no "reasonable, legal alternative to violating the

law, 'a chance both to refuse to do the criminal act and also to avoid the

threatened harm,'" and (4) "that a direct causal relationship may be

reasonably anticipated between the [criminal] action and the avoidance

of the [threatened] harm."

Id. (alterations in original). To be entitled to a jury instruction on a justification

defense, a defendant must show "an 'underlying evidentiary foundation' as to each

element of the defense," such that a reasonable person could conclude that the

evidence supported the defendant's position. Hudson, 414 F.3d at 933 (quoting United

States v. Kabat, 797 F.2d 580, 590-91 (8th Cir 1986)).

Poe argues that the district court should have instructed the jury on the

justification defense because he faced an unlawful, imminent threat when Scott pulled

her gun on him such that he had no reasonable alternative but to take it. After

reviewing the record, we conclude that we need not reach the issue of whether

justification is available as a defense to a violation of § 922(g) because Poe cannot

satisfy the necessary elements. 

No reasonable jury could find that Poe's possession of the gun on the morning

of May 18 arose from a present, imminent, and well-grounded apprehension of death

or serious bodily injury, because there is no evidence that Scott had threatened Poe
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that morning. Indeed, as the district court noted, Poe "experienced so little

apprehension that he actually considered giving Ms. Scott her firearm back." In

Stover, we held that there was no imminent danger where the defendant seized a gun

from his assailant and retained it approximately 10 minutes after the assailant fled the

scene. 822 F.2d at 50. Poe was in possession of the gun overnight, long after the

threatened harm had subsided. In addition, Poe had reasonable alternatives to

possessing the gun on May 18 because he could have disposed of or abandoned the

gun at any time after leaving Scott's apartment the night before. See Hudson, 414

F.3d at 934; see also United States v. Singleton, 902 F.2d 471, 473 (6th Cir. 1990)

("Corollary to the requirement that the defendant have no alternative to possession of

the firearm is the requirement that the defendant get rid of the firearm as soon as a safe

opportunity arises.").

We affirm Poe's conviction.

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