The Honorable Russell G. Clark, United States District Judge 1

for the Western District of Missouri.

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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 court erred in refusing to allow him to present evidence to

1

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
 Lomax was driving a rental car. Apparently, the car had been 2

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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stolen. During a search of the vehicle's trunk, the arresting officer

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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
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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.