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RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0127P (6th Cir.)

File Name: 04a0127p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

DON BROWN,

Defendant-Appellant.

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No. 02-6205

Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 02-20102—Julia S. Gibbons, Circuit Judge.

Argued: February 3, 2004

Decided and Filed: May 6, 2004 

Before: NORRIS, GILMAN, and ROGERS, Circuit

Judges.

_________________

COUNSEL

ARGUED: Stephen R. Leffler, LAW OFFICE OF

STEPHEN R. LEFFLER, Memphis, Tennessee, for

Appellant. Stephen P. Hall, ASSISTANT UNITED STATES

ATTORNEY, Memphis, Tennessee, for Appellee.

ON BRIEF: Stephen R. Leffler, LAW OFFICE OF

STEPHEN R. LEFFLER, Memphis, Tennessee, for

2 United States v. Brown No. 02-6205

Appellant. Stephen P. Hall, ASSISTANT UNITED STATES

ATTORNEY, Memphis, Tennessee, for Appellee.

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OPINION

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ALAN E. NORRIS, Circuit Judge. Defendant Don Brown

appeals from a jury verdict that found him guilty of a single

count of knowingly possessing a firearm despite a prior

felony conviction, in violation of 18 U.S.C. § 922(g).

Defendant testified at trial and conceded that he briefly had

his brother’s .25 caliber pistol in his possession but contended

that he took it because his brother was intoxicated and he

wished to make certain that the gun was safely stored away.

On appeal defendant has designated four assignments of

error: 1) he should have been provided with street clothes

during the trial; 2) the district court erred in permitting

testimony that the firearm was loaded at the time that it was

confiscated from him; 3) the district court gave the jury an

improper instruction concerning the burden of proof with

respect to a defense of “necessity”; and 4) he was entitled to

a reduction for acceptance of responsibility despite his

decision to go to trial.

I.

According to defendant’s trial testimony, his troubles

stemmed from his decision to accompany his brother,

Timothy, on January 29, 2002, to a club in Memphis to

“check on [Timothy’s] girlfriend.” The brothers left around

9:30 that evening in Timothy’s van, visited the club for 10 to

15 minutes, and then left when they failed to locate the

girlfriend. Although they did not drink at the club, they had

already been drinking beer that Timothy kept in the van.
No. 02-6205 United States v. Brown 3

Defendant went on to testify that, not long thereafter,

Timothy “just got down on his accelerator and the van sped

up and got away from him and he hit the under beam of the

overpass right there at the interstate where you go off the offramps there.” Timothy told defendant not to get out of the

van, although it was clear that the front bumper was bent and

the windshield cracked where defendant’s head had struck it

on impact. Timothy attempted to drive off despite the fact

that a back tire went flat as they pulled away. According to

defendant, he told his brother to stop a number of times but he

refused. Defendant testified as follows with respect to the

gun:

. . . I looked down at the beer and stuff, I said, “I’m

fixing to get out . . . .” Then I looked over and got the

beer, I said, “You don’t need this.” And I noticed the

pistol was in the little thing right there at the little cockpit

thing, what you put cups and stuff at. And I reached and

grabbed it. He was reaching for it, and I grabbed it from

him like this here and got out the van. He was still,

“Give me the gun, give me the gun.” I said, “What you

doing with this here in the first place,” know what I’m

saying. And so I got the gun and the beer and got out the

van and he got out the van with me. I said, “Man, you

don’t need to have this stuff in here, you are already in

enough trouble as it is,” know what I’m saying.

. . . .

I was concerned that he was going to hurt hisself [sic]

or somebody else, you know what I’m saying, driving the

way he is. He was obviously drunk because he had the

wreck. And I didn’t know what he was going to do at

that point in time because he refused to stop the van. So

I got out, I was already out, and I took the beer and

what’s you call it, he constantly trying to follow me

asking me for the gun and whatever. I said, “No, you

don’t need this.” I said, “You either lock the van up and

4 United States v. Brown No. 02-6205

walk home with me or you get in there and go to sleep,

but you don’t need to drive.”

Defendant went on to explain that he was concerned that his

brother might have quarreled with his girlfriend, and he took

the gun with the intention of placing it in his aunt’s house for

safekeeping. 

Timothy did not take kindly to his brother’s concerns.

Instead, he stopped the van, jumped out, and approached

Memphis police officer Brad Savage. According to Savage’s

trial testimony, “He told me that him and his brother had

gotten into an argument in the van, and his brother jumped

out of the van, grabbed a pistol and was walking westbound

on Chelsea from Evergreen.” This encounter occurred at

about 11:15 p.m.

Timothy pointed his brother out to Savage, who radioed for

help and then approached defendant:

I got on my loud speaker, and I instructed [defendant] –

He was carrying a 40-ounce bottle of beer, and I

instructed him to put it down . . . . I told him to put his

hands up on the wall at which time he did, and I

approached him at that time.

. . . .

I then patted that pocket down. I could feel something,

so I reached in there and there was a small caliber pistol

in his pocket.

Savage also testified that defendant told him the location of

the gun when asked.

Shortly thereafter, police officer Dwayne Johnson arrived

on the scene. Johnson took possession of the pistol and

emptied it. At trial, he testified that he removed a live round

of ammunition from the gun’s chamber and that the clip

contained an additional five rounds. 
No. 02-6205 United States v. Brown 5

A grand jury returned a one-count indictment on April 10,

2002, charging defendant with being a felon in possession of

a firearm, 18 U.S.C. § 922(g). Prior to trial, the parties

stipulated to the fact that defendant had previously been

convicted of four felonies and to the fact that the firearm in

question – a Bryco Arms .25 caliber pistol – had traveled

across state lines. After a two-day trial, the jury returned a

guilty verdict. Defendant received a sentence of 235 months

of imprisonment, three years of supervised release, and a

special assessment of $100. 

II.

1. Prison Clothing

On the first day of trial, defense counsel told the court that

his client had tried to obtain clothes from his family but had

received no response to his request. The judge replied, “If

you’ve got a reasonable way of getting them here, you know,

in a timely, reasonably timely way, I would by happy to wait,

but it just doesn’t seem like there is any basis for waiting

under th[e current] circumstances.” The court went on to note

that, “[I]f at some later point Mr. Brown . . . is able to get

some clothes here, I would be happy to allow him an

opportunity to change, but of course . . . the jury will have

already seen him . . . .” Other than expressing the general

desire that his client have access to non-prison attire, defense

counsel did not object to the district court’s resolution of the

problem, nor did he ask for a continuance.

In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme

Court held as follows:

[A]lthough the State cannot, consistently with the

Fourteenth Amendment, compel an accused to stand trial

before a jury while dressed in identifiable prison clothes,

the failure to make an objection to the court as to being

tried in such clothes, for whatever reason, is sufficient to

6 United States v. Brown No. 02-6205

negate the presence of compulsion necessary to establish

a constitutional violation. 

Id. at 512-13 (footnote omitted). In other words, a

defendant’s fundamental liberty interest under the Fourteenth

Amendment prevents the State from denying the accused the

option of wearing something other than prison garb. Id. at

503-04. However, the mere fact that a defendant appears in

prison attire during his trial does not necessarily mean that his

right to a fair trial has been compromised. As the Court

observed, “The cases show . . . that it is not an uncommon

defense tactic to produce the defendant in jail clothes in the

hope of eliciting sympathy from the jury.” Id. at 508.

Accordingly, the only constitutional prohibition is that a

defendant cannot be forced to wear prison clothes and, even

then, he must object to that directive to preserve his claim.

Defendant concedes in his brief to this court that “[t]here is

nothing in the record to indicate that the jurors were, in fact,

affected by what they saw.” Furthermore, he does not argue

that the State compelled him to wear prison-issued clothing

or prohibited him from obtaining other attire. 

Under the circumstances, we conclude that there simply

was no compulsion. If anything, the remarks that the district

court addressed to defendant when he mentioned the issue

prior to trial demonstrate a general willingness to

accommodate him. Defendant did not otherwise object when

the court determined that, in the absence of a viable plan to

obtain clothing, it would begin the trial. This failure to object

negates any claim of compulsion. Estelle at 512-13.

2. Testimony Concerning Whether the Pistol was Loaded

During trial, officer Savage testified that fellow officer

Johnson “cleared the weapon” when he arrived at the scene.

Defense counsel objected to testimony concerning whether or

not the pistol at issue was loaded at the time it was
No. 02-6205 United States v. Brown 7

confiscated; in his view, that fact was “irrelevant.” The court

overruled the objection based on the following rationale:

Well, it may not be relevant whether it’s loaded or not

for purposes of the legality or illegality of the conduct.

On the other hand, the fact that it’s loaded, and frankly,

the defense [of necessity] you are trying to present, it

may not have much to do with the likelihood of the

factual scenario of either party, but it generally has

something to do with the overall fact situation. So I

mean it’s relevant also. 

This courtreviews evidentiary rulings concerning relevance

and admissibility for an abuse of discretion. See United

States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993) (“We

review the trial court’s admission of testimony and other

evidence under the abuse of discretion standard.”). Under this

standard, we take a “maximal view” of the evidence’s

probative effect and a “minimal view of its unfairly

prejudicial effect.” United States v. Sassanelli, 118 F.3d 495,

498 (6th Cir. 1997).

The statute of conviction reads in part as follows:

It shall be unlawful for any person . . . (1) who has been

convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year . . . to ship

or transport in interstate or foreign commerce, or possess

in or affecting commerce, any firearm or ammunition; or

to receive any firearm or ammunition which has been

shipped or transported in interstate or foreign commerce.

18 U.S.C. § 922(g). Because the statute does not require that

the firearm be loaded, defendant takes the position that the

introduction of such evidence runs afoul of Federal Rule of

Evidence 403 because its probative value was “substantially

outweighed by the danger of unfair prejudice.”

8 United States v. Brown No. 02-6205

We disagree. The district court correctly recognized that

the evidence had some relevance to defendant’s necessity

defense. Moreover, this evidence was not overly prejudicial:

the fact that the gun was loaded bolstered defendant’s

argument that it was necessary to secure it temporarily from

his brother. We find no abuse of discretion on the part of the

district court in permitting the introduction of this evidence.

3. Jury Instructions with Respect to Necessity Defense

Defendant next maintains that the jury instruction

explaining his affirmative defense of necessity improperly

shifted the burden of proof to him. We review jury

instructions as a whole to determine whether they fairly and

adequately submitted the issues and applicable law to the

jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.

1991). 

After instructing the jury on the government’s burden of

proof, the district court gave it the following guidance

concerning defendant’s affirmative defense:

If you conclude that the government has proved beyond

a reasonable doubt that the defendant committed the

crime as charged, you must then consider whether the

defendant should nevertheless be found not guilty

because his actions were justified by necessity. The

defendant’s actions were justified and therefore he is not

guilty only if the defendant has shown by a

preponderance of the evidence that each of the following

five elements is true. . . .

The five elements which the defendant must prove by

a preponderance of the evidence to establish the defense

are as follows: Number one, the defendant was under an

unlawful present imminent and impending threat of such

nature as to induce a well-grounded fear of death or

serious bodily injury to himself or another. And two, the

defendant had not recklessly or negligently placed
No. 02-6205 United States v. Brown 9

himself in a situation in which it was probable that he

would be forced to choose the criminal conduct. And

three, the defendant had no reasonable legal alternative

either before or during the event to violating the law, that

is, he had no reasonable opportunity to avoid the threat

to harm. And number four, a reasonable person would

believe that by committing the criminal action he would

directly avoid the threat and harm. And five, the

defendant did not maintain the illegal conduct any longer

than absolutely necessary.

This court has held that “a defense of justification may arise

in rare situations” when the charge of being a felon in

possession of a firearm has been alleged. United States v.

Singleton, 902 F.2d 471, 472 (6th Cir. 1990). However, this

defense must be “construed very narrowly.” Id. In Singleton,

we expressly adopted the requirements imposed by the Fifth

Circuit upon a defendant in order to make out such a defense.

Id. (adopting United States v. Gant, 691 F.2d 1159 (5th Cir.

1982)). These requirements track those set forth by the

district court in its jury instructions.

Defendant argues that the elements of the affirmative

defense, which he was obliged to prove by a preponderance

of the evidence, go to an essential element of the offense that

the government must prove: that he “knowingly possessed

the firearm.” It is axiomatic, of course, that the government

must prove all elements of a crime beyond a reasonable

doubt. See In re Winship, 397 U.S. 358, 364 (1970).

Furthermore, if an affirmative defense bears a necessary

relationship to an element of the charged offense, the burden

of proof does not shift to defendant. Patterson v. New York,

432 U.S. 197, 210-11 (1977). However, where, as here,

defendant asserts an affirmative defense that does not negate

any element of the offense, he may be required to prove that

defense by a preponderance of the evidence. Id. In this case,

a felon in possession charge only requires proof of general,

rather than specific, intent. United States v. Bennett, 975 F.2d

305, 308 (6th Cir. 1992) (voluntary intoxication not an

10 United States v. Brown No. 02-6205

affirmative defense in § 922(g) prosecution). Proving

necessity does not necessarily undercut the element of

“knowing possession;” one can knowingly possess a firearm

but still do so under circumstances of necessity that justify an

otherwise illegal act.

In our view, the district court correctly instructed the jury

in light of Singleton, which specifically placed the burden to

show the elements of the necessity defense on defendant.

Singleton, 902 F.2d at 472 (stating “a defendant must show”

before listing the requirements of the necessity defense). 

4. Acceptance of Responsibility

Finally, defendant contends that he should have been

accorded a reduction to his offense level based upon

acceptance of responsibility. U.S.S.G. § 3E1.1. Application

Note 2 to this section states that it should not generally apply

to a defendant “who puts the government to its burden of

proof at trial by denying the essential factual elements of

guilt, is convicted, and only then admits guilt and expresses

remorse.” U.S.S.G. § 3E1.1, comment. (n.2). We generally

review the district court’s judgment on this issue for clear

error. United States v. Webb, 335 F.3d 534, 538 (6th Cir.

2003). Even when this Guideline’s section is applied to

uncontested facts, we review the lower court’s decision with

deference, not de novo. Id. at 537 (noting a change in the

circuit’s standard of review in light of Buford v. United

States, 532 U.S. 59, 63-66 (2001)). Here, however, the facts

were contested and therefore a clear error standard of review

applies.

Defendant takes the position that he never denied his felony

convictions, possession of a firearm, or the fact that the

firearm had traveled in interstate commerce. He sought a trial

in order to assert an affirmative defense, which does not

negate an element of the crime.
No. 02-6205 United States v. Brown 11

In denying the benefit of acceptance of responsibility, the

district court reasoned as follows:

. . . I do not think Mr. Brown is entitled to points for

acceptance of responsibility. I think that possibly in a

given case an individual who asserted a defense such as

this might . . . still be entitled to points for acceptance of

responsibility, but when I – when one evaluates Mr.

Brown’s credibility, the fact that his explanation of

events was not accepted by the jury and, frankly, I did

not find Mr. Brown to be credible under all the

circumstances of the case. I don’t think he can be given

points for acceptance of responsibility because he did not

in my judgment fully accept responsibility.

The district court properly recognized that putting the

government to its burden did not automatically preclude a

reduction under § 3E1.1; it merely found that the facts as

adduced at trial made such a finding inappropriate in this

case, which is precisely the kind of determination that we

review for clear error. No such error occurred in this case.

III.

For the foregoing reasons, we affirm the judgment of the

district court.