1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206 ELECTRO NIC CIT

ATION: 2004 FED App . 0127P (6th C ir.) File Name: 04a01 27p.06


### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________ U NITED S TAT ES OF A MERICA ,

Plaintiff-Appellee,

v.

D ON B ROWN , Defenda nt-Appel

lant. X - - - -> , - - N No. 02-6205

Appeal from the United States District Court for the We stern Dis trict of T ennesse e at Memphis. No. 02-20102—Julia S. Gibbons, Circuit Judge.

Argued: February

3, 2004 Decided and Filed: May

6, 2004
Befor e: NORRI S, GIL

MAN, and

ROGERS, Cir

cuit Judges.

_________________ COUNSEL
AR GUE D: Stephen R. Leffler, L AW OFFICE OF STEPHEN R. LEFFL ER, Memphis, Tennessee, fo r Appellan t. Stephen P. Hall, ASSISTANT UNITED STATES ATTORNEY, Memphis, T enness ee, for A ppellee

. ON BRIE F: Steph e n R. Leffler, L AW OFFICE OF STEPHEN R. LE FFL ER, Memphis, Tennessee, for 2 United Sta tes v. Bro wn No. 02-6205
Appellan t. StephenP. Hall, ASSISTANT UNI TED STATES ATTORNEY, Memphis, Tennessee, for Appellee.

_________________ OPINION

_________________ ALAN E. NORRIS, Circuit Judge. Defendant Don Brown appeals from a jury ve

rdict that fo und him gu

ilty of a single count of knowingly posse ssing a firearm despite a p ri or felony conviction, in violation of 18 U.S.C. § 922(g). Defendant

testifie d at trial andconceded that he briefly had his brother’s .25 caliber

pistol in his possession but contended that he took it b ecause

his brothe

r was in toxi cated and he wi sh ed to ma ke ce rt ai n t ha t t he gu n w as sa fe ly s to re d a wa y. Onappeal defendant has designate d f o ur assignments of error: 1) he should have been provided with s treet clothes during the trial; 2) the district court erred in permitting testimony that the firearm wa s l oaded at the time that it was confis cated

from him; 3) the district court gave the jur y a n improper inst ructi on con cernin g t h e burden of proof with respect to a defen se of “ne cessity ”; and 4)he was e

ntitled to a reduction

fo r acce

ptance o f respon sibility

despite h

is decision to go to tr

ial.
I. According

to defendant’s trial testimony, his troubles stemmed from his decision to accompany h is brother, Timoth y, on J anuary

29, 2002, t

o 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, a

nd then le ft when they

failed to lo cate th e 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 Sta tes v. Bro wn 3

Defenda nt wen t on to testify that, not long therea fter, Timothy “just got down on his accelerator and the van sped up and got

away from him a

nd he hit th e under b eam of th e overpas s right there at the inte rstate where you go off the offramps there.” Timothy told defendant not to get out of the van, altho ugh it was clear that the front bumper was bent and the windshiel d

cracked where defe

ndant’s head had struck

it onimpact. Timothy attempted to drive o ff despite the fact that a back ti re went f

lat as the y pu lled awa y. Accordin

g to defenda nt, he told his brother to stop a

number of times but he refused

. De fendant 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 looke d over and got the beer, I said, “You don’t need this.” And I notice d the pistol was in the little thing right there at the little c ockpit thin g, what

you put cups a

nd stuff a t. And I reache d and grabbed it. He was reaching for it, and I grabbed it from him like this here and got ou t the van. He was still, “Give me the gun, give

me the gun.” I sa

id, “What you doing w i th this here in the first place,” know what I ’m saying. And so Igot the gun and the beer and got out the v an and he go t out the van with me. I said, “Man, y ou don’t need to h ave this stuff in he re, y ou are a lready in enough troub le as i t is, ” know what I’m saying.

. . . . Iwas concerned that

he was going to hurt hisself [sic] or somebody else, y

ouknow what I’m say

ing, driving the way he is. He was obviously drunk be cause he had the wreck. And I didn’t know what he w as goin g to do at that point in time

because he refu sed to stop

the van. S o I g ot out, I was already

out, and I took the beer an d what’s you call it, he constantly trying to fo llow 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 Sta tes v. Bro wn No. 02-6205

walk home with me or you g et 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 ha ve quarr eled with his girlfriend, and he took the gun with the intention of placing it in his aunt’s house for safekeeping. Timothy did not tak e kindly

to his brother’s concerns. Instead, he sto p ped the van, jumped out, and approached Memphis police officer

Brad Savage. According to Savag e’s trial testimony, “He told me that him and his brother had gotten into an ar

gument in the van, and his brother jumped outof the van, grabbed a pistol and was walkingwestbound onChelsea from Evergreen .” This encounter occurred at about 11:1 5 p.m. Timothy pointed his brothe

r out to Savage, who radioed for help and t hen appr oached defenda nt: I g ot on m

y l oud sp eake

r, and I instr ucte d [def

enda nt] – He was car

ry in g a 40-ounce bottle of beer, and I instruc ted him to put it d

own . . . . I

told him to pu

t his hands up on the w all at which time he did, and I approached him at that time.

. . . . Ithen patted

that pocket down. I could f eel so methi ng, so I reache d in there and there was a small caliber pistol in his pock

et. Savage also testified that defendant told him the locat ion of the gun when asked. Shortly thereafter, police officer Dwayne Joh n son arrived onth e sce ne. Johnson took possession of the pistol and emptied it. At trial, he testified that he removed a live round of ammunition

from the g

un’s cha mber and that the c lip contained an additional five rounds.No. 02-6205 United Sta tes v. Bro wn 5

A grand jury

returned a one-count indictment on April 10, 2002, charging defenda

nt with being a felon in possession of a f ire arm, 18 U.S.C. § 922(g). Prior to trial, the parties stipulated to the fact that defendant had previously been convicted of four fe lonies an

d to the fa

ct that the firear m in question – a Bryc o Arms .25 caliber pistol – had traveled a cross state lines. After a two-day trial, the jury retur

n ed a guilty verdict. Defendant received a sentence of

235 months of imprisonme

nt, three ye ars o f s upervised release, and a special assessment of $100.
II. 1. Prison Clothing
Onthe first day of tria

l, defense counsel told the court that his client had tried

to obtain clothes from

his family but had received no r esp ons e to hi s re que st . Th e ju dge rep li ed, “If you’ve got a re asonable

way of g etting them here, you know , ina t im el y, reasonably

timely way

, I would by

happy to wait, butit just doesn’t seem like there is any ba sis 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 ge t some clothes here, I would be ha ppy to allow him an opportuni t y to chang e, but of course . . . the jury will have already seen h im . . . .” Ot her th an ex press ing t he genera l desire that his client have access to non-prison attire, d efense counsel did notobject to the district court’s resolution of the problem, nor did he ask for a continuance.
In Es te lle v. Williams , 425 U.S. 5 01 (1976) , the Supre me Court held

as follow s: [ A]lt hough the State cannot, consistently with th e Fourtee nth Amendmen

t, compel a

n accuse d to stand trial before a jury

while dre ssed in ide

ntifiable prison cl othes, the failure to make an objection to the court as t o being tried in such cl othes, for whatev er rea son, is suf ficient t o 6 United Sta tes v. Bro wn No. 02-6205

negate the presence of compulsion necessary to establi sh a constitutional violation. Id. at 512-13 (footnote o mitte d). In other words, a defendant’s fundamental liberty interest under the Fourtee nth Amendment

prevent s the State

fromdenying

the accused the option of wearing something other than prison garb. Id. at 503-04. However, the me re fac t that a de fendant appears in prisonattire during his trial does not ne cessar ily mean that

his right to a fair trial has been compromised. As the Court observ ed, “The cases show . . . that it is not an uncommon defense tactic to produce the defenda nt in j ail clothes in the hope of eliciting sympa thy from the jury .” Id. at 50 8

. Ac co rd in gl y, the on ly constituti onal proh ibition is th at a defendant cannot be forced to wear prison clothes and, even then, he m

ust objec t to that dir

ective to preser ve his cla im. Defendant

conced es in his brief to t

his court that “[t]he

re is nothing in the record

to indica te that the jurors we re, in fa ct, affected by

what they saw.” Furthermore, he does not argue that the State compelled h i m to wear prison-issued clothing or prohibited him from obtaining other attire. Unde r the circ

umstance s, we con

clude tha t there si mply was no compulsion. If any thing, the remarks that the district court addr essedto defendant when he mentioned the issue prior to trial de

monst r ate a g eneral

willingness to accommo date him. Defend ant did not otherwise object when the court determined that, in the absence of a viable plan to obtain clothing , it would be gin the t rial. This failure to object negates any

claim of compulsion. Estelle at 512-13. 2. Testimony Concerning Whether the Pistol was Loaded During tri al, officer Savage testified that fe llow officer Johnson “cleared the weapon” whe n he arrived at

the scene. Defens e counsel objected to testimony conce rning whether or notthe pistol a

t issue wa s loaded a

t t he time it wasNo. 02-6205 United Sta tes v. Bro wn 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 th e lega lity

or illeg ality

of the conduct. On the other hand, the fact that it’s loaded, and fr an kl y, the d efense [of necessity ] you are try

ing to present, i t may not have much to do with the likelihood of the fac tual sc en ar io of

ei th er pa rt y, b ut it ge ne ra ll y h a s something to do with the overa ll fact si tuati on. So I mean it’s relevant also. This court r eviews e

videntia ry rulings concer nin g relevanc e and ad missibility for an abuse of discre tion. See United States v. Bonds , 1 2 F.3d 54 0, 554 (6th C ir. 19 93) ( “We review the trial court’s admissi on of testimony and other evidence under the abuse of discretion s t andard. ”). Unde r this s tandard , we take a “maximal view” of the evidence’s p robative effec t and a “m inimal vie

w of its unf

air l y prejudicial effect.” United Sta tes v. Sas sanelli , 118 F.3d 495, 498 (6th Cir. 1997). The statu te of con viction re ads in par

t as follow s: It shall be unlawful for any person . . . (1) who has been co nvicted in any court of, a

crime punishable b y imprisonmentfor a term exceeding one y ear .

. . to ship or transport in interstate or foreign commerce , or possess inor affecting commerce , any fire arm or ammunition; or to receive a

n y firea rm or ammunition which has been shipped or trans ported in intersta te or foreign commerce.
18 U.S.C. § 922 (g). B ecause the statut e does not require that the firear m be loade d, defen

dant take s the positi on that th e introduction of such evidence runs afoul of Fede ral Rule of Evidenc e 403 bec ause its probativ e value was “subst antially outweighed by

the danger of unfair prejudice .” 8 United Sta tes v. Bro wn No. 02-6205

W e disagr

ee. The district c ourt cor

rectly recog niz ed tha t the evidenc e had some

rele va nce to de fendant ’s nece ssity defense. Moreove

r, this evidenc e was not

overly prejudic ial: the fact that the gun was loaded bolstered de fendant’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 I nstruction

s with Respe

ct to Nece ssity Def ense Defend a ntnext maintains that the jury instruction explaining his affirmative defense of n ecess ity i mproper ly shifted the burden of proof to him. We review jur y instructions as a whole to determine whether they fai rly and adequa tely submitted the issues and app licab le law to the ju ry. United States v. Williams , 952 F.2d 1504, 1512 (6th Cir. 1991). After instructing the jury on t

he gove rnment’s burden of proof, the distri ct co urt gave it the following guidanc e concerning defendant’s a ffirmative defense: If y ou conclude that the government has proved be yond a r easona ble doubt that the defendant committed the crimeas charged, y

oumus t then consider whether the defendant should nevertheless be f ound not guilt

y because his actions were justified by ne cessity. The defendant’s actions were justified and therefore he is not guilty on ly i f t he de fe nd an t h as sh ow n b y a preponderanceof the evidence that each of the following five elements is true. . . . The five elements which the defendant must prove by a prepond erance of the ev idence t o establish the defense are as follows: Number one, the defendant was under an unlawful present

imminent and impending threat of such nature as to induc e a well -grounded fear of death or serious bodily

injury to himself or another. And two, the defendant had not re cklessly

or neg ligentl

y pl a cedNo. 02-6205 United Sta tes v. Bro wn 9

himself in a situation in which it was pro bable t hat he woul d be forced to choose the criminal conduct. And three, the defendant had no reasonable leg al alternat i ve either before or during the even t to violating the law, that is, he had no reasonable opport unity to avoid the threat to harm. And number four, a reasonable pe rs on wou ld believe that

by committing the

criminal action he would directly avoid the threat and harm. And five, the defendant did not main

tain the illegal conduct any

longer th an ab so lu te ly n ec es sa ry. This court has held that “a defense of justification may

arise in rar e situations” when the charge of be ing a felon i n possession of a firearm has been alleg ed. United States v. Singleton , 902 F.2d 4 71, 472 (6 thCir. 1990) . Howeve r, this defense must be “construed very

narrowly.” Id. In Singleton , we expressly adopted the r equirements imposed by

the Fift h Circuit upon a defendant in order to make out sucha defense. Id. (adop ting United Sta t es v. Gant , 691 F.2d 1159 (5th Cir. 1982)). These re quireme nts track those set

f or th by the district c ourt in its j ury

instructi ons. Defendant

argues that the elem ents of the affirmative defense, wh ic h h e w as ob li ge d t o p ro ve by a pr eponderance of the evidence, go to an essential element of the offense that the government must prove : tha t he “knowingly possessed the firearm.” It is axiomatic, of course, that the government must prove all elements of a crime bey ond a rea sonable doubt. See In r e Wi nship , 3 97 U.S. 358, 364 (1970). Furthermore, if an affirmative defens e bears a necessary relation ship to an element of the charged offense, the burden of proof does not

shiftto defendant. Pattersonv. New York , 432 U.S. 197, 210-11 (1977). However, where, as he re, defendant asserts an affirmative defense that does not ne gate any eleme

nt of the offense, he may

be required to prove that defense by a preponde

rance of the evidence. Id . In this case, a felon in possession charge only requir es proof of general, rather than spec ific, inte

nt. United

States v. Bennett

, 975 F.2d 305, 308 (6th Cir. 1992) (vol untary intoxication not an 10 United Sta tes v. Bro wn No. 02-6205

affirmative defense in § 922(g) prosecution). Proving necessi ty does not necessari ly undercut the element of “knowingpossession;” one can knowing ly p ossess a firearm butstill do so under circumstances of necessity that justify an otherwis e illeg al act.
Inour view, the district court correctly instruc ted the jury inlight of Singleton , which spe cifical ly p laced th e burden to show the elements of the necessity defense on defe nd ant. Singleton , 902 F.2d at 472 (stating “a defendant

must show” before listing the requirements of the nece ssity defense).
4. Acce ptance of Responsib ility
Fi na ll y, defendant cont ends t hat he should have been accorded a reduction

to his offense level based upon acceptanceof responsibility. U.S.S.G. § 3E1.1. Application Note 2 to this section states that it should not gener ally apply to a defen dant “ who pu ts th e go v ernment to its burden of proof at trial by deny

ing the es s ential factual elements of guilt, is convic ted, and only then admi

t s guilt and expresses remorse.” U.S.S.G. § 3 E1.1, com ment. (n. 2). We ge

nerally review the distri ct court ’s judgment on this is sue fo r clear error. United Sta tes v. Webb , 335 F.3d 534, 538 (6th Cir. 2003). Even when thi s Guideline ’s section is applie d to uncontested

facts, we review t

he lower court’s decision with deference, not de novo

. Id. at 537 (not ing a change in the circuit’s standard of review i n li ght of Buford v. United States , 532 U.S. 59 , 63-66 (2 001)). H ere, however, the facts were contested and therefore a clea r error standard

of review applies. Defendant

takes the position that he never denied his felony convicti ons, possession of a firearm , or the fact that the firearm had traveled in interstate commerce. He soug hta trial inorder to assert an affirmat ive defe nse, which does not negate an element of the cr ime.No. 02-6205 United Sta tes v. Bro wn 11

Indenying

the benefit of acceptance of re sponsibility, the district c ourt rea soned as f ollows:

. . . I do not think Mr. B rown is entitled to points for acceptanceof responsibility. I think that pos si bl y in a given c ase an individual who asserted a defense such as this might . . . still be entitled to points for acceptance of responsi bility , but when I – when one e valuates Mr. Brown’s credibility, the fac t that hi s expl anation of event s was not accept

ed by the jury and, fra nkly , I did notfin d Mr. Brown to be credible under all the circumstances of the case. I don’t think he can be given points for acc eptance

of responsibility

because he did not in my j ud gm en t f

ul ly a cc ep t r es po ns ib il it y. The district cou rt properly re cognized that putting the government

to its b ur den did not automatically prec lude a reduction und er § 3 E1.1; it merely found that the fa cts as adduce d at trial ma

de such a finding inapprop riate in t h i s case, which is pr

ecisely the kind of

dete rminatio n that we review for clear error . No such error occurred in this case.
III.
For the foregoi ng re asons, we aff irm the judgment of the district c ourt.