NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0348n.06 No. 10-5976 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, P laintif f-App ellee,

v. OMAR L ANGHO RN, Defendan t-Appellant.

_______________________________________ ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE WESTERN DI STRI CT OF TEN

NESSEE O P I N I O N

Before: M OORE an d GRIF F IN, Circ uit Jud ges; QUIST, District Judge. * KA REN N EL SO N M OO R E, C ir c ui t J ud g e . D e f

e n d a n t- A p p e ll a n t O ma r L a n g h o r n a p p e als his conviction for being a felon in possession of a firea rm in violation of 18 U.S.C. § 922 (g)( 1). L ang horn challeng es the sufficie ncy of the evidenc e and the district court’ s ref usal to instruct the jury

on a justification de fense

. I n addition, L ang horn contends that the district court err ed in admitting

cer tain evidenc e beca

use it was more unfairly prejudicia l than probative and thus inadmissible under Fe dera l Rule of Evidence 403. Be cause sufficie nt evidenc e exis ted to support t h e co n v i ction, L ang horn’s case did not war rant a justification instruction, and none of the challeng ed evidenc e was unfairly prejudicia l, we af

firm L ang horn’s c onviction.

The Honora

ble Gordon J

. Quist, Uni t ed S t ates District J udg e for the Western District of * Michig an, sitting by

desig nation.No. 10-5976

United States v. Langhorn

I. BACKG ROUND Omar L ang horn re ceive d a telephone call fr om his former g irlfriend Shannon J ones on the afte rnoon of J une 17, 2008, in which she informed him of an argument she was having with another

woman in the Hillview Villag e Apar tments complex in Memphis, Tenne ssee. After the phone call, the argument esca lated. J ones hit the other woman, Orlanda Easley , and, in response , Easley broke J ones’s car windows with a club. J ones retrie ved a .40-ca liber pistol from her apar tment; acc ording to J o n es , p eo p le beg an shooting at her when she stepped back outside with the pistol, and she returne d fire. J ones believed that as many as six other people wer e fi ri n g back at her, including Easley and Ea sley ’s son Br ian Sherrod; Jones did not know the identity of the other

shooters. When L ang horn and his friend Ricky My ers arr ived at Hillview, they saw shattere d car windows and a crow d of people. No shots wer e curr ently being fired, and L ang horn saw Easley and She r r o d le aving the scene . L ang horn went inside J ones’s apar tment and found her holding the pistol. J ones explained what had happene d, including that other people in the apar tment complex had shot at her. Neither J o nes nor L ang horn called the police. L ang horn took the pistol from J ones, and

escor ted J ones’s two y oung children (one of whom was L ang horn’s daug hter) to My ers’ s car . Once in the car , L ang horn emptied the ammunition from the pistol and place d the pistol on the floor. J ones left her apar

tment with a shotgun, which she pl ac ed i n h er car , and left Hillview. My ers, L ang horn, and the two children drove o ff , b u t we re stopped by a police office r while still in the apar tment complex. L ang horn fled on foot, leaving the pistol in the car , but was soon appre hended.

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United States v. Langhorn

He was arr ested and char g ed with being a felon in possession of a firea rm in violation of 18 U.S.C. § 922(g )(1)

. Prior to trial, the g overnme nt filed a motion in limine to exclude evidenc e of a justification defe nse. The dist rict court postponed ruling on the m oti on until afte r hearing all of t he testi mony at trial. At the close of proof, the district judge g rante d the g overnme nt’s motion and ag ree d not to instruct the jury

on a justification def

ense. I n its cross-e x amination of J ones, the g overnme nt asked her about the amount of money she t y pically kept i n her apartment, how much s he had with her on J une 17, and how much L ang h o rn had with him that day

. Def ense counsel objected, but the court o v er ru l ed t h e o bjection on the g rou n d s t h at the questions wer e proper ly used to impeach J ones based on prior inconsistent statements made befor e a g rand jury

. The g overnme nt also questioned J ones about whether she dealt drug s out of her apar

tmen t, which she denied. During L ang horn’s testimony , the g overnme nt likewise aske d him about the amount of money he had w ith him on J une 17. L ang horn moved for

a judg ment of ac quittal unde r Fe dera l Rule of Criminal Procedure 29 at the close of the g overnme nt’s case -in-chie f, which t h e d i s t rict court denied. L ang horn did not

rene w t his motion afte r presenting his own case. The jury found L ang horn guilty , and the district court sentenc ed him to fifty -one months of imprisonment and two y ear s of supervised rele ase. L ang horn timely

appea led the convic tion.

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United States v. Langhorn

II. ANALYSIS A. Suf fi ciency of the Evidence L ang horn first argues that his conviction was not supported by sufficie nt evidenc e. Normally , the standard for evaluating sufficie ncy of the evidenc e claims is whether , “‘a fter viewing the evidenc e in the light most favor able to the g overnme nt, any rational trier of fac t could have found the eleme nts of the cr ime bey ond a re asonable doubt.’” United States v. Price , 134 F.3d 340, 349 (6th Cir. 1998) (quoting United States v. Beddow , 957 F.2d 1330, 1334 (6th Cir. 1992)). By failing to r enew his Rule 29 motion at the close of proof, howeve r, L ang horn waived a ny objection to the

ear lier denial of t hat m otion. See id. at 350. I n such cases, sufficiency of t he evidence claims are revie wed for a “manife st miscarr iag e of justice,” which exis ts if the rec ord is “‘de void of evidenc e pointing to g uilt.’” Id. (quoting United States v. Cannon , 981 F.2d 785, 789 ( 5th Cir. 1993)). I n o rd er to convict under 18 U.S.C. § 922(g )(1) , the g overnme nt must show that “(1) t h e defe ndant had a previous fe lony conviction, (2) the defe ndant knowing ly possessed the firea rm specifie d in the indictment, and (3) the firea rm trave led in or aff

ecte d interstate commerc e.” United States v. Grubbs , 506 F.3d 434, 439 (6th Cir. 2007) (citing United States v. Kincaide , 145 F.3d 771, 782 (6th Cir. 1998)). The parties stipulated that L ang horn had a previous felony conviction and that the .40-ca liber pistol had passed throug h interstate commerc e. Moreove r, the rec ord contains ample evidenc e of actua l possession. I ndeed, L ang horn himself testified that he took the pistol awa y from J ones, car ried it to My ers’ s car , and place d it on the floor of the car at his fee t. He does not contest

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United States v. Langhorn

these fac ts on appea l. Even if L ang horn had proper ly prese rved his Rule 29 motion, his sufficie ncy of the e vidence argument would thus fail. B. Justif ication L ang horn contends that he was entitled to prese nt a justification defe nse and that the district court should have instructed the jury as to such a defe nse. W e re v iew de novo the question of whether a def endant ha s made out a prima fac ie case of justification, w hich would entitle him to a jury instruction on the defe nse. United States v. Ridner , 512 F.3d 846, 849 ( 6th Cir. 2008) (citing United States v. J

ohnson , 416 F.3d 464, 468 ( 6th Cir. 2005)). J ury instructions on a justification defe nse to a felon-in- possession char g e are proper in “ra re situations.” Un i t ed S t a t es v. Singleton , 902 F.2d 471, 472 (6th Cir. 1990). I n order to war rant a justification instruction, the defen d an t must prese nt evidenc e from which a rea sonable jury could conclude by

a pre pondera

nce of the evidenc e: (1) that defe ndant was under an unlawful and prese nt, immin en t , and impending threat of such a nature as to induce a well-gro u n ded apprehe nsion of death or serious bodily

injury ; (2) that defe ndant had not rec klessly or neg lige ntly place d himself in a situation in which it was probable that he would be forc ed to choose the criminal conduct; (3) that defe ndant had no rea sonable, leg al alternative to violating the law, a chanc e both to refuse to do the criminal ac t and also to avoid the thre atene d harm; (4) that a d i re ct causal relationship may be rea sonably anticipated betwee n the criminal ac tion taken and the a voidance of the thre atene d harm; . . . and (5) [t hat the defe ndant] d i d n o t maintain the illega l conduct any longe r than absolutely

nece ssary .

5No. 10-5976

United States v. Langhorn

Ridner , 512 F.3d at 850 (quoting United States v. Newcomb , 6 F.3d 1129, 1134-35 (6th Cir. 1993)). 1 The same five “ Singleton fac tors” apply when evalua ting a pre- trial motion to exclude a justification defe nse. Id. at 849. Although the g overnme nt filed a motion in limine to exclude L an ghorn’s proposed justification defe nse, the district court did not rule on that motion until the close of proof. The prac tical eff

ect of g ranting the g overnme nt’s motion in limine was that the district court ref used to give a justification instruction; evidence supporting a justification defe nse wa s not ex cluded. The defe ndant in Newcomb , one of the “ra re” case s in w hich a justification instruc tion wa s proper , was at his g irlfriend’ s house when she alerted him that her son had just run outside with a g un, threatening to kill someone. 6 F.3d at 113 1. Newc omb, his g irlfriend, and his g irlfriend’ s b ro t h er t rac ked down the son, and Newc omb took the g un awa y from him. Id. We held that Newc omb was entitled to a justification instruction beca use he possessed the g un in order to thwart the plans of an arme d man who had stated his intention to do harm to a t h i rd p ar t y an d had shot people in the past. Id. at 1136. Be cause Newc omb f ace d an “eme rg ency situation” that “unfolde d rapidly , almost spontaneously ,” he did not have time to attempt a leg al alternative such as calling the police. Id. at 1137-38. L ang horn argues that he took possession of the pistol in order to remove the threat of injury to the two children in the apar tment. The risk of a g unshot injury to a small child cer tainly prese nts 2

I n discussing th es e fa ct ors, s ome of our cases erroneously ref er to “nec essity ” rather than 1 “justification.” See Newcomb , 6 F.3d at 1133 (explaining the differ ence betwee n the two conce pts). L ang horn makes a few isolated ref ere nces to his conce rn that by standers would g et hurt, but 2 t he bulk of the evidenc e at trial related to his conce rn for the children. Even if the h ar m t o b e 6No. 10-5976

United States v. Langhorn

a situation in which “the desira bility of avoiding that injury

outweig hs the desira

bility of avoiding the injury soug ht to be preve nted by the violated statute.” Id. at 1135. Nonethele ss, L ang horn has failed to show why

taking possession of the pistol was nec essar y to protect the c hildren. Be cause a defe ndant must mee t e ach of the five Singleton fac tors, failure to me et even one fac tor is fata l to L ang horn’s argument that he was entitled to a justification instruction. At the least, L ang horn fa iled to meet either the third or the f

ourth fac tor. The availability of lawful alternatives is the “key stone of the analy sis.” Singleton , 902 F.2d at 473 (citing United States v. Bailey , 444 U.S. 394, 410 (1980))

. S ev er al al t er n ati ve course s of action wer e available to L an g horn. L ang horn, J ones, or My ers could have called the police, for example. E v en i f, as in Newcomb , L ang horn fac ed an emer g ency situation in which calling the police would have been fu t i l e or ineffe ctive, other options exis ted. L ang horn could have asked My ers, who did not have a felony conviction, to take the pistol. L angho rn could have taken the children w ithout taking the pistol. He c ould have had J ones plac e the pistol in a safe place within the apa rtment and then le ave w ith him and the children in My ers’ s car . I n addition, only an attenuate d causa l connec tion exis ted betwee n the criminal action (taking the pistol fr o m J o nes) and the harm to be avoided (har m to the children)

. The para digmatic justification case involves a felon who takes a firea rm from someone threatening to do harm to the felon or to a third party

. In such case s,“disarming the g unman . . . c[an] re asonably be expected to

avoided was J ones shooting any one at Hillview, the evidenc e does not support a justification instruction beca

use, as de scribed be low, lawful a lternatives we re a vailable. 7No. 10-5976

United States v. Langhorn

avoid having the g unman shoot someone.” Newcomb , 6 F.3d at 1138 n.7. Her e, howeve r, L ang horn does not contend that the threat to the children came fr o m J o nes, the only “g unman” L ang horn disarmed. The sole threat that L ang horn even indirectly sug g ests may have come from J ones herse lf

was that she put the children in dang er by initiating the g unfig ht. The g unfig ht had ended by the time L ang horn took the pis to l, howeve r, and neither L ang horn’s nor J ones’s testimony sug g ests that J ones

was poised to resume shooting. Moreove r, the risk still exis ted that others—Ea sley , Sherrod, or the unidentified arme d individuals i n Hi llview—might start shooting ag ain. L ang horn testified, for example, that he “didn’t know if it was still people out there that h ad g uns” when he left J ones’s apar tment with the children. R.74 at 43 (Tria l Tr. at 592). Taking possession of J ones’s pistol thus did not remove the risk of injury to the children. Even if L ang horn was conce rned that J ones might injure the children in the course of firing the wea pon, this dang er would have been avoided by taking the childre n awa

y from the a

partment without taking the pistol. Be cause L ang horn did not prese nt evidenc e upon which a rea sonable jury could conclude by

a preponde ranc e o f t h e ev idence that at least two of the Singleton fac tors wer e met, we need not addre ss the other three fac tors. L ang horn was not enti tled to an instruction on the justification defe nse, and the district court thus did not err in re fusing to give such an instruc tion to the jury

. C. F ederal Rule of Evid ence 403 Issues Under Fe dera l Rule o f E vidence 403, evidenc e may be excluded “if its probative value is substantially outwei g hed by a dang er of

. . . unfair prejudice .” Fe d. R. Evid. 403. For Rule 403 purposes, unfair prejudice means “ ‘ e v id e n c e which tends to sug g est decision on an improper basis.’”

8No. 10-5976

United States v. Langhorn

United States v. Gibbs , 182 F.3d 408, 430 (6th Cir. 1999) (quoting United States v. Bonds , 12 F.3d 540, 567 (6th Cir. 1993)). We g ener ally revie w a district court’s evidentiar y ruling s for an abuse of discretion, and, in doing so, we “‘take[] a maxi mal view of the probative eff ect of the evidenc e and a minimal view of its unfairly prejudicia l effe ct.’” Id. at 429 (quoti ng United States v. Sassanelli , 118 F.3d 495, 498 (6th Cir. 1997)). I f t he party challeng ing the d i s t ri ct co urt’s evidentiary ruling failed to object below, howeve r, we revie w for plain err or. United States v. Knowles , 623 F.3d 381, 385 (6th Cir. 2010). L ang horn argues that the district court err ed in allowing the g overnme nt to (1) question J ones and L ang horn about the amount of money that they had on the day of the arr est, (2) question J ones about whether she dealt drugs out of her apar tment, and (3) “make rema rks ab o u t the questi oning of defe nse counsel during the case ,” Appellant Br

. at 29-30. He contends that any probative value from these questions and comments wa s outweig hed by their pre judicial eff

ect. At trial, L ang horn objected to the questions to J ones and L ang horn about money , but not to the questions to J ones about drug s. The admissibili ty of the drug questions is thus revie wed for plain

err or. 3 The g overnme nt descr i bes the challeng ed questions as attempts to undermine L ang horn’s p o t en t i al justification defe nse: if L ang horn and J ones had a larg e amount of cash and enga g ed i n

Def ense counsel aske d for a

sidebar a fter the questions to L ang horn about money , but the 3 g overnme nt offe red its rea sons for admissibili ty befor e defe nse counsel made any formal statement that he was objecting

. We view this as an objection, and revie w for an abuse of discretion rathe r than for pla in error

. 9No. 10-5976

United States v. Langhorn drug activity , they had a motive to flee rathe r than call the poli ce ev en though calling the police would have been a lawful alternative means of removing the threat to the children. The questioning of J ones as to the amount of money L ang horn had was also an attempt to impeach by a p ri or inconsistent statement g iven to the g rand jury

. 4 L ang horn argues that proof of conduct not char g ed is substantially prejudicia l if it incre ases the likelihood that he would be convicted of the char g ed crime, but this argument is not particula rly applicable to the drug questions. J ones denied that she dealt drug s, and the g overnme nt did not offe r proof t o the contrary

. Moreove r, evidence that J ones dealt drug s would probably not incre ase the likelihood t h at L ang horn would be convicted for possessing a firea rm. The ref

ere nce to larg e amounts of money may sug g est unchar g ed criminal conduct, but it is not the kind of evide nce that would confuse jurors into conviction. Cf. United States v. Merriweather , 78 F.3d 1070, 1078-79 (6th Cir. 1996) (admitting evidenc e of an unchar g ed drug conspirac y to show defe ndant’s inten t to e n g a g e in the charg ed drug conspirac y prese nted a “ser ious dang er of unfair p re j u dice” and was an abuse of discre tion). Although the probative value of this evidenc e seems relatively minor, it is not “substantially outweig hed” by any unfair prejudicia l impac t. Fe d. R. Evid. 403. The district cour t did not abuse its discretion in allowing the g overnme nt’s questions about money , nor did it commit plain err or in allowing the questions about drug s.

J ones stated at trial that she did not know how much money L ang horn had with him on the 4 day he wa s arr ested, but she a ppare ntly had told the g rand jury

that he had a

round $6000. 10No. 10-5976

United States v. Langhorn

Alternatively , any err or in allowing the questions was harmless. The Rule 403 analy sis considers the unfair prejudicia l impac t of the individual piece of evidenc e; harmless-e rror analy sis considers whether that prejudice aff ecte d the out come of the t rial

. Gibbs , 182 F.3d at 430. None of the challeng ed evidenc e unfair l y p rejudice d the outcome of the trial. As descr ibed above, the

rec ord contains abundant evidenc e that L ang horn posses s ed t h e pistol. L ikewise, L ang horn’s justification defe nse fails for numerous rea sons other than the fac t that he did not call or wait for the police. Finally , L ang horn does not cite to the rec ord as to which “re marks about the questioning of d ef en s e counsel” he contends wer e inadmissible. Nor does he provide any argument as to t h e prejudicia l eff

ect of the uns pecif

ied remarks. Fa ilure t o develop an argument on appea l results in waiver

. See, e.g. , United States v. Fox , 363 F. App’x 375, 376 (6th Cir. 2010) (unpublished opinion) (“‘ [I ]ss ues adver

ted to i n a p er fu nctory manner , unacc ompanied by some eff ort at develope d argumentation, are deeme d waived.’ ” (quoting McPhe rson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997)))

. Even if the arg

ument wer e proper ly prese nted, any err or would be harmless for the rea sons explained above. III. CONCLUSION The rec ord contains s u ff icient evidenc e to support L ang horn’s conviction as a felon in possession of a firea

rm. Be cause lawful alternatives wer e available and no direc t causa l rela tionship exis ted betwee n the cr iminal conduct and the harm to be avoided, the district court did not err in ref using to instruct the jury on a justification defe nse. Finally , no unfair prejudice resulted from the

11No. 10-5976

United States v. Langhorn

g overnme n t ’s q u est ions reg arding money and drug s. L ang horn’s various challeng es to his conviction ar e thus unava iling, and w e AF FI RM his conviction.

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