IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA )

)

v. ) 1:12cr69

) Electronic Filing

JARRON DARVEZ JACKSON )

OPINION

Presently before the court is defendant's counseled motion to withdraw guilty plea and a 

number of pro se submissions that relate to or further reflect defendant's grounds for pursuing the 

motion. Through these submissions defendant seeks to proceed to trial on a defense predicated 

on his mental condition at the time of the offense and/or a defense of justification premised on 

coercion and duress. For the reasons set forth below, the motion will be denied.

On November 13, 2012, a grand jury returned a one count indictment charging defendant 

with being a felon in possession of a firearm, on or about April 16, 2011, in violation of 18 

U.S.C. § 922(g)(1). The indictment charged that on that date defendant (1) had been convicted 

(a) on or about October 12, 2010, in the Court of Common Pleas of Erie County, Pennsylvania, 

of aggravated assault and (b) on or about July 19, 2004, in the Circuit Court of Cook County, 

Illinois, of aggravated battery, both of which were felony offenses, and (2) knowingly possessed 

a Kimber .45 caliber semi-automatic handgun. Defendant was arrested on March 1, 2013, in the 

District of Massachusetts. He was arraigned in this District on April 18, 2013, and entered a plea 

of not guilty. Defendant was detained pending trial after a detention hearing held on April 24, 

2013. 

Defendant initially was represented by Assistant Public Defender Thomas Patton. On 

October 2, 2013, AFPD Patton was permitted to withdraw from further representation and 

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Attorney Douglas Sughrue was appointed. On December 11, 2013, defendant's motion for a preplea investigation report was granted. A report limited to defendant's criminal history and 

whether he was subject to career offender status under the United States Sentencing Guidelines 

or the Armed Criminal Career Act was made available to defendant on February 28, 2014. 

On April 7, 2014, defendant appeared with counsel for a change of plea hearing. 

Defendant entered a plea of guilty following an extensive inquiry by the court aimed at assuring 

defendant was making a knowing, informed and voluntary decision to do so. A sentencing 

hearing was set for August 11, 2014.

On July 16, 2014, defendant filed a pro se motion for appointment of substitute counsel. 

Defendant highlighted a number of disagreements with counsel, asserting that he would have 

been better served by a mental health examination in relation to his state of mind "now, prior to 

my alleged crime, and during my alleged crime." Motion for Substitute Counsel (Doc. No. 39) 

at 1. He further complained about counsel failing to raise matters pertaining to what he 

perceived as his criminal history being overstated. Id.1 Defendant's pro se motion was granted 

on July 23, 2014, and current counsel was appointed to represent defendant. The final 

presentence investigation report was filed on July 30, 2014.

On August 10, 2014, defendant filed a motion to withdraw his plea, which was further 

amended on August 25, 2014.2 Defendant contents that an affirmative defense and the potential

ability to develop mitigating information provide a fair and just reason to permit a withdrawal of 

his guilty plea.

Specifically, defendant "wishes to withdraw his plea so that he may present a defense 

 

1

The time for counsel to raise such a challenge had not procedurally arisen at the time defendant 

filed this pro se motion. See Local Criminal Rule 32(C)(2), (C)(4). In fact, the complete 

presentence investigation report had not yet been made available to counsel.

2

These motions were filed through the assistance of counsel.

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based on one or both of the following circumstances: (A) the defendant’s mental condition at the 

time of the offense in this case; (B) that the defendant was acting under coercion and duress so as 

to justify his possession of the firearm on the date in question." Amended Motion to Withdraw 

Guilty Plea (Doc. No. 50) at ¶ 5. He seeks to "submit to a jury a justification defense to the act 

of possessing a firearm after a felony conviction." Id. at ¶ 7.

Relying on United States v. Paolello, 951 F.2d 537, 540 (3d Cir. 1991) and United States 

v. Gomez, 92 F.3d 770, 775 (9th Cir. 1996), defendant maintains that the defense of justification 

can be submitted based on the following:

Defendant went into a McDonald’s restaurant to purchase a meal. He was unarmed and 

minding his own business. Also in that restaurant were five younger adult males. The 

Defendant and these 5 males were complete strangers and had never seen each other 

before. These males physically accosted and assaulted the Defendant for no apparent 

reason. One of these males picked up a chair and struck the Defendant with it. The 

males than ran out of the restaurant. The Defendant had no idea whether those males 

were leaving the scene or going to fetch firearm and return to the Defendant. (The 

Defendant’s history includes an incident wherein he was shot 5 times. See PSR ¶ 72).

A female companion was with the Defendant at the time. At this point, the Defendant 

ran to the vehicle in which he had arrived and removed a firearm, and wielded it against 

those 4 males.

Amended Motion at ¶ 10. These facts were recorded on the McDonald's video surveillance 

system and assertedly meet the elements needed to warrant submitting the matter to a jury. Id. at 

¶ 11. 

Defendant further raises the potential of examining and then pursuing a psychiatric 

defense pursuant to 18 U.S.C. § 17. And his plea purportedly "was the product of ineffective 

assistance of counsel for counsel’s failure to investigate and pursue defenses to the indictment as 

described above. Therefore, Defendant asserts that his plea was not made knowingly and 

intelligently." Id. at ¶ 14. 

In a pro se motion for reconsideration of release pending trial, defendant asserts he was 

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suffering from mental illness that had not been treated at the time of the altercation, he was 

reacting in a defensive manner, protecting his family and was not the initiator or aggressor. 

Defendant's pro se Motion for Release (Doc. No. 53) at 10. In a pro se response to the 

government's opposition to his motion to withdraw plea defendant reiterates in great detail the 

synopsis highlighted by counsel and recounted above. He also claims ineffectiveness on behalf 

of Attorney Suhgrue for failing to develop the affirmative defenses of mental defect, 

justification, coercion, duress. See generally Defendant's pro se Reply Brief in Support of 

Motion to Withdraw Plea (Doc. No. 58). He relies on a claimed condition of mental illness that 

existed prior to, during and after the incident giving rise to the charge in the indictment. Id. at 2. 

After his plea he became aware of the ability to plead an insanity defense and asserts that at the 

time of the incident he "was under unlawful and present imminent threat of death or serious 

bodily injury to self and loved ones, had not recklessly or negligently placed himself in a 

situation where he would be forced to engage in criminal conduct [and he] had no reasonable, 

legal alternative to violating the law and avoid the threatened harm to himself and loved ones." 

Id. at 4-5. And he asserts that a duress defense is available because the jury could find he lacked 

a "reasonable opportunity to escape the threatened harm [of immediate death or serious bodily 

injury]." Id. at 5.

The government opposes defendant's motion. It contends that the record demonstrates 

that the asserted affirmative defenses are not available in light of the events captured on the 

McDonald's surveillance video and the facts otherwise admitted by defendant during his change 

of plea hearing. Thus, from its perspective there is no fair and just reason to permit defendant to 

withdraw his guilty plea. 

Rule 32(e), Fed.R.Crim.P., provides that "the court may permit withdrawal of the plea 

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upon a showing by the defendant of any fair and just reason." The rule establishes a privilege to 

seek the withdrawal of a guilty plea. There is no absolute right to withdraw a guilty plea entered 

after the full protections of Rule 11 have been afforded to the defendant. United States v. 

Vallejo, 476 F.2d 667, 669 (3d Cir. 1973); United States v. Hawthorne, 502 F.2d 1183, 1185-86 

(3d Cir. 1974). 

A defendant's privilege to withdraw a guilty plea before sentencing should be recognized 

"if for any reason the granting of the privilege seems fair and just." Kercheval v. United States, 

274 U.S. 220, 224 (1927) (emphasis added). Evaluating such a request is a matter committed to 

the sound discretion of the court. United States v. Statyton, 408 F.2d 559, 561 (3d Cir. 1969). 

Common factors which should be considered in evaluating the request are: (1) whether the 

defendant asserts his innocence; (2) whether the government would be prejudiced by the 

withdrawal; and (3) the strength of the defendant's reasons for withdrawing the plea. United 

States v. Jones, 979 F.2d 317, 318 (3d Cir. 1992) (citing United States v. Huff, 873 F.2d 709, 

712 (3d Cir. 1989)). 

The defendant has the burden of establishing the grounds for withdrawal. Government of 

Virgin Islands v. Berry, 631 F.2d 214, 220 (3d Cir. 1980). "A simple shift in defense tactics, a 

change of mind, or the fear of punishment are not adequate reasons to force the government to 

incur the expense, difficulty and risk of trying a defendant, who has already acknowledged his 

guilt before the court." Id. Although a more liberal standard is employed prior to sentencing, 

after the cloak of innocence has been voluntarily and knowingly shed the defendant has the 

burden of establishing sufficient reasons to explain why contradictory positions were advanced 

and why permission should be given to reclaim the right to trial. Id.3

 

3

 "Were withdrawal automatic in every case where the defendant decided to alter his tactics and 

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As an initial matter, defendant's repeated protestations of mental defect and acting in selfdefense lack any factual basis to support them, which in itself is a fatal deficiency in the showing 

he is required to make. See Berry, 631 F.2d at 220 ("Were mere assertion of legal innocence 

always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. 

There are few if any criminal cases where the defendant cannot devise some theory or story 

which, if believed by a jury, would result in his acquittal.") (citations omitted); Jones, 979 F.2d at 

318 (a "defendant must ... not only reassert [his] innocence, but give sufficient reasons to explain 

why contradictory positions were taken before the district court and why permission should be 

given to withdraw the guilty plea"); Harris, 44 F.3d at 1209 (same). Thus, it is apparent that 

defendant merely has decided to alter his in tactics and pursue what can only be described as a 

contradictory position.

Moreover, a close reading of the entire record demonstrates the lack of merit in each of 

the reasons defendant advances for seeking permission to withdraw his plea. Defendant's 

repeated assertions of having acted while suffering from insanity or debilitating emotional or 

mental distress lack credibility and are undermined by numerous aspects of defendant's own 

conduct and statements to the court. Advancing a defense based on mental defect is governed in 

the first instance by the Legal Insanity Defense Reform Act, 18 U.S.C. § 17 ("the Act"). As the 

United States Court of Appeals for the Seventh Circuit has observed:

Insanity, for our purposes, is a legal term. We do not ask whether [the defendant] is 

insane by psychiatric or psychological standards. Rather we ask only whether [the 

defendant] has established insanity as defined by the Legal Insanity Defense Reform 

Act (the “Act”). 18 U.S.C. § 17. Under that Act, [the defendant] can establish the 

 

present his theory of the case to the jury, the guilty plea would become a mere jester, a temporary 

and meaningless formality reversible at the defendant's whim . . . . A guilty plea is no such trifle 

but 'a grave and solemn act' which is 'accepted only with care and discernment.'" Berry, 631 

F.2d at 221 (quoting United States v. Barker, 514 F.2d 208, 221 (D.C. Cir.) (en banc), cert.

denied, 421 U.S. 1013 (1975)).

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affirmative defense of legal insanity only if he proves two facts by clear and convincing 

evidence. 18 U.S.C. § 17. First, [the defendant] must prove that he suffered from a 

severe mental disease or defect. Proof that he had a mental disorder is not enough. The 

Act requires that the mental disorder be severe. United States v. Salava, 978 F.2d 320, 

322 (7th Cir.1992). Second, if [the defendant] proves this first element, the Act requires 

that he prove that his severe mental disorder rendered him unable at the time of the 

crime to appreciate the nature and quality or the wrongfulness of his acts. Id.

United States v. Shaler, 85 F.3d 1251, 1257 (7

th Cir. 1996) (quoting United States v. Reed, 

997 F.2d 332, 334 (7th Cir.1993). "Apart from the affirmative defense of insanity, the Act 

provides that '[m]ental disease or defect does not otherwise constitute a defense.'" United 

States v. Wall, 593 F. App'x 128, 130 (3d Cir. 2014) (quoting 18 U.S.C. § 17(a)).

Moreover, while the Act does not prohibit the use of psychiatric evidence to 

establish the lack of the requisite mens rea, it does "preclude defenses akin to partially 

diminished capacity or diminished responsibility." Pohlot, 827 F.2d at 903. Further, 

although the Act at least in theory permits the use of such evidence to negate mens rea, the 

United States Court of Appeals "has warned against the 'strong danger of misuse' of mental 

health evidence and explained that '[o]nly in the rare case ... will even a legally insane 

defendant actually lack the requisite mens rea purely because of mental defect.'" Wall, 593 

F. App'x at 130 (quoting Pohlot, 827 F.2d at 900, 905 and citing United States v. 

Mezvinsky, 206 F.Supp.2d 661, 664 (E.D.Pa.2002) ("While the contours of the doctrines of 

diminished responsibility and diminished capacity are unclear, the defenses that Congress 

intended to preclude usually permit exoneration or mitigation of an offense because of a 

defendant's supposed psychiatric compulsion or inability or failure to engage in normal 

reflection; however, these matters do not strictly negate mens rea." ).

The record is devoid of anything that even remotely suggests that defendant was 

suffering from such a severe mental disease or defect on the night in question. And while 

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the presentence investigation report does reference defendant's diagnoses of depression, 

PTSD, insomnia, and anxiety rendered in May of 2013 after defendant was incarcerated, 

such information falls woefully short of meeting the threshold showing needed to pursue a 

formal mental health defense or a negation of the "knowing" requirement that is 

encompassed by a § 922(g)(1) charge.4 Thus, the record lacks factual support for pursuing a 

mental defect defense and counsel cannot be faulted for failing to pursue such an approach. 

Compare United States v. Robinson, 804 F. Supp. 830, 832 (W.D. Va. 1992) (the Act 

precludes "evidence of mental disease for any other affirmative defense than the insanity 

defense.") (emphasis added).

Defendant's contention that he was advised inappropriately to forego pursuing a 

justification defense equally is devoid of supporting facts. The factual basis provided at 

defendant's change of plea hearing entailed the following:

[O]n April 16, 2011, an argument ensued at McDonald's here at 12th and Sassafras 

Streets in the city of Erie. The entire altercation inside of the McDonald's restaurant, as 

well as most of the transactions that occurred outside of the restaurant, were captured on 

surveillance video footage from McDonald's. 

And the testimony and surveillance footage would show that the defendant was 

present there in the McDonald's restaurant, he became engaged in an argument, which 

ended up in an altercation between him and several other individuals. At one point in time 

you can actually see one of those individuals hitting Mr. Jackson with a chair. 

The video surveillance and testimony would show that those other individuals fled 

from McDonald's and ran out into the parking lot and entered their vehicle. The video 

surveillance footage then shows Mr. Jackson leaving the McDonald's restaurant, go over to 

the passenger side of his vehicle and retrieve a firearm. The evidence would show that as 

the other individuals were fleeing the parking lot in their vehicle, Mr. Jackson commenced 

shooting at the vehicle, and shot as many as seven rounds from the firearm that he had 

taken out of the vehicle towards the fleeing vehicle. 

The testimony would show that the vehicle that fled the scene was located, it actually 

became disabled, a bullet hole went through the gas tank. One blew out the back window. 

The tire was flattened and there was damage on the vehicle. Specifically, additional bullet 

damage to the bumper of the vehicle. 

Although the defendant drove away, steps were then taken to look around the 

 

4 Of course, the court can and will consider such matters in formulating an appropriate sentence.

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McDonald's parking lot and seven .45 caliber shell casings were found at the scene. In the 

gold Ford Explorer, that the other persons were in, they located a bullet that was retrieved 

as well. For some time the matter was under investigation in an effort to identify who the 

shooter was in the McDonald's. 

And on August 10, 2011, police developed leads that the person who was in the 

McDonald's restaurant was likely Jarron Jackson. Upon reviewing Mr. Jackson's booking 

photos and observing him in person and interacting with other folks who knew him, law 

enforcement concluded Mr. Jackson was in fact the person who possessed and fired the 

firearm that day. 

He was scheduled for a probation appointment on August 29, 2011 here in Erie 

County. Law enforcement officers met with him at that time, he was Mirandized and 

asked to talk. But he respectfully requested to speak with counsel first. After consulting 

with counsel, Mr. Jackson had agreed to a counseled interview. During the course of that 

interview, he admitted that he was in fact the person at the McDonald's, in fact, was the 

person who shot at the other vehicle.

Mr. Jackson was asked where the firearm was. He said he still had it and that it was 

locked up. And there seemed to be a willingness for him to turn that firearm in. Then on 

September 13, 2011, the firearm was turned in to law enforcement through Mr. Jackson's 

prior counsel. It was in fact a Kimber .45 SIS as alleged in the indictment. 

And an interstate nexus determination on the firearm indicated that it had been 

manufactured in Yonkers, New York and, therefore, had traveled in interstate commerce. 

The ballistics testing done on the firearm with the casings and the bullet found at the scene 

and the vehicle determined that this in fact was the firearm that had been fired on April 16, 

2011. 

Further, your Honor, the testimony would show that Mr. Jackson had in fact suffered 

the convictions identified in the indictment. That would include the October 12, 2010, at 

Docket No. 1649 of 2010, the conviction for aggravated assault here in Erie County. As 

well as on July 19, 2004, Circuit Court of Cook County, Illinois, a conviction for 

aggravated battery with great bodily harm. Thereby prohibiting him from firearm 

possession on April 16, 2011. That would be the nature of the government's proof.

THE COURT: Mr. Jackson, as that summary pertains to you and your conduct, was it 

accurate?

THE DEFENDANT: Yes, your Honor.

Change of Plea Hearing (Doc. No. 49) at 16-19. Defendant's pro se submissions reflect an 

account of the "alleged crime" that is consistent with this acknowledged summation.

Defendant's attempt to invoke the affirmative defense of justification is misplaced. 

Justification is "a valid defense to a felon-in-possession charge under 18 U.S.C. § 922(g)." 

United States v. Alston, 526 F.3d 91, 94 (3d Cir. 2008) (citing United States v. Paolello, 951 

F.2d 537, 540-43 (3d Cir. 1991). This defense generally encompasses the defenses of duress, 

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necessity, and justification. Paolello, 951 F.2d at 540 ("While the defenses of justification 

and duress were at one time distinct ... '[m]odern cases have tended to blur the distinction 

between duress and necessity.' ") (quoting United States v. Bailey, 444 U.S. 394, 410, 100 

S.Ct. 624, 62 L.Ed.2d 575 (1980)); accord Alston, 526 F.3d at 94 n.3 (collecting cases). It 

also includes a claim of self-defense. Alston, 526 F.3d at 94 n.3 ("We agree with other 

circuits that 'ease in administration favors treating [the common law defenses of duress, 

necessity, and self-defense], in a federal felon-in-possession case, under a single, unitary 

rubric: justification.'") (quoting United States v. Leahy, 473 F.3d 401, 406 (1st Cir. 2007)).

An instruction to the jury on a justification defense is appropriate where:

(1) the defendant was under unlawful and present threat of death or serious bodily injury;

(2) he did not recklessly place himself in a situation where he would be forced to engage in 

criminal conduct;

(3) he had no reasonable legal alternative (to both the criminal act and the avoidance of the 

threatened harm); and

(4) there is a direct causal relationship between the criminal action and the avoidance of

the threatened harm.

Paolello, 951 F.2d at 540 (citing United States v. Crittendon, 883 F.2d 326, 330 (4th Cir.

1989); United States v. Lemon, 824 F.2d 763, 765 (9th Cir. 1987); United States v. Harper, 

802 F.2d 115, 117 (5th Cir. 1986); and United States v. Wheeler, 800 F.2d 100, 107 (7th Cir.

1986); accord Alston, 526 F.3d at 95. 

The defendant has the burden of proffering sufficient evidence to permit the jury to 

make affirmative findings on each element by a preponderance of the evidence. United States

v. Dodd, 225 F.3d 340, 349 (3d Cir. 2000); cf. United States v. Bailey, 444 U.S. 394, 415

(1980) ("it is essential that the testimony given or proffered [by the defendant] meet a 

minimum standard as to each element of the defense so that, if a jury finds it to be true, it 

would support an affirmative defense-here that of duress or necessity."). Where the 

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defendant's "evidence, even if believed, fails to establish all of the elements of the duress 

defense, the trial court may rule upon the defense as a matter of law and need not submit it to 

the jury." United States v. Bifield, 702 F.2d 342, 346 (2d Cir. 1983) (citing Bailey, 444 U.S. 

at 415; United States v. Trapnell, 638 F.2d 1016, 1030-31 (7th Cir. 1980)); cf. Paolello, 951 

F.2d at 542 ("Even under a narrow view of the justification defense in section 922(g) 

prosecutions, the evidence presented by Paolello, if believed, supported his defense, and the 

district court should have instructed the jury accordingly.") (citing Bifield, 702 F.2d at 346). 

The first element requires the existence of a present threat of death or serious bodily 

injury. "Only in rare circumstances will anything but an 'immediate emergency' constitute a 

present threat." Alston, 526 F.3d at 95 n. 7 (citing United States v. Bell, 214 F.3d 1299, 1301 

(11th Cir. 2000); Paolello, 951 F.2d at 541 (“[A]n interdicted person may possess the firearm 

no longer than absolutely necessary.”) (citations omitted). In this regard a justification 

defense "will rarely lie in a felon-in-possession case unless the ex-felon, not being engaged in 

criminal activity, does nothing more than grab a gun with which he or another is being 

threatened . . . ." United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996); accord United 

States v. Mahalick, 498 F.3d 475, 479 (7th Cir. 2007) ("In practice, the defense has only 

applied to the individual who in the heat of a dangerous moment disarms someone else, 

thereby possessing a gun briefly in order to prevent injury to himself . . . , or to another.")

(citations omitted)).

Here, as defendant notes, he was accosted at the McDonald's and was not the 

aggressor or instigator of the ensuing fight. But that does support defendant's contention that 

he can present a justification defense to the jury. Defendant admitted that the aggressors who 

accosted him left the McDonald's, got in a vehicle and were in the process of leaving the 

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parking lot when he reached his vehicle, retrieved the Kimber handgun and opened fire into 

the back of the vehicle. The video essentially captured this sequence of events. The pattern 

of the bullet holes likewise confirmed this sequences of events. Thus, any danger presented 

by the men in accosting defendant had subsided. In other words, there was no longer an 

imminent threat of death or serious bodily injury.

The lack of a present, imminent threat at the time defendant retrieved the firearm from 

the vehicle he had arrived in and shot at the vehicle leaving the parking lot forecloses a 

justification defense as a matter of law. See Alston, 526 F.3d at 95 (gaining possession of 

handgun directly after an individual who had robbed and shot defendant five times on a past 

occasion and had threatened "to get" him in the afternoon on the day in question did not 

present sufficient evidence to meet the minimal showing needed to establish that a present and

imminent harm existed on that evening). And a proclaimed fear by defendant that the men 

might have returned to shoot or otherwise assault him falls short of the mark for the same 

reason. Id. at 96 ("Someone in Alston's circumstances must show more than a legitimate fear 

of life and limb, as possession of a firearm by a convicted felon in the hope of deterring an 

assault is unlawful."); accord Perez, 86 F.3d at 737 ("only in the most extraordinary 

circumstances, illustrated by United States v. Gomez, 81 F.3d 846 (9th Cir. 1996), where the 

defendant had sought protection from the authorities without success, will the defense entitle 

the ex-felon to arm himself in advance of the crisis merely because he fears, however 

sincerely and reasonably, that he is in serious danger of deadly harm. More often than not the 

basis of his fear will be his own involvement in illegal activities; and when the danger that 

gives rise to the fear results from engaging in such activities - from 'looking for trouble' - the 

defense is barred.") (Posner, J.) (quoting United States v. Wheeler, 800 F.2d 100, 107 (7th 

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Cir. 1986), overruled on other grounds by United States v. Splendorio, 830 F.2d 1382, 1393 

(7th Cir. 1987) and citing Paolello, 951 F.2d at 541).

The record fails to supply sufficient evidence to support a finding that defendant did 

not place himself in a situation where he would be forced to engage in the charged criminal 

conduct. The vehicle was leaving the parking lot when defendant grabbed and discharged the 

handgun. He was at that point pursuing the men who had assaulted him in the McDonald's. 

He need not have gone to his car and retrieved the firearm. By doing so he actually placed 

himself in a situation where he chose to engage in the criminal conduct of possessing the 

handgun. 

Moreover, it is well settled "that the defendant may not resort to criminal activity to 

protect himself or another if he has a legal means of averting the harm." Perez, 86 F.2d at 737 

(citing Bailey, 444 U.S. at 410). In Perez, the court held that the defense of justification failed 

as a matter of law where the defendant saw three undercover officers outside his apartment, 

though they were crooks intending to rob him, and armed himself with a pistol that was in the 

possession of his girlfriend, and went to the bank to deposit money. Id. at 736-37. The court 

reasoned: 

Perez didn't have to go to the bank that afternoon. He could have remained in his 

apartment, where he felt safe, while calling the police and asking them to check out the 

suspicious-looking cars outside.

Id. at 737. 

Here too, defendant did not have to leave the McDonald's and proceed to the parking lot 

to retrieve the handgun. He had the option of staying in the McDonald's when the men who 

accosted him left, and then notifying the employees that he had been threatened and needed the 

police to come to the restaurant. Or he could have called the police himself to report the assault 

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and his perceived belief that his safety remained in jeopardy. These readily available legal 

means to avoid the illegal conduct preclude an instruction on a justification defense. Compare

United States v. Wofford, 122 F.3d 787, 791 (3d Cir. 1997) ("[The Defendant (who kept a gun 

and ammunition in the attic crawl-space of the residence where he was living due to threats to his 

life that followed his arrest for murdering members of the 'Hells Angels')] did not seek protection 

from law enforcement first, even though it was neither futile nor impossible for him to do so. He 

therefore [could not] satisfy the third element of the justification defense.").

Finally, the attenuated nature of the threat that existed by the time defendant retrieved the 

handgun from the vehicle precludes a finding that there was a direct causal relationship between 

defendant's possession of the handgun and the avoidance of the threat of harm defendant 

continued to perceive. "Someone in [defendant's] circumstances must show more than a 

legitimate fear of life and limb, as possession of a firearm by a convicted felon in the hope of 

deterring an assault is unlawful." Alston, 526 F.3d at 96. The immediacy and the specificity of 

the threatened harm must be compelling, and the defense of justification consistently has been 

rejected where the threat is diminished. Id. (collecting cases). 

Defendant did not face an immediate emergency at the moment he retrieved the firearm 

from the vehicle. The generalized threat of harm he did face at that moment falls short of 

supplying a factual basis that would permit a finding that his possession was directly caused by 

the need to avoid the threat of future harm that confronted him. Such a possibility of danger is 

insufficient to support a defense of justification. Id.

The record fails to warrant any exploration into an affirmative defense based on mental 

defect. The circumstances surrounding defendant's possession of the handgun on April 16, 2011, 

fail to satisfy any of the requirements needed to proceed with a justification defense to a charge 

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of felon-in-possession in violation of 18 U.S.C. § 922(g)(1). Defendant's claim of innocence is 

unsupported and his reasons for withdrawing his plea lack legal merit. It follows that a fair and 

just reason for withdrawing the guilty plea entered on April 7, 2014, has not been presented and 

Attorney Sughrue was not ineffective in the counsel he provided. Consequently, defendant's 

motion to withdraw plea as amended and supplemented must be denied. 

Date: May 14, 2015

s/David Stewart Cercone

David Stewart Cercone

United States District Judge

cc: Marshall J. Piccinini, AUSA

Lee Markovitz, Esquire

(Via CM/ECF Electronic Mail)

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