NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1


# United States Court of Appeals

For the Seventh Circuit Chicago, Illinois 60604 Argued May 31, 2011 Decided June 1, 2011



### Before

F RANK H. E ASTERBROOK , Chief Judge

D IANE P. W OOD , Circuit Judge

J OHN D ANIEL T INDER , Circuit Judge

No. 10

- 3885

U NITED S TATES OF A MERICA , Plaintiff

- Appellee

,

v

. J ASON S. S MITH , Defendant

- Appellant

. Appeal from the United States District Court for the Eastern District of Wisconsi n.

No. 10

- CR

- 71 Rudolph T. Randa
, Judge

.

Order

After a jury trial, Jason Smith was convicted of possessing a firearm, which his cri minal history made unlawful. 18 U.S.C. §922(g)(1). He was sentenced to 60 months’ i mprisonment. His only appellate argument is that the district judge erred by preventing him from raising what his l awyer styled a “coercion” defense.

Smith contended, in papers filed in connection with a motion in limine , that he took two guns away from “some little guys” or “kids” who were using them (or might have used them) to rob persons living in the neighborhood, and might eventually have used to threaten Smith himself. The guns we re still in his house when Smith was arrested on a differ ent charge. A rresting offi cers found a third weapon

— a loaded semi

- automatic pistol that Smith said he owned and kept for self

- pro tection. Later Smith changed his story and said that he had taken all three guns from the youths and owned none ofNo. 10

- 3885 Page 2

them. The district judge concluded that these facts, if established at trial, would not e stablish a defense of coercion.

We agree with the di strict judge that the circumstances narrated in Smith’s filings do not imply any kind of coercion. But the word is not important. Federal criminal law recognizes other categories of lesser

- evil defenses, of which duress and self

- defense are examples. It is possible that, in principle, a person with a felony conviction would be entitled to tak e a gun away from A to stop A from shooting B, even though t his meant that the felon would possess the weapon briefly

. One component of these lesser

- evil defenses, howe ver, is that the person desist from otherwise

- unlawful conduct as soon as circumstances permit. Usually this means tur ning oneself (and, here, the weapons) in to the police, in order to demark the end of the otherwise

- unlawful conduct. See, e.g., United St ates v. Bailey , 444 U.S. 394 (1980) . Smith did not surrender the guns to the police as soon as possible after taking them from the youths ; his possession lasted at least two weeks, and perhaps several months, until his arrest on other charges. We held in U nited States v. Kilgore , 591 F.3d 890, 893

– 94 (7th Cir. 2010), that even one hour ’s delay is too long. Smith also did not contend that he acted to avoid an imminent danger, to himself or anyone else. A general desire for self

protection or a wish to live in a safer neighborhood does not justify ongoing possession of a forbidden firearm. See, e.g., United States v. Sawyer , 558 F.3d 705, 711 (7th Cir. 2009); United States v. Tanner , 941 F.2d 574, 587

– 88 (7th Cir. 1991)

.
Smith contends that he ended a ny unlawful possession of the guns by turning them over to his m other. Yet the guns were found in place s to which Smith had ready access. Even if we assume for the sake of argument that handing weapons to one’s mother (but leaving them handy) is the sa me a s surrendering them to the police, the reco rd does not support Smith’s position

. He did not make an offer of proof, see Fed. R. Evid. 103(a)(2), about what testimony he and his mother would have given had the judge allowed this line of defen se. Any content ion that Smith transferred possession to his mother ended immediately af ter taking the guns from the youths therefore has not been preserved for appellate review.

A FFIRMED