PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 07-5127

JAMES RICHARD RICKS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of North Carolina, at Charlotte.

Robert J. Conrad, Jr., Chief District Judge.

(3:06-cr-00134-RJC-CH-1)

Argued: March 26, 2009

Decided: July 20, 2009

Before GREGORY and DUNCAN, Circuit Judges, and

Jackson L. KISER, Senior United States District Judge for

the Western District of Virginia, sitting by designation.

Reversed by published opinion. Judge Gregory wrote the

opinion, in which Judge Duncan and Senior Judge Kiser

joined.

COUNSEL

ARGUED: Ross Hall Richardson, FEDERAL DEFENDERS

OF WESTERN NORTH CAROLINA, INC., Charlotte, North
Carolina, for Appellant. Adam Christopher Morris, OFFICE

OF THE UNITED STATES ATTORNEY, Charlotte, North

Carolina, for Appellee. ON BRIEF: Claire J. Rauscher, Executive Director, Kevin Tate, FEDERAL DEFENDERS OF

WESTERN NORTH CAROLINA, INC., Charlotte, North

Carolina, for Appellant. Gretchen C. F. Shappert, United

States Attorney, Charlotte, North Carolina, for Appellee.

OPINION

GREGORY, Circuit Judge:

James Richard Ricks was convicted in the United States

District Court for the Western District of North Carolina for

violating 18 U.S.C. § 922(g)(1) (2006), possession of a firearm by a convicted felon, and was sentenced to 180 months’

imprisonment. At trial, the district court denied Ricks a jury

instruction on a justification defense because the court did not

believe the defense was available in this Circuit. Recognizing

its legal error post-trial, the district court nonetheless denied

Ricks’ motion for a new trial because it found that Ricks had

not presented sufficient evidence to warrant the instruction.

We find that the district court’s decision at trial to deny the

instruction was not justified by either the law or the facts,

because a reasonable trier of fact could have found that Ricks’

possession was justified. We therefore reverse Mr. Ricks’

conviction.

I.

In determining the sufficiency of the evidence to support a

criminal defendant’s request for a jury instruction on a theory

of defense, "the testimony most favorable to the defendant

should be accepted." United States v. Al-Rekabi, 454 F.3d

1113, 1121 (10th Cir. 2006) (internal quotation marks and

citation omitted). The evidence presented at Ricks’ trial, taken

in the light most favorable to Ricks, established the following:

2 UNITED STATES v. RICKS
On the night of December 15, 2005, Ricks’ partner, Clarence Blue, returned to their shared apartment after having disappeared for several days. Ricks noticed immediately that

Blue was acting erratically—walking strangely and talking

incoherently. Realizing that Blue had a gun in his hand, Ricks

ran up to him, pinned him against the wall, and hit the gun out

of his hand. Ricks then picked up the gun, removed the clip,

and threw the gun and the clip in different directions. When

Ricks stepped away from Blue, Blue ran out the door.

Although Ricks shouted after him, Blue kept running and

eventually got into his car and drove away.

After Blue left, Ricks retrieved the gun and clip from where

he had thrown them and, without returning the clip to the gun,

placed the pieces on top of a dresser, underneath some

clothes, in the bedroom he and Blue shared. Ricks then went

back into the living room and began to watch television. Fifteen to thirty minutes later, Blue returned to the apartment,

this time accompanied by two police officers. According to

Ricks, the officers asked repeatedly whether there was a gun

in the house. Although Ricks did not respond immediately, he

finally acknowledged that there was a gun in the house and

took the officers into the bedroom, where he retrieved the gun

and the clip and turned them over to the police. After Ricks

admitted to a prior felony conviction, the officers took him

into custody as a convicted felon in possession of a firearm.

At trial, Ricks’ counsel argued that Ricks was entitled to a

jury instruction on a justification defense. Initially, the district

court agreed with counsel that, if a justification defense were

available in this Circuit, the evidence that had been presented

would have been "sufficient . . . to warrant the instruction."

(J.A. 177.) However, because the court found that the Fourth

Circuit had never concretely recognized a justification

defense to violations of the felon-in-possession statute, 18

U.S.C. § 922(g)(1) (2006), it ultimately denied the instruction.

Ricks was convicted on August 9, 2006.

UNITED STATES v. RICKS 3
While Ricks was awaiting sentencing, we published our

decision in United States v. Mooney, 497 F.3d 397 (4th Cir.

2007), in which we found that the petitioner was entitled to

relief under 28 U.S.C. § 2255 for ineffective assistance of

counsel after his lawyer advised him that a justification

defense was unavailable for a § 922(g) violation. The publication of Mooney prompted the district court to hold a sua

sponte status conference on August 14, 2007, to consider the

effect of Mooney on Ricks’ case. At those proceedings, Ricks’

attorney moved for a new trial. After briefing by both parties,

the district court denied the motion on September 28, 2007.

Inverting the position it took at trial, the court found that

while Mooney made clear that a justification defense was

available for § 922(g) violations, there was insufficient evidence to warrant a justification instruction in Ricks’ case.

Ricks timely filed an appeal with this Court, in which he

argues both that the district court’s mid-trial decision not to

allow a justification instruction was reversible error and, in

the alternative, that its denial of his motion for a new trial was

an abuse of discretion.

II.

"[A] defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a

reasonable jury to find in his favor." Mathews v. United

States, 485 U.S. 58, 63 (1988). A district court’s refusal to

instruct the jury on such a defense presents a question of law

that we review de novo. United States v. Perrin, 45 F.3d 869,

871 (4th Cir. 1995).

At Ricks’ trial, the district court concluded that this Circuit

had never explicitly recognized a justification defense and

thus no jury instruction on that defense needed to be given.

Ricks contends that this was reversible error because the

instruction "‘(1) was correct; (2) was not substantially covered by the court’s charge to the jury; and (3) dealt with some

4 UNITED STATES v. RICKS
point in the trial so important, that failure to give the

requested instruction seriously impaired [his] ability to conduct his defense.’" United States v. Lewis, 53 F.3d 29, 32 (4th

Cir. 1995) (quoting United States v. Camejo, 929 F.2d 610,

614 (11th Cir. 1991)). The second and third prongs of the

Lewis test are plainly met here, so for purposes of this appeal

we need look only at prong one—whether the instruction was

correct, meaning it was a correct statement of the law and it

was supported by the evidence. See United States v. Fiedeke,

384 F.3d 407, 410 (7th Cir. 2004).

The district court concluded that a justification defense was

not available as a matter of law in this jurisdiction because no

prior controlling Fourth Circuit case law had explicitly recognized such a defense. Indeed, though a number of our decisions have hinted at the availability of the defense, our preMooney case law has hardly been a font of clarity on the matter. See, e.g., United States v. Crittendon, 883 F.2d 326, 329-

30 (4th Cir. 1989) (acknowledging the defense and outlining

its elements but finding no need to recognize the defense

because the defendant could not satisfy those elements); Perrin, 45 F.3d at 873, 875 (noting that Crittendon had "adopted"

a four-prong test for the defense and suggesting that

"[c]onsistent with other circuits, we [would] continue to construe the justification defense for possession of a firearm by

a felon very narrowly" (emphasis added)); United States v.

Rush, 90 Fed. App’x 695, 698 (4th Cir. 2004) (per curiam)

(declining "once again to reach the question of whether such

a defense would be available if the defendant had satisfied

each of its elements"). After repeatedly tipping our hat to the

defense but finding that the defendants who sought to use it

were unable to satisfy its requirements,1 we finally clarified in

1

See United States v. Hillian, 210 Fed. App’x 251, 252 (4th Cir. 2006)

(per curiam); United States v. Campbell, 104 Fed. App’x 302, 303 (4th

Cir. 2004) (per curiam); United States v. Powell, 42 Fed. App’x 565, 571

(4th Cir. 2002) (per curiam); United States v. Brown, 5 Fed. App’x 292,

295 (4th Cir. 2001) (per curiam); United States v. Lindsay, No. 00-4256,

2000 U.S. App. LEXIS 25376, at *1-2 (4th Cir. Oct. 11, 2000) (per

curiam); United States v. Poole, No. 98-4231, 1998 U.S. App. LEXIS

32630, at *4-7 (4th Cir. Dec. 31, 1998) (per curiam). 

UNITED STATES v. RICKS 5
Mooney, 497 F.3d 397, that the defense was available and

acknowledged its applicability in that case.

Now, in Mooney’s wake, the government and Ricks apparently agree that the district court erred in finding that the

defense was not available as a matter of law. (See Gov’t Br.

at 8 ("[T]he district court’s initial reasoning – that Perrin and

Crittendon did not allow a justification defense in this Circuit

– appears to have been a legal error . . . ." (internal citation

omitted)).) As Mooney explains, because justification is a

common-law defense, "‘Congress’ failure to provide specifically for [it] in drafting a criminal statute does not necessarily

preclude a defendant charged with violating the statute from

relying on [that] defense.’" 497 F.3d at 403 (quoting United

States v. Panter, 688 F.2d 268, 271 (5th Cir. 1982)). Moreover, "‘[c]ommon sense dictates that if a previously convicted

felon is attacked by someone with a gun, the felon should not

be found guilty for taking the gun away from the attacker in

order to save his life.’" Id. (quoting United States v. Singleton,

902 F.2d 471, 472 (6th Cir. 1990)). Given that there is no dispute between the parties that justification is available as a

defense as a matter of law, we turn now to the question of

whether, in Ricks’ case, the evidence presented at trial was

sufficient to warrant an instruction on the defense.

Although the government concedes that the court’s reasoning on the general availability of the justification defense was

erroneous, it argues that the district court’s decision at trial to

deny the justification instruction was nonetheless correct

because the evidence did not support such an instruction. The

district court reasoned similarly in its decision on Ricks’

motion for a new trial. However, at trial, the district court

took the view that there was sufficient evidence to support a

jury instruction on justification, and we agree.

In Crittendon, we laid out the elements that a defendant

would have to satisfy to be entitled to a justification instruction:

6 UNITED STATES v. RICKS
[T]he defendant must produce evidence which would

allow the factfinder to conclude that he:

(1) was under unlawful and present threat of death

or serious bodily injury;

(2) did not recklessly place himself in a situation

where he would be forced to engage in criminal

conduct;

(3) had no reasonable legal alternative (to both the

criminal act and the avoidance of the threatened harm); and

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

harm.

883 F.2d at 330 (internal quotation marks and citation omitted).

Applying Crittendon at trial, the district court reasoned:

I think there is [sic] sufficient facts if believed by the

jury that would show that—if Mr. Blue was

believed, that he brought the gun to the house in an

agitated state; that at the door there was a confrontation between Mr. Blue and the defendant and that the

defendant took the gun from Mr. Blue. And prior to

taking the gun, he would have been in a present

threat of such a nature as to induce a well-grounded

fear of death or serious bodily injury [Crittendon

factor (1)]. . . . If Mr. Blue is believed, Mr. Ricks

was just at the home that Mr. Blue had not been to

for a number of days and so did not recklessly place

himself in a situation where he would be forced to

possess the gun [Crittendon factor (2)]. And at that

point would not have had a reasonable legal alternaUNITED STATES v. RICKS 7
tive other than to struggle with Mr. Blue [Crittendon

factor (3)]. And that there’s a causal relationship

between the possession and the elimination of the

risk [Crittendon factor (4)].

(J.A. 185-86.)

Notwithstanding this, the government would now have us

take the position that the district court took in its post-trial

order denying Ricks’ motion for a new trial. In that order, the

district court about-faced and found that the evidence did not

in fact support a justification instruction. While the court

acknowledged that Mooney made clear that justification was

an available defense in this Circuit, it went on to find that

Ricks could not satisfy the third prong of the Crittendon test.

The district court accepted that Ricks was arguably in imminent danger at the time he disarmed Blue, but it concluded

that Ricks continued to possess the gun after that point

although he "had other reasonable alternatives to continued

possession of the gun." (J.A. 335.)

It is true that, after disarming Blue, Ricks briefly retook

possession of the gun. Apparently understanding the gun to

belong to Blue, Ricks picked up the gun and the clip from the

floor and brought them to the bedroom he and Blue shared,

where he placed them underneath some clothes on the dresser.

As the government points out, courts have found that even

such fleeting possession can be enough to show actual possession for purposes of § 922(g) liability. See, e.g., United States

v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999). The question

before us, however, is whether a reasonable finder of fact

could have found that such possession was justified. See Matthews, 485 U.S. at 63. Had the jury properly been instructed

on justification, it could very well have found Ricks’ brief

repossession to be a reasonable effort to place the gun out of

harm’s way. See Mooney at 407 (finding that "it is the retention of a firearm, rather than the brief possession for disposal

. . . which poses the danger which is criminalized"); cf.

8 UNITED STATES v. RICKS
Adkins, 196 F.3d at 1115 ("[E]ven if a felon held a firearm for

a mere second or two, unless that felon truly did not know

that what he possessed was a firearm or there was some recognized legal justification for his holding the firearm,

§ 922(g) will still impose criminal liability." (emphasis

added)); United States v. Parker, 566 F.2d 1304, 1306 (5th

Cir. 1978) (finding that the fact that defendant continued to

hold the gun in his hands for thirty minutes after threat dissipated defeated applicability of justification defense).

Perhaps recognizing that Ricks’ brief actual repossession of

the gun might still be covered by a justification defense, the

government also argues that Ricks constructively possessed

the gun from the time he placed it on the dresser until he

turned it over to the police. But "[w]hen the government seeks

to establish constructive possession under § 922(g)(1), it must

prove that the defendant intentionally exercised dominion and

control over the firearm, or had the power and the intention

to exercise dominion and control over the firearm." United

States v. Scott, 424 F.3d 431, 435-36 (4th Cir. 2005) (emphasis added). The record here does not allow us to conclude that

the government proved that Ricks had the intent to exercise

dominion and control over the gun at any point after he placed

it on the shared dresser.2 After leaving the bedroom, Ricks

went into the living room and watched television until Blue

and the police arrived at the apartment. Nothing in these

2

Intent is an element of a § 922(g)(1) charge, whether possession is

being proved with evidence of actual or constructive possession. Scott,

424 F.3d at 435. Thus, in order to find Ricks guilty of a § 922(g)(1) violation, the jury must necessarily have found an intentional possession of the

gun. However, on this record it is unclear at what point the jury found an

intentional possession. It is possible that the jury found intentional possession with respect to Ricks’ immediate and actual possession as he disarmed Blue. With the benefit of a justification instruction, the jury could

well have found that possession to be a nullity. Whether subsequent to that

immediate possession, Ricks was guilty of continued possession under a

constructive possession theory is a jury question that the Government must

prove beyond a reasonable doubt. See id.

UNITED STATES v. RICKS 9
actions inherently suggests an intention to exercise dominion

and/or control over the gun. See United States v. Blue, 957

F.2d 106, 108 (4th Cir. 1992) ("The mere proximity of a

weapon to a [defendant] goes only to its accessibility, not to

the dominion or control which must be proved to establish

possession." (internal quotation marks and citation omitted));

cf. United States v. Singleton, 902 F.2d 471, 472-73 (6th Cir.

1990) (finding continued unjustified possession where, after

alleged threat dissipated, defendant kept gun in his car while

visiting a friend). Nor does the record support a conclusion

that the jury found continued constructive possession from

this conduct.

We agree with the government that "a defendant seeking a

justification instruction must produce evidence that he took

reasonable steps to dispossess himself of the weapon once the

threat entitling him to possess it abated." (Gov’t. Br. 10). We

disagree, however, that Ricks has not met this burden. The

evidence presented permits the conclusion that, after Ricks

disarmed Blue, he took immediate steps to dispossess himself

of the gun by placing it on the bedroom dresser.

Apparently reading our decision in Mooney as support for

its position, the government implies that Ricks did not act reasonably to dispossess himself of the gun because he did not

immediately turn it over to the police.3 In Mooney, we found

that the defendant would have been able to satisfy prong three

of the Crittendon test because the evidence showed that after

3The government also suggests that a reasonable alternative would have

been to leave the apartment, rather than retrieve the gun and place it on

the dresser. However, Ricks was under no obligation to leave his own

home simply to avoid being in the vicinity of a firearm. Section 922(g)(1)

may, as the government puts it, "place[ ] a high burden on felons-inpossession seeking legal justification" (Gov’t Br. 29), but it does not

create criminal liability for a convicted felon who simply lives with someone who possesses a firearm. Moreover, it might well have been dangerous for Ricks to leave the gun on the floor where an upset Blue could

easily have accessed it had he returned to the apartment. 

10 UNITED STATES v. RICKS
he disarmed his intoxicated ex-wife, "[t]he trajectory of Mooney’s actions all pointed toward handing over the gun to the

police." 497 F.3d at 408. This conclusion, however, did not

create a bright-line rule that the only reasonable way for a

felon to dispossess himself of a gun he has justifiably come

to possess is to turn that gun over to the police. Mooney’s

method of dispossession was a reasonable one, not the only

reasonable one. Given the facts of this case, a reasonable trier

of fact could find that Ricks’ conduct was "necessary and efficient in disposing of the gun," id. at 407, because he took possession of the gun no longer than needed to avoid threatened

harm from Blue and then dispossessed himself of the gun by

placing it somewhere where Blue, the gun’s owner, could

retrieve it once in a better frame of mind.

In many cases, a defendant’s options for reasonable dispossession of a firearm may include turning the gun over to the

authorities, but that is not the only option, and ultimately, the

reasonableness of the defendant’s course of conduct is a question for a jury. For purposes of determining the propriety of

a jury instruction on justification, we need only see whether

there is sufficient evidence for a jury to conclude that the

defendant’s actions were reasonable, and we find that there

was sufficient evidence here.

III.

Having found that the district court committed reversible

error by denying Ricks a jury instruction on justification at

trial, we need not consider whether the district court abused

its discretion in denying Ricks’ motion for a new trial. Ricks’

conviction for violation of 18 U.S.C. § 922(g)(1) is hereby

reversed.

REVERSED

UNITED STATES v. RICKS 11