NONPRECEDENTIAL DISPOSITION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

FRANK H. EASTERBROOK, Chief Judge

DIANE P. WOOD, Circuit Judge

JOHN DANIEL TINDER, Circuit Judge

No. 10-3885

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JASON S. SMITH,

Defendant-Appellant.

Appeal from the United 

States District Court for the 

Eastern District of Wisconsin.

No. 10-CR-71

Rudolph T. Randa, Judge.

Order

After a jury trial, Jason Smith was convicted of possessing a firearm, which his criminal history made unlawful. 18 U.S.C. §922(g)(1). He was sentenced to 60 months’ imprisonment. His only appellate argument is that the district judge erred by preventing 

him from raising what his lawyer 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 were still in his house when Smith was arrested on 

a different charge. Arresting officers found a third weapon—a loaded semi-automatic 

pistol that Smith said he owned and kept for self-protection. Later Smith changed his 

story and said that he had taken all three guns from the youths and owned none of 
No. 10-3885 Page 2

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

We agree with the district 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 take a gun away from A to stop A from shooting B, even though this meant 

that the felon would possess the weapon briefly.

One component of these lesser-evil defenses, however, is that the person desist from 

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

otherwise-unlawful conduct. See, e.g., United States 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 United 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 selfprotection 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 any unlawful possession of the guns by turning them

over to his mother. Yet the guns were found in places 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 same as surrendering them to the police, the record 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 defense. Any contention that Smith transferred possession to his mother ended 

immediately after taking the guns from the youths therefore has not been preserved for 

appellate review.

AFFIRMED