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The Honorable Timothy S. Black, United States District Judge for the Southern District of Ohio,

sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 13a0302p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAFARI T. MOORE,

 Defendant-Appellant.

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Nos. 12-6437/6438

Appeal from the United States District Court

for the Eastern District of Kentucky at Lexington.

No. 5:12-cr-00089-1—Joseph M. Hood, District Judge.

Argued: October 9, 2013

Decided and Filed: October 23, 2013 

Before: KEITH and SUTTON, Circuit Judges; BLACK, District Judge.*

_________________

COUNSEL

ARGUED: Robert L. Abell, Lexington, Kentucky, for Appellant. Elisabeth A. Sigler,

UNITED STATES ATTORNEY’S OFFICE, Lexington, Kentucky, for Appellee.

ON BRIEF: Robert L. Abell, Lexington, Kentucky, for Appellant. Charles P. Wisdom,

Jr., Robert M. Duncan, Jr., UNITED STATES ATTORNEY’S OFFICE, Lexington,

Kentucky, for Appellee.

_________________

OPINION

_________________

SUTTON, Circuit Judge. A federal jury convicted Jafari Moore of possession

of a firearm by a convicted felon. His principal claim on appeal is that the district court

1
Nos. 12-6437/6438United States v. Moore Page 2

should have instructed the jury about his affirmative defense that he possessed the gun

out of necessity. We affirm. 

I. 

Jafari Moore and three friends wound up at Diva’s, a strip club in Lexington, at

the tail end of a night out. As the club closed, Moore followed his friends outside

through the parking lot and toward their silver Camry.

Moore claims that he noticed a nearby SUV needed a jump start and walked over

to help. He found William Layland standing next to the SUV and James Michael King

sitting in the driver’s seat. Moore and Layland pushed the SUV so that it faced outwards

and could be jump-started.

King hopped out, and Moore spotted a pistol sticking out of his waistband.

Moore turned around. He heard a click, turned back around and saw King’s pistol

pointed straight at him. Moore “went after the gun,” and the pistol went off a few times

as the men wrestled for it. R.60 at 179. One shot (or a piece of concrete dislodged by

a shot) hit King, who dropped the pistol. Moore grabbed the pistol, ran, jumped into the

backseat of the Camry and threw the gun at his feet as the car drove away.

Three witnesses contradicted Moore’s version of what happened, and one

supported it. Joshua Evans, the bouncer at Diva’s, was escorting dancers out of the club

when he saw King’s car with the hood propped open. Evans asked if King needed help,

and he told one of the dancers to move her car into position to jump-start King’s car.

Then he saw Moore run up, grab a gun from King’s belt and begin firing at King’s car.

Evans ran for cover, at which point Moore shot at him. Evans saw Moore get in a silver

Camry, and he called the police as the car drove off. King and Layland, both called as

defense witnesses, likewise testified that Moore came up to King, grabbed the pistol

from King’s waistband and shot at King. Moore’s three friends, also called as defense

witnesses, were in the car waiting for Moore and thus did not see what happened in the

parking lot. Ricky Strode, who was in the parking lot collecting cans to exchange for

cash, supported Moore’s version of the events.
Nos. 12-6437/6438United States v. Moore Page 3

While patrolling the area, Officer Raymond Terry heard an “attempt to locate”

call for a silver Camry with a male occupant wearing a blue shirt and blue hat. He saw

a silver Camry and stopped it. Moore was in the backseat wearing a blue shirt and a blue

hat. The call mentioned the shooting at Diva’s, prompting Officer Terry to stay outside

the Camry for his own safety. He told the four passengers to keep their hands where he

could see them and waited for backup to arrive. Once the other officers arrived, they

removed the passengers one at a time—first the two women, then Moore, then the driver.

The officers searched the Camry and found the pistol on the backseat floorboard where

Moore had been sitting. At some point, Evans was brought to the scene of the stop, and

he identified Moore as the shooter he had seen in the parking lot.

Moore said nothing when the officers found the pistol in the backseat, and he

claims the officers did not ask him about the pistol. Two of Moore’s friends testified

that the officers asked about the pistol and that none of them said anything in response.

The third passenger was too intoxicated at the time to remember. Moore was placed

under arrest when he arrived at the station. He denied being at Diva’s, and he denied

knowing anything about the pistol.

Moore was charged with being a felon in possession of a firearm. 18 U.S.C.

§ 922(g)(1). At trial he claimed that he possessed the pistol in self-defense. The district

court denied Moore an instruction on that affirmative defense, and the jury found him

guilty. Moore received a 120-month prison term.

The events at Diva’s took place during Moore’s three-year term of supervised

release for a prior felon-in-possession offense. One condition of Moore’s supervised

release was that he not commit another federal or state crime. The district court found

that Moore’s actions during the fight with King amounted to assault and wanton

endangerment, both state crimes. The district court as a result revoked Moore’s term of

supervised release and imposed a concurrent twenty-four month term of imprisonment.
Nos. 12-6437/6438United States v. Moore Page 4

II.

Moore primarily challenges the district court’s denial of his necessity defense.

Section 922(g)(1) does not mention this common law defense. But many federal courts,

including ours, have “engrafted the defense onto the statute” on the assumption that

Congress enacts criminal statues against a “common-law backdrop.” United States v.

Tate, 117 F. App’x 394, 396 (6th Cir. 2004); United States v. Singleton, 902 F.2d 471,

472 (6th Cir. 1990); see also United States v. Mooney, 497 F.3d 397, 403 (4th Cir. 2007)

(collecting cases). Available only in “rare situations,” the defense contains five

conjunctive requirements: The defendant must have (1) reasonably feared death or

serious injury from an imminent threat, (2) not recklessly placed himself in the path of

that threat, (3) had no reasonable alternative to possession, (4) reasonably believed that

possession would avert the threat and (5) maintained possession only as long as

necessary to avoid the threat. See Singleton, 902 F.2d at 472–73.

The district court refused to give the instruction because the evidence introduced

at trial failed as a matter of law to establish the defense. See United States v. Bailey,

444 U.S. 394, 415 (1980). For purposes of this appeal, the parties agree that Moore

presented sufficient evidence to establish the first four elements of the defense; they

dispute only the fifth. As to that element, a defendant must show that he gave up

possession as soon after the harm ended as possible. A defendant may do so by turning

the firearm over to someone else, ideally the police who are best suited to dispose of the

firearm, or by leaving the firearm somewhere else. See United States v. Kemp, 546 F.3d

759, 766 (6th Cir. 2008); Singleton, 902 F.2d at 473. If a police officer happens to find

the defendant first, the defendant must hand the firearm over to the officer, as the

officer’s presence gives the defendant an immediate chance to give up possession. See

United States v. Ridner, 512 F.3d 846, 851–52 (6th Cir. 2008). A defendant who fails

to take advantage of that chance maintains possession for longer than “absolutely

necessary.” Singleton, 902 F.2d at 473.

Even if we accept Moore’s version of events, these precedents close the door on

his necessity defense. Moore knew he was a convicted felon, and he knew he could not
Nos. 12-6437/6438United States v. Moore Page 5

possess a firearm. Yet he refused serial opportunities to hand over the gun. He did not

leave the weapon at the scene as his car drove off. He did not give the gun to one of the

other passengers when he entered the car. He did not call the police from the car. He

did not ask his friend to drive him to the police station so he could turn over the pistol.

He did not give up possession of the pistol when Officer Terry stopped the car and stood

outside waiting for backup. And he did not give up possession when the officers

removed him from the car. A defendant cannot satisfy this requirement if he kept

possession of a firearm “until the police stopped his vehicle and took the gun away.”

Kemp, 546 F.3d at 766. Just so here.

United States v. Newcomb, 6 F.3d 1129 (6th Cir. 1993), does not help Moore.

Newcomb was at his girlfriend’s apartment when her son Louis ran out of the apartment

with a gun and threatened to kill someone. Newcomb chased Louis down an alley, took

the ammunition out of the gun and placed the shells in his pocket. Undeterred, Louis

said he would find another gun and ran off. Newcomb gave chase but lost Louis. As

Newcomb returned to the alley, a police officer patrolling the area stopped him. The

officer patted him down, found the ammunition and arrested him. Id. at 1131.

Newcomb possessed the ammunition for “only moments after” Louis ran off, which was

enough evidence “that he possessed the ammunition only for the duration of the

emergency situation” to support a necessity instruction. Id. at 1138. Moore’s possession

lasted longer than mere “moments” after the threat ended. As soon as the car pulled out

of the Diva’s parking lot, any alleged threat from King had ended, giving Moore no

reason to possess the pistol any longer. Unlike Newcomb, Moore passed up several

opportunities to give up possession of the pistol.

Moore adds that his continued possession was reasonable because he had just

been in a fight for his life and was “kind of shocked.” R.60 at 184. Yet this requirement

is an objective one, focused only on whether the defendant can “show that he did not

maintain possession any longer than absolutely necessary.” Singleton, 902 F.2d at 473.

By the time Officer Terry stopped the car, “the threat had subsided and [Moore] could

have handed the [pistol] to the police and explained why he had taken possession of it.”
Nos. 12-6437/6438United States v. Moore Page 6

Ridner, 512 F.3d at 851. Moore at any rate did not just stay silent. He admitted that he

lied to the police at the station about the gun, twice making a conscious decision not to

tell the police his version of events. All of this severely undercuts the plausibility of the

notion that his failure to turn over the gun amounted to a shock-induced omission.

Moore alternatively argues that, once Officer Terry pulled the Camry over,

Moore lost possession of the pistol, excusing his subsequent failure to turn over the

pistol after the stop. But a passenger is not immediately divested of his possessions

when officers stop the car. He is divested of them when he hands them to someone else

or when someone else takes them away from him.

Moore also appeals the exclusion of evidence related to an assault charge against

King and the revocation of his term of supervised release for an earlier felon-inpossession offense. Moore concedes that these arguments do not come into play unless

he was entitled to a necessity instruction. Because he was not, we need not address

them.

III.

For these reasons, we affirm.