2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-24-2000

United States v. Dodd

Precedential or Non-Precedential:

Docket 99-1530

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Recommended Citation

"United States v. Dodd" (2000). 2000 Decisions. Paper 175.

http://digitalcommons.law.villanova.edu/thirdcircuit_2000/175
Filed August 24, 2000 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 99-1530 

UNITED STATES OF AMERICA 

v. 

REGINALD DODD, 

 Appellant 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Criminal No. 97-cr-00483-1) 

District Judge: Honorable Robert S. Gawthrop, III 

Argued May 25, 2000 

Before: ALITO and RENDELL, Circuit Judges, 

and DUHE, Senior Circuit Judge* 

(Filed: August 24, 2000) 

 Shari E. Lewis [ARGUED] 

 Craig D. Margolis 

 Office of United States Attorney 

 615 Chestnut Street 

 Philadelphia, PA 19106 

Counsel for Appellee 

_________________________________________________________________ 

* The Honorable John M. Duhe, Jr., United States Court of Appeals 

Judge for the Fifth Circuit, sitting by designation. 
 David L. McColgin [ARGUED] 

 Defender Association of Philadelphia 

 Federal Court Division 

 437 Chestnut Street 

 Lafayette Building, Suite 800 

 Philadelphia, PA 19106-2141 

 Counsel for Appellant 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

The sole issue presented in this appeal is the difficult 

question of who must bear the burden of persuasion when 

a criminal defendant raises a justification defense to the 

federal charge of being a felon in possession of afirearm in 

violation of 18 U.S.C. S 922(g)(1) (1994). We specifically 

reserved this question in United States v. Paolello, 951 F.2d 

537 (3d Cir. 1991), in which we defined the elements of the 

justification defense to S 922(g)(1). See Paolello, 951 F.2d at 

544. We now conclude that, in a case such as this one, 

given the nature of the justification defense and of the 

crime charged, the defendant must prove the elements of 

this affirmative defense by a preponderance of the evidence. 

We will therefore affirm the District Court's order of 

conviction and sentence. 

I. Facts and Procedural History 

Reginald Dodd was convicted by a jury in the United

States District Court for the Eastern District of 

Pennsylvania of one count of being a felon in possession of 

a firearm. During the trial, Dodd stipulated to his status as 

a convicted felon and did not dispute that he had possessed 

a firearm for a short period of time on December 3, 1996. 

The only question at trial was whether Dodd was justified 

in possessing the gun for the purpose of preventing harm 

to others. The justification defense in our court has four 

elements: (1) that the defendant or someone else was under 

unlawful and present threat of death or serious bodily 

injury; (2) that the defendant did not recklessly place 

himself in a situation where he would be forced to engage 

 2 
in criminal conduct; (3) that the defendant had no 

reasonable legal alternative that would avoid both the 

criminal conduct and the threatened death or injury; and 

(4) that there was a direct causal relationship between the 

criminal act and the avoidance of the threatened harm. See 

Paolello, 951 F.2d at 540-41. 

Dodd and two other eyewitnesses, his neighbors Hazel 

Flood and Cynthia Reed, testified in Dodd's defense. Dodd 

and Flood testified that they had spotted a gun lying in the 

street, and that Dodd had picked it up in order to keep it 

out of the hands of a group of young children who were 

coming down the street. Dodd testified that he took the gun 

in order to prevent the children from hurting themselves. 

After Dodd picked up the gun, he put it in his pocket and 

walked back toward his nearby home; Dodd testified that 

his "intention[ ] was to pick this gun up and take it to the 

house and call the police and report it." A. at 157. Before 

Dodd could reach his house, two plainclothes police

officers, who were responding to a radio call, 1 stopped and 

frisked him, finding the .25 caliber automatic pistol. 

At trial, much of the testimony concerned the issue

underlying the third element of the justification defense: 

whether Dodd had a reasonable legal alternative to picking 

up the gun. Flood, who discovered the gun initially, testified 

that she was unwilling to pick up the gun herself. Dodd 

and Flood both testified that they saw no alternative to 

Dodd's picking up the gun in order to prevent the 

approaching children from getting their hands on it. The 

government, whose witnesses included the arresting 

Philadelphia police officers, Todd Lewis and Kevin Lewis, 

argued that Dodd could have pursued other courses of 

action, such as asking Flood or Reed to call the police while 

Dodd stood over the gun to prevent the children from 

taking it, covering the gun to hide it, or kicking the gun 

down the nearby sewer. 

_________________________________________________________________ 

1. This call described a robbery suspect with a physical description 

resembling Dodd's. The government was not able to produce evidence 

linking the robbery with Dodd, or showing that he was the suspect 

described in the radio call. 

 3 
During the jury charge conference, defense counsel 

argued that the defendant should bear only the initial 

burden of production on the justification defense, while the 

government should bear the ultimate burden of persuasion. 

According to the defense's theory, Dodd need only present 

some evidence to support each element of the defense; 

should he do so, the government would then bear the

burden of disproving at least one element of the defense 

beyond a reasonable doubt. The government argued that 

where the justification defense did not negate one of the 

elements of the crime charged, the defendant should be 

required to prove each element of the defense by a 

preponderance of the evidence. The District Court 

concluded that the government had correctly described the 

placement of the burden of persuasion; the District Court 

relied principally on the reasoning of the United States 

Court of Appeals for the Ninth Circuit in United States v. 

Dominguez-Mestas. See United States v. Dominguez-Mestas, 

929 F.2d 1379, 1380 (9th Cir. 1991) (per curiam) (holding 

that the defendant bears the burden of proving a duress 

defense to a federal charge of unlawful importation of 

narcotics). The District Court, therefore, gave a jury charge 

that placed the burden of persuasion on the affirmative 

defense of justification on the defendant, by a 

preponderance of the evidence. The Court included an 

explicit description of the burden of persuasion: 

 [A]s to this defense the burden of proof is upon, not the 

 Government, but upon the defendant to prove by a fair 

 preponderance of the evidence, that is to say, to prove 

 the defense, factually and legally, more likely than not, 

 has been made out. Burden of proof by a 

 preponderance of the evidence is more likely than not. 

A. at 257. In her closing argument, government counsel 

specifically referred to "the defendant's burden to show you 

there was nothing else that he could have done." A. at 239. 

During its deliberations, the jury clearly was grappling 

with the issues raised by the justification defense. On the 

first day of deliberations, the jury asked Judge Gawthrop: 

"Do we have to consider [Dodd's] perception of legal 

alternatives?" A. at 266. The jury also requested a

handwritten copy of Judge Gawthrop's instructions on the 

 4 
justification defense. See A. at 271, 273-74. The jury 

returned a guilty verdict on the second day of deliberations. 

At sentencing, the District Court granted an unopposed 

downward departure motion based on overrepresentation of 

criminal history, and imposed a sentence of 15 years' 

imprisonment, the mandatory minimum sentence provided 

by the Armed Career Criminal Act, 18 U.S.C. S 924(e)(1). 

Dodd now appeals his conviction and sentence. 

II. Jurisdiction and Standard of Review 

The District Court had jurisdiction over this federal 

criminal case pursuant to 18 U.S.C. S 3231. We have

appellate jurisdiction over the District Court'sfinal decision 

pursuant to 28 U.S.C. S 1291. We review de novo the

District Court's legal determination as to the appropriate 

placement of the burden of persuasion. See Walden v. 

Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1997) ("We 

generally review jury instructions for abuse of discretion, 

but our review is plenary when the question is whether the 

instruction misstates the law."). 

III. Discussion 

The question of the appropriate placement of the burden 

of persuasion can be broken down into two subsidiary 

questions: (1) Can this court constitutionally place the 

burden of persuasion on the defendant? (2) If we can place 

the burden of persuasion on the defendant, should we? 

The first question is easily answered in the affirmative. 

Although the Due Process Clause requires the government 

to prove all elements of the charged offense beyond a 

reasonable doubt, see In re Winship, 397 U.S. 358, 364 

(1970), and therefore requires the government to disprove 

beyond a reasonable doubt any defenses that negate an 

element of the charged offense, see Patterson v. New York, 

432 U.S. 197, 210, 215 (1977), there is no constitutional 

bar to the defendant's bearing the burden of persuasion on 

defenses that do not negate an element of the offense, see 

Patterson, 432 U.S. at 210-11. To show that Dodd was a 

felon in possession of a firearm in violation ofS 922(g)(1), 

the government was required to prove the following 

elements beyond a reasonable doubt: (1) that Dodd had 

 5 
previously been convicted of a crime punishable by 

imprisonment for a term exceeding one year; (2) that Dodd 

knowingly possessed a firearm; and (3) that thefirearm had 

passed in interstate commerce. The factual basis for Dodd's 

justification defense, if accepted, would not serve to negate 

any of these elements. The requirement that the 

government must show that the defendant "knowingly 

possessed a firearm" means only that the government must 

prove the defendant's awareness that he possessed the 

firearm; the government need not demonstrate that the 

defendant possessed the firearm with an intent to cause 

harm, or with knowledge that such possession was 

unlawful. Thus, the justification defense would not negate 

the mens rea element of the felon-in-possession statute. 

See Paolello, 951 F.2d at 544 ("[T]he fact that a person acts 

for an innocent reason in no way detracts from the knowing 

quality of his act."). 

Dodd essentially concedes that placing the burden of 

persuasion on him is not constitutionally prohibited. 

However, he urges us to follow United States v. Talbott, 78 

F.3d 1183 (7th Cir. 1996) (per curiam), in which the United 

States Court of Appeals for the Seventh Circuit determined 

that, absent a statute explicitly allocating to the defendant 

the burden of proving an affirmative defense, a court has 

no power to allocate this burden to the defendant: 

 Nevertheless, the fact that the Constitution allows 

 Congress or state legislatures to enact laws allocating 

 to criminal defendants the burden of proving

 affirmative defenses does not mean that, absent a 

 statute actually doing so, the burden shifts

 automatically. In other words, though it may be 

 constitutionally permissible to enact a burden-shifting 

 statute, some affirmative legislative action must trigger 

 that shift. Absent such a statute, the burden of proof 

 remains on the government to negate beyond a

 reasonable doubt the affirmative defense properly 

 raised by the defendant. 

Talbott, 78 F.3d at 1186 (citation omitted). The Talbott 

Court therefore held, in a case involving a justification 

defense to a felon-in-possession charge, that the burden of 

persuasion must remain with the government because 

 6 
Congress has not allocated the burden to the defendant by 

statute. We do not find Talbott's reasoning persuasive. 

Talbott cites to cases that either refer to such statutory 

burden-shifting in permissive terms, employ statutorily 

created placement of the burden of persuasion on the 

defense, or allocate the burden of persuasion to the 

government as a matter of federal constitutional or common 

law for reasons other than the absence of statutory

allocation. Unlike the Seventh Circuit Court of Appeals, 

however, we can find nothing in this case precedent that 

limits such burden allocation to occur only if Congress has 

explicitly ordained it. The felon-in-possession statute does 

not contain any mention of a burden of proof on a 

justification defense, or indeed, of the defense itself. Rather, 

it states simply that "[i]t shall be unlawful for any person -- 

(1) who has been convicted in any court of, a crime

punishable by imprisonment for a term exceeding one year; 

. . . [to] possess in or affecting commerce, any firearm." 18 

U.S.C. S 922(g). The justification defense, at least as it 

relates to this charge, is a judge-made defense. See Paolello, 

951 F.2d at 540-41 (outlining the elements of the 

justification defense as it applies to the felon-in-possession 

charge). Where courts have engrafted a traditional commonlaw defense onto a statute that itself is silent as to the 

applicability of traditional defenses, it is within the province 

of the courts to determine where the burden of proof on 

that defense is most appropriately placed. See United States 

v. Masters, 978 F.2d 281, 287 (7th Cir. 1992). 

We therefore have the capacity to place the burden of 

persuasion on either party, despite the lack of explicit 

statutory allocation of the burden of proof. The more 

difficult question is where we should place the burden of 

persuasion regarding this defense to this offense. 

This is a question of federal common law. In searching 

for potential sources of the answer to this question, we first 

look to Supreme Court case law and that of our own Court. 

We find no Supreme Court case that clearly speaks to this 

question; the Supreme Court case law is more frequently 

directed at the problem of constitutional constraints on the 

placement of the burden of persuasion, not at the question 

of where the burden is best placed when the Constitution 

does not constrain the choice. 

 7 
Three opinions of our Court of Appeals, however, bear 

some relevance to the issue of the placement of the burden 

of persuasion on the justification defense to aS 922(g) 

charge. Paolello contains language hinting that, under the 

circumstances presented by the strictly worded felon-inpossession statute, it may well be the defendant who bears 

the burden of persuasion on the justification defense: "To 

ensure that this strict prohibition [of felons in possession of 

firearms] is effectuated, we should require that the 

defendant meet a high level of proof to establish the defense 

of justification." Paolello, 951 F.2d at 542. However, it is 

quite clear that this language is dictum, because we 

explicitly reserved the question of the allocation of the 

burden of proof: 

 At oral argument before us the parties agreed that if 

 there were a new trial it would be Paolello's burden to 

 produce evidence to support the justification defense 

 and, if he did so, it would be the government's burden 

 to disprove that defense beyond a reasonable doubt. 

 We think, however, that inasmuch as there may be 

 some question as to whether this agreement accurately 

 reflects the law and, in view of the further fact that the 

 briefs understandably do not focus on the issue, that 

 it would be prudent to leave for determination on the 

 remand the allocation of burdens on the justification 

 defense. 

Id. at 544.2 Thus, Paolello does not settle the question 

before us. 

The two other cases, United States v. Santos, 932 F.2d 

244 (3d Cir. 1991), and United States v. Smith , 949 F.2d 

677 (3d Cir. 1991), both decided before Paolello , do not 

present the specific circumstance of the burden of 

persuasion on a justification defense to a S 922(g) charge, 

but discuss more generally the appropriate placement of 

the burden of persuasion for affirmative defenses that do 

not negate an element of the crime charged. In Santos, we 

reviewed under a plain error standard a jury instruction 

_________________________________________________________________ 

2. Although we stated that the issue should be left "for determination on 

the remand," no such determination actually ensued; instead, when the 

case was remanded, Paolello entered a guilty plea. 

 8 
regarding the burden of persuasion on a duress defense to 

cocaine distribution and conspiracy charges. See Santos, 

932 F.2d at 245, 250. We found no plain error in an

instruction that put an initial burden of persuasion on the 

defendant to prove the duress defense by a preponderance 

of the evidence; were the defendant to make this initial 

showing, the burden would then shift to the government to 

disprove the defense beyond a reasonable doubt. See id. at 

248. Santos herself had requested this instruction; her 

objection to the charge on appeal was not that the burden 

of persuasion was misplaced, but rather that the trial judge 

did not sufficiently explain the meaning of the 

"preponderance of the evidence" standard to the jury. While 

the government correctly states, and the District Court also 

found, that Santos enshrines into the law of our court the 

principle that "there is no constitutional bar to placing the 

burden upon a defendant to prove the affirmative defense of 

duress by a preponderance of the evidence where the crime 

charged contains no requirement of mens rea," id. at 249, 

it is clear that Santos does not itself announce a general 

rule for the appropriate placement of the burden of

persuasion in such cases. Unlike the case before us, Santos 

involved a highly deferential standard of review of a jury 

charge that was in essence requested by the defendant. We 

conclude that Santos, like Paolello, leaves the question 

before us unanswered. 

Although Smith presents circumstances much different 

from those before us, it contains some discussion of the 

Santos decision that is worth noting here. In Smith, we held 

that, under Virgin Islands law, it was plain error for the 

District Court to refuse to give an instruction on the burden 

of proof on self-defense; the charges were first degree 

murder and unlawful possession of a firearm during the 

commission of a crime of violence. See Smith, 949 F.2d at 

678-79. Smith speaks broadly of the government's burden 

to disprove affirmative defenses, but Smith does not directly 

address our situation: Smith dealt with a state law case in 

which the defense in question negated the requisite intent 

element. The Smith majority, in distinguishing Santos, does 

state that the jury instruction in Santos, although

"erroneous," did "correctly place[ ] upon the government the 

ultimate burden of proving duress beyond a reasonable 

 9 
doubt." Smith, 949 F.2d at 682 n.5. In fact, even the Smith 

dissent refers to the charge given in Santos as being 

erroneous, though not plainly erroneous. See Smith, 949 

F.2d at 688 (Alito, J., dissenting). However, the Smith 

panel's characterization of the Santos decision is dictum, 

and, as we have noted earlier, Paolello, decided after Smith, 

clearly did not regard the question of the appropriate 

burden of proof on affirmative defenses as a settled 

question. To the extent that dicta are relevant to our 

decision in this case, the dicta in Paolello and in Smith 

might be said to point in opposite directions. 

We conclude that Paolello, Santos, and Smith do not

answer the question before us. We therefore proceed to 

consider the case law of other Courts of Appeals as a guide 

to how we might choose the appropriate rule in this case. 

Although the parties in our case propose different 

characterizations of the appellate case law on the issue 

before us (and indeed the parties differ as to how they 

characterize the issue itself), they agree that the other 

Courts of Appeals are not in complete accord on this topic. 

See Dodd Br. at 12 ("The vast majority of the circuits have 

held that, absent congressional legislation to the contrary, 

the government bears the burden of disproving an 

affirmative defense, such as justification or duress, so long 

as the defendant has produced some evidence in support of 

the defense."); Gov't Br. at 19 ("All but one of the circuits 

that have specifically addressed the issue have held that, in 

the context of crimes that do not require specific intent or 

mens rea, the burden of proof as to justification is properly 

placed upon the defendant."). In reflecting on the case law, 

we keep in mind that the only issue before us today is the 

proper placement of the burden of persuasion on the

justification defense to a felon-in-possession charge, not the 

more general question of the placement of the burden of 

persuasion on affirmative defenses that do not negate an 

element of the offense. 

Two Courts of Appeals have addressed the precise issue 

before us, and have reached opposite conclusions. We have 

already described the Seventh Circuit Court of Appeals' 

decision in United States v. Talbott, which rested on the 

assumption that Congress's silence as to the burden of 

 10 
persuasion on this defense left the courts powerless to 

place the burden on the defendant. As stated above, we 

disagree with Talbott's analysis. As we noted above, 

Congress was silent not only on the issue of the burden of 

persuasion, but also as to whether the defense itself was 

available. Just as we have the power to read the traditional 

common-law defense into the statute, we have the power to 

determine the applicable burden of persuasion. Talbott also 

relied upon the existence in its court of a pattern jury 

instruction on point, which placed the default burden of 

persuasion on the government to disprove affirmative 

defenses beyond a reasonable doubt; we have no such

pattern jury instruction in the Third Circuit.3 Because the 

Seventh Circuit Court of Appeals' analysis rested almost 

entirely on its conclusion that the court was without power 

to place the burden of persuasion on the government, and 

on the further support of the Seventh Circuit pattern jury 

instructions, we decline to follow the Talbott decision. 

We view the Eleventh Circuit Court of Appeals as having 

adopted a sounder approach. In United States v. Deleveaux, 

205 F.3d 1292 (11th Cir. 2000), the United States Court of 

Appeals for the Eleventh Circuit ruled that the defendant in 

a S 922(g) case bears the burden of proving a justification 

defense by a preponderance of the evidence. The Deleveaux 

Court emphasized that in the context of a felon-inpossession charge, the justification defense depends on 

"additional facts and circumstances that are distinct from 

the offense conduct." Deleveaux, 205 F.3d at 1299. The 

Deleveaux Court further explained: 

 [T]he justification defense is a limited defense to a 

 strict liability statute,4 which sought broadly to prohibit 

_________________________________________________________________ 

3. Just as the case law in this area is divided as to the appropriate 

placement of the burden of persuasion, so are the pattern jury 

instructions of those courts that have promulgated such instructions. 

See infra note 8. 

4. The case law in our court describes the S 922(g) offense as a "general 

intent" crime rather than a strict liability crime, United States v. 

Williams, 892 F.2d 296, 303 (3d Cir. 1989), superseded by statute on 

other grounds as indicated in Stinson v. United States, 508 U.S. 36, 39 

n.1 (1993). However, the general intent contained in the S 922(g) offense 

is merely the baseline intent to possess the firearm; thus, the 

distinction 

between our nomenclature and that of the Eleventh Circuit Court of 

Appeals does not obviate the applicability of the reasoning of the 

Deleveaux Court. 

 11 
 possession of firearms by convicted felons. The 

 justification defense also does not negate any element 

 of this offense, but requires proof of additional facts 

 and circumstances distinct from the evidence relating 

 to the underlying offense. . . . The defendant will 

 usually be best-situated to produce evidence relating to 

 each element of this affirmative defense. 

Id. at 1300. 

The reasoning in Deleveaux dovetails nicely with the case 

law already existing in our court, most notably Paolello. 

While Paolello did not speak to the precise issue before us 

today, in that case we did clearly indicate that we should 

adopt a narrow view of the justification defense as

employed in connection with the felon-in-possession

statute. See Paolello, 951 F.2d at 541, 542 (noting that 

"several courts have limited the breadth of the justification 

defense . . . in the section 922 context in order to achieve 

the statute's purposes," and approving this "restrictive 

approach"). Deleveaux relies on Paolello for this principle, 

see Deleveaux, 205 F.3d at 1297 (quoting Paolello, 951 F.2d 

at 541-42), and, although Paolello does not control the 

outcome in this case, our imposition of the burden of 

persuasion on the defendant would be entirely consistent 

with our reasoning there. 

We find Deleveaux to be persuasive and consistent with 

the background of the common law.5 At common law, the 

defendant bore the burden of proving all affirmative 

defenses. See Patterson v. New York, 432 U.S. at 202 (1977) 

(stating that at common law, the burden of proving 

_________________________________________________________________ 

5. We also note the decision of the United States Court of Appeals for the 

Sixth Circuit in United States v. Wolak, 923 F.2d 1193 (6th Cir. 1991). 

In Wolak, the Court of Appeals did not explicitly announce a rule as to 

the appropriate placement of the burden of persuasion on a "temporary 

innocent possession" defense to a S 922(g)(1) charge, but did express its 

view that an instruction proffered by the defendant"was fatally flawed 

because it erroneously stated that `the Government must prove beyond 

a reasonable doubt that this defense [innocent possession] does not 

apply to this case.' " Wolak, 923 F.2d at 1198. The innocent possession 

defense at issue in Wolak was characterized by the Wolak Court as a 

"justification defense" and is similar to the defense at issue here. Id. 

 12 
"affirmative defenses -- indeed, `all . . . circumstances of 

justification, excuse or alleviation' -- rested on the 

defendant") (quoting 4 William Blackstone, Commentaries 

*201); see also Mullaney v. Wilbur, 421 U.S. 684, 693 

(1975). Although there has been something of a twentiethcentury trend toward requiring the government to bear the 

burden of persuasion on certain affirmative defenses, this 

trend has been by no means uniform across jurisdictions or 

across types of defenses. See Patterson, 432 U.S. at 207 

n.10 ("Even so, the trend over the years appears to have 

been to require the prosecution to disprove affirmative 

defenses beyond a reasonable doubt. The split among the 

various jurisdictions varies for any given defense.") 

(citations omitted); George P. Fletcher, Two Kinds of Legal 

Rules: A Comparative Study of Burden-of-Persuasion 

Practices in Criminal Cases, 77 Yale L.J. 880, 887 (1968); 

see also Jay M. Zitter, Construction and Application of 18 

U.S.C.A. S 17, Providing for Insanity Defense in Federal 

Criminal Prosecutions, 118 A.L.R. Fed. 265, 265 (1994) 

(describing how public outcry following John Hinckley's 

attempted assassination of President Ronald Reagan led to 

Congress's enactment of the Insanity Defense Reform Act of 

1984, Pub. L. No. 98-473, 98 Stat. 2057 (codified as 

amended at 18 U.S.C. S 17(b) (2000)) (shifting to the 

defendant "the burden of proving the defense of insanity by 

clear and convincing evidence")). An examination of

appellate decisions concerning the burden of persuasion on 

other affirmative defenses reveals a quite divided 

jurisprudence, without any clear default rule as to how 

affirmative defenses generally should be treated. For 

example, in the case of duress or coercion defenses, 

appellate courts have set differing rules for allocating the 

burden of persuasion in various circumstances.6 Compare, 

_________________________________________________________________ 

6. We include a description of these duress and coercion cases merely as 

an example of the variety with which courts have treated the burden of 

persuasion on common-law affirmative defenses. We do not believe that 

the duress and coercion cases are sufficiently similar to the 

justification 

scenario so as to be dispositive of this case, even were these duress and 

coercion cases to be uniform in their allocation of the burden of 

persuasion. Cf. Paul H. Robinson, 1 Criminal Law Defenses S 25(b), at 96 

(1984) (placing duress and coercion in the "excuse" category of defenses, 

a broad category separate from the "justification" category). For the 

 13 
e.g., United States v. Willis, 38 F.3d 170, 179 (5th Cir. 

1994) (stating, in a case involving a duress defense to a 

charge of carrying a firearm during the commission of a 

drug trafficking crime, that the defendant bears the burden 

of proof of "a justification defense such as duress"), and 

United States v. Dominguez-Mestas, 929 F.2d 1379, 1380 

(9th Cir. 1991) (per curiam) (holding that defendant has the 

burden of proving duress defense to a charge of unlawful 

importation of merchandise),7with United States v. Arthurs, 

73 F.3d 444, 448 (1st Cir. 1996) (stating that, in a case 

involving charges of importing cocaine and possessing 

cocaine with the intent to distribute it, the government 

must disprove a duress defense beyond a reasonable doubt 

once the defendant has laid "a predicate warranting a 

duress instruction"), United States v. Mitchell, 725 F.2d 

832, 836 (2d Cir. 1983) (placing burden of persuasion on 

government to disprove duress defense to armed bank

robbery charges, once the defendant has sufficiently placed 

the defense in issue), and United States v. Campbell, 609 

F.2d 922, 925 (8th Cir. 1979) (holding, in bank robbery and 

escape case, that, once the accused has placed before the 

court "facts giving rise to a coercion defense," the 

government "must rebut the issues of coercion beyond a 

reasonable doubt").8 

_________________________________________________________________ 

reasons described above, our own holding in this case is limited to the 

circumstances presented here -- the justification defense to a felon-inpossession charge -- and therefore we consider only the case law on that 

issue (Paolello, Talbott, Delevea 

 ux, and Wolak) to be directly relevant to 

our decision. 

7. The District Court in the case before us, which rendered its decision 

in April 1999 and thus did not have the benefit of the Eleventh Circuit 

Court of Appeals' subsequent decision in Deleveaux, relied heavily on the 

reasoning of the Ninth Circuit Court of Appeals in Dominguez-Mestas. 

See A. at 215-18. Although Dominguez-Mestas has some persuasive 

force, we find Deleveaux, which more clearly matches the scenario at 

issue in our case, to be the better guide to our decision. 

8. The pattern jury instructions cited by both the government and the 

defendant similarly reflect the absence of a clear default rule on the 

placement of the burden of persuasion on affirmative defenses generally. 

See Federal Judicial Center Pattern Criminal Jury Instructions S 56 

 14 
At oral argument, Dodd's counsel suggested that we 

should follow the same analytical course in allocating the 

burden of persuasion for the justification defense to the 

S 922(g) charge as we have for entrapment. We have held, 

as has the Supreme Court, that the government bears the 

burden of disproving both elements of an entrapment

defense (government inducement of a crime and lack of 

predisposition on the part of the defendant). See Jacobson 

v. United States, 503 U.S. 540, 548-49 (1992); United States 

v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). In light of the 

diversity of analytical solutions that the appellate courts 

have reached with respect to various affirmative defenses, 

however, we reject any argument that consistency demands 

we follow the entrapment precedents in this case. 

Entrapment is a very different defense from the justification 

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(1988) (placing burden of disproving duress defense on government); 

First Circuit Pattern Criminal Jury Instructions, intro. cmt. (1998) 

(stating that, except in the case of the insanity defense, the burden of 

persuasion on affirmative defenses is on the government); id. S 5.05 

(stating that government bears burden of disproving duress defense, but 

also referring to a case note that says "the burden of proof remains with 

the government, at least if the charged crime requires mens rea") 

(emphasis added); Fifth Circuit Pattern Criminal Jury Instructions S 1.36 

(1997) (placing burden of persuasion on defendant on justification, 

coercion and duress defenses, but noting that this practice is "[c]ontrary 

to many other circuits"); Sixth Circuit Pattern Criminal Jury Instructions 

S 6.05 (1991) (placing burden on the government on coercion and duress 

defenses, but noting that "significant modifications must be made in this 

instruction" in the case of a justification defense to a felon-inpossession 

charge); Seventh Circuit Pattern Criminal Jury Instructions S 4.01 (1999) 

(stating that, for affirmative defenses other than insanity defense, 

burden 

of persuasion is on government); Eighth Circuit Model Criminal Jury 

Instructions S 3.09 (1996) (similar to Seventh Circuit); Ninth Circuit 

Model Criminal Jury Instructions S 6.4.2 (1997) (placing burden of 

persuasion on defendant for affirmative defenses that do not negate an 

element of the offense). We note that the relevant Eleventh Circuit 

pattern instruction, Eleventh Circuit Pattern Criminal Jury Instructions 

S 15 (1997), which appears to place the burden of persuasion on the 

government, contains language suggesting that such placement is only 

appropriate in cases where the offense has a high mens rea requirement; 

furthermore, it seems clear that Deleveaux at least partially supersedes 

this pattern jury instruction. 

 15 
defense in the instant case; in order to raise the defense of 

entrapment, there must be some evidence that government 

agents have had an inappropriate role in bringing about the 

criminal behavior alleged. It seems reasonable that the 

government should bear the burden of disproving a defense 

whose very essence is the allegation of illegitimate 

government conduct. See Sherman v. United States , 356 

U.S. 369, 372 (1958) ("Entrapment occurs only when the 

criminal conduct was `the product of the creative activity' of 

law-enforcement officials.") (quoting Sorrells v. United 

States, 287 U.S. 435, 451 (1932)). In contrast, the

justification defense to a felon-in-possession charge 

concerns an exception to a very restrictive statute that, on 

its face, forbids possession in all circumstances; the facts 

necessary to allege and to prove a justification defense in 

this scenario are more easily accessible to the defendant 

than to the government. See Deleveaux, 205 F.3d at 1300 

("[T]here are strong practical considerations in favor of 

requiring the defendant rather than the government to bear 

the burden of proving the justification defense to a 

S 922(g)(1) charge. . . . The defendant will usually be bestsituated to produce evidence relating to each element of 

this affirmative defense."). 

We conclude that a rule that places the burden of 

persuasion on the defendant with regard to a justification 

defense to a felon-in-possession charge is constitutionally 

permissible, consonant with the common law, preferable for 

practical reasons, and faithful to the strictness of the 

statute into which we have read this justification defense.9 

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9. We reject Dodd's argument that putting the burden of proof on the 

defendant on an affirmative defense will unduly confuse the jury. The 

cases cited by Dodd in support of this argument, see Dodd Br. at 21-24, 

are not on point. United States v. Mitchell, 725 F.2d 832, 836 (2d Cir. 

1983), concerned a defense that tended to negate the mens rea element 

of the charged crime. United States v. Watson , 489 F.2d 504, 510-11 (3d 

Cir. 1973), referred to jury instructions that placed the burden of 

persuasion on one element of a defense on the government, and on 

another element on the defendant. While such bifurcated jury 

instructions might be confusing, the simpler instruction at issue here 

would not be. In this particular case, Judge Gawthrop gave a jury 

instruction that clearly placed the burden of persuasion on the 

defendant on his justification defense. See supra page 4. 

 16 
We will therefore AFFIRM the District Court's order of 

conviction and sentence. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 17