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. e du/thir dc ir c uit_2000/175Filed 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 Co urt 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 diff icult 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 af irearm in violation of 18 U.S.C. S 922(g)(1) (1994). We speci fically reserved this question in United States v. Paolello , 951 F.2d 537 (3d Cir. 1991), in which we defined the element s 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 o ne, given the nature of the justification defense and o f the crime charged, the defendant must prove the element s 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 posse ssion of a firearm. During the trial, Dodd stipulated to his status as a convicted felon and did not dispute that he had p ossessed a firearm for a short period of time on December 3, 1996. The only question at trial was whether Dodd was jus tified in possessing the gun for the purpose of preventing harm to others. The justification defense in our court h as four elements: (1) that the defendant or someone else wa s under unlawful and present threat of death or serious bod ily injury; (2) that the defendant did not recklessly p lace

himself in a situation where he would be forced to engage

2in 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 bet ween the

criminal act and the avoidance of the threatened ha rm. See Paolello, 951 F.2d at 540-41.

Dodd and two other eyewitnesses, his neighbors Haze l Flood and Cynthia Reed, testified in Dodd's defense . Dodd and Flood testified that they had spotted a gun lyi ng 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 w ere coming down the street. Dodd testified that he took the gun in order to prevent the children from hurting thems elves. After Dodd picked up the gun, he put it in his pock et 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 st opped and frisked him, finding the .25 caliber automatic pist ol.

At trial, much of the testimony concerned the issue underlying the third element of the justification d efense: 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 alternati ve 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 o f action, such as asking Flood or Reed to call the po lice while Dodd stood over the gun to prevent the children fro m taking it, covering the gun to hide it, or kicking the gun down the nearby sewer.

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1. This call described a robbery suspect with a phy sical description resembling Dodd's. The government was not able to p roduce evidence linking the robbery with Dodd, or showing that he w as the suspect

described in the radio call.

3During the jury charge conference, defense counsel

argued that the defendant should bear only the init ial burden of production on the justification defense, while the government should bear the ultimate burden of persu asion. According to the defense's theory, Dodd need only p resent some evidence to support each element of the defens e; should he do so, the government would then bear the burden of disproving at least one element of the de fense beyond a reasonable doubt. The government argued th at 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 describ ed the placement of the burden of persuasion; the District Court relied principally on the reasoning of the United S tates Court of Appeals for the Ninth Circuit in United St ates v. Dominguez-Mestas. See United States v. Dominguez-Me stas, 929 F.2d 1379, 1380 (9th Cir. 1991) (per curiam) (h olding that the defendant bears the burden of proving a du ress defense to a federal charge of unlawful importation of narcotics). The District Court, therefore, gave a j ury charge that placed the burden of persuasion on the affirma tive defense of justification on the defendant, by a preponderance of the evidence. The Court included a n 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 sa y, to prove the defense, factually and legally, more lik ely 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 coun sel 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 grap pling with the issues raised by the justification defense . On the first day of deliberations, the jury asked Judge Ga wthrop: "Do we have to consider [Dodd's] perception of lega l alternatives?" A. at 266. The jury also requested a handwritten copy of Judge Gawthrop's instructions o n the

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

returned a guilty verdict on the second day of deli berations.

At sentencing, the District Court granted an unoppo sed downward departure motion based on overrepresentati on of criminal history, and imposed a sentence of 15 year s' imprisonment, the mandatory minimum sentence provid ed 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 feder al criminal case pursuant to 18 U.S.C. S 3231. We have appellate jurisdiction over the District Court'sfin al decision pursuant to 28 U.S.C. S 1291. We review de novo the District Court's legal determination as to the appr opriate placement of the burden of persuasion. See Walden v

. Georgia-Pacific Corp., 126 F.3d 506, 513 (3d Cir. 1 997) ("We generally review jury instructions for abuse of dis cretion, but our review is plenary when the question is whet her the instruction misstates the law.").

III. Discussion

The question of the appropriate placement of the bu rden of persuasion can be broken down into two subsidiar y questions: (1) Can this court constitutionally plac e the burden of persuasion on the defendant? (2) If we ca n place the burden of persuasion on the defendant, should w e?

The first question is easily answered in the affirm ative. Although the Due Process Clause requires the govern ment 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 di sprove beyond a reasonable doubt any defenses that negate an element of the charged offense, see Patterson v. Ne w York, 432 U.S. 197, 210, 215 (1977), there is no constitu tional bar to the defendant's bearing the burden of persua sion on defenses that do not negate an element of the offen se, see Patterson, 432 U.S. at 210-11. To show that Dodd wa s a felon in possession of a firearm in violation ofS 9 22(g)(1), the government was required to prove the following elements beyond a reasonable doubt: (1) that Dodd h ad

5previously been convicted of a crime punishable by

imprisonment for a term exceeding one year; (2) tha t Dodd knowingly possessed a firearm; and (3) that thefire arm had passed in interstate commerce. The factual basis fo r 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 t he firearm; the government need not demonstrate that t he defendant possessed the firearm with an intent to c ause 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 sta tute. See Paolello, 951 F.2d at 544 ("[T]he fact that a p erson acts for an innocent reason in no way detracts from the knowing quality of his act.").

Dodd essentially concedes that placing the burden o f persuasion on him is not constitutionally prohibite d. However, he urges us to follow United States v. Tal bott, 78 F.3d 1183 (7th Cir. 1996) (per curiam), in which th e United States Court of Appeals for the Seventh Circuit det ermined that, absent a statute explicitly allocating to the defendant the burden of proving an affirmative defense, a cou rt 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, abs ent a statute actually doing so, the burden shifts automatically. In other words, though it may be constitutionally permissible to enact a burd en-shifting statute, some affirmative legislative action must trigger that shift. Absent such a statute, the burde n of proof remains on the government to negate beyond a reasonable doubt the affirmative defense pro perly raised by the defendant.

Talbott, 78 F.3d at 1186 (citation omitted). The Ta lbott Court therefore held, in a case involving a justifi cation defense to a felon-in-possession charge, that the b urden of persuasion must remain with the government because

6Congress has not allocated the burden to the defend ant by

statute. We do not find Talbott's reasoning persuas ive.

Talbott cites to cases that either refer to such st atutory burden-shifting in permissive terms, employ statuto rily created placement of the burden of persuasion on th e defense, or allocate the burden of persuasion to th e 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 App eals, however, we can find nothing in this case precedent that limits such burden allocation to occur only if Cong ress has explicitly ordained it. The felon-in-possession sta tute does not contain any mention of a burden of proof on a justification defense, or indeed, of the defense it self. Rather, it states simply that "[i]t shall be unlawful for a ny 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 fi rearm." 18 U.S.C. S 922(g). The justification defense, at leas t as it relates to this charge, is a judge-made defense. Se e 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 proo f on that defense is most appropriately placed. See Unit ed 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 exp licit statutory allocation of the burden of proof. The mo re difficult question is where we should place the bur den of persuasion regarding this defense to this offense.

This is a question of federal common law. In search ing for potential sources of the answer to this questio n, we first look to Supreme Court case law and that of our own Court. We find no Supreme Court case that clearly speaks t o this question; the Supreme Court case law is more freque ntly directed at the problem of constitutional constrain ts on the placement of the burden of persuasion, not at the q uestion of where the burden is best placed when the Constit ution

does not constrain the choice.

7Three opinions of our Court of Appeals, however, be ar

some relevance to the issue of the placement of the burden of persuasion on the justification defense to aS 92 2(g) charge. Paolello contains language hinting that, un der the circumstances presented by the strictly worded felo n-inpossession statute, it may well be the defendant wh o bears the burden of persuasion on the justification defen se: "To ensure that this strict prohibition [of felons in p ossession of firearms] is effectuated, we should require that th e defendant meet a high level of proof to establish t he defense of justification." Paolello, 951 F.2d at 542. Howev er, it is quite clear that this language is dictum, because w e explicitly reserved the question of the allocation of the burden of proof:

At oral argument before us the parties agree d that if

there were a new trial it would be Paolello' s burden to produce evidence to support the justificatio n defense and, if he did so, it would be the governmen t's burden to disprove that defense beyond a reasonable doubt. We think, however, that inasmuch as there ma y be some question as to whether this agreement a ccurately reflects the law and, in view of the further fact that the briefs understandably do not focus on the is sue, that it would be prudent to leave for determinati on on the remand the allocation of burdens on the just ification

defense.

Id. at 544.2 Thus, Paolello does not settle the que stion

before us.

The two other cases, United States v. Santos, 932 F .2d 244 (3d Cir. 1991), and United States v. Smith , 94 9 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 placemen t of the burden of persuasion for affirmative defenses t hat do not negate an element of the crime charged. In Sant os, we reviewed under a plain error standard a jury instru ction

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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.

8regarding the burden of persuasion on a duress defe nse to

cocaine distribution and conspiracy charges. See Sa ntos, 932 F.2d at 245, 250. We found no plain error in an instruction that put an initial burden of persuasio n on the defendant to prove the duress defense by a preponde rance of the evidence; were the defendant to make this in itial showing, the burden would then shift to the governm ent 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 tr ial judge did not sufficiently explain the meaning of the "preponderance of the evidence" standard to the jur y. While the government correctly states, and the District C ourt also found, that Santos enshrines into the law of our co urt the principle that "there is no constitutional bar to p lacing the burden upon a defendant to prove the affirmative de fense of duress by a preponderance of the evidence where the crime charged contains no requirement of mens rea," id. a t 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 defenda nt. We conclude that Santos, like Paolello, leaves the que stion

before us unanswered.

Although Smith presents circumstances much differen t from those before us, it contains some discussion o f 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 de gree 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 bu rden to disprove affirmative defenses, but Smith does n ot 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 Sant os, does state that the jury instruction in Santos, although "erroneous," did "correctly place[ ] upon the gover nment the ultimate burden of proving duress beyond a reasonab le

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

dissent refers to the charge given in Santos as bei ng erroneous, though not plainly erroneous. See Smith, 949 F.2d at 688 (Alito, J., dissenting). However, the S mith panel's characterization of the Santos decision is dictum, and, as we have noted earlier, Paolello, decided af ter Smith, clearly did not regard the question of the appropri ate burden of proof on affirmative defenses as a settle d 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 thi s topic. See Dodd Br. at 12 ("The vast majority of the circu its have held that, absent congressional legislation to the contrary, the government bears the burden of disproving an affirmative defense, such as justification or dures s, so long as the defendant has produced some evidence in supp ort of the defense."); Gov't Br. at 19 ("All but one of th e circuits that have specifically addressed the issue have hel d that, in the context of crimes that do not require specific intent or mens rea, the burden of proof as to justification i s 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 char ge, not the more general question of the placement of the burde n of persuasion on affirmative defenses that do not nega te an

element of the offense.

Two Courts of Appeals have addressed the precise is sue before us, and have reached opposite conclusions. W e have already described the Seventh Circuit Court of Appe als' decision in United States v. Talbott, which rested on the assumption that Congress's silence as to the burden of

10persuasion on this defense left the courts powerles s 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 bu rden of persuasion, but also as to whether the defense itse lf was available. Just as we have the power to read the tr aditional common-law defense into the statute, we have the po wer to determine the applicable burden of persuasion. Talb ott also relied upon the existence in its court of a pattern jury instruction on point, which placed the default burd en of persuasion on the government to disprove affirmativ e defenses beyond a reasonable doubt; we have no such pattern jury instruction in the Third Circuit.3 Bec ause the Seventh Circuit Court of Appeals' analysis rested a lmost entirely on its conclusion that the court was witho ut power to place the burden of persuasion on the government , and on the further support of the Seventh Circuit patte rn jury instructions, we decline to follow the Talbott dec ision.

We view the Eleventh Circuit Court of Appeals as ha ving adopted a sounder approach. In United States v. Del eveaux, 205 F.3d 1292 (11th Cir. 2000), the United States C ourt of Appeals for the Eleventh Circuit ruled that the def endant in a S 922(g) case bears the burden of proving a justi fication defense by a preponderance of the evidence. The Del eveauxCourt emphasized that in the context of a felon-inpossession charge, the justification defense depend s on "additional facts and circumstances that are distin ct from the offense conduct." Deleveaux, 205 F.3d at 1299. The Deleveaux Court further explained:

[T]he justification defense is a limited def ense to a strict liability statute,4 which sought broa dly to prohibit

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3. Just as the case law in this area is divided as to the appropriate placement of the burden of persuasion, so are the p attern 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), superse ded by statute on other grounds as indicated in Stinson v. United Sta tes, 508 U.S. 36, 39 n.1 (1993). However, the general intent contained i n the S 922(g) offense is merely the baseline intent to possess the firear m; thus, the

distinction

between our nomenclature and that of the Eleventh C ircuit Court of Appeals does not obviate the applicability of the r easoning of the

Deleveaux Court.

11possession of firearms by convicted felons. The

justification defense also does not negate a ny element of this offense, but requires proof of addit ional facts

and circumstances distinct from the evidence relating to the underlying offense. . . . The defenda nt 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 th e case law already existing in our court, most notably Pao lello. While Paolello did not speak to the precise issue b efore 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 jus tification

defense . . . in the section 922 context in order t o achieve the statute's purposes," and approving this "restri ctive approach"). Deleveaux relies on Paolello for this p rinciple, 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 consi stent with our reasoning there.

We find Deleveaux to be persuasive and consistent w ith the background of the common law.5 At common law, t he defendant bore the burden of proving all affirmativ e defenses. See Patterson v. New York, 432 U.S. at 20 2 (1977) (stating that at common law, the burden of proving

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5. We also note the decision of the United States C ourt of Appeals for the Sixth Circuit in United States v. Wolak, 923 F.2d 1 193 (6th Cir. 1991). In Wolak, the Court of Appeals did not explicitly a nnounce a rule as to the appropriate placement of the burden of persuasi on on a "temporary innocent possession" defense to a S 922(g)(1) charg e, 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 poss ession] 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 defen se at issue here. Id.

12"affirmative defenses -- indeed, `all . . . circums tances of

justification, excuse or alleviation' -- rested on the defendant") (quoting 4 William Blackstone, Commenta ries *201); see also Mullaney v. Wilbur, 421 U.S. 684, 6 93 (1975). Although there has been something of a twen tiethcentury trend toward requiring the government to be ar the burden of persuasion on certain affirmative defense s, this trend has been by no means uniform across jurisdict ions or across types of defenses. See Patterson, 432 U.S. a t 207 n.10 ("Even so, the trend over the years appears to have been to require the prosecution to disprove affirma tive 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 Applicatio n of 18 U.S.C.A. S 17, Providing for Insanity Defense in Fe deral Criminal Prosecutions, 118 A.L.R. Fed. 265, 265 (19 94) (describing how public outcry following John Hinckl ey'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 a s amended at 18 U.S.C. S 17(b) (2000)) (shifting to t he defendant "the burden of proving the defense of ins anity by clear and convincing evidence")). An examination of appellate decisions concerning the burden of persua sion on other affirmative defenses reveals a quite divided jurisprudence, without any clear default rule as to how affirmative defenses generally should be treated. F or example, in the case of duress or coercion defenses

, appellate courts have set differing rules for alloc ating the burden of persuasion in various circumstances.6 Com pare,

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6. We include a description of these duress and coe rcion cases merely as an example of the variety with which courts have tr eated the burden of persuasion on common-law affirmative defenses. We d o not believe that the duress and coercion cases are sufficiently simi lar 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 De fenses 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

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

1994) (stating, in a case involving a duress defens e to a charge of carrying a firearm during the commission of a drug trafficking crime, that the defendant bears th e burden of proof of "a justification defense such as duress "), and United States v. Dominguez-Mestas, 929 F.2d 1379, 1 380 (9th Cir. 1991) (per curiam) (holding that defendan t has the burden of proving duress defense to a charge of unl awful 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 possessi ng cocaine with the intent to distribute it, the gover nment must disprove a duress defense beyond a reasonable doubt once the defendant has laid "a predicate warranting a duress instruction"), United States v. Mitchell, 72 5 F.2d 832, 836 (2d Cir. 1983) (placing burden of persuasi on on government to disprove duress defense to armed bank robbery charges, once the defendant has sufficientl y placed the defense in issue), and United States v. Campbel l, 609 F.2d 922, 925 (8th Cir. 1979) (holding, in bank rob bery and escape case, that, once the accused has placed befo re the court "facts giving rise to a coercion defense," th e government "must rebut the issues of coercion beyon d a reasonable doubt").8

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reasons described above, our own holding in this ca se is limited to the circumstances presented here -- the justification d efense 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 relevan t 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 so me persuasive force, we find Deleveaux, which more clearly matche s the scenario at issue in our case, to be the better guide to our de cision.

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 affirmativ e defenses generally. See Federal Judicial Center Pattern Criminal Jury I nstructions S 56

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

should follow the same analytical course in allocat ing 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 J acobson v. United States, 503 U.S. 540, 548-49 (1992); Unit ed States v. Wright, 921 F.2d 42, 44 (3d Cir. 1990). In light of the diversity of analytical solutions that the appellat e courts have reached with respect to various affirmative de fenses, however, we reject any argument that consistency de mands we follow the entrapment precedents in this case. Entrapment is a very different defense from the jus tification

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(1988) (placing burden of disproving duress defense on government); First Circuit Pattern Criminal Jury Instructions, i ntro. cmt. (1998) (stating that, except in the case of the insanity d efense, the burden of persuasion on affirmative defenses is on the govern ment); 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 requi res mens rea") (emphasis added); Fifth Circuit Pattern Criminal Ju ry Instructions S 1.36 (1997) (placing burden of persuasion on defendant o n justification, coercion and duress defenses, but noting that this practice is "[c]ontrary to many other circuits"); Sixth Circuit Pattern Cri minal Jury Instructions S 6.05 (1991) (placing burden on the government on coercion and duress defenses, but noting that "significant modification s must be made in this instruction" in the case of a justification defense to a felon-inpossession charge); Seventh Circuit Pattern Criminal Jury Inst ructions S 4.01 (1999) (stating that, for affirmative defenses other than insanity defense,

burden of persuasion is on government); Eighth Circuit Mod el Criminal Jury Instructions S 3.09 (1996) (similar to Seventh Circ uit); Ninth Circuit Model Criminal Jury Instructions S 6.4.2 (1997) (pl acing burden of persuasion on defendant for affirmative defenses th at do not negate an element of the offense). We note that the relevant Eleventh Circuit pattern instruction, Eleventh Circuit Pattern Crimi nal Jury Instructions S 15 (1997), which appears to place the burden of p ersuasion on the government, contains language suggesting that such placement is only appropriate in cases where the offense has a high m ens rea requirement; furthermore, it seems clear that Deleveaux at least partially supersedes this pattern jury instruction.

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

entrapment, there must be some evidence that govern ment agents have had an inappropriate role in bringing a bout the criminal behavior alleged. It seems reasonable that the government should bear the burden of disproving a d efense whose very essence is the allegation of illegitimat e 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 a ctivity' of law-enforcement officials.") (quoting Sorrells v. U nited States, 287 U.S. 435, 451 (1932)). In contrast, the justification defense to a felon-in-possession char ge 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 de fense in this scenario are more easily accessible to the def endant than to the government. See Deleveaux, 205 F.3d at 1300 ("[T]here are strong practical considerations in fa vor 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 usuall y be bestsituated to produce evidence relating to each eleme nt of this affirmative defense.").

We conclude that a rule that places the burden of persuasion on the defendant with regard to a justif ication defense to a felon-in-possession charge is constitu tionally permissible, consonant with the common law, prefera ble for practical reasons, and faithful to the strictness o f the statute into which we have read this justification defense.9

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9. We reject Dodd's argument that putting the burde n of proof on the defendant on an affirmative defense will unduly con fuse the jury. The cases cited by Dodd in support of this argument, se e 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 th e 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 plac ed the burden of persuasion on one element of a defense on the gover nment, and on

another element on the defendant. While such bifurc ated jury instructions might be confusing, the simpler instru ction at issue here would not be. In this particular case, Judge Gawthr op gave a jury instruction that clearly placed the burden of persu asion on the defendant on his justification defense. See supra p age 4.

16We 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