PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________ 

No. 11-2875

_____________

 

UNITED STATES OF AMERICA

v.

AARON TAYLOR,

Appellant 

_____________

Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Criminal No. 2-07-cr-00288-001)

District Judge: Honorable Paul S. Diamond

_____________ 

Argued May 22, 2012

Before: RENDELL, FUENTES and HARDIMAN,

Circuit Judges

(Opinion Filed : July 25, 2012 ) 

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2

Mark E. Cedrone, Esq. [ARGUED]

Law Offices of Mark E. Cedrone

123 South Broad Street, Suite 810

Philadelphia, PA 19109

 Counsel for Appellant

Virgil B. Walker, Esq. [ARGUED]

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

 Counsel for Appellee 

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OPINION OF THE COURT 

_____________

RENDELL, Circuit Judge.

This case requires us to consider whether, by including 

“without just cause or excuse” in the federal assault with a 

dangerous weapon statute, 18 U.S.C. § 113(a)(3), Congress 

intended to convert justification, ordinarily a common-law 

defense, into an element of the offense as to which the 

government bears the burden of proof beyond a reasonable 

doubt. Applying relevant Supreme Court precedent, we 

conclude that the existence of just cause or excuse is an 

affirmative defense to a § 113(a)(3) violation, and the 

defendant bears the burden of proving it by a preponderance 

of the evidence. Taylor also raises two issues relating to his 

testimony and offers of proof regarding justification for the 

assault and complains that he was selectively prosecuted. We 

conclude, however, that none of those arguments has merit. 

We will affirm the judgment of the District Court.
3

I.

A. Factual Background

In the fall of 2006, defendant Aaron Taylor, who had 

been convicted of drug and weapons charges, was an inmate 

at the Federal Detention Center (FDC) in Philadelphia. 

Because of some prior disciplinary violations, including 

previous prison assaults, Taylor was assigned to the Special 

Housing Unit (SHU), separate from the general prison 

population. 

Prisoners in the SHU are allowed one hour of 

recreation a day, five days a week, in a fifteen-by-fifteen foot 

yard. Before each session, a guard asks every inmate whether 

he would like to take or decline recreation. Two guards then 

handcuff each inmate who desires recreation and transport 

him to one of five enclosed yards. After the inmate enters the 

yard, he turns his back to the locked door and places his 

cuffed hands into a slot (also called a “wicket”) so the guards 

on the other side of the door can uncuff him. The same 

process occurs at the end of the hour: one at a time, the 

inmates back up to the wicket so the guards can handcuff 

them. Once all of the inmates have been handcuffed, the 

guards unlock the door and transport the inmates back to their 

cells. According to a prison guard who testified at Taylor‟s 

trial, an inmate may decline recreation, and be returned to his 

cell, at any time during the hour. 

According to Taylor, racial tensions at the FDC were 

inflamed in September 2006 when a white, female 

psychiatrist told Taylor, who is black, to stop looking at her. 

Wayne Maruzin, a white inmate, overheard the exchange and, 

according to Taylor, later discussed the incident with Peter 
4

Bistrian, another white inmate. Bistrian then threatened 

Taylor. About a week later, Taylor filed a complaint with the 

warden asserting that the psychiatrist‟s comments were 

racially motivated and exacerbated racial tension among the 

inmates. 

In early October 2006, a guard mistakenly gave Taylor 

an extra razor blade. Taylor used the extra blade to fashion a 

knife, or “shank.” 

Then, on October 12, 2006, Taylor was placed in the 

same recreation yard with Bistrian. The guards removed 

Taylor‟s handcuffs before they removed Bistrian‟s, and the 

two paced the yard for almost the entire hour. Taylor testified 

that Bistrian did not make any aggressive move towards him 

during the hour, but, after half an hour, Bistrian asked him 

what he was looking at and, later, told him he was “going 

down,” which Taylor understood to mean that Bistrian was 

“going to come after” him.

At the end of the hour, Bistrian backed up to the 

wicket to be handcuffed. Taylor, who had not yet been 

handcuffed, followed Bistrian, and, as soon as Bistrian was 

handcuffed, attacked him. Taylor punched Bistrian and 

slashed his face, arms, and legs with the shank. Bistrian fell 

to the ground and kicked at Taylor. Taylor ignored the 

guards‟ repeated commands to stop and continued attacking 

Bistrian for more than two-and-a-half minutes. The guards 

used three cans of pepper spray to try to subdue Taylor but 

did not succeed until they tossed a “flash bang” grenade into 

the yard, stunning him. When the guards entered the yard, 

Taylor told them repeatedly that he “had to get” Bistrian

before Bistrian got him. Bistrian was treated at the hospital 
5

for deep cuts to his face, arms, and legs. The entire incident 

was captured on video by the FDC‟s surveillance cameras.

B. Procedural History

Taylor was indicted and charged with assault with a 

dangerous weapon, under 18 U.S.C. § 113(a)(3), and assault 

resulting in serious bodily injury, under 18 U.S.C. 

§ 113(a)(6), in May 2007. The government ultimately sought 

dismissal of the second count, and the case went to trial on a 

single count of assault with a dangerous weapon on 

November 30, 2010. Taylor did not dispute that he had 

attacked Bistrian, but attempted to show that he was justified 

in doing so. Taylor was convicted on December 3, 2010, and, 

on June 28, 2011, was sentenced to 120 months in prison, to 

be served consecutively to the federal sentence he was 

serving when the assault occurred.

Before trial, Taylor moved to dismiss the indictment 

for selective prosecution. His theory was that the prosecution 

was racially motivated because he was charged for this 

assault, on a white victim, but had not been charged for an 

earlier assault, also using razor blades, on two black inmates. 

The District Court denied the motion without ordering the 

government to produce discovery or holding a hearing.

Also before trial, the government filed motions in 

limine for a hearing on, and then to preclude altogether, 

Taylor‟s justification defense. The government argued that 

Taylor‟s evidence, which consisted of testimony from Taylor, 

several fact witnesses, and an expert on prison culture and 

would have described the racial tensions in the prison and 

asserted that Bistrian‟s threats against Taylor justified the 

attack, failed to establish the defense as a matter of law. 
6

In this Circuit, the elements of justification are:

First, that [the defendant] was 

under an immediate, unlawful 

threat of death or serious bodily 

injury to himself or to others;

Second, that [the defendant] had a 

well-grounded [or reasonable]

fear that the threat would be 

carried out if he did not commit 

the offense;

Third, that [the defendant‟s] 

criminal action was directly 

caused by the need to avoid the 

threatened harm and that [the 

defendant] had no reasonable, 

lawful opportunity to avoid the 

threatened harm without 

committing the offense; that is, 

that [the defendant] had no 

reasonable lawful opportunity 

both to refuse to do the criminal 

act and also to avoid the 

threatened harm; and 

Fourth, that [the defendant] had 

not recklessly placed himself in a 

situation in which he would be 

forced to engage in criminal 

conduct.

Third Cir. Model Crim. Jury Instr. § 8.04. 
7

The District Court held a hearing on November 22, 

2010, at which Taylor made an offer of proof. Two days 

later, the District Court denied the government‟s motion 

without prejudice and decided to allow Taylor to testify. The 

Court stated, “I‟m going to allow the defendant to testify to 

whatever the defendant is going to testify to. . . . [I]f the 

defendant testifies to justification, whether or not I allow the 

defendant to call any other witnesses to support that will 

depend entirely on what the defendant has to say.” At the 

same time, the District Court made clear that it was skeptical 

of the merits of Taylor‟s proffer: 

Mr. Cedrone [Taylor‟s attorney], 

as you described [Taylor‟s] 

testimony yesterday, it doesn‟t 

cover all the elements [of a 

justification defense] and the ex 

parte submission you‟ve made 

today . . . also doesn‟t cover all 

the elements. . . . . 

However, I‟m not going to —

whatever discretion I may have to 

preclude a defendant‟s testimony 

with respect to justification, I‟m 

not going to exercise that 

discretion. I‟m going to allow the 

defendant to testify, tell his story, 

and at the conclusion of his 

testimony we will revisit the issue 

of whether or not you may call 

any witnesses to corroborate that.
8

Just to give you an idea of what 

my thinking is, based on your 

proffer, your proffer does not 

offer a defense of justification. It 

covers, perhaps, one element but 

it certainly doesn‟t cover all the 

required elements.

The government objected to the District Court‟s ruling, 

arguing that, because of the lack of support for his defense, 

Taylor should not be allowed to testify as to justification. 

At trial, Taylor moved for a judgment of acquittal after 

the prosecution rested its case. The District Court denied the 

motion. Taylor took the stand and presented his version of 

the events surrounding the attack. Before he was allowed to 

present additional witnesses, however, the District Court 

asked Taylor for a second offer of proof. Taylor proffered the 

testimony of five fact witnesses and his prison-culture expert. 

None of the proposed witnesses actually saw the assault; 

Taylor proposed that they would testify about the earlier 

incident with the prison psychiatrist, the resulting racial 

tensions, and the fact that Bistrian knew how to escape from 

handcuffs and use them as a weapon (to bolster Taylor‟s 

theory that Bistrian was more dangerous when cuffed than 

when the inmates were pacing together in the yard). After 

Taylor‟s proffer, the District Court precluded him from 

putting on any of the proffered witnesses. It reasoned as 

follows:

I believe [Taylor] had a 

reasonable lawful opportunity to 

avoid this simply by asking to be 

taken out of the cage. I believe 
9

that [Taylor] acted recklessly by 

remaining in the cage, where 

according to [Taylor], he was 

being taunted. He was being 

taunted a half hour before the 

attack, and he remained in the 

cage and didn‟t ask to be taken 

out.

And so assuming for a moment 

that I have to accept the absurd 

notion that a man is more 

dangerous and creates an 

imminent threat when he puts 

himself in handcuffs and that 

[Taylor‟s] attack on him for . . .

. . . 

Two minutes and thirty-seven 

seconds, [Taylor] was attacking 

Mr. Bistrian with a deadly 

weapon through three cans of OC 

spray, I just think you haven‟t 

remotely made out justification. I 

don‟t think there was an 

immediate unlawful threat of 

death or serious bodily injury to 

himself or others.

I think that taking all the evidence 

in the light most favorable to 

[Taylor], I don‟t think [Taylor] 

thought he was about to attack 
10

him. I think [Taylor‟s] testimony 

is that he was concerned that he 

might, and he was going to get 

him first. Taking [Taylor‟s] 

testimony as true, I think your 

client wanted to do a preemptive 

strike, and he thought at some 

point, accepting what he says is 

true, that Mr. Bistrian was going 

to attack him, but certainly not in 

that cage, certainly not in that 

cage.

And second, that he had a well 

grounded fear or a reasonable 

belief that the threat would be 

carried out if he did not commit 

the offense. Each time he cut Mr. 

Bistrian, that could be construed 

as a separate assault. And 

certainly by the time Mr. Bistrian 

was on the ground, and [Taylor] 

continued to cut him with the 

knife, he couldn‟t possibly have 

had a well grounded or reasonable 

fear that the threat would be 

carried out if he didn‟t keep 

knifing him.

But perhaps, perhaps most 

significantly, that Mr. Taylor‟s 

criminal action was directly 

caused by the need to avoid the 

threatened harm, and that Mr. 
11

Taylor had no reasonable lawful 

opportunity to avoid the 

threatened harm without 

committing the offense. I think 

he plainly did, and he didn‟t avail 

himself of that opportunity. He 

didn‟t even try. He never asked 

the guard to be taken out. And I 

don‟t think that — I don‟t think he 

availed himself of that reasonable 

lawful opportunity.

And so although I would allow 

[Taylor] to call Mr. Bistrian 

because he‟s the victim of this 

case, [Taylor has] elected not to 

call Mr. Bistrian, and the other 

witnesses, I believe down to the 

expert, do not provide . . . , 

accepting everything they say is 

true, don‟t provide [Taylor] with a 

complete defense of justification, 

and so I have the discretion to 

preclude the presentation of that 

defense.

The District Court instructed the jury that the government 

bore the burden of proving beyond a reasonable doubt that 

Taylor: (1) struck Bistrian intentionally; (2) used a dangerous 

weapon, i.e., a razor, as charged in the indictment; (3) acted 

with the intent to cause bodily harm; and (4) intentionally 

struck Bistrian within the special maritime and territorial 

jurisdiction of the United States. The District Court declined 
12

to provide any instruction concerning a just cause or excuse 

for the offense. 

After his conviction, Taylor moved for acquittal and 

for a new trial. The District Court issued a 19-page written 

opinion denying the motions and explaining, among other 

things, its decisions to preclude Taylor from offering 

additional witnesses and not to instruct the jury about 

justification. In response to Taylor‟s argument that the 

absence of just cause or excuse is an element of an 18 U.S.C. 

§ 113(a)(3) offense, the District Court concluded that the 

absence of just cause or excuse is an affirmative defense to, 

not an element of, a § 113(a)(3) violation. 

Taylor now appeals.1

II.

On appeal, Taylor first argues that the District Court 

erred in failing to instruct the jury that the absence of just 

cause or excuse is an element of an 18 U.S.C. § 113(a)(3) 

offense that the government must establish by proof beyond a 

reasonable doubt. 18 U.S.C. § 113(a)(3) provides:

Whoever, within the special 

maritime and territorial 

jurisdiction of the United States, 

is guilty of an assault shall be 

punished as follows . . . Assault 

 

1

The District Court had jurisdiction over this case under 18 

U.S.C. § 3231. Our jurisdiction to review the judgment of 

conviction arises under 28 U.S.C. § 1291.
13

with a dangerous weapon, with 

intent to do bodily harm, and

without just cause or excuse, by a 

fine under this title or 

imprisonment for not more than 

ten years, or both.

(emphasis added). The language of this provision is unique in 

the federal assault statute, 18 U.S.C. § 113: of the seven 

types of assault listed, only this provision, for assault with a 

dangerous weapon, includes a specific reference to “just 

cause or excuse.” Although we cannot be sure why Congress 

included those words in subsection (a)(3), but not in the other 

subsections of the statute, the weight of the authority and

relevant Supreme Court precedent support the District Court‟s 

conclusion that they refer to an affirmative defense that the 

defendant bears the burden of proving by a preponderance of 

the evidence.

Few cases have discussed this point in any detail. But, 

as both parties acknowledge, the great majority of cases 

describing the elements of § 113(a)(3) or its predecessor, 

§ 113(c), state (without much, or any, supporting analysis) 

that a conviction under that subsection requires proof of only 

three elements: (1) assault; (2) with specific intent to inflict 

bodily harm; and (3) use of a “dangerous weapon.” See, e.g., 

United States v. Herron, 539 F.3d 881, 886 (8th Cir. 2008) 

(“The elements of Assault with a Dangerous Weapon require 

that the defendant: 1) assault the victim; 2) intend to do 

bodily harm; and 3) use a dangerous weapon to commit the 

assault.”); United States v. Smith, 520 F.3d 1097, 1101 (9th 

Cir. 2008) (stating that assault with a dangerous weapon 

under 18 U.S.C. § 113(a)(3) “has three elements: (1) that the 

defendant intentionally struck or wounded the victim; (2) that 
14

the defendant acted with the specific intent to do bodily harm; 

and (3) that the defendant used a „dangerous weapon‟”); see 

also United States v. Estrada-Fernandez, 150 F.3d 491, 494 

(5th Cir. 1998) (per curiam); United States v. Sturgis, 48 F.3d 

784, 786 (4th Cir. 1995); United States v. Johnson, 967 F.2d 

1431, 1433 (10th Cir. 1992), abrogated on other grounds by

Lewis v. United States, 523 U.S. 155, 162 (1998). These 

cases do not list the lack of a just cause or excuse as an 

element of the offense. 

Another line of cases acknowledges the statute‟s 

“without just cause or excuse” language and explicitly 

concludes that the government does not need to plead or 

prove the absence of a just cause or excuse to secure a 

conviction under § 113(a)(3). The most recent of these, and 

the one on which the District Court primarily relied, is United 

States v. Guilbert, 692 F.2d 1340 (11th Cir. 1982). In that 

case, after reciting the three elements of assault with a 

dangerous weapon listed above, the court said, “[t]he 

existence of „just cause or excuse‟ for the assault is an 

affirmative defense, and the government does not have the 

burden of pleading or proving its absence.” Id. at 1343. The 

opinion cites a string of cases for that proposition, the most 

substantive of which is Hockenberry v. United States, 422 

F.2d 171 (9th Cir. 1970). There, the court reasoned:

It was not necessary [for the 

indictment] to recite that the 

assault was „without just cause or 

excuse.‟ If there was such cause 

or excuse, the defendant could 

show it; the government did not 

have the burden of pleading or 

proving its absence. By a rule of 
15

long standing, „an indictment or 

other pleading founded on a 

general provision defining the 

elements of an offense, or of a 

right conferred, need not negative 

the matter of an exception made 

by a proviso or other distinct 

clause, whether in the same 

section or elsewhere, and * * * it 

is incumbent on one who relies on 

such an exception to set it up and 

establish it.‟

Id. at 173 (quoting McKelvey v. United States, 260 U.S. 353, 

357 (1922)). Although the reasoning in these cases is not 

extensive, they support the District Court‟s conclusion.

2

 

2

Taylor seeks to distinguish these cases by pointing out that 

Hockenberry, which arose out of a challenge to indictment, 

concerned which party bears the burden of pleading

justification, not which party bears the burden of proving that 

issue. He does not explain the significance of that distinction, 

but he presumably intends to argue that, by including the 

“without just cause or excuse” language in the statute, 

Congress set up a burden-shifting scheme in which the 

defendant bears the burden of raising a justification that the 

government must then disprove beyond a reasonable doubt. 

As we discuss below, the Supreme Court‟s decision in Dixon 

v. United States, 548 U.S. 1 (2006), forecloses any such 

argument. Moreover, even though Taylor is right that 

Hockenberry involved a pleading question, Guilbert did not: 

the issue in that case was whether the evidence was sufficient 

to support a conviction, which necessarily entails the question 
16

To counter all of this authority, Taylor cites a single 

case: United States v. Bordeaux, 570 F.3d 1041 (8th Cir. 

2009). In Bordeaux, the Eighth Circuit Court of Appeals, 

considering a sufficiency-of-the-evidence challenge to a 

§ 113(a)(3) conviction, included “acted without just cause or 

excuse” in a list of elements of the offense, and analyzed 

whether the government “presented sufficient evidence that 

Bordeaux acted without just cause or excuse.” Id. at 1047-48. 

But the court did not consider whether that element should 

more properly be treated as an affirmative defense, and the 

government does not appear to have raised the issue. 

Additionally, as the government points out here, the court‟s 

interpretation of the offense in Bordeaux is inconsistent with 

another of its cases from the previous year, in which it 

omitted the “just cause or excuse” language from a recitation 

of the elements of the offense. See Herron, 539 F.3d at 886. 

Given these facts, Bordeaux does not present an especially 

compelling counterpoint to the numerous cases suggesting

that “just cause or excuse” is an affirmative defense.3

 

of the burden of proof. Thus, even if Hockenberry is 

distinguishable on the ground Taylor suggests, Guilbert is 

not.

3 United States v. Wycoff, 545 F.2d 679 (9th Cir. 1976), 

which Taylor raised in a post-argument submission, is 

similarly unhelpful. There, the court merely affirmed a 

defendant‟s assault-with-a-dangerous-weapon conviction over 

a challenge that the district court failed properly to notify the 

defendant of a change in the jury instructions. Id. at 683. 

The district court had decided, at the last minute, to include 

the absence of just cause or excuse as an element of the 
17

Relevant Supreme Court precedent also supports the 

District Court‟s interpretation. Specifically, in McKelvey v. 

United States, 260 U.S. 353 (1922), the Supreme Court 

rejected an argument that the government erred in failing to 

charge in an indictment that the defendant did not fall within 

an exception contained in the statute.4 It stated:

 

offense in its instructions. The government did not dispute, 

and the court did not analyze, the substance of that decision.

4 McKelvey involved a charge of unlawfully obstructing free 

passage over unoccupied public lands of the United States. 

The relevant statute stated:

That no person, by force, threats, 

intimidation, or by any fencing or 

inclosing, or any other unlawful 

means, shall prevent or obstruct, 

or shall combine and confederate 

with others to prevent or obstruct, 

any person from peaceably 

entering upon or establishing a 

settlement or residence on any 

tract of public land subject to 

settlement or entry under the 

public land laws of the United 

States, or shall prevent or obstruct 

free passage or transit over or 

through the public lands: 

Provided, this section shall not be 

held to affect the right or title of 

persons, who have gone upon, 
18

By repeated decisions it has come 

to be a settled rule in this 

jurisdiction that an indictment or 

other pleading founded on a 

general provision defining the 

elements of an offense, or of a 

right conferred, need not negative 

the matter of an exception made 

by a proviso or other distinct 

clause, whether in the same 

section or elsewhere, and that it is 

incumbent on one who relies on 

such an exception to set it up and 

establish it.

Id. at 357. Although McKelvey dealt solely with the 

sufficiency of an indictment, the last sentence of the quoted 

passage suggests that a defendant relying on an exception 

must both raise the exception and “establish it.” In other 

words, where the statute contains such an exception, the 

defendant bears the burden of proving it.

5

 

improved or occupied said lands 

under the land laws of the United 

States, claiming title thereto, in 

good faith.

260 U.S. at 356 (quoting 23 Stat. 321 (Comp. St. § 4999)).

5 We use McKelvey to illustrate our point here because it is 

often cited as the source of this rule. See, e.g., Dixon, 548 

U.S. at 13-14. In fact, however, numerous Supreme Court 

decisions before McKelvey, dating back at least to 1841, held 
19

Of course, that is not the end of the analysis: applying 

the McKelvey rule in this case naturally begs the question 

whether the “just cause or excuse” language in § 113(a)(3) 

qualifies as an “exception made by a proviso or other distinct 

clause.” Whether a particular statutory phrase constitutes a

defense or an element of the offense under McKelvey turns on 

whether “the statutory definition is such that the crime may 

not be properly described without reference to the exception.” 

United States v. Prentiss, 206 F.3d 960, 973 (10th Cir. 2000) 

(citing United States v. Cook, 84 U.S. 168, 173-74 (1872)), 

aff’d in relevant part, 256 F.3d 971, 980 (10th Cir. 2001) (en 

banc). If so, the exception is an element of the crime. If not, 

the exception is a defense. We conclude that, under the plain 

language of McKelvey as supplemented by this test, the “just 

cause or excuse” is a defense to, rather than an element of,

§ 113(a)(3). 

As McKelvey requires, the “without just cause or 

excuse” language in § 113(a)(3) appears in a “distinct 

clause,” set off by commas from the rest of the statute. This 

alone is not dispositive, however, since the phrase “with 

 

that the party who wishes to rely on an exception to an Act of 

Congress must raise it and establish it. See, e.g., Schlemmer 

v. Buffalo, Rochester & Pittsburgh Ry., 205 U.S. 1, 10 (1907) 

(holding that a defendant who “wishe[s] to rely upon [a] 

proviso” bears “the burden . . . to bring itself within an 

exception”) (internal quotation marks omitted)) (Holmes, J.); 

United States v. Dickson, 40 U.S. 141, 165 (1841) (“In short, 

a proviso carves special exceptions only out of the enacting 

clause; and those who set up any such exception, must 

establish it as being within the words as well as within the 

reasons thereof.”).
20

intent to do bodily harm,” which does set forth an element, 

also appears in a distinct clause. More importantly, the 

former clause falls outside of the “definition” test set forth 

above because the offense may properly be described as an 

“[a]ssault with a dangerous weapon, with intent to do bodily 

harm,” without referencing the “just cause or excuse” 

language.6Indeed, as discussed above, most cases that have 

identified the elements of the offense have done precisely 

that. Thus, we have no problem concluding that the “without 

just cause or excuse” language in § 113(a)(3) is an “exception 

made by a . . . distinct clause,” such that, under McKelvey, “it 

is incumbent on” the defendant, “who relies on” the 

exception, “to set it up and establish it.” 260 U.S. at 357.

Another, more recent Supreme Court case, Dixon v. 

United States, 548 U.S. 1 (2006), reinforces our conclusion 

that Taylor bore the burden of establishing the existence of a 

just cause or excuse in this case. In Dixon, the defendant, 

who was indicted and tried on federal firearms charges, 

asserted a duress defense. She argued that as the defendant, 

she bore the burden of production on the defense, but that the 

burden then shifted to the government to disprove it beyond a 

reasonable doubt.

The Supreme Court disagreed. It first concluded that 

placing the burden of proving duress on the defendant did not 

 

6

Taylor effectively concedes this point in his brief, when he 

states that the statute “requires the government to prove the 

absence of „just cause or excuse‟ when applicable under the 

facts of a given case.” Appellant‟s Br. 31 (emphasis added). 

If, as Taylor suggests, the “just cause or excuse” language 

does not apply in every case, then, plainly, the absence of a 

just cause or excuse is not an essential element of the offense.
21

violate the Due Process Clause of the Constitution because 

proof of duress could “in no way disprove[] an element” of 

the firearm-possession charge, including the requisite 

“knowing” mens rea. Id. at 7; see also United States v. Dodd, 

225 F.3d 340, 344 (3d Cir. 2000) (“Although the Due Process 

Clause requires the government to prove all elements of the 

charged offense beyond a reasonable doubt, and therefore 

requires the government to disprove beyond a reasonable 

doubt any defenses that negate an element of the charged 

offense, 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.”). 

The Dixon Court also held that placing the burden of 

proving duress on the defendant in that case comported with 

federal common law. It noted that, “at common law, the 

burden of proving affirmative defenses—indeed, all . . . 

circumstances of justification, excuse or alleviation—rested 

on the defendant.” Dixon, 548 U.S. at 8 (internal quotation 

marks and citations omitted). This rule, the Court went on to 

explain, “accords with the general evidentiary rule that the 

burdens of producing evidence and of persuasion with regard 

to any given issue are both generally allocated to the same 

party” and “the doctrine that where the facts with regard to an 

issue lie peculiarly in the knowledge of a party, that party has 

the burden of proving the issue.” Id. (internal quotation 

marks and citations omitted). The Court then reasoned that, 

even though the firearm offense statute “does not mention the 

defense of duress,” it could “safely assume that the 1968 

Congress [that enacted the firearm statute] was familiar with 

both the long-established common-law rule and the rule 

applied in McKelvey” and that Congress “would have 

expected federal courts to apply a similar approach to any 
22

affirmative defense that might be asserted as a justification or 

excuse for violating the new law.” Id. at 13-14 (footnote 

omitted). In other words, the Court “presume[d] that 

Congress intended the petitioner to bear the burden of proving 

the defense of duress by a preponderance of the evidence.” 

Id. at 17.

The same logic applies in this case. The existence of 

just cause or excuse does not disprove the elements of assault 

under § 113(a)(3), namely, physical attack, intent to do bodily 

harm, and use of a dangerous weapon. Accordingly, under 

the rule of Dixon and Dodd, placing the burden of proving the 

absence of just cause or excuse on the defendant does not run 

afoul of the Due Process Clause. 

And, as Dixon makes clear, placing the burden of 

proving justification on Taylor in this case also is consistent 

with common law and basic principles of statutory 

interpretation. The same common-law rule that places the 

burden of proving duress on the defendant also applies to 

issues involving justification or excuse. Id. at 8. That rule 

makes sense here for the same reasons the Court noted in 

Dixon: it allocates the burdens of production and persuasion 

to the same party, and it places those burdens on the party 

with peculiar knowledge of the relevant facts. In this case, 

Taylor‟s justification defense depended on his testimony that 

he feared that Bistrian would attack him first and that he 

feared Bistrian would slip out of his handcuffs and use them 

as a weapon. Particularly given its inability to compel Taylor 

to testify, the government would have had a difficult time 

obtaining that information on its own. 

Moreover, the inference about congressional intent the 

Court relied on in Dixon — that, absent some indication to 
23

the contrary, Congress intended that the “long-established 

common-law rule” that the defendant bears the burden of 

proving justification or excuse and “the rule applied in 

McKelvey” would guide federal courts‟ analyses — applies 

with even greater force in this case.7 If we are to presume, as 

the Court did in Dixon, that Congress legislates with those 

rules in mind, then surely more than a simple reference to a 

particular defense, as in § 113(a)(3), is needed to evince 

Congress‟s intent to convert a traditional common-law 

defense into an element of the government‟s affirmative case. 

Indeed, given that the Dixon Court considered the absence of 

any reference to a duress defense in the firearm statute to be a 

weakness, see, e.g., 548 U.S. at 13-14 (“Even though the Safe 

Streets Act does not mention the defense of duress, we can 

safely assume that the 1968 Congress was familiar with both 

the long-established common-law rule and the rule applied in 

McKelvey and that it would have expected federal courts to 

apply a similar approach to any affirmative defense that might 

be asserted as a justification or excuse for violating the new 

law.” (emphasis added) (footnote omitted)), the same 

inferences must apply even more forcefully in a case like this 

one, in which the statute specifically mentions the defense. 

Accordingly, we interpret § 113(a)(3)‟s reference to a 

justification or excuse as a reference to common-law 

 

7 We are aware that McKelvey was decided in 1922, whereas 

the relevant statutory language in this case was enacted 

earlier, in 1909. But, as noted above, the principle for which 

McKelvey stands was established and applied in numerous 

pre-1909 Supreme Court decisions. Thus, the substance of 

Dixon‟s presumption retains its force in this case.
24

justification and excuse defenses, which the defendant bears 

the burden of proving by a preponderance of the evidence.8

We do not lightly dismiss Taylor‟s textual argument,

that reading the statute in this way renders the words “without 

just cause or excuse” superfluous because courts have 

allowed defendants to raise common-law justification 

defenses to the other subsections of § 113 that do not contain 

 

8

For similar reasons, Dixon also forecloses Taylor‟s 

alternative argument that the reference to just cause or excuse 

in § 113(a)(3) implies a complicated burden-shifting 

paradigm, in which the burden shifts to the government to 

disprove justification beyond a reasonable doubt after the 

defendant raises the issue and adduces some evidence to 

support it. See Appellant‟s Reply Br. 5-6 (citing United 

States v. Lawrence, 349 F.3d 109, 122 (3d Cir. 2003)). For 

one thing, nothing in the text of the statute suggests such an 

approach. It would run counter to Dixon‟s presumption that 

Congress legislates with common-law principles in mind to 

conclude that Congress intended to set up a burden-shifting 

scheme when all it did was use the words “without just cause 

or excuse.” More directly, this is precisely the argument that 

the Supreme Court rejected in Dixon. Dixon conceded that 

she bore the burden of production on her duress defense, 548 

U.S. at 4, but argued that “modern common law” requires the 

government to disprove affirmative defenses beyond a 

reasonable doubt in criminal cases, see id. at 8. The Supreme 

Court rejected that argument and applied “[t]he longestablished common-law rule . . . that the burden of proving 

duress rests on the defendant” instead. Id. at 15. Taylor has

offered us no reason to conclude, contrary to Dixon, that the 

ordinary common-law rule does not govern this case as well.
25

that phrase. Indeed, we confess that, given the complete 

absence of legislative history and the fact that the language 

was first added to the statute in 1909, we cannot be entirely 

sure what Congress had in mind. But two additional points 

bolster our conclusion that “without just cause or excuse” is 

not an element of a § 113(a)(3) offense. First, although 

mindful of the general principle that we should avoid 

interpretations that effectively read words out of a statute, see, 

e.g., Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 

2001), we believe that the specific, on-point Supreme Court 

cases in this area, McKelvey and Dixon, take precedence over 

that broad, generally applicable canon of statutory 

interpretation here.

Second, we question the foundations of Taylor‟s 

argument. Taylor presumes that defendants charged with 

assaults under subsections of § 113 other than § 113(a)(3) 

may pursue common-law defenses, and, indeed, the 

government admits that its practice has been not to object to 

self-defense or other justification instructions in cases 

prosecuted under other subsections of § 113. But the 

government‟s practice is not conclusive evidence of 

congressional intent. Because “federal crimes are defined by 

statute rather than by common law,” United States v. Oakland 

Cannabis Buyers’ Coop., 532 U.S. 483, 490 (2001), the 

availability of common-law defenses to federal crimes is not a 

foregone conclusion, cf. id. at 491 (reserving the question 

whether common-law necessity “can ever be a defense when 

the federal statute does not expressly provide for it”); see also

Dixon, 548 U.S. at 13 & n.7 (assuming, without deciding, that 

common-law duress defense is available to federal statutory 

firearm crime). Perhaps, by including the “without just cause 

or excuse” language in the predecessor versions of 
26

§ 113(a)(3), but not in the other subsections of § 113, 

Congress intended to make common-law justification and 

excuse defenses available for assaults with a dangerous 

weapon, but not for the other assault offenses set forth in 

§ 113. We need not reach any definitive conclusion on this 

issue, however, because we are satisfied that the other reasons 

set forth above adequately support our conclusion as to the 

meaning of those words in § 113(a)(3).

In light of McKelvey, Dixon, and for the reasons 

discussed above, we agree with the District Court that in this 

case the burden of proving a “just cause or excuse” for the 

assault rested with Taylor, the defendant.

III.

Taylor raises three additional issues, none of which 

warrants reversal. First, Taylor challenges the District 

Court‟s exclusion of certain additional witnesses related to his 

justification defense and its refusal to instruct the jury on 

justification. But, as the District Court correctly found, the 

evidence plainly does not support such a defense. Second, 

Taylor argues that the District Court infringed his Fifth 

Amendment right against self-incrimination by “forcing” him 

to testify as a condition precedent to admitting the remaining 

evidence of his justification defense. In fact, though, the 

District Court did not force Taylor to testify at all, and it 

clearly informed him from the outset that the proffered 

evidence was insufficient to establish justification as a matter 

of law. Third, and finally, Taylor appeals the District Court‟s 

denial of his motion to dismiss the indictment for selective 

prosecution. Taylor‟s theory here — that he was prosecuted 

for an assault on a white inmate, but not for an earlier assault 

on two black inmates — does not suggest, let alone provide 
27

the required “clear evidence” of, discriminatory intent or 

effect.

A.

The District Court did not err in precluding Taylor 

from offering additional witnesses to support his justification 

defense or in refusing to include the defense in its jury 

charge. The tests for precluding a defendant from offering a 

defense and for denying an instruction on a particular defense 

are the same: whether the evidence presented (or proffered) 

is legally sufficient to support the defense. See United States 

v. Mike, 655 F.3d 167, 175 (3d Cir. 2011) (defendant whose 

evidence does not support a particular affirmative defense is 

not “entitled” to a jury instruction on that defense); United 

States v. Miller, 59 F.3d 417, 421-22 (3d Cir. 1995) (district 

court did not err in precluding defendant from offering 

evidence of duress where proffered evidence was insufficient 

to establish duress as a matter of law); cf. Mathews v. United 

States, 485 U.S. 58, 63 (1988) (“As a general proposition 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.” (emphasis added)). 

The District Court properly analyzed Taylor‟s proffer 

under the Model Jury Instructions,

9

and concluded that his 

 

9

Taylor‟s argument on appeal that the District Court applied 

the wrong test to evaluate his justification defense is 

meritless. The model instruction applies broadly across all 

types of cases. Moreover, although Taylor argues that the 

District Court should have evaluated his defense according to 

“general justification principles,” he does not articulate what 
28

proposed defense did not satisfy any of the required elements, 

as follows. First, Taylor was not facing an immediate threat 

of attack because Bistrian was handcuffed. Second, Taylor 

did not have a reasonable fear that the threat would be carried 

out if he did not attack Bistrian. Taylor‟s assertion that 

Bistrian was more dangerous in handcuffs, since he knew 

how to escape them and use them as a weapon, was belied by 

the fact that Taylor did not feel the need to attack Bistrian 

when he was handcuffed at the beginning of the recreation 

hour. Third, Taylor‟s attack was not directly caused by a 

need to avoid harm because it was not made in response to 

any immediate threat by Bistrian. Despite Bistrian‟s alleged 

verbal threat to Taylor during the recreation time, Bistrian 

and Taylor had been pacing together in the same cage without 

any physical contact for almost an hour before Taylor 

attacked. Moreover, Taylor did not take any steps to avoid 

any perceived threat, e.g., he did not report the threats to 

prison staff or ask to be removed from the yard at any time.

10

Fourth, and finally, by choosing to remain in the yard with 

Bistrian, rather than asking the authorities to take him back to 

his cell (which the prison guards testified they would have 

 

those principles are or how they differ from the modelinstruction standard the District Court applied.

10 Also, as the District Court pointed out in its oral decision, 

the attack continued for two minutes and thirty-seven 

seconds, despite the guards‟ use of three cans of pepper spray, 

and only ended when the guards used a “flash bang” grenade 

to stun Taylor. All of those facts are inconsistent with 

limited, defensive action that is necessary to avoid imminent 

harm.
29

done), Taylor recklessly placed himself in the situation that 

gave rise to the assault. 

The District Court‟s conclusions are manifestly 

correct. Moreover, as the District Court also noted, none of 

the testimony Taylor proffered would have remedied the 

defects the District Court identified. On this record, it is 

difficult to imagine any reasonable person reaching a contrary 

result. 

B.

Taylor argues that the District Court violated his Fifth 

Amendment rights by requiring him to take the stand as a 

condition precedent to the presentation of his justification 

defense. To support his argument, Taylor relies primarily on 

Brooks v. Tennessee, 406 U.S. 605 (1972), in which the 

Supreme Court held that a Tennessee statute that required 

defendants who intended to testify to take the stand as the 

first defense witness violated the Fifth Amendment. Noting 

that a defendant “cannot be absolutely certain that his 

witnesses will testify as expected or that they will be effective 

on the stand,” the Court held that the Tennessee statute “cast[] 

a heavy burden on a defendant‟s otherwise unconditional 

right not to take the stand” by forcing him to testify before the 

precise contours of the other witnesses‟ testimony were 

known. Id. at 609-11. The same thing happened in this case, 

Taylor argues, because the District Court suspended its ruling 

on the merits of his justification defense until after he 

testified, thereby denying Taylor the choice to remain silent 

depending on the testimony of the other witnesses. 

That argument fails on the facts. The District Court 

did not force Taylor to testify. Instead, it denied the 
30

government‟s request to preclude Taylor from testifying.11 

And, unlike in Brooks, the District Court here was not 

enforcing a blanket rule about defendant‟s testimony; it made 

a careful, case-specific and well founded decision after 

considering the defendant‟s proffer. Furthermore, the District 

Court made clear from the outset, before Taylor testified, that 

it did not believe that Taylor‟s testimony, standing alone or as 

corroborated by the proposed additional witnesses, would 

establish all of the necessary elements of a justification 

defense, allowing Taylor to make an informed decision as to 

whether he should testify. Thus, this case simply does not 

raise the same type of concerns as Brooks.

Moreover, as the District Court pointed out (and 

Taylor‟s counsel acknowledged), the testimony of the other 

witnesses, none of whom observed the actual assault, was 

offered only to “corroborate or support” Taylor‟s version of 

events. Absent Taylor‟s testimony, then, none of the other 

witnesses‟ testimony would even have been relevant to the 

case.

12

 Thus, the alternative to the District Court‟s ruling in 

 

11 Under the circumstances of this case, we need not, and do 

not, evaluate the District Court‟s statement that it could have 

precluded Taylor from testifying altogether.

12 In that respect, this case is like United States v. Singh, 811 

F.2d 758 (2d Cir. 1987), in which the Second Circuit Court of 

Appeals rejected a defendant‟s argument based on Brooks. 

There, the district court had precluded the defendant from 

pursuing certain lines of cross examination based on hearsay 

until the defendant offered a first-hand account of the 

underlying events. The Second Circuit concluded that “the 

[district] court did not compel appellant to testify at all”; 
31

this case was not that Taylor would have remained silent until 

all of the other witnesses testified, as the Court envisioned in 

Brooks; it was that all of the testimony, including Taylor‟s, 

would have been excluded.13 We do not find any Fifth 

Amendment violation in this case.

C.

Finally, Taylor appeals the District Court‟s decisions 

denying his motion to dismiss the indictment for selective 

prosecution and denying him discovery on that motion. His 

theory is that he was improperly selected for prosecution 

because his victim in this case was white. To support that 

 

instead, “[i]t merely refused to accept the proffered testimony 

of other witnesses until a proper foundation was laid.” Id. at 

762. The same is true here: Taylor‟s testimony provided the 

necessary foundation for the testimony of the other proposed 

witnesses. See generally Geders v. United States, 425 U.S. 

80, 86 (1976) (trial judge in a criminal case “may determine 

generally the order in which parties will adduce proof”; “may

refuse to allow cumulative, repetitive, or irrelevant 

testimony”; and must “exert substantial control over the 

proceedings”).

13 We note, further, that Taylor did not suffer any prejudice 

from the District Court‟s ruling. This is not a case in which 

the defendant would have been acquitted absent his 

purportedly forced testimony. Because the entire assault was 

captured on prison videotape, there was no question as to 

what happened or who was responsible for the assault; the 

only question was whether Taylor‟s actions were justified. 

And, as discussed above, the evidence Taylor proffered on 

that issue was legally insufficient to support his defense.
32

claim, he pointed out that he was not prosecuted for an earlier 

assault on two black victims.

When analyzing selective prosecution claims, we 

review district courts‟ findings of facts for clear error and the 

application of legal precepts de novo. United States v. 

Schoolcraft, 879 F.2d 64, 67 (3d Cir. 1989). The district 

court‟s denial of discovery on such a motion is reviewable for 

abuse of discretion. United States v. Hedaithy, 392 F.3d 580, 

605 (3d Cir. 2004).

To establish selective prosecution, the defendant must 

“provide evidence that persons similarly situated have not 

been prosecuted” and that “the decision to prosecute was 

made on the basis of an unjustifiable standard, such as race, 

religion, or some other arbitrary factor.” Schoolcraft, 879 

F.2d at 68. The defendant bears the burden of proof, id., and 

must establish each of these elements with “clear evidence” 

sufficient to overcome the presumption of regularity that 

attaches to decisions to prosecute, United States v. Armstrong, 

517 U.S. 456, 464 (1996). “The required threshold to obtain 

discovery” on such a motion is “some evidence tending to 

show the existence of the essential elements of the defense, 

discriminatory effect and discriminatory intent.” Hedaithy, 

392 F.3d at 607 (internal quotation marks omitted). 

Given these high standards, it is clear that the District 

Court in this case did not abuse its discretion by denying 

Taylor discovery or err in denying his motion to dismiss. 

That Taylor was prosecuted for one assault, but not for 

another, does not, without more, provide “clear evidence” of 

a discriminatory effect or discriminatory intent. Taylor has 

not offered any other examples of defendants who assaulted 

both white and black inmates, but were only prosecuted for 
33

assaulting the white inmates. And Taylor-after-the-secondassault is not “similarly situated” to Taylor-after-the-firstassault for the obvious reason that the incident that gave rise 

to the charges in this case occurred against the backdrop of 

Taylor‟s history of disciplinary problems, including the 

previous assault on the black inmates. Accordingly, Taylor 

did not present sufficient evidence to satisfy the threshold for 

obtaining discovery on his selective prosecution claim, let 

alone dismissal of the indictment on those grounds, and this 

argument does not provide any basis on which we could or 

should reverse the judgment of the District Court.

IV.

For the foregoing reasons, we will affirm the judgment 

of the District Court.