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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

United States of America,

Plaintiff,

v. Case No. 09-20127

Alex Johnson, Honorable Sean F. Cox

Defendant.

_________________________________/

OPINION & ORDER

PRECLUDING NECESSITY DEFENSE

In this action, Defendant Alex Johnson (“Defendant” or “Johnson”) is charged with being

a felon in possession of a firearm. This matter is currently before the Court on Johnson’s Motion

in Limine, wherein he asks this Court to make pretrial rulings as to whether the Court will permit

him to present evidence supporting a necessity defense and whether the Court will give jury

instructions regarding same. Johnson also asks the Court to make pretrial rulings on two other

evidentiary issues that may arise at trial. After briefing by the parties, the Court held an

evidentiary hearing on February 2, 2010, and also heard oral argument by the parties.

For the reasons set forth below, the Court shall DENY Johnson’s motion with respect to 

his requests relating to a necessity defense. The Court concludes that Johnson has failed to

establish a prima facie case of necessity pursuant to the five-factor test set forth in United States

v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990). Accordingly, the Court concludes that Johnson

is not entitled to a jury instruction on the defense of necessity and the Court shall preclude

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Johnson from introducing testimony or evidence at trial regarding a necessity defense. The

Court shall take the remaining evidentiary issues under advisement. 

BACKGROUND

The indictment in this action charges Johnson with one count of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (Docket Entry No. 3). He is

charged with knowingly possessing a “Ruger, .40 caliber, semi-automatic pistol” on October 10,

2008. (Id.).

On January 26, 2009, Johnson filed his Motion in Limine and the Government filed its

response on January 29, 2010. 

The Court held an evidentiary hearing on February 2, 2010. As indicated on the record,

the parties stipulated to the following facts, for purposes of this motion:

1. On May 15, 2008, an individual named Melvin Napier (“Napier”) was

killed at the 1400 block of Woodhall Drive in Flint, Michigan.

2. On August 13, 2008, an individual named James Fuller (“Fuller”) was

shot in the neck while inside of a vehicle at the intersection of Warrington

Drive and Canniff Street in Flint, Michigan. Johnson drove Fuller to the

hospital after he was shot.

3. On October 8, 2008, an individual named Demonte Counts (“Counts”)

was killed at the intersection of Fleming Road and Canniff Street in Flint,

Michigan at approximately 6:00 p.m.

4. On October 10, 2008, Johnson and an unidentified individual shot at each

other at the intersection of Fleming Road and Pierson Road in Flint,

Michigan, at approximately 1:00 p.m.

Johnson’s version of the events, as set forth in his testimony at the February 2, 2010

evidentiary hearing, is as follows.

Johnson’s date of birth is August 11, 1984. Johnson was convicted of receiving and

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The parties stipulated on the record that the top of the map is North, the bottom South,

the right side East and the left side West.

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concealing stolen property in 2002. Johnson stipulates that he had a felony conviction prior to

October 10, 2008.

The events at issue occurred in a discrete area of Flint, Michigan that is depicted on the

Government’s Exhibit 9. (Attached as Ex. 1 to this Opinion & Order).1

 Johnson testified that,

during the events at issue, there were ongoing problems between individuals from two rival

neighborhoods: 1) the “Selby Neighborhood;”and 2) the “Woodhall Neighborhood.” These two

neighborhoods are located South of Pierson Road and are divided by Fleming Road. The Selby

Neighborhood is located West of Fleming Road, while the Woodhall Neighborhood is located

East of Fleming Road. Some individuals from the Woodhall Neighborhood were in the

“Woodhall Gang” and some individuals from the Selby Neighborhood were in the “Selby Hood

Gang.” Although Johnson is from the Selby Neighborhood, he testified that he is not a part of the

Selby Hood Gang.

Johnson was not present when Napier was killed on May 15, 2008, but he was aware of

his death. Napier was from the Selby Neighborhood. Johnson testified that he did not believe

that his life was in danger after Napier was killed.

Approximately one week after Napier’s death, however, Johnson went into the Woodhall

Neighborhood. While Johnson was in the Woodhall Neighborhood, a man wearing a mask

starting shooting at Johnson’s vehicle, which at that time was a Thunderbird. No one else was in

the Thunderbird with Johnson. Johnson testified that he jumped out of the Thunderbird and ran

across Fleming Road. After he saw the police arrive, Johnson came back to the scene and spoke

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with the police about the shooting. Johnson then drove the Thunderbird home. Some of the

windows of the Thunderbird had been shattered and the vehicle had bullet holes in it. Johnson

testified that after that incident, he stayed out of the Woodhall Neighborhood. 

On August 13, 2008, Johnson was in a mini-van with Fuller, and two of Fuller’s friends,

when Fuller was shot in the neck. At the time of the shooting, the men were sitting in the

vehicle, which was parked in the Selby Neighborhood. Johnson, who was sitting in the driver’s

seat, then drove Fuller to Hurley Hospital. Fuller survived. While at the hospital, Johnson spoke

to the police about the incident and gave a statement to the police that same night. 

Johnson testified that, with respect to the above incident, he did not believe that the

Woodhall Gang had been targeting him. Rather, he thought it was a random shooting wherein

the Woodhall Gang “was just shooting up” the Selby Neighborhood. 

Johnson testified that on the night of August 13, 2008, he received a telephone call from

an unidentified individual who stated that the Woodhall Gang was going to kill everyone in the

Selby Neighborhood. Johnson testified that it was at this point that he first thought his life was

in danger. 

Johnson knew that Counts was a member of the Selby Hood Gang. Johnson testified

that while he is not a member of the Selby Hood Gang, he was close friends with Counts. 

Johnson was not with Counts when Counts was killed on October 6, 2008. Nevertheless,

Johnson received a second threatening telephone call from an unidentified caller on October 6,

2008, after Counts was killed.

Johnson received a third threatening telephone call on October 8, 2008, at which time the

unidentified caller stated that Johnson was being watched and that he would be the next one

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Johnson testified that he had obtained that gun well before October 8, 2008, when

Counts had been killed. 

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killed.

Johnson received a fourth threatening telephone call on October 9, 2008, when the

unidentified caller stated that Johnson was going to be killed the next day (i.e., October 10,

2008), that Johnson was being watched, and that they knew his every move. Johnson did not

receive any threatening telephone calls after October 9, 2008.

Johnson did not report any of the threatening telephone calls to the police prior to his

arrest on October 10, 2008. 

On October 10, 2008, Johnson was staying at his brother’s residence, at Westgate

Apartments on the South side of Flint. Johnson was staying at his brother’s residence because he

was afraid to go to his father’s home on Birchcrest, in the Selby Neighborhood.

On October 10, 2008, Johnson woke up and drove to work in his vehicle, which at that

time was a red Camaro. Johnson was working at “Genessee Cars” in Flint. At lunchtime,

Johnson left work and drove to his father’s house on Birchcrest, where Johnson retrieved a gun.2

After retrieving the gun, Johnson proceeded to drive to the Woodhall Neighborhood, to

try to locate an individual named Trent, who was part of the Woodhall Gang. Johnson testified

that he wanted to talk to Trent to try to diffuse the situation. Johnson testified that he knew that

Trent was associated with the men who were trying to kill him. Armed with the gun under his

driver’s seat, Johnson found Trent on Kermit Street – which is in “Woodhall territory.” Johnson

and Trent spoke to each other briefly, while they remained seated in their respective vehicles. 

Johnson testified that Trent hold him that he would talk to the others and tell them to leave

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Johnson alone.

Immediately after leaving Trent, Johnson wanted to get gasoline. Johnson chose to stop

at a gas station located at the intersection of Pierson and Fleming – on the borderline between the

two rival neighborhoods. Johnson testified that as he turned into the gas station, he saw a man

he did not recognize running toward his vehicle. The man was in all black and was wearing a

hooded sweatshirt. When the man began shooting at Johnson, Johnson reached under his seat,

retrieved his gun, and began returning fire. Johnson fired seven shots at the man, while Johnson

was driving the Camaro.

Johnson testified that he initially thought he had been shot. Although Johnson’s vehicle

had been proceeding in the direction of Hurley Hospital at the time that Johnson was shot at,

Johnson did not continue driving in that same direction. Rather, Johnson made a U-turn and

came right back in front of where the man had been shooting at Johnson. Johnson testified that

he made the U-turn so that he could go to his father’s house on Birchcrest to call the police. 

Thus, at that point Johnson was proceeding West on Pierson. 

Johnson testified that he first noticed that a police car was following him after he had

turned left on Cloverlawn from the intersection of Pierson and Cloverlawn. Johnson saw that the

police car’s lights were activated. Nevertheless, Johnson did not stop his vehicle and surrender

the gun to the police when he saw the police. Rather, Johnson proceeded driving South on

Cloverlawn. Johnson then made a left turn on to Roselawn Drive. Johnson pulled into a

driveway at 1921 Roselawn, a house that belonged to man Johnson knew. Johnson did not stop

his vehicle, but a boat hitch in the driveway caused it to come to a stop. At that point, Johnson

jumped out of the Camaro and fled on foot. Johnson left the gun in the Camaro. Johnson was

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Cases in this circuit often refer to the same or related defenses as “duress” and

“justification,” but apply the same Singleton five-factor test. See, e.g., United States v. Kemp,

546 F.3d 759, 765 (6th Cir. 2008) (applying Singleton factors to “justification defense”); United

States v. Johnson, 416 F.3d 464, 468 (6th Cir. 2005) (applying Singleton factors to “duress

defense”). 

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ultimately arrested behind a house on Cherrylawn, where Johnson was hiding underneath a

porch.

Johnson testified that he fled from the police because he felt like his life would be over

due to the fact that he had a gun in the Camaro with him.

Johnson also presented two other witnesses: 1) his father, Vernon Johnson; and 2)

Cameron Henke, an investigator with the Federal Defender’s Office. Those two witnesses

testified that they had observed what they believed to be bullet holes in the Thunderbird and the

Camaro.

ANALYSIS

A. Johnson’s Request For Pretrial Rulings Regarding Evidence Of, And Jury Instructions

Addressing, A Necessity Defense:

A defendant charged with being a felon-in-possession of a firearm may assert a necessity3

defense. United States v. Ridner, 512 F.3d 846, 849 (6th Cir. 2008) (citing United States v.

Singleton, 902 F.2d 471, 472 (6th Cir. 1990)); United States v. Johnson, 416 F.3d 464, 468 (6th

Cir. 2005). In essence, this defense allows a defendant to escape responsibility despite proof that

his actions encompassed all of the elements of a criminal offense. Ridner, 512 F.3d at 849. This

defense is limited to “rare situations” and is to be construed “very narrowly.” Id.

The Sixth Circuit has held that a “trial judge does not ‘invade’ the province of the jury

when determining, as a preliminary matter, whether a defendant has met the burden of

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introducing sufficient evidence on each of the elements” of the asserted defense. Johnson, 416

F.3d at 468. The Johnson court explained that where an affirmative defense consists of several

elements and testimony supporting one element is insufficient to sustain it even if believed, the

trial court and jury need not be burdened with testimony supporting other elements of the

defense. Id. Thus, where the evidence is insufficient as a matter of law to support a necessity

defense, “a trial judge should exclude the evidence.” Id.

“When, as in this case, the issue is raised in a pretrial motion, the rule is to be applied just

the same: if the defendant’s proffered evidence is legally insufficient to support a [necessity]

defense, the trial judge should not allow its presentation to the jury.” Johnson, 416 F.3d at 468.

“In Singleton, the Sixth Circuit adopted a five-factor test to determine when a defendant

is entitled to a jury instruction presenting the necessity defense,” and emphasized that the

“keystone of the analysis is that the defendant must have no alternative either before or during

the event to avoid violating the law.” Ridner, 512 F.3d at 850.

“Instructions on the defense are proper if the defendant produces evidence upon which a

reasonable jury could conclude by a preponderance of the evidence that each of the following

five requirements is met:

(1) that defendant was under an unlawful and present, imminent, and impending

threat of such a nature as to induce a well-grounded apprehension of death or

serious bodily injury;

(2) that defendant had not recklessly or negligently placed himself in a situation

in which it was probable that he would be forced to choose the criminal conduct;

(3) that defendant had no reasonable, legal alternative to violating the law, a

chance both to refuse to do the criminal act and also to avoid the threatened harm;

(4) that a direct causal relationship may be reasonably anticipated between the

criminal action taken and the avoidance of the threatened harm; . . . and

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For purposes of this motion, the Court believes that it must accept Johnson’s versions of

the events and refrain from making credibility determinations. See United States v. Paolello,

951 F.2d 537, 543 (3d Cir. 1991) (Stating we must accept Defendant’s “version of the facts in

the record” and noting “even if we find [Defendant’s] testimony unpersuasive, his credibility

should be judged by the jury.”); United States v. Newcomb, 6 F.3d 1129, 1138 (6th Cir. 1993);

Ridner, 512 F.3d at 851-52

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(5) [that the defendant] did not maintain the illegal conduct any longer than

absolutely necessary.

Ridner, 512 F.3d at 850.

“The defendant’s initial burden in establishing these elements ‘is not a heavy one, and is

met even where there is weak supporting evidence’ for the defense.” United States v. Kemp, 546

F.3d 759, 765 (6th Cir. 2008). But a jury instruction on the defense should not be given if the

defense lacks evidentiary support or is based upon mere suspicion or speculation. Id. 

The Court concludes that, under Johnson’s own version of the events,4

 Johnson has failed

to meet his burden with respect to at least three of the Singleton factors.

Johnson cannot establish the second Singleton factor because Johnson’s testimony

demonstrates that he recklessly or negligently put himself in the situation at issue. Johnson’s

testimony establishes that he was well aware of the dispute between the rival neighborhoods. 

Johnson testified that on October 10, 2008, he was staying at his brother’s apartment because he

was afraid to stay at his father’s house in the Selby Neighborhood. Johnson was also working

outside of the Selby and Woodhall Neighborhoods. Thus, as of the morning of October 10,

2008, Johnson had removed himself from both the Selby and Woodhall Neighborhoods and he

did not possess a firearm.

Later that day, however, Johnson went back into the Selby Neighborhood to retrieve a

gun from his father’s house and then knowingly entered the Woodhall Neighborhood. Thus,

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Johnson took himself from a safe environment (i.e., staying at his brother’s apartment and/or

work) and placed himself directly into the environment he knew to be dangerous.

Johnson’s testimony establishes that he was aware that he would be in danger in the

Woodhall Neighborhood. Indeed, Johnson had previously been shot at while in the Woodhall

Neighborhood. Although Johnson was under no compulsion to go into the Woodhall

Neighborhood, and had been told that he was being watched, he nevertheless chose to enter that

neighborhood in order to speak to a known member of the Woodhall Gang. United States v.

Hargrove, 416 F.3d 486, 489-91 (6th Cir. 2005); see also United States v. Austin, 133 Fed.Appx.

271, 274 (6th Cir. 2005) (defendant recklessly or negligently placed himself in a situation where

it was probable that he would be forced to choose the criminal conduct by continuing to consort

with dangerous gang members). Moreover, Johnson entered the Woodhall Neighborhood on

October 10, 2008 -- despite having received a call stating that the Woodhall Gang was “watching

his every move” and planned to kill him on October 10, 2008.

Accordingly, the Court concludes that Johnson has not met his burden with respect to the

second Singleton factor.

The Court also concludes that Johnson has failed to meet his burden with respect to the

third Singleton factor. The “keystone of the analysis is that the defendant must have no

alternative – either before or during the event – to avoid violating the law.” Singleton, 902 F.2d

at 473 (emphasis added). The defense of necessity is not applicable when one has a choice of

several courses of action, unless the defendant shows that he pursued his alternatives or such

alternatives were foreclosed. United States v. Hargrove, 416 F.3d 486, 491 n.1 (6th Cir. 2005). 

Here, Johnson has offered no evidence to establish that he had no choice but to arm himself and

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go in to the Woodhall Neighborhood on October 10, 2008.

While Johnson did not know the actual identity of the individuals who made the

threatening telephone calls to him, Johnson believed the callers were associated with the

Woodhall Gang. While Johnson had previously reported other shootings to the police, Johnson’s

testimony reflects that he told the police that he did not know the identity of the shooters. There

is no testimony in the record that Johnson ever advised the police that he believed that the

Woodhall Gang was behind any of the shootings. Notably, Johnson testified that he did not

report any of the threatening telephone calls to the police prior to his arrest on October 10, 2008. 

Johnson could have worked “with the police to provide information about the gang so that they

could resolve the problem.” Austin, 133 Fed. Appx. at 274.

Johnson had other legal alternatives as well – including simply staying out of the Selby

and Woodhall Neighborhoods. Indeed, Johnson himself appeared to recognize this as a viable

alternative and began staying at his brother’s apartment.

Accordingly, the Court concludes that Johnson has failed to meet his burden with respect

to the third Singleton factor.

Finally, Johnson has not established that he did not maintain the illegal conduct any

longer than absolutely necessary. Johnson testified that he first noticed that a police car was

following him when he turned on to Cloverlawn from the intersection of Pierson and

Cloverlawn. At that point, the police car’s lights were activated and Johnson was away from the

shooter. Nevertheless, Johnson did not stop his vehicle and surrender the gun to the police. 

Moreover, Johnson testified that he fled from the police because he felt like his life

would be over due to the fact that he had a gun in the Camaro with him. Thus, his testimony

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establishes that he fled in order to avoid arrest – not to escape any physical harm.

Accordingly, Johnson cannot establish the fifth element because he maintained the illegal

conduct (i.e., possession of the gun) longer than was absolutely necessary. See, e.g., Ridner, 512

F.3d at 851-52 (fifth element not met where defendant possessing ammunition ran from police

officers in order to escape arrest.).

B. Johnson’s Remaining Requests For Pretrial Rulings:

Johnson’s motion also asks the Court to rule upon two other issues that may arise at trial. 

First, he asks the Court rule as to whether the Government will be permitted to introduce

evidence of the specifics of Johnson’s prior convictions in the event he testifies, where he has

stipulated, under Old Chief v. United States, 546 F.3d 759, 764 (6th Cir. 2009), to the fact that he

is a convicted felon. Second, in the event that the Government intends to introduce into evidence

Johnson’s videotaped statement after his arrest, Johnson requests that the tape be redacted to

excise prejudicial information, including evidence of gang activity, which would be unduly

prejudicial under FED. R. EVID. 403.

As discussed with Counsel on February 2, 2010, the Court shall take these remaining

issues under advisement. Should these issues arise at trial, the Court will address the issues at

that time.

CONCLUSION & ORDER

For the reasons set forth above, IT IS ORDERED that Johnson’s Motion in Limine is

DENIED with respect to his requests relating to a necessity defense. The Court concludes that

Johnson has failed to establish a prima facie case of necessity pursuant to the five-factor

Singleton test. Accordingly, the Court hereby RULES that Johnson is not entitled to jury

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instructions on the defense of necessity. IT IS FURTHER ORDERED that Johnson is precluded

from introducing testimony or evidence at trial relating to a necessity defense. 

The remaining requests in Johnson’s Motion are TAKEN UNDER ADVISEMENT. If

necessary, the Court shall address those remaining evidentiary issues at trial.

IT IS SO ORDERED.

S/Sean F. Cox 

Sean F. Cox

United States District Judge

Dated: February 4, 2010

I hereby certify that a copy of the foregoing document was served upon counsel of record on

February 4, 2010, by electronic and/or ordinary mail.

S/Jennifer Hernandez 

Case Manager

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