1 The Honorable Ann D. Montgomery, United States District Judge for the District of Minnesota. 

## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 08-2322

___________ United States of America, * * Plaintiff – Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. James Richard Cook, * * [UNPUBLISHED] Defendant – Appellant. *

___________ Submitted: February 10, 2009 Filed: February 19, 2009

___________ Before BYE, JOHN R. GIBSON, and GRUENDER, Circuit Judges.

___________ PER CURIAM. James Richard Cook was convicted of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d). He appeals hi s conviction, arguing the district court 1 erred by refusing to allow him to present evidence in support of a nece ssity defense. We affirm.-2- I In 2004, Cook was convicted of arme d bank robbery. Following his release from prison, Cook lived at the Volunteers of America ("VoA"), a halfway house in Minneapolis, Minnesota from June 20, 2007, until October 19, 2007. When he was discharged from the VoA, he was told to go to the Union Gospel Mission ("Mission"), a shelter in St. Paul, Minnesota. On October 24, 2007, Cook robbed a TCF Bank in downtown St. Paul, Minnesota, of $1,740 cash by brandishing a butter knife. Cook arguably attempted to evade arrest by walking away quickly, changing his hat, and attempting to change his shirt. Cook was arrested within fiveminutes of the robbery and did not resist arrest, saying, "Oh well. I'll have to go back to prison now." During trial, Cook wanted to present a "necessity" or "choice of evil" defense, arguing he chose bank robbery to avoid the greater evil of homelessness. In support of that defense, he sought to introduce th e testimony of two individuals, one from the VoA and the other from the Mission. The person representing the VoA would testify: Cook came to VoA from the Bureau of Pris ons in Leavenworth, was there for four months, unsuccessfully sought unemploymen t, and was discharged with only an address of a homeless shelter. The pe rson representing the Mission would testify: Mission records demonstrate some people were unable to gain admission to the shelter on October 21-23, 2007. This person coul d not testify whether Cook was such a person, however, as the Mission does not trackthe identity of the people it turns away. At the hearing regarding the necessity defense, Cook's counsel admitted there was to be no testimony that Cook was unable to gain admission to the Mission on October 21-23, 2007, or that Cook had no a lternatives other than homelessness or bank robbery. Finding his proffer legally insu fficient, the district court denied Cook the ability to present a necessity defense.-3- Cook was found guilty by a jury of arme d bank robbery in violation of 18 U.S.C. § 2113(a) and (d). The district court sentenced him to eighty months imprisonment followed by three years of supe rvised release. This appeal followed.
II
We review de novo whether there is suffi cient evidence to submit an affirmative defense to a jury. United States v. Andrade-Rodriguez , 531 F.3d 721, 723 (8th Cir. 2008). Because Cook failed to proffer evid ence on (at least) one element of the necessity defense, the district court pr operly denied him the ability to raise that defense at trial. In United States v. Bailey , after noting "[m]odern cases have tended to blur the distinction between duress and necessity," the Supreme Court stated: "Under any definition of [the necessity and duress] de fenses one principle remains constant: if there was a reasonable, legal alternative to violating the law, a chance both to refuse to do the criminal act and also to avoid th e threatened harm, the defenses will fail." 444 U.S. 394, 410 (1980) (internal quotati on marks omitted). Cook has failed to demonstrate he lacked a reasonable, lega l alternative to robbing the bank. When asked if there would be any testimony that bank robbery or homel essness were Cook's only alternatives, defense co unsel responded he was not "proposing to weigh in on that point." Instead, Cook asserts it is th e government's burden to prove he had other alternatives. This is incorrect. The S upreme Court specifically stated in Bailey : "[T]he [defendant] is not entitled to claim a defe nse of duress or necessity unless and until he demonstrates that, given the imminence of the threat, violation of [the law] was his only reasonable alternative." Id. at 410-11 (emphasis added). Because Cook's did not even attempt to establish he had no other legal alternative to violating the law, the districtcourt did not err by excluding the proffered testimony on his necess ity defense. See United States v. Kabat , 797 F.2d 580, 590-91-4- (8th Cir. 1986) (holding a defendant is not entitled to present a necessity defense unless he shows "an underlying evidentiary foundation as to eachelement of the defense").
III
We affirm Cook's conviction.

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