UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. No. 95-5366

MICHAEL MCMANUS,

Defendant-Appellant.

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Claude M. Hilton, District Judge.

(CR-94-445-A)

Argued: May 10, 1996

Decided: May 31, 1996

Before NIEMEYER, WILLIAMS, and MOTZ, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Drewry Bacon Hutcheson, Jr., Alexandria, Virginia, for

Appellant. Steve Semeraro, OFFICE OF THE UNITED STATES

ATTORNEY, Alexandria, Virginia, for Appellee. ON BRIEF:

Helen F. Fahey, United States Attorney, Francis C. Kiley, Special

Assistant United States Attorney, Alexandria, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Michael McManus, an inmate at the Maximum Security Facility at

Lorton Reformatory, appeals his conviction for possession of a shank

in violation of 18 U.S.C. § 13, assimilating Virginia Code § 53.1-

203(4). McManus contends that the district court erred in: (1) wrongfully admitting a photocopy of the shank into evidence, (2) failing to

instruct the jury as to his affirmative defenses, and (3) failing to

instruct the jury as to the intent element of the crime. Finding no

reversible error, we affirm.

I.

The facts of this case are highly disputed.

The government introduced evidence at trial that on August 23,

1993, Corporal Lonny Bish, a corrections officer at the Lorton Reformatory, observed McManus half-way down a cell-block tier talking

to another inmate, Leon Hunter. Following a brief altercation between

McManus and Hunter, Bish saw Hunter running down the tier with

McManus chasing him. Bish ordered them both to stop but neither

obeyed his orders. As Hunter ran, he flung plastic chairs and an ice

cooler behind him to impede McManus. McManus chased Hunter to

the recreation room and around the weight machine. Bish then called

for assistance and again ordered the two inmates to stop. When they

ignored his orders, Bish attempted to restrain McManus by grabbing

him from behind. As McManus struggled to free himself, he stabbed

Bish in the arm with a shank until Bish released him. McManus then

told Bish that he would "do" Bish if Bish did not leave him alone. At

that point, another corrections officer, Officer Jones, entered the recreation room and restrained Hunter. McManus, who was by then free,

ran down the tier and Bish chased after him. When they reached the

end of the tier, Bish told McManus to relinquish the shank. "If you

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want it," McManus answered, "come and get it." Other officers soon

arrived on the tier to find McManus brandishing the shank. After several minutes, McManus finally dropped the shank.

McManus' version of the facts is quite different. He testified that

Hunter, a fellow inmate, had picked a fight with him on the basketball

court earlier that day. McManus walked away from the fight, believing the confrontation with Hunter to be over. However, later that day

when McManus was on his way to take a shower, Hunter approached

his cell threatening to kill him. When McManus saw something that

he believed looked like a nail in Hunter's hand, McManus "rushed"

him. At that point, the shank fell to the floor and McManus retrieved

it. Hunter then ran down the tier and McManus followed in the same

direction. McManus claims that he was not pursuing Hunter, but

rather that he was bringing the shank to a corrections officer. On his

way to turn in the shank, McManus explains, Hunter hit him in the

head with an ice cooler and he was "pretty much dazed" by the

impact. Hunter then proceeded to attack McManus, who swung the

shank in defense and stabbed him. During the struggle, Officer Bish

came between them and McManus accidentally stabbed the officer in

the arm. McManus, who was still frightened from the encounter with

Hunter, ran down the tier. He admits that Bish chased after him and

asked him to relinquish the shank. McManus asserts that he was

reluctant to give Bish the shank until he was sure that Hunter had

been restrained. McManus claims that he did not see any other officers enter the recreation room before he left and was not sure whether

Hunter had been secured. When other officers appeared on the tier

and reassured McManus that Hunter was secured, McManus no longer felt threatened and placed the shank on the ground.

McManus was tried for one count of assault and a second count of

unlawful possession of a dangerous weapon. The judge instructed the

jury as to the elements of each charge. Subsequently, the jury asked

the court to repeat its instructions regarding the assault charge. In particular, the jury was concerned about "the instruction regarding intent

versus accident." The court responded that in order to convict

McManus on the assault charge, the jury had to find that he knowingly, willfully, and intentionally committed the act. McManus never

requested instructions regarding any affirmative defense or the intent

requirement for the possession charge. The jury convicted McManus

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on the possession charge but was deadlocked as to the assault charge.

McManus now appeals his conviction for possession.

II.

McManus first contends that the trial court erred in admitting into

evidence a photocopy of the shank, asserting it was not properly

authenticated and did not satisfy the "best evidence" and "chain of

custody" rules. We review a district court's determination as to

admissibility of evidence under an abuse of discretion standard. See

United States v. Howard-Arias, 679 F.2d 363, 366 (4th Cir.), cert.

denied, 495 U.S. 874 (1982).

McManus' argument that the photocopy of the shank did not satisfy the "best evidence" rule is wholly misplaced, because the rule

applies only to documents, recordings, and photographs. Federal Rule

of Evidence 1002, better known as the "best evidence" rule, states that

"[t]o prove the content of a writing, recording, or photograph, the

original writing, recording or photograph is required, except as otherwise provided." Even if the best evidence rule was applicable here

(and it is not), it would not have been violated. The rule permits the

admission of a copy if the original object has been lost or destroyed,

unless the proponent of the evidence lost or destroyed the original in

bad faith. Fed.R.Evid. 1004(1). See also United States v. Ross, 33

F.3d 1507, 1513 (11th Cir. 1994), cert. denied , ___ U.S. ___, 115 S.

Ct. 2558 (1995). In the case at hand, the original shank was inadvertently destroyed by the government; there was no evidence that it was

destroyed in bad faith.

McManus also contends that the admission of the photocopy was

inconsistent with the "chain of custody" rule. This argument is also

meritless. The "chain of custody" rule is a variation of the requirement under Fed.R.Evid. 901(a) that evidence must be properly

authenticated or identified prior to being admitted. United States v.

Turpin, 65 F.3d 1207, 1213 (4th Cir. 1995) (citing Howard-Arias, 679

F.2d at 366), cert. denied, ___ U.S. ___, 116 S. Ct. 1324 (1996). The

"chain of custody" rule therefore requires that admitted exhibits "be

preceded by `evidence sufficient to support a finding that the matter

in question is what its proponent claims.'" United States v. Ricco, 52

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F.3d 58, 61 (4th Cir.) (quoting Fed. R. Evid. 901), cert. denied, ___

U.S. ___, 116 S.Ct. 254 (1995).

This requirement has clearly been satisfied in the instant case. The

government offered sufficient evidence to show that the photocopy of

the shank accurately represented the shank used by McManus. Corporal Bish, the officer who was stabbed by McManus, described the

shank used in the attack and identified the photocopy as a depiction

of that weapon. Captain Washington testified that the photocopy

looked like the one used by McManus "in all respects." A third officer, Captain Steward, testified that he tagged the shank in his own

handwriting and photocopied it after retrieving it from the area of the

attack. Steward also testified that photocopying the shank was part of

the standard procedure following an assault, permitting a copy of the

weapon to be placed in the inmate's disciplinary file. Finally, Stewart

identified the photocopy as the one that he had made and the tag seen

in the photocopy as the one that he placed on the shank. Because such

testimony is more than sufficient to authenticate the evidence, the district court did not abuse its discretion in admitting the photocopy.

III.

McManus argues that the district court erred in failing to instruct

the jury regarding affirmative defenses for unlawful possession of a

shank. Because McManus failed to request these instructions, we

review the district court's instructions for plain error. United States

v. Olano, 507 U.S. 725 (1993); United States v. Morgan, 942 F.2d

243, 247 (4th Cir. 1991), cert. denied, 506 U.S. 1040 (1992), and

cert. denied, 506 U.S. 1061 (1993).

The government argues that McManus was not entitled to the

instructions regarding the defenses of justification, coercion, or duress

because he did not present sufficient evidence to support these

defenses so as to warrant the instructions. We agree.

In United States v. Crittendon, 883 F.2d 326 (4th Cir. 1989), we

held that in order to be entitled to the defense of justification for the

unlawful possession of a weapon, a defendant must produce evidence

that would allow the factfinder to conclude that he:

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(1) was under unlawful and present threat of death or serious

bodily injury; (2) did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) had no reasonable legal alternative (to both the

criminal act and the avoidance of the threatened harm); and

(4) [that there existed] a direct causal relationship between

the criminal action and the avoidance of the threatened

harm.

Id. at 330 (citation omitted). In Crittendon, we found that the defendant was not entitled to the instruction on justification because he had

not met the first element. Id. The defendant's explanation that he was

carrying a gun because he had been shot several months earlier, "[did]

not support a conclusion that he was under a present or imminent

threat of death or injury." Id. See also United States v. Perrin, 45 F.3d

869 (4th Cir. 1995) (defendant not entitled to instruction where his

explanation for carrying weapon was that a man with a shotgun had

been looking for him at his cousin's house two days earlier), cert.

denied, ___ U.S. ___, 115 S. Ct. 2287 (1995).

Other courts have similarly rejected a defendant's arguments of

entitlement to a justification instruction when any of the four

Crittendon factors have not been met. See United States v.

Blankenship, 67 F.3d 673, 678 (8th Cir. 1995) (instruction not warranted where defendant "recklessly placed himself in the situation"

and "had reasonable alternatives" to possession); United States v.

Singleton, 902 F.2d 471 (6th Cir.) (defendant who claimed he had

been kidnapped was not entitled to instruction when he failed to relinquish weapon well after escaping from kidnapping), cert. denied, 498

U.S. 872 (1990); United States v. Harper, 802 F.2d 115 (5th Cir.

1986) (defendant who purchased gun after robberies of his store not

entitled to instruction because he was not in imminent danger). Cf.

United States v. Paolello, 951 F.2d 537 (3d Cir. 1991) (defendant

entitled to instruction where imminent danger was evidenced by the

fact that he wrestled a gun away from an attacker following a heated

argument); United States v. Panter, 688 F.2d 268 (5th Cir. 1982)

(instruction warranted where the illegal firearm possession occurred

while defendant was in imminent danger where "in the actual physical

course of a conflict," defendant had already been stabbed in the abdomen).

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McManus' claim that he was entitled to instructions on justification

must also be rejected. Even under McManus' version of the facts,

McManus "rushed" Hunter to pre-empt an attack after he saw something in Hunter's hand. When the shank fell from Hunter's hand to

the floor, Hunter ran away. At that point, McManus, who had

retrieved the shank, followed Hunter. Although McManus claims that

he was not planning to harm Hunter, it is clear that at that point,

McManus could have dropped the shank and sought out the authorities. In fact, McManus could have run away from the altercation,

rather than "rushing" Hunter to obtain the shank. These facts defeat

McManus' claim that his possession of the shank was justified. Even

if McManus' initial possession of the shank would have warranted a

justification instruction, his continued possession rendered such an

instruction unwarranted.

The facts in the instant case resemble those in Singleton, 902 F.2d

471, and Blankenship, 67 F.3d 673. In Singleton the court found that

the defendant was not entitled to a justification instruction even

though he claimed that he obtained a gun while escaping from a kidnapping. The court 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." Singleton, 902 F.2d at 473

(citing United States v. Bailey, 444 U.S. 394, 410 (1980)). Because

the defendant continued his possession of the weapon even after he

had successfully escaped from the alleged kidnapping, he was not

entitled to the instruction on justification. Similarly, in Blankenship,

the court found that the defendant was not entitled to the instruction

simply because an assailant approached his trailer threatening to harm

him. When the confrontation escalated between defendants and the

assailant, the defendant went to a nearby trailer, obtained a shotgun,

and returned to the confrontation. The court held that the defendant

had reasonable alternatives because he could have gone for help or

sent his wife to contact the police. Blankenship , 67 F.3d at 678.

McManus, like the defendants in Singleton and Blankenship, chose to

retain possession of the shank, despite other lawful alternatives even

after escaping from the alleged incident with Hunter. Consequently,

he was not entitled to the justification instruction.

For the same reason, McManus was not entitled to jury instructions

regarding coercion and duress. Both of these defenses require that the

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defendant show that he violated the law only to the extent necessary

to avoid death or serious bodily injury. Thus, a defense of coercion

is not available to "[o]ne who has full opportunity to avoid the act

without danger of [death or serious bodily injury]." Blankenship, 67

F.3d at 677-78 (citation omitted); United States v. Simpson, 979 F.2d

1282 (8th Cir. 1992) (citation omitted), cert. denied, 507 U.S. 943

(1993). Similarly, a defense of duress requires a showing that a genuine effort to stop the illegal action was made as soon as the claimed

force of duress had ceased. United States v. Sarno, 24 F.3d 618, 621

(4th Cir. 1994). Because McManus had the opportunity to surrender

the shank well before he did, he has failed to establish coercion or

duress.

IV.

Finally, McManus asserts that he was entitled to a jury instruction

that conviction of possession of a shank requires a finding of criminal

intent. Again, his failure to request this instruction subjects the district

court's decision to review only for plain error. Any error committed

by the district court in failing to give the desired instruction was certainly not plain.

There can be no doubt, even if we accept the facts as McManus

describes them, that his possession of the shank was knowing and

willful. McManus' own testimony proves that he knew what the

shank was when he took hold of it. During trial he explained: "As I

rushed him and he tried to grab me, that's when the shank fell. So,

I retrieved the shank. And then he ran." Indeed, McManus' entire

defense -- that he took hold of the shank to protect himself during

a confrontation with an inmate -- assumes willful possession. See

Connecticut v. Johnson, 460 U.S. 73, 87 (1983) (Blackmun, J., writing for a plurality) ("In presenting a defense such as alibi, insanity,

or self-defense, a defendant may in some cases admit that the act

alleged by the prosecution was intentional, thereby sufficiently reducing the likelihood that the jury applied the erroneous instruction as to

permit the appellate court to consider the error harmless."). Having

conceded the element of intent in arguing his defense, McManus cannot now complain that the jury was not clearly instructed to find

intent.

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Furthermore, although the jury did not receive specific instructions

from the court regarding intent on the possession charge, it did

receive a copy of the indictment, which charged McManus with "unlawfully, knowingly, and willfully" possessing a shank. Moreover, the

court explained to the jury -- albeit in the context of providing

instructions regarding the assault charge -- that an act had to be

knowing and willful in order to be intentional. Consequently, the jury

could infer that if the possession also had to be knowing and willful,

it too had to be intentional. Accordingly, the district court's failure to

instruct the jury regarding intent on the possession charge was not

plain error.

V.

For the foregoing reasons, McManus' conviction is hereby

AFFIRMED.

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