USA v. David Sloan

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OPINION filed : The decision of the district court is AFFIRMED, decision not for publication pursuant to local rule 28(g). Ralph B. Guy , Jr., Authoring, Circuit Judge; Richard Allen Griffin, Circuit Judge and Judith M. Barzilay, United States Court of International Trade, sitting by designation.

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Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 1 N O T RECOMMENDED FOR FULL-TEXT PUBLICATION F ile Name: 10a0685n.06 N o . 07-6466 U N I T E D STATES COURT OF APPEALS F O R THE SIXTH CIRCUIT FILED Nov 04, 2010 U N IT E D STATES OF AMERICA, P l a in tif f -A p p e lle e , v. J O E DAVID SLOAN, Defendant-Appellant. O n Appeal from the United S ta te s District Court for the W e ste rn District of T e n n e ss e e at Jackson LEONARD GREEN, Clerk / B e fo r e : G U Y and GRIFFIN, Circuit Judges; BARZILAY, Judge.* A jury found defendant Joe Sloan guilty of R A L P H B. GUY, JR., Circuit Judge. b e in g a felon in possession of a firearm. Following presentation of the evidence to the jury, S lo a n requested a jury instruction on the affirmative defense of justification or necessity, w h ic h was denied by the district court. The district court also denied Sloan's motion for m is tria l, based on the district court directing the jury to disregard any evidence of ju stif ica tio n or necessity. Sloan appeals both rulings. Finding that the district court properly d e n ied Sloan's desired justification defense and that the motion for a mistrial was properly d e n ie d , we affirm. The Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting by designation. * Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 2 No. 07-6466 I. J o e Sloan, estranged from his wife, had moved out of the home they shared and began s ta yin g with a cousin named Teddy Larry Myrick at the beginning of June 2003. Myrick was th e n living in a mobile home on property owned by his stepfather, John Kail. Near the end o f the month, Sloan was arrested by authorities for being a previously convicted felon in p o sses sion of a firearm, pursuant to 18 U.S.C. 922(g). P r io r to trial, Sloan indicated that he intended to present the affirmative defense of ju s tif ic a tio n or necessity, based on perceived threats he and his cousin experienced at and a ro u n d his cousin's home, described in more detail below. Counsel for the government filed m o t io n s in limine, requesting that the district court conduct a pretrial hearing to determine th e sufficiency of the evidence for the defense, and to determine the admissibility of certain p s yc h o lo g ic a l testimony that Sloan indicated he wanted to present at trial. Before beginning tria l, the district court granted the government's motion to exclude psychological and p sych iatric evidence, which is not before us on appeal. Concerning the evidence of Sloan's " re a so n a b le good-faith fear," the district court ruled that [ S lo a n can offer] evidence of threats that made it necessary for him to get a f ir e a r m . He can attempt to prove the defense of duress or justification or n e c es s ity, whatever you want to call it in this case. He can offer evidence. N o w , at the end of all the evidence, then I'll have to decide if he has m a d e a prima facie showing sufficient to justify an instruction on defense or ju s tif ic a tio n or duress. S o the government's motion in limine to that extent is denied. The d e f en d a n t can offer whatever evidence he has except psychiatric or p s yc h o lo g ic a l evidence. 2 Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 3 No. 07-6466 3 T h e evidence at trial included testimony of Sloan, Myrick, Sloan's estranged wife, S lo a n 's father, and John Kail. Sloan described bizarre events occurring on the Kail property d u rin g the month of June 2003 related to the alleged, unauthorized, widespread spraying of c h e m ica ls on the property. Sloan described dying chickens with blood running out of their m o u th s; additional dead animals; animals and areas wet with a liquid that caused his skin to s w e ll and burn for months; and "chunks of bark big as a baseball" falling off trees. Sloan a ls o testified that he and Myrick saw the lights from flashlights in the woods at night; that o n e morning he saw a man with an assault rifle standing on the property, looking at the m o b ile home in which he and Myrick were living; and that each time he left the property he w a s followed. Sloan's father, Tommy Sloan, identified miscellaneous pictures, including a d e a d dog; a dark pond; some canisters he asserted were bombs, which he stated were found "in close proximity" to the mobile home; and tree bark. Kail testified that the two canisters w e re found on adjacent property, fifty feet and two or three hundred yards from his property lin e , and that he and Sloan decided to remove them and bring them to Myrick's mobile home. K a il also testified about damage to chicken runs, and that there was unauthorized spraying b e in g done on the property, leaving foliage along the driveway and some chickens "wringing w e t" with an unknown substance. Sloan's wife testified that she drove to Memphis with her h u sb a n d to deliver the liquid contents of a jar to the fire department.1 A f te r the proofs were complete, the district court made its determination to deny S loan 's request for a jury instruction on justification. The district court instructed the jury Sloan's father testified that both he and Kail took "samples" of the sprayed liquid from the property. Kail specified that he squeezed liquid from drenched insulation, located under the mobile home, into a jar. 1 Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 4 No. 07-6466 4 to disregard "any evidence of necessity or justification alleged by the defendant in deciding w h e th e r the government has proven the defendant guilty beyond a reasonable doubt." A f te r the jury was charged, Sloan made a motion for mistrial based on the above in s tru c tio n , which was denied by the district court. The jury returned a guilty verdict, after w h ic h Sloan was sentenced to 100 months of incarceration. This appeal followed. II. S lo a n 's claims on appeal contest the district court's denial of his request for a Sixth C irc u it pattern jury instruction on justification 2 and its related ruling denying his motion for a mistrial. We review a district court's decisions concerning whether to give a particular jury in s tru c tio n for abuse of discretion. United States v. Anderson, 605 F.3d 404, 411 (6th Cir. 2 0 1 0 ). There is no abuse of discretion if the instructions "as a whole . . . adequately in f o rm e d the jury of the relevant considerations and provided a basis in law for aiding the ju ry in reaching its decision." United States v. Frederick, 406 F.3d 754, 761 (6th Cir. 2005). S im ila rly, we review the district court's denial of Sloan's motion for a mistrial for abuse of d is c re tio n . United States v. Martinez, 430 F.3d 317, 336 (6th Cir. 2005). W h i l e the review of selected jury instructions is for abuse of discretion, the district c o u rt's determination of whether Sloan established a prima facie case of the affirmative d e f e n s e of justification is a question of law we review de novo. United States v. Ridner, 512 F .3 d 846, 849 (6th Cir. 2008) (citing United States v. Johnson, 416 F.3d 464, 468 (6th Cir. Sloan refers to Sixth Circuit Jury Instructions 6.05 and 6.07, addressing coercion/duress and justification, respectively. We use the term "justification" for both the requested instruction and Sloan's desired defense. 2 Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 5 No. 07-6466 5 2 0 0 5 )). The justification defense "arises only in `rare situations' and `should be construed v e ry narrowly.'" United States v. Kemp, 546 F.3d 759, 765 (6th Cir. 2008) (quoting United S ta te s v. Singleton, 902 F.2d 471, 472 (6th Cir. 1990)). A. P r im a Facie Case/Jury Instruction T h e parties agree on the factors to be considered by a district court in determining w h e th e r a defendant is entitled to a jury instruction on the affirmative defense of justification. T h e defendant establishes his prima facie case of justification by presenting evidence: (1 ) that defendant was under an unlawful and present, imminent, and im p e n d in g threat of such a nature as to induce a well-grounded apprehension o f death or serious bodily injury; (2 ) that the defendant had not recklessly or negligently placed himself in a s itu a tio n in which it was probable that he would be forced to choose the c rim in a l conduct; (3 ) that the 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 h a rm ; (4 ) that a direct causal relationship may be reasonably anticipated between the c rim in a l action taken and the avoidance of the threatened harm; (5 ) that defendant did not maintain the illegal conduct any longer than a b s o lu te ly necessary. U n i te d States v. Riffe, 28 F.3d 565, 569 (6th Cir. 1994) (abrogated on other grounds) (e m p h a s is omitted) (quoting United States v. Newcomb, 6 F.3d 1129, 1134-35 (6th Cir. 1 9 9 3 )) (citing Singleton, 902 F.2d at 472-73). Instructions on the defense are proper if the d e f e n d a n t produces evidence upon which a reasonable jury could conclude by a Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 6 No. 07-6466 6 p re p o n d e ra n c e of the evidence" that each of the five requirements is met. Ridner, 512 F.3d a t 850. W h ile Sloan contends that the district court improperly determined that he did not s a tis f y the five Singleton factors, we find no error. As to the first factor, the testimony about th e bizarre occurrences around Myrick's mobile home cannot be said to demonstrate an im m in e n t or impending threat of death or serious bodily injury. Although Sloan testified a b o u t seeing a man carrying an assault weapon, he stated the man disappeared into the w o o d s . Furthermore, all Sloan includes in his brief with respect to this factor is reiterated o r summarized testimony from trial.3 T h e second element requires that Sloan did not recklessly or negligently place himself in the situation that led to his criminal conduct. Sloan's cited evidence does not support his p o s itio n ; rather than choosing to arm himself, Sloan could have chosen to leave.4 Similarly, S lo a n did not satisfy the third element which requires a showing that he had no reasonable, le g a l alternative to his criminal action. Sloan could have avoided the threat by removing h im self from the alleged danger. C o n c e rn in g the fourth factor, Sloan was required to produce some evidence that a rm in g himself would avoid the threatened harm. Sloan asserts in his brief, apparently to As the government asserts, issues raised but not developed by the appellant are deemed waived. El-Moussa v. Holder, 569 F.3d 250, 257 (6th Cir. 2009); United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996). Whether or not Sloan has waived certain of these issues on appeal, we find no error by the district court. While Sloan alleged he couldn't afford to live somewhere else, and produced testimony from his wife that he was not welcome at home, he admitted he could have stayed with his father and certainly did not produce any evidence that there was nowhere else he could have stayed. 4 3 Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 7 No. 07-6466 7 s u g g e s t the high level of his fear, that he testified about calls he made to "HazMat, FBI, U.S. A tto rn e y's Office, as well as `anybody he could find in the phone book.'" He also asserts th a t he was unable to leave the property without being followed, and that chemicals c o n tin u e d to be sprayed. He makes no argument, however, about how carrying a handgun w o u ld have stopped these things from happening. In fact, as with the first factor, Sloan p re se n ts no argument at all on this element. W ith respect to the fifth factor, that defendant did not maintain the illegal conduct lo n g e r than necessary, Sloan asserts that the "life threatening" events occurred from June 9 u n til June 29, 2003, and that "firearms were not brought to the property by Myrick until June 1 9 th ." Sloan objects to the district court's misstatement that the period when Sloan was a r m e d lasted "three weeks," stating that the period was actually no more than ten days. R e g a rd le ss of any factual error made by the district court in its statement, we find no error in its determination on this factor: A n d fifth, the defendant has not established that he did not maintain the ille g a l conduct any longer than absolutely necessary. He kept these firearms f o r three weeks, and the defense of necessity or justification is generally a p p l ie d in a situation that comes up quickly, that doesn't last very long. For e x a m p le , if the man with the assault rifle had pointed the assault rifle at the d e f en d a n t and the defendant had picked up the shotgun and fired back or fired f irs t, perhaps that would be a situation under which the defense of necessity or ju s tif ic a tio n must be justified. But just to see a man in a black suit with an a s s a u lt rifle in the woods is not a justification to keep the gun for three weeks. A n d the defendant admits that he did that. A s discussed in Ridner, in relation to felon-in-possession cases, ` [ t] h e defense of necessity will rarely lie in a felon-in-possession case unless th e ex-felon, not being engaged in criminal activity, does nothing more than Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 8 No. 07-6466 g ra b a gun with which he or another is being threatened (the other might be the p o s s e s s o r of the gun, threatening suicide).' R id n e r, 512 F.3d at 849 (quoting United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996)). H e re , where there was no "imminent" or "impending" threat, Sloan's ten-day maintenance o f firearms at Myrick's residence--where Sloan had no obligation to be--cannot be d e s c rib e d as "absolutely necessary." B e c au s e the district court did not err in finding that Sloan failed to establish a prima fa c ie case of justification, there was no abuse of discretion in its determination that Sloan was n o t entitled to the requested jury instruction. B. M o tio n for Mistrial S loan argues in this claim that the district court erred by instructing the jury to ignore S loan 's evidence of justification. After hearing the parties' arguments concerning Sloan's d e sire d defense of justification, the district court ruled: T h e court finds there is not a sufficient basis to justify an instruction on th e defense of justification, compulsion, necessity or duress, and the d e f en d a n t's request for that instruction is therefore denied. S in c e that's not going to be submitted to the jury, there'll be no a r g u m e n t on the defense of justification, necessity, compulsion or duress. T h e district court then stated the following to the jury in the course of giving its instructions: D e f en d a n t has presented testimony in which he contends that he p o ss es sed the firearms because of necessity or justification; however, the court h a s ruled that this evidence is not admissible and should be disregarded. T h e re f o re , you will not consider any evidence of necessity or justification a lle g e d by the defendant in deciding whether the government has proven the d e f e n d a n t guilty beyond a reasonable doubt. 8 Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 9 No. 07-6466 9 A t the conclusion of the instructions, defense counsel made a motion for mistrial, asserting th a t the above instruction given by the district court was essentially an improper "reverse in s tru c tio n " on justification. The district court denied that motion, providing the following e x p la n a ti o n : T h a t was merely an effort on the court's part, Mr. Camp, to unring the bell w h i c h Mr. Powell warned me about when this trial started. I assured Mr. P o w e ll that I unring the bell all the time. In retrospect, it would have been far better if I had granted Mr. Powell's m o tio n to prohibit the evidence that was offered; but, as a practical matter, that w o u ld require two trials, one for you to present your evidence and then for me to rule, and then we'd have another trial. It was my decision at that time to let the evidence in conditionally to see if a defense of justification or compulsion or necessity could be made. If it c o u ld not, then I would instruct the jury not to consider it. That's all I've done. I was merely attempting to unring the bell which Mr. Powell requested that I n o t do in the first place. B u t the request for a mistrial or the motion for a mistrial is denied. W e review a district court's ruling on a motion for mistrial for an abuse of discretion. U n i te d States v. Faulkenberry, 614 F.3d 573, 590 (6th Cir. 2010). "The primary concern in ru lin g upon a motion for a mistrial is a determination of the fairness to the accused." United S ta te s v. Blakeney, 942 F.2d 1001, 1030 (6th Cir. 1991) (citing United States v. Atisha, 804 F .2 d 920, 926-27 (6th Cir. 1986)). The district court's instruction to the jury to ignore e v id e n c e of justification, as it explained, was necessary in conjunction with its determination that Sloan was not entitled to that defense. The district court's decision to give that jury in s tru c tio n was clearly within its permissible discretion. Furthermore, as the government Case: 07-6466 Document: 006110781008 Filed: 11/04/2010 Page: 10 No. 07-6466 10 p o in t s out, Sloan has identified no prejudice resulting from the instruction. We find no abuse o f discretion. T h e district court is AFFIRMED.

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