United States v. Joshua Green

Filing

OPINION FILED - THE COURT: Lavenski R. Smith, Raymond W. Gruender and Roseann A. Ketchmark AUTHORING JUDGE:Roseann A. Ketchmark (PUBLISHED) [4443340] [15-1734, 15-1737]

United States Court of Appeals
For the Eighth Circuit

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No. 15-1734
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United States of America
Plaintiff - Appellee
v.
Joshua Green
Defendant - Appellant

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No. 15-1737
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United States of America
Plaintiff - Appellee
v.
John Dennis Hayes
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
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Appellate Case: 15-1734

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Date Filed: 08/31/2016 Entry ID: 4443340

Submitted: June 14, 2016
Filed: August 31, 2016
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Before SMITH, GRUENDER, Circuit Judges, and KETCHMARK, 1 District
Judge.
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KETCHMARK, District Judge.
After a joint trial, Appellants Joshua Green and John Dennis Hayes were
convicted of conspiracy to possess with intent to distribute methamphetamine, in
violation of 21 U.S.C. §§ 841 and 846. 2 Hays and Green were also convicted of
possessing, brandishing, and discharging a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c). Additionally, Hayes was
convicted of being a convicted felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1).
Green and Hayes raise four points in their joint brief. First, Green and
Hayes argue that the evidence was insufficient as a matter of law to support the
conviction for methamphetamine conspiracy. Second, Hayes argues that the
evidence was insufficient as a matter of law to support his conviction for being a
felon in possession of a firearm. Third, Green and Hayes contend that the district
court erred in denying their motion to suppress and in not excluding all evidence
obtained through a search as a sanction for late disclosure by the government.
Fourth, Green and Hayes argue that the district court erred in refusing to give the
jury an instruction on the defense of justification in connection with the shooting.
For the reasons set forth below, we affirm.

1

The Honorable Roseann A. Ketchmark, United States District Judge for the
Western District of Missouri, sitting by designation.
2
The Honorable D. P. Marshall, Jr., United States District Judge for the
Eastern District of Arkansas.
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I.
On January 30, 2012, Krystal Journigan, Jason Harcourt, and Jamar
Williams drove from Little Rock, Arkansas, to Hayes’ residence in Alexander,
Arkansas. Harcourt had been purchasing methamphetamine from Hayes through
Journigan and another woman. That day, Harcourt intended to purchase a pound
of methamphetamine directly from Hayes and “eliminate the females out of the
middle of it.” Hayes would not agree to meet Harcourt, so Journigan agreed to be
the “middleman” one more time. Journigan drove alone to Hayes’ residence and
parked in the driveway. Harcourt and Williams remained parked in Williams’
truck some distance down the road from Hayes’ residence. Upon arriving at
Hayes’ residence, Journigan met Hayes and entered. Journigan tried to get Hayes
to talk to Harcourt on the phone, but Hayes refused. Harcourt became angry and
walked toward the residence.
While Journigan was in Hayes’ residence, she saw Joshua Green and Cammi
Lewis arrive, with Green carrying a plastic bag. Journigan walked with Hayes and
Green to a back bathroom, where Journigan saw that the bag contained four
bundles of methamphetamine, which she presumed were quarter-pound packages.
Journigan and Hayes remained in the bathroom, and Green went to the
kitchen/living room area. Hearing a commotion, Journigan and Hayes left the
bathroom. Outside of the residence, Harcourt, wearing a black curly wig, and
Williams were asking about buying a car that was parked adjacent to the residence.
Green told them the car was not for sale and to leave, which they did.
Suspicious of the pair outside, back inside the residence, Hayes and Green
each brandished a firearm and told Journigan to sit down and not leave. Journigan
complied but later went to the bathroom and called Harcourt to alert him that she
was being held at gunpoint. Journigan then left the residence, telling Hayes and
Green she was “leaving regardless.” Hayes followed Journigan as she remained on
the phone and left the residence. Journigan handed the phone to Hayes to speak
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with Harcourt. Hayes and Harcourt argued over the phone while Hayes stood with
Journigan at her vehicle.
While Hayes and Green held Journigan at gunpoint, Harcourt had returned
to Williams’ truck and dropped off the black curly wig. Harcourt and Williams
then walked back towards Hayes’ residence. A woman waiting to pick up her
child at a bus stop saw Harcourt and Williams walking up the street. She saw
Harcourt talking on a cellular phone and heard Harcourt say that he was coming to
get his money or his drugs and that he had a gun. Harcourt continued to argue with
Hayes over the phone as he turned the corner onto Hayes’ street. Harcourt saw
Hayes standing with Journigan and noted that Hayes had a firearm in his hand that
was resting by his side. Harcourt had a Glock .45 firearm behind his right hip.
Harcourt and Hayes scuffled by Journigan’s vehicle. At some point, Hayes’
gun fired, shooting off a portion of his finger. Also at that time, Green appeared on
the porch of Hayes’ residence and began firing a Ruger 9mm. Williams also
appeared at the scene and began to fire at Hayes’ residence. Hayes and Harcourt
fell to the ground near the cars parked in the street. Williams ran from the scene
with his gun. Harcourt was shot in the wrist and forearm.
When shots were fired, Journigan ducked down in her car, turned over the
ignition, and started to back out. Green shot her rear, driver’s side tire. Green had
walked down to where Hayes was, and Journigan saw one or both of them standing
over Harcourt, shooting him. Journigan drove off. Harcourt had multiple gunshot
wounds and retreated behind a fence several yards away.
Green helped Hayes into Green’s vehicle. Green gathered the firearms at the
scene and placed them in his vehicle. Green and Lewis drove Hayes to the hospital
and dropped him off. Green returned to Lewis’ residence, driving near Hayes’
residence, where Saline County Sheriff’s Office and the Alexander Police had
responded.

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Upon execution of a search warrant inside Hayes’ residence, a detective
found an empty Ruger firearm box, an empty Federal Cartridge ammunition box,
and a 9mm Federal Cartridge round on the kitchen counter.
Another officer responded to the hospital where Hayes was having his finger
treated. Hayes’ personal belongings were seized as evidence of the shooting. In a
pocket of his pants was a Wal-Mart receipt for the purchase of 9mm Federal
Cartridge ammunition dated January 30, 2012, at 1:09 p.m. Hayes told police that
“Josh” was involved in the shooting but that he did not know his last name.
On February 2, 2012, law enforcement arrested Green for his role in the
shooting at Hayes’ residence on January 30, 2012. Green gave a recorded
statement. Despite initial denials, Green admitted that he fired the Ruger 9mm and
that he took guns from the scene. Green told officers that the firearms were at his
residence and agreed to turn them over to police. During a consent search of
Green’s home, officers recovered from an air vent a black computer bag containing
four firearms, one of which was the Ruger 9mm used in the shootout on January
30, 2012. The air vent also contained a blue backpack and a black computer bag
that had wheels. Within these bags were items identifying Green as the owner of
the bags, as well as scales, pipes, baggies, and approximately seven grams of
methamphetamine. The bags also contained cellular phones and a laptop
computer. The Saline County Sheriff’s office seized these items and placed them
into secure storage.
Also on February 2, 2012, law enforcement located Green’s blue Trailblazer
in the carport at Lewis’ residence. During a search of the vehicle, police located a
Federal Cartridge ammunition box and fifty rounds of Federal Cartridge
ammunition. During a search of Lewis’ residence, officers found Green’s clothing
with .45 caliber bullets and a .380 bullet lying on top.
On September 11, 2013, Green and Hayes were charged with conspiracy and
firearms violations. In May of 2014, prosecutors learned that the cellular phones
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and the computer found in Green’s air vent had not been searched. On
May 14, 2014, the government obtained a search warrant based on probable cause
obtained at the time of their seizure in 2012 and produced the evidence
approximately a week before trial. The trial began May 27, 2014.
A search of the electronic devices resulted in photographic evidence from
two of the phones and the computer, as well as text messages from one of the
phones. The district court denied a motion to suppress evidence from that search
on Fourth Amendment grounds. However, the district court excluded from trial
inculpatory evidence obtained from the electronic devices based on late disclosure
as a discovery sanction under Federal Rule of Criminal Procedure 16. Evidence
excluded from trial included photographs of drug paraphernalia from a phone, the
“contacts list” from a phone, a photograph from the computer showing 31.8 grams
of methamphetamine on a scale, and several photographs of marijuana from the
computer. Evidence admitted from the search included the two phones, three
photographs of Green from one of the phones to show ownership of the phones,
and a series of redacted text messages from one of the phones that was admitted
under Federal Rule of Evidence 404(b).
II.
In their first point, Green and Hayes challenge the sufficiency of the
evidence supporting their conviction for conspiracy to possess with intent to
distribute methamphetamine. Specifically, Green and Hayes contend that the
jury’s failure to make a finding on their special verdict form that the conspiracy
included fifty or more grams of methamphetamine means that the jury must have
convicted Green and Hayes based solely on the seven grams of methamphetamine
found at Green’s home, but that there was no evidence at trial connecting that
methamphetamine to charged conspiracy. Additionally, they argue that there was a
complete withdrawal by everybody allegedly involved in that conspiracy through
the shootout three days before the seven grams were found at Green’s house.
According to Green and Hayes, because that methamphetamine was found after the
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shootout, the evidence was insufficient as a matter of law to establish their
involvement in a conspiracy before the shootout. 3 We disagree, and affirm their
conspiracy convictions.
“When reviewing the sufficiency of the evidence, we consider the evidence
in the light most favorable to the verdict rendered and accept all reasonable
inferences which tend to support the jury verdict.” United States v. White, 816
F.3d 976, 985 (8th Cir. 2016) (citation omitted). “Although the evidence need not
preclude every outcome other than guilty, we consider whether it would be
sufficient to convince a reasonable jury beyond a reasonable doubt.” Id. We will
reverse for insufficient evidence only if no reasonable jury could have found the
appellants guilty beyond a reasonable doubt. Id.
To establish that a defendant conspired to distribute drugs under
21 U.S.C. § 846, the government must prove: “(1) that there was a conspiracy, i.e.,
an agreement to distribute the drugs; (2) that the defendant knew of the conspiracy;
and (3) that the defendant intentionally joined the conspiracy.” United States v.
Sanchez, 789 F.3d 827, 834 (8th Cir. 2015) (citation omitted). “An agreement to
join a conspiracy need not be explicit but may be inferred from the facts and
circumstances of the case.” Id. “A defendant may be convicted for even a minor
role in a conspiracy, so long as the government proves beyond a reasonable doubt
that he or she was a member of the conspiracy.” United States v. Lopez, 443 F.3d
1026, 1030 (8th Cir. 2006) (citation omitted).
As an initial matter, Green and Hayes are mistaken in their assertion that any
specific finding regarding which methamphetamine was part of the conspiracy
must be read from the jury’s special verdict form. As noted above, Green and
3

Green and Hayes also argue in this point that the § 924 firearms counts
depend upon the conspiracy count and therefore that if the conspiracy count fails,
then the dependent § 924 firearms counts fail as well. Because sufficient evidence
supports the conspiracy count, this argument is without merit.
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Hayes were charged with conspiring to possess with intent to distribute at least
fifty grams but less than 500 grams of methamphetamine. In its special verdict
form, the jury determined that the amount was less than fifty grams. Green and
Hayes speculate that because the amount listed on the special verdict form is less
than fifty grams, the amount must have been the amount found at Green’s
residence after the two had withdrawn from the conspiracy. No such inference is
required, let alone suggested, by the jury’s verdict. Rather, the evidence at trial –
including (1) evidence regarding a conspiracy to distribute methamphetamine prior
to January 30, 2012; (2) evidence of the failed transaction that day, such as
testimony that Green brought methamphetamine into Hayes’ home to sell; and (3)
evidence found at Green’s home that is highly corroborative of methamphetamine
trafficking – was more than sufficient for a rational jury to conclude that Hayes
and Green conspired together, and with others, to distribute methamphetamine.
To that end, Green and Hayes cite no authority indicating that a special
verdict in a case like this can render the evidence of the conspiracy insufficient to
support the convictions. The special verdict here applies only in determining the
statutory minimum and maximum for the offense of conviction. See United States
v. Rolon-Ramos, 502 F.3d 750, 754-55 (8th Cir. 2007) (“drug quantity is not an
essential element of a conspiracy offense”). Here, that the jury found beyond a
reasonable doubt an amount less than what the government charged does not
impact the sufficiency of the evidence supporting the conviction. See id.

As to the appellants’ related argument that they had withdrawn from the
conspiracy through the shootout, we have held that “[i]t is not easy to withdraw
from a criminal conspiracy.” United States v. Zimmer, 299 F.3d 710, 718 (8th Cir.
2002) (citation omitted). To withdraw from a conspiracy, a defendant must do
more than demonstrate that he or she undertook no conspiratorial activity after the
cut-off date. Id. (citations omitted). Rather, a defendant must demonstrate that he
or she took affirmative action to withdraw from the conspiracy by making a clean
breast to the authorities or by communicating withdrawal in a manner reasonably
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calculated to reach coconspirators. Id. To make a clean breast of a conspiracy, the
conspirator must sever all ties to the conspiracy and its fruits, and act affirmatively
to defeat the conspiracy by confessing to and cooperating with the authorities. Id.
“Simply ceasing to be an active participant in the conduct of the conspiracy alone
is not enough to establish a withdrawal from the conspiracy.” United States v.
Shepard, 462 F.3d 847, 869 (8th Cir. 2006) (citation omitted).
Again, Green and Hayes do not appear to contest that any of the three
elements were proven beyond a reasonable doubt. Rather, they contend that the
shootout communicated withdrawal and an end to the conspiracy. But withdrawal
does not negate an element of the conspiracy crime in this case. See Smith v.
United States, 133 S.Ct. 714, 719 (2013).4 “Far from contradicting an element of
the offense, withdrawal presupposes that the defendant committed the offense.”
Id. Because conspiracy is a continuing offense, “a defendant who has joined a
conspiracy continues to violate the law through every moment of the conspiracy’s
existence, and he becomes responsible for the acts of his co-conspirators in pursuit
of their common plot.” Id. (citations and quotation marks omitted). “Withdrawal
terminates the defendant’s liability for postwithdrawal acts of his co-conspirators,
but he remains guilty of conspiracy.” Id. The burden of establishing withdrawal
rests upon the defendant. Id. at 720-21.
Here, neither Green nor Hayes appears to have submitted a jury instruction
as to withdrawal, even though it was their burden to establish the defense. Id.
Even without such a jury instruction, the jury was free to disbelieve that there was
withdrawal as of the shooting. Specifically, the jury was free to disbelieve there
was withdrawal from the conspiracy between Hayes and Green as they continued
4

This issue often arises on review of a district court’s decision not to submit
a jury instruction for withdrawal. See, e.g., United States v. Shepard, 462 F.3d
847, 868-869 (8th Cir. 2006). Green and Hayes do not raise this argument and do
not point to any portion of the record indicating the submission of a withdrawal
instruction.
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to further their crime through concealment, namely, Green providing Hayes at least
one firearm used in furtherance of their conspiracy or Green removing the firearms
from Hayes’ residence, which the jury could infer meant was for the purpose of
hiding or disposing those firearms. The jury was additionally free to disbelieve
Green’s testimony that the amount of methamphetamine found in his residence was
for personal use. Rather, the jury was free to find that the methamphetamine was
tied to the conspiracy, particularly as it was co-mingled with other evidence of
narcotic trafficking, including multiple guns, multiple cellular phones, baggies, and
scales. Finally, even assuming that all co-conspirators had withdrawn as of
January 30, 2012 (an assumption we reject), the fact that this evidence was not
recovered until two days later is simply inconsequential, as the jury could readily
infer that it related back to the just-ended conspiracy.
III.
In the second point on appeal, Hayes challenges the sufficiency of the
evidence supporting his conviction for felon in possession of a firearm, here, a
Ruger 9mm. As noted above, in our review for sufficiency of the evidence, we
view the evidence in the light most favorable to the verdict, and we will reverse for
insufficient evidence only if no reasonable jury could have found the appellants
guilty beyond a reasonable doubt. White, 816 F.3d at 985.
To convict Hayes of being a felon in possession of a firearm under
18 U.S.C. § 922(g), the government had to prove: “(1) that [Hayes] had a previous
conviction for a crime punishable by imprisonment exceeding one year, (2) that he
knowingly possessed the firearms and ammunition, and (3) that the firearms and
ammunition traveled in or affected interstate commerce.” Id. Hayes does not
challenge the first and third elements; rather, he argues only that the evidence is
not sufficient to show that he knowingly possessed the Ruger 9mm.
“A defendant knowingly possesses a firearm if he has actual or constructive
possession of it, and the possession can be sole or joint.”
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469 F.3d 716, 719 (8th Cir. 2006) (citation omitted). “Constructive possession of
the firearm is established if the person has dominion over the premises where the
firearm is located, or control, ownership, or dominion over the firearm itself.” Id.
Here, the record contains ample evidence from which a jury could conclude
beyond a reasonable doubt that Hayes constructively possessed the Ruger 9mm
firearm used during the shootout. When Hayes was arrested at the hospital, police
confiscated the contents of his pockets, which included a Wal-Mart receipt for
9mm ammunition. Green testified that the Ruger 9mm was his and that he brought
it inside Hayes’ residence that day for protection. An officer located the empty
Ruger 9mm firearm box and Federal Cartridge 9mm bullet box in plain view on
the island between the kitchen and dining area of Hayes’ residence the day after
the shooting. Journigan testified that Hayes and Green “pulled their guns” and
together held her at gunpoint. Under these facts, a reasonable jury could find that
Hayes had dominion and control over the contents of his home, including the
Ruger 9mm. See Wells, 469 F.3d at 720.
IV.
In the third point on appeal, Green and Hayes contend that the district court
erred in denying their motion to suppress evidence obtained from the delayed
search of phones and a computer. Green asserts a Fourth Amendment violation
because of the government’s continued possession of cellular phones and a
computer, and Green and Hayes assert a violation of discovery rules.5
As to Green’s argument that the district court erred in denying his motion to
suppress evidence based on Fourth Amendment law, “we review the district
court’s findings of fact for clear error and the ultimate question of whether the

5

Hayes concedes that he has no standing under the Fourth Amendment to
challenge the search.
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Fourth Amendment was violated de novo.” United States v. Allen, 705 F.3d 367,
369 (8th Cir. 2013) (citation omitted).
Green asserts that the government’s continued possession of various cellular
phones and a computer that were included within evidence taken from his
residence pursuant to a consent search on February 2, 2012, violated the Fourth
Amendment. Specifically, Green contends that the government’s retention of the
cellular phones and the computer for more than two years was without
justification, warranting application of the exclusionary rule. The government
responds that the cellular phones and computer were in its possession through
Green’s consent such that no possessory interest was infringed and that Green
never sought return of the property.
Even assuming that the appellants are correct that the delay in securing a
search warrant was a Fourth Amendment violation, admission of evidence from the
cellular phones was harmless beyond a reasonable doubt. See Chambers v.
Maroney, 399 U.S. 42, 53 (1970) (evidence admitted in violation of the Fourth
Amendment is subject to review for harmless error). “An error is harmless if we
conclude that no substantial rights were affected and that the error did not
influence or had only a very slight influence on the verdict.” United States v.
Tenerelli, 614 F.3d 764, 769 (8th Cir. 2010) (citation omitted); see also Fed. R.
Crim. P. 52(a). Here, the government introduced evidence independent of that
introduced pursuant to the May 14, 2014 search that supports the jury’s verdict.
See United States v. Briley, 319 F.3d 360, 365 (8th Cir. 2003). As detailed above,
completely independent of the photographs and the text messages, there was (1)
sufficient evidence to convict Green and Hayes of conspiracy to possess with
intent to distribute methamphetamine, and (2) sufficient evidence to convict Hayes
of being a convicted felon in possession of a firearm. We conclude that any error
in admitting evidence uncovered in the search pursuant to the May 14, 2014
warrant was harmless beyond a reasonable doubt as to those convictions.

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As to the third conviction, possessing, brandishing, and discharging a
firearm in furtherance of a drug trafficking crime, we also find that the government
introduced sufficient evidence independent of that introduced pursuant to the
May 14, 2014 search such that any error in the admission of that evidence was
harmless beyond a reasonable doubt. To establish that the defendants violated
§ 924(c) as charged in this case, the government must prove that (1) the defendants
committed a drug trafficking crime; and (2) the defendants possessed, brandished
or discharged a firearm in furtherance of that crime. United States v. Robinson,
617 F.3d 984, 988 (8th Cir. 2010). With regard to the first element, and as shown
above, there was sufficient evidence – without evidence from the contested search
– to support the jury’s finding that both appellants engaged in a conspiracy to
distribute methamphetamine, which is a drug trafficking crime under § 924(c). See
Rolon-Ramos, 502 F.3d at 757.
With regard to the “in furtherance of” element of § 924(c), “the government
must present evidence from which a reasonable [trier of fact] could find a ‘nexus’
between the defendant’s possession of the charged firearm and the drug crime,
such that this possession had the effect of ‘furthering, advancing or helping
forward’ the drug crime.” Robinson, 617 F.3d at 988 (alterations in original;
citations omitted). As detailed above, there was sufficient evidence that both
appellants possessed the Ruger 9mm. See United States v. Conway, 754 F.3d 580,
590 (8th Cir. 2014) (noting that possession may be actual or constructive; it need
not be exclusive). There was also sufficient evidence to support the jury’s finding
that Hayes brandished a firearm, in particular, the testimony that he brandished a
firearm to Journigan inside the house. Likewise, Green’s own admissions, along
with the other evidence detailed above, was more than sufficient to support the
jury’s finding that he both brandished and discharged the Ruger 9mm. Moreover,
all of these acts occurred during a methamphetamine transaction gone bad, which
certainly provides a sufficient basis for the jury’s finding of the requisite nexus
between this possessing, brandishing, and discharging and the drug trafficking
conspiracy. As the evidence at trial was sufficient to support both Green’s and
Hayes’ § 924(c) convictions even ignoring the evidence from the contested search,
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we conclude that any error in admitting evidence uncovered in the search pursuant
to the May 14, 2014 warrant was harmless beyond a reasonable doubt.
In this point, Green and Hayes also argue that the district court abused its
discretion under Rule 16 in its consideration of the evidence found pursuant to the
May 14, 2014 search warrant.
We review for abuse of discretion a district court’s decision regarding
the exclusion of evidence as a sanction for governmental discovery
violations. If an actual discovery violation exists, the sanction will be
upheld or reversed based on (1) whether the Government acted in bad
faith and the reason(s) for delay in production; (2) whether there is
any prejudice to the defendant; and (3) whether any lesser sanction is
appropriate to secure future Government compliance.
United States v. Polk, 715 F.3d 238, 249 (8th Cir. 2013) (internal citations and
quotation marks omitted).
During a pre-trial hearing, the government conceded that the delayed search
of the computer and phones was its error and that when prosecutors discovered that
the searches had not been done, the government obtained search warrants and
disclosed the contents of the search as soon as possible. Because of late
disclosures, the district court excluded multiple pieces of evidence. The record
indicates that the district court’s review of the timeline and its treatment of the
evidence was measured and considered. Notably, the district court found no bad
faith and allowed in only limited evidence from that late search. Additionally, the
record reflects that following the disclosure, the defense had a week to prepare for
this evidence. See Polk, 715 F.3d at 250 (affirming where defense had seven days
prior to trial to prepare for trial following disclosure); United States v. Altman, 507
F.3d 678, 680 (8th Cir. 2013) (district court abused its discretion by excluding as
untimely disclosed testimony where defense had four days to prepare).
Accordingly, we hold that the district court did not abuse its discretion in
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fashioning its sanctions and allowing in some evidence of what was recovered in
the May 14, 2014 search.
V.
In the fourth point on appeal, Green and Hayes contend that the district court
erred in prohibiting them from presenting a justification defense. “We review de
novo a district court’s decision whether there is sufficient evidence to submit an
affirmative defense to a jury.” United States v. El-Alamin, 574 F.3d 915, 925 (8th
Cir. 2000 (citation omitted). We reject this argument as well.
Although it appears we have not been faced with a challenge regarding the
justification defense as it applies to § 924(c), we have previously declined to
recognize “a defense of legal justification in violation of § 922(g).” United States
v. Cooney, 571 F. App’x. 505, 506 (8th Cir. 2014) (citations omitted); see also
United States v. Poe, 442 F.3d 1101, 1103 (8th Cir. 2006). In those § 922(g) cases,
we have indicated that if such defense were available, we would require proof of
the following four elements:
(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,’” and (4) “that a direct causal
relationship may be reasonably anticipated between the [criminal]
action and the avoidance of the [threatened] harm.”
Poe, 442 F.3d at 1104 (citation omitted; alterations in original). “To be entitled to
a jury instruction on a justification defense, a defendant must show an underlying
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evidentiary foundation as to each element of the defense, such that a reasonable
person could conclude that the evidence supported the defendant’s position.” Id. at
1104 (citations and internal quotation marks omitted).
Relying on Cooney, Green contends that he should have been allowed to
raise a justification defense to his charge brought pursuant to § 922(g), and Green
and Hayes make the same argument as to their conviction under § 924(c). Even if
we were to recognize the defense as applied to either provision, Green and Hayes
did not establish, at a minimum, that they did not recklessly or negligently place
themselves in a situation where it would be probable that either man would be
forced to choose the criminal conduct. As detailed above, there is sufficient
evidence indicating that Green and Hayes were part of a dangerous drug
conspiracy, and jointly possessed at least one firearm for protection during that
conspiracy. Further, neither appellant provided any showing that he had no
reasonable, legal alternative to violating the law. Where a defendant could have
called the police, as either easily could have done after Harcourt and Williams first
left Hayes’ residence, that defendant does not meet this element. See El-Amine,
574 F.3d at 926. Here, Green and Hayes pulled a gun on Journigan when they
grew suspicious of Harcourt and Williams outside of the home. Rather than stay
inside when the two individuals returned, they exited the residence and engaged in
gunfire. This is not choosing unlawful conduct where no lawful conduct is
available. This is consciously committing a crime, and the district court did not err
in refusing a jury instruction or argument on justification under these facts.
VI.
Accordingly, we affirm the judgment of the district court.
______________________________

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