VIII. Defenses
A. Severance of Counts/Defendants
B. Fed. R. Crim. P. 12 - Pretrial Motions
C. Necessity/Duress
D. Statute of Limitations
E. Venue
F. Privileges
G. Estoppel Defenses
H. Sufficiency of Evidence Generally
I. Mistrial
J. Speedy Trial Act/IAD
K. Title III - Wire Tap
L. Miscellaneous Defenses
Supreme Court Decisions
• Duress
Dixon v. U.S., 05-7053 (6/22/06)
> Defendant was charged with buying firearms while under felony
indictment and with making false statements on firearm applications.
Defendant admitted at trial that she knew she was under indictment and
that she was committing a crime. Her defense was that her boyfriend
forced her to do it under threat of death. The district court
instructed the jury that defendant must prove duress by a preponderance
of the evidence. Defendant was convicted, lost on appeal, and the
Supreme Court granted certiorari.
* Holding: The Court held that, unless Congress otherwise defines the
duress defense, it is the defendant’s burden to prove duress by a
preponderance of the evidence. Thus, the conviction was affirmed.
Sixth Circuit
• Necessity/DuressU.S. v. Hargrove, 04-3338 (7/19/05)
> Defendant went to trial on a charge of being a felon in possession of a firearm charge. Defendant testified at trial that he had been the victim of robberies, and that shortly before he was arrested with the firearm, he had been threatened not to return to a certain area of town. The district court refused to give an instruction on the defense of necessity, and defendant was convicted.
* Holding: The court upheld the district court’s decision denying the necessity instruction. In order to prove necessity, a defendant must show (1) fear of present, imminent bodily injury or death, (2) defendant had not recklessly or negligently placed herself in the position, (3) defendant had no reasonable alternative to breaking the law, (4) direct relationship between the criminal action taken and the threatened harm, and (5) defendant did not maintain possession of the firearm any longer than necessary. The court found that the threat against defendant was speculative and vague, and thus defendant could not satisfy the first factor of imminent bodily injury. Thus, the conviction was affirmed.
• Necessity/Duress
U.S. v. Johnson, 04-5611 (8/5/05)
> Defendant was charged with bank robbery(18 U.S.C. § 2113(a)), killing a person in relation to a bank robbery (§ 2113(e)), discharging a firearm during a crime of violence (§ 924(c)), and killing someone in relation to the discharge of the firearm (§ 924(j)). Defendant was mentally retarded and his two codefendants threatened that if defendant did not go into the bank with them and kill the security guard, then they would kill defendant. The codefendants left defendant in front of the bank and parked the car. Defendant went into the bank and shot the security guard before the co-defendants got into the bank. Prior to trial, the district court ruled that defendant could not present evidence regarding duress or mental retardation. Defendant appealed.
* Holding: The court first noted that it is an open question in the Sixth Circuit as to whether duress is an available defense to murder. The court declined to reach the issue, however, because it found that defendant had not made a prima facie showing of duress such that the defense was available based upon the facts of the case. Relying on the five factors that a defendant must prove for a necessity/duress defense, (See Hargrove, supra,) the court ruled that defendant had failed to make out a prima facie showing that he had no reasonable legal alternative to participating in the robbery. When defendant was dropped off by the codefendants, he had options other than going forward with the offense. Further, the court ruled that the “other reasonable legal alternative” factor was considered from the point of view of a reasonable person, not a reasonable retarded person. Thus, the district court was also correct in refusing to allow defendant to present evidence about his mental retardation. Accordingly, the conviction was affirmed.
• Necessity
U.S. v. Ridner, 06-5822 (1/17/08)
> Defendant was charged with being a felon in possession of ammunition for possessing three shotgun shells upon his arrest on an open warrant. Prior to trial, the government moved in limine to prevent defendant from presenting a necessity defense. At the pretrial hearing, defendant testified that he possessed the shells in order to keep his brother from taking them, retrieving his shotgun from the pawnshop, and committing suicide. The district court granted the government’s motion, defendant entered a conditional plea, and he appealed.
* Holding: In order to establish the defense of necessity, the defendant must show the following: (1) an imminent threat of death or serious bodily injury to the defendant or a third party; (2) that defendant did not negligently place herself in the position; (3) defendant had no reasonable legal alternative to violating the law; (4) a direct causal relationship between the criminal action and avoidance of the threatened harm; and (5) that defendant did not maintain the illegal conduct any longer than necessary. In the case, the court held that defendant failed to meet the first element because there was no imminent threat to the brother. By defendant’s own testimony, he believed that there was no shotgun in his brother’s home, and that his brother would have had to go to the pawn shop to retrieve the shotgun. Further, the court found that defendant did not meet the fifth element because he ran from the police when they arrived instead of immediately giving them the shells that were in his pocket. Accordingly, the district court’s in limine ruling was affirmed.
• Necessity /Justification Defense
U.S. v. Kemp, 07-5837 (11/14/08)
> Defendant was charged with being a felon in possession of a firearm. Defendant provided two differing stories to the police regarding why he possessed the gun. At trial, defendant told a third story regarding the gun, testifying that he took it away from his drunk girlfriend. The district court refused to provide an instruction on justification, defendant was convicted, and he appealed.
* Holding: In order to establish justification or necessity, a defendant must prove the following: (1) defendant was under an unlawful, imminent theat of death or serious bodily injury; (2) defendant had not negligently gotten into the situation; (3) defendant had no reasonable legal alternative; (4) a direct causal relationship between the criminal action and avoidance of the harm; and (5) defendant maintained the illegal conduct no longer than necessary. Before a court must provide an instruction regarding justification, defendant must prove each element by a preponderance of the evidence. The court held that defendant failed to establish four of the five factors, and accordingly the district court ruling was affirmed.