United States of America v.  Jermaine Boney

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 01-4745 
JERMAINE BONEY,
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Walter E. Black, Jr., Senior District Judge.
(CR-00-77-DKC)
Submitted: June 20, 2002
Decided: July 3, 2002
Before WILKINSON, Chief Judge, and WILKINS and
KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
Edward C. Sussman, Washington, D.C., for Appellant. Thomas M.
DiBiagio, United States Attorney, Barbara S. Skalla, Assistant United
States Attorney, James M. Trusty, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Jermaine Boney appeals his conviction for being a felon in posses-
sion of a firearm. He contends that the district court erred by (1) deny-
ing his motion to dismiss the indictment alleging prosecutorial
vindictiveness and (2) instructing the jury that he bore the burden of
proving by a preponderance of the evidence his defense of justifica-
tion. We previously granted Boney’s motion to submit the case with-
out oral argument.
Regarding the claim of prosecutorial vindictiveness, we have
reviewed the briefs, trial transcript, and the district court’s order deny-
ing Boney’s motion, and we find no reversible error. Accordingly, we
affirm on the reasoning of the district court. (See J.A. at 610-18).
Turning to Boney’s claim of erroneous jury instructions, we review
a claim that a jury instruction inaccurately stated the law de novo.
United States v. Ellis, 121 F.3d 908, 923 (4th Cir. 1997). However,
even where a jury instruction was erroneous, reversal is only war-
ranted when the error was prejudicial. Id.
Assuming, without deciding, that the district court’s instructions on
the burden of proof were erroneous, we hold that the evidence showed
beyond a reasonable doubt that the justification defense was inappli-
cable in this case. To establish a justification defense to a felon-in-
possession charge, the evidence must show each of the following: (1)
the defendant was under an unlawful and present threat of death or
serious bodily injury; (2) he did not recklessly place himself in a situ-
ation where he would be forced to engage in criminal conduct; (3) he
had no reasonable legal alternative (to both the criminal act and the
avoidance of the threatened harm); and (4) there was a direct causal
relationship between the criminal action and the avoidance of the
threatened harm. United States v. Perrin, 45 F.3d 869, 873-74 (4th
Cir. 1995).
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Boney’s own testimony disproved each of these elements. Boney
testified that he dropped David Parker off on Zelma Avenue so that
Parker could commit a robbery. Boney was supposed to pick him up
about forty-five minutes later. A short time after Parker got out of the
car, Boney heard gunshots, returned to the scene, and found Parker
lying in the street.
As Boney turned the body over, a number of individuals
approached the car. One of the men placed his hand in his waistband
in a manner indicating the possible presence of a handgun. This man
told Boney not to touch the body. At that point, Boney picked up Par-
ker’s gun which was lying beside Parker, despite being told not to do
so by one of the individuals near the scene. Boney then got back in
the car, drove to his girlfriend’s home, and placed the gun in a dresser
drawer. Boney later returned to the crime scene with Parker’s mother.
As to the first element of the justification defense, this evidence
was insufficient to establish the required present or imminent threat
of death or injury. The threat or fear of future bodily harm does not
warrant a justification defense. United States v. Holt, 79 F.3d 14, 16
(4th Cir. 1996). Even if Boney was under a present threat of death or
injury at the scene, he was indisputably not under that threat once he
left the scene and hid the gun at his girlfriend’s house. The evidence
showed beyond a reasonable doubt that Boney’s continued possession
was not related to a "present or imminent" threat of death or injury.
See United States v. Mason, 233 F.3d 619, 624-25 (D.C. Cir. 2000)
(retention of firearm after threat dissipated, without attempting to con-
tact authorities or safely dispose of gun, is criminal act).
Second, Boney’s own testimony shows that he recklessly placed
himself in a situation where he would be forced to engage in criminal
conduct. He dropped Parker off knowing that Parker intended to com-
mit a robbery, and he planned to pick Parker up afterwards. In addi-
tion, upon hearing the gunshots, rather than calling the police, Boney
chose to return to the crime scene and place himself in harm’s way.
Third, Boney had a legal alternative both to his criminal act and to
the avoidance of the threatened harm. He could have refused to be
part of the attempted robbery, and he could have called the police,
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both when he knew Parker was planning to commit a robbery and
when he heard gunshots.
Finally, there was not a direct causal link between Boney’s fear of
the bystander and his criminal act. Faced with a man who told him
not to touch Parker’s body, Boney could have done just that and left
the crime scene. Even if Boney’s fear were reasonable, his continued
possession of the firearm at his girlfriend’s house was not linked to
his fear of the unknown male, especially considering that Boney
returned to the crime scene with Parker’s mother, unarmed.
Thus, we find that the evidence showed beyond a reasonable doubt
that Boney’s actions were not justified. Moreover, Boney was likely
not even entitled to a justification instruction, because he did not pre-
sent sufficient evidence to create a jury issue as to all four elements.
See Perrin, 45 F.3d at 873-74 (construing justification defense "very
narrowly"). Since the district court was not required to instruct the
jury on the justification defense, Boney suffered no prejudice from
any error in the instruction. Accordingly, we affirm Boney’s convic-
tion.
AFFIRMED
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