United States of America v. Don Brown

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0127P (6th Cir.)
File Name: 04a0127p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DON BROWN,
Defendant-Appellant.
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No. 02-6205
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 02-20102—Julia S. Gibbons, Circuit Judge.
Argued: February 3, 2004
Decided and Filed: May 6, 2004
Before: NORRIS, GILMAN, and ROGERS, Circuit
Judges.
_________________
COUNSEL
ARGUED: Stephen R. Leffler, LAW OFFICE OF
STEPHEN R. LEFFLER, Memphis, Tennessee, for
Appellant. Stephen P. Hall, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
ON BRIEF: Stephen R. Leffler, LAW OFFICE OF
STEPHEN R. LEFFLER, Memphis, Tennessee, for
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Appellant. Stephen P. Hall, ASSISTANT UNITED STATES
ATTORNEY, Memphis, Tennessee, for Appellee.
_________________
OPINION
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ALAN E. NORRIS, Circuit Judge. Defendant Don Brown
appeals from a jury verdict that found him guilty of a single
count of knowingly possessing a firearm despite a prior
felony conviction, in violation of 18 U.S.C. § 922(g).
Defendant testified at trial and conceded that he briefly had
his brother’s .25 caliber pistol in his possession but contended
that he took it because his brother was intoxicated and he
wished to make certain that the gun was safely stored away.
On appeal defendant has designated four assignments of
error: 1) he should have been provided with street clothes
during the trial; 2) the district court erred in permitting
testimony that the firearm was loaded at the time that it was
confiscated from him; 3) the district court gave the jury an
improper instruction concerning the burden of proof with
respect to a defense of “necessity”; and 4) he was entitled to
a reduction for acceptance of responsibility despite his
decision to go to trial.
I.
According to defendant’s trial testimony, his troubles
stemmed from his decision to accompany his brother,
Timothy, on January 29, 2002, to a club in Memphis to
“check on [Timothy’s] girlfriend.” The brothers left around
9:30 that evening in Timothy’s van, visited the club for 10 to
15 minutes, and then left when they failed to locate the
girlfriend. Although they did not drink at the club, they had
already been drinking beer that Timothy kept in the van.

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No. 02-6205 United States v. Brown 3
Defendant went on to testify that, not long thereafter,
Timothy “just got down on his accelerator and the van sped
up and got away from him and he hit the under beam of the
overpass right there at the interstate where you go off the off-
ramps there.” Timothy told defendant not to get out of the
van, although it was clear that the front bumper was bent and
the windshield cracked where defendant’s head had struck it
on impact. Timothy attempted to drive off despite the fact
that a back tire went flat as they pulled away. According to
defendant, he told his brother to stop a number of times but he
refused. Defendant testified as follows with respect to the
gun:
. . . I looked down at the beer and stuff, I said, “I’m
fixing to get out . . . .” Then I looked over and got the
beer, I said, “You don’t need this.” And I noticed the
pistol was in the little thing right there at the little cockpit
thing, what you put cups and stuff at. And I reached and
grabbed it. He was reaching for it, and I grabbed it from
him like this here and got out the van. He was still,
“Give me the gun, give me the gun.” I said, “What you
doing with this here in the first place,” know what I’m
saying. And so I got the gun and the beer and got out the
van and he got out the van with me. I said, “Man, you
don’t need to have this stuff in here, you are already in
enough trouble as it is,” know what I’m saying.
. . . .
I was concerned that he was going to hurt hisself [sic]
or somebody else, you know what I’m saying, driving the
way he is. He was obviously drunk because he had the
wreck. And I didn’t know what he was going to do at
that point in time because he refused to stop the van. So
I got out, I was already out, and I took the beer and
what’s you call it, he constantly trying to follow me
asking me for the gun and whatever. I said, “No, you
don’t need this.” I said, “You either lock the van up and
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walk home with me or you get in there and go to sleep,
but you don’t need to drive.”
Defendant went on to explain that he was concerned that his
brother might have quarreled with his girlfriend, and he took
the gun with the intention of placing it in his aunt’s house for
safekeeping.
Timothy did not take kindly to his brother’s concerns.
Instead, he stopped the van, jumped out, and approached
Memphis police officer Brad Savage. According to Savage’s
trial testimony, “He told me that him and his brother had
gotten into an argument in the van, and his brother jumped
out of the van, grabbed a pistol and was walking westbound
on Chelsea from Evergreen.” This encounter occurred at
about 11:15 p.m.
Timothy pointed his brother out to Savage, who radioed for
help and then approached defendant:
I got on my loud speaker, and I instructed [defendant] –
He was carrying a 40-ounce bottle of beer, and I
instructed him to put it down . . . . I told him to put his
hands up on the wall at which time he did, and I
approached him at that time.
. . . .
I then patted that pocket down. I could feel something,
so I reached in there and there was a small caliber pistol
in his pocket.
Savage also testified that defendant told him the location of
the gun when asked.
Shortly thereafter, police officer Dwayne Johnson arrived
on the scene. Johnson took possession of the pistol and
emptied it. At trial, he testified that he removed a live round
of ammunition from the gun’s chamber and that the clip
contained an additional five rounds.

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No. 02-6205 United States v. Brown 5
A grand jury returned a one-count indictment on April 10,
2002, charging defendant with being a felon in possession of
a firearm, 18 U.S.C. § 922(g). Prior to trial, the parties
stipulated to the fact that defendant had previously been
convicted of four felonies and to the fact that the firearm in
question – a Bryco Arms .25 caliber pistol – had traveled
across state lines. After a two-day trial, the jury returned a
guilty verdict. Defendant received a sentence of 235 months
of imprisonment, three years of supervised release, and a
special assessment of $100.
II.
1. Prison Clothing
On the first day of trial, defense counsel told the court that
his client had tried to obtain clothes from his family but had
received no response to his request. The judge replied, “If
you’ve got a reasonable way of getting them here, you know,
in a timely, reasonably timely way, I would by happy to wait,
but it just doesn’t seem like there is any basis for waiting
under th[e current] circumstances.” The court went on to note
that, “[I]f at some later point Mr. Brown . . . is able to get
some clothes here, I would be happy to allow him an
opportunity to change, but of course . . . the jury will have
already seen him . . . .” Other than expressing the general
desire that his client have access to non-prison attire, defense
counsel did not object to the district court’s resolution of the
problem, nor did he ask for a continuance.
In Estelle v. Williams, 425 U.S. 501 (1976), the Supreme
Court held as follows:
[A]lthough the State cannot, consistently with the
Fourteenth Amendment, compel an accused to stand trial
before a jury while dressed in identifiable prison clothes,
the failure to make an objection to the court as to being
tried in such clothes, for whatever reason, is sufficient to
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negate the presence of compulsion necessary to establish
a constitutional violation.
Id. at 512-13 (footnote omitted). In other words, a
defendant’s fundamental liberty interest under the Fourteenth
Amendment prevents the State from denying the accused the
option of wearing something other than prison garb. Id. at
503-04. However, the mere fact that a defendant appears in
prison attire during his trial does not necessarily mean that his
right to a fair trial has been compromised. As the Court
observed, “The cases show . . . that it is not an uncommon
defense tactic to produce the defendant in jail clothes in the
hope of eliciting sympathy from the jury.” Id. at 508.
Accordingly, the only constitutional prohibition is that a
defendant cannot be forced to wear prison clothes and, even
then, he must object to that directive to preserve his claim.
Defendant concedes in his brief to this court that “[t]here is
nothing in the record to indicate that the jurors were, in fact,
affected by what they saw.” Furthermore, he does not argue
that the State compelled him to wear prison-issued clothing
or prohibited him from obtaining other attire.
Under the circumstances, we conclude that there simply
was no compulsion. If anything, the remarks that the district
court addressed to defendant when he mentioned the issue
prior to trial demonstrate a general willingness to
accommodate him. Defendant did not otherwise object when
the court determined that, in the absence of a viable plan to
obtain clothing, it would begin the trial. This failure to object
negates any claim of compulsion. Estelle at 512-13.
2. Testimony Concerning Whether the Pistol was Loaded
During trial, officer Savage testified that fellow officer
Johnson “cleared the weapon” when he arrived at the scene.
Defense counsel objected to testimony concerning whether or
not the pistol at issue was loaded at the time it was

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No. 02-6205 United States v. Brown 7
confiscated; in his view, that fact was “irrelevant.” The court
overruled the objection based on the following rationale:
Well, it may not be relevant whether it’s loaded or not
for purposes of the legality or illegality of the conduct.
On the other hand, the fact that it’s loaded, and frankly,
the defense [of necessity] you are trying to present, it
may not have much to do with the likelihood of the
factual scenario of either party, but it generally has
something to do with the overall fact situation. So I
mean it’s relevant also.
This court reviews evidentiary rulings concerning relevance
and admissibility for an abuse of discretion. See United
States v. Bonds, 12 F.3d 540, 554 (6th Cir. 1993) (“We
review the trial court’s admission of testimony and other
evidence under the abuse of discretion standard.”). Under this
standard, we take a “maximal view” of the evidence’s
probative effect and a “minimal view of its unfairly
prejudicial effect.” United States v. Sassanelli, 118 F.3d 495,
498 (6th Cir. 1997).
The statute of conviction reads in part as follows:
It shall be unlawful for any person . . . (1) who has been
convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year . . . to ship
or transport in interstate or foreign commerce, or possess
in or affecting commerce, any firearm or ammunition; or
to receive any firearm or ammunition which has been
shipped or transported in interstate or foreign commerce.
18 U.S.C. § 922(g). Because the statute does not require that
the firearm be loaded, defendant takes the position that the
introduction of such evidence runs afoul of Federal Rule of
Evidence 403 because its probative value was “substantially
outweighed by the danger of unfair prejudice.”
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We disagree. The district court correctly recognized that
the evidence had some relevance to defendant’s necessity
defense. Moreover, this evidence was not overly prejudicial:
the fact that the gun was loaded bolstered defendant’s
argument that it was necessary to secure it temporarily from
his brother. We find no abuse of discretion on the part of the
district court in permitting the introduction of this evidence.
3. Jury Instructions with Respect to Necessity Defense
Defendant next maintains that the jury instruction
explaining his affirmative defense of necessity improperly
shifted the burden of proof to him. We review jury
instructions as a whole to determine whether they fairly and
adequately submitted the issues and applicable law to the
jury. United States v. Williams, 952 F.2d 1504, 1512 (6th Cir.
1991).
After instructing the jury on the government’s burden of
proof, the district court gave it the following guidance
concerning defendant’s affirmative defense:
If you conclude that the government has proved beyond
a reasonable doubt that the defendant committed the
crime as charged, you must then consider whether the
defendant should nevertheless be found not guilty
because his actions were justified by necessity. The
defendant’s actions were justified and therefore he is not
guilty only if the defendant has shown by a
preponderance of the evidence that each of the following
five elements is true. . . .
The five elements which the defendant must prove by
a preponderance of the evidence to establish the defense
are as follows: Number one, the defendant was under an
unlawful present imminent and impending threat of such
nature as to induce a well-grounded fear of death or
serious bodily injury to himself or another. And two, the
defendant had not recklessly or negligently placed

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No. 02-6205 United States v. Brown 9
himself in a situation in which it was probable that he
would be forced to choose the criminal conduct. And
three, the defendant had no reasonable legal alternative
either before or during the event to violating the law, that
is, he had no reasonable opportunity to avoid the threat
to harm. And number four, a reasonable person would
believe that by committing the criminal action he would
directly avoid the threat and harm. And five, the
defendant did not maintain the illegal conduct any longer
than absolutely necessary.
This court has held that “a defense of justification may arise
in rare situations” when the charge of being a felon in
possession of a firearm has been alleged. United States v.
Singleton, 902 F.2d 471, 472 (6th Cir. 1990). However, this
defense must be “construed very narrowly.” Id. In Singleton,
we expressly adopted the requirements imposed by the Fifth
Circuit upon a defendant in order to make out such a defense.
Id. (adopting United States v. Gant, 691 F.2d 1159 (5th Cir.
1982)). These requirements track those set forth by the
district court in its jury instructions.
Defendant argues that the elements of the affirmative
defense, which he was obliged to prove by a preponderance
of the evidence, go to an essential element of the offense that
the government must prove: that he “knowingly possessed
the firearm.” It is axiomatic, of course, that the government
must prove all elements of a crime beyond a reasonable
doubt. See In re Winship, 397 U.S. 358, 364 (1970).
Furthermore, if an affirmative defense bears a necessary
relationship to an element of the charged offense, the burden
of proof does not shift to defendant. Patterson v. New York,
432 U.S. 197, 210-11 (1977). However, where, as here,
defendant asserts an affirmative defense that does not negate
any element of the offense, he may be required to prove that
defense by a preponderance of the evidence. Id. In this case,
a felon in possession charge only requires proof of general,
rather than specific, intent. United States v. Bennett, 975 F.2d
305, 308 (6th Cir. 1992) (voluntary intoxication not an
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affirmative defense in § 922(g) prosecution). Proving
necessity does not necessarily undercut the element of
“knowing possession;” one can knowingly possess a firearm
but still do so under circumstances of necessity that justify an
otherwise illegal act.
In our view, the district court correctly instructed the jury
in light of Singleton, which specifically placed the burden to
show the elements of the necessity defense on defendant.
Singleton, 902 F.2d at 472 (stating “a defendant must show”
before listing the requirements of the necessity defense).
4. Acceptance of Responsibility
Finally, defendant contends that he should have been
accorded a reduction to his offense level based upon
acceptance of responsibility. U.S.S.G. § 3E1.1. Application
Note 2 to this section states that it should not generally apply
to a defendant “who puts the government to its burden of
proof at trial by denying the essential factual elements of
guilt, is convicted, and only then admits guilt and expresses
remorse.” U.S.S.G. § 3E1.1, comment. (n.2). We generally
review the district court’s judgment on this issue for clear
error. United States v. Webb, 335 F.3d 534, 538 (6th Cir.
2003). Even when this Guideline’s section is applied to
uncontested facts, we review the lower court’s decision with
deference, not de novo. Id. at 537 (noting a change in the
circuit’s standard of review in light of Buford v. United
States, 532 U.S. 59, 63-66 (2001)). Here, however, the facts
were contested and therefore a clear error standard of review
applies.
Defendant takes the position that he never denied his felony
convictions, possession of a firearm, or the fact that the
firearm had traveled in interstate commerce. He sought a trial
in order to assert an affirmative defense, which does not
negate an element of the crime.

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No. 02-6205 United States v. Brown 11
In denying the benefit of acceptance of responsibility, the
district court reasoned as follows:
. . . I do not think Mr. Brown is entitled to points for
acceptance of responsibility. I think that possibly in a
given case an individual who asserted a defense such as
this might . . . still be entitled to points for acceptance of
responsibility, but when I – when one evaluates Mr.
Brown’s credibility, the fact that his explanation of
events was not accepted by the jury and, frankly, I did
not find Mr. Brown to be credible under all the
circumstances of the case. I don’t think he can be given
points for acceptance of responsibility because he did not
in my judgment fully accept responsibility.
The district court properly recognized that putting the
government to its burden did not automatically preclude a
reduction under § 3E1.1; it merely found that the facts as
adduced at trial made such a finding inappropriate in this
case, which is precisely the kind of determination that we
review for clear error. No such error occurred in this case.
III.
For the foregoing reasons, we affirm the judgment of the
district court.

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