United States of America v. Jason S. Smith

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 31, 2011
Decided June 1, 2011
Before
FRANK H. EASTERBROOK, Chief Judge
DIANE P. WOOD, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 10-3885
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JASON S. SMITH,
Defendant-Appellant.
Appeal from the United
States District Court for the
Eastern District of Wisconsin.
No. 10-CR-71
Rudolph T. Randa, Judge.
Order
After a jury trial, Jason Smith was convicted of possessing a firearm, which his crim-
inal history made unlawful. 18 U.S.C. §922(g)(1). He was sentenced to 60 months’ im-
prisonment. His only appellate argument is that the district judge erred by preventing
him from raising what his lawyer styled a “coercion” defense.
Smith contended, in papers filed in connection with a motion in limine, that he took
two guns away from “some little guys” or “kids” who were using them (or might have
used them) to rob persons living in the neighborhood, and might eventually have used
to threaten Smith himself. The guns were still in his house when Smith was arrested on
a different charge. Arresting officers found a third weapon—a loaded semi-automatic
pistol that Smith said he owned and kept for self-protection. Later Smith changed his
story and said that he had taken all three guns from the youths and owned none of

-- 1 of 2 --

No. 10-3885 Page 2
them. The district judge concluded that these facts, if established at trial, would not es-
tablish a defense of coercion.
We agree with the district judge that the circumstances narrated in Smith’s filings do
not imply any kind of coercion. But the word is not important. Federal criminal law
recognizes other categories of lesser-evil defenses, of which duress and self-defense are
examples. It is possible that, in principle, a person with a felony conviction would be
entitled to take a gun away from A to stop A from shooting B, even though this meant
that the felon would possess the weapon briefly.
One component of these lesser-evil defenses, however, is that the person desist from
otherwise-unlawful conduct as soon as circumstances permit. Usually this means turn-
ing oneself (and, here, the weapons) in to the police, in order to demark the end of the
otherwise-unlawful conduct. See, e.g., United States v. Bailey, 444 U.S. 394 (1980). Smith
did not surrender the guns to the police as soon as possible after taking them from the
youths; his possession lasted at least two weeks, and perhaps several months, until his
arrest on other charges. We held in United States v. Kilgore, 591 F.3d 890, 893–94 (7th Cir.
2010), that even one hour’s delay is too long. Smith also did not contend that he acted to
avoid an imminent danger, to himself or anyone else. A general desire for self-
protection or a wish to live in a safer neighborhood does not justify ongoing possession
of a forbidden firearm. See, e.g., United States v. Sawyer, 558 F.3d 705, 711 (7th Cir. 2009);
United States v. Tanner, 941 F.2d 574, 587–88 (7th Cir. 1991).
Smith contends that he ended any unlawful possession of the guns by turning them
over to his mother. Yet the guns were found in places to which Smith had ready access.
Even if we assume for the sake of argument that handing weapons to one’s mother (but
leaving them handy) is the same as surrendering them to the police, the record does not
support Smith’s position. He did not make an offer of proof, see Fed. R. Evid. 103(a)(2),
about what testimony he and his mother would have given had the judge allowed this
line of defense. Any contention that Smith transferred possession to his mother ended
immediately after taking the guns from the youths therefore has not been preserved for
appellate review.
AFFIRMED

-- 2 of 2 --