Unpublished Disposition, 885 F.2d 875 (9th Cir. 1982)

MEMORANDUM^** 

Haldon Croasmun was charged under 18 U.S.C.App. Sec. 1202(a) (1) for possession of a firearm by a felon. We review the district court's order granting the government's motion in limine to exclude evidence of self-defense, and affirm the judgment.

FACTS

Croasmun, a convicted felon, managed a topless dance club known as "Harold's Club." As part of an investigation regarding employment of underage dancers, the Pierce County sheriff obtained a warrant and searched the premises on the night of May 14, 1982. At the time of the search, several undercover officers were present in the club as part of the investigation. Four uniformed officers entered the club to search and arrested Croasmun. They recovered a loaded .25 caliber automatic pistol from an ankle holster in his boot.

Prior to trial, the government moved in limine to exclude evidence of self-defense. The defendant made an offer of proof regarding the necessity of possessing the gun. The court considered it to be insufficient to support the self-defense theory and granted the motion. He then entered a conditional guilty plea and this appeal followed.

In his proffer, Croasmun indicated that, shortly after Harold's Club opened, he received numerous threats to his personal safety and his club from employees of a competing topless bar, Night Moves. On two occasions, he spoke to patrol officers about the threats, but they offered no assistance.

The offer of proof indicated that, on the night of the arrest, Croasmun noticed an unusual clientele at the club, consisting of several older white males. He received a phone call from a bouncer at Night Moves, who stated that the management had scheduled a "hit" for that night and that "people were either there ready to carry out the hit or on the way to carry out the hit."

Croasmun believed that he and his establishment were in danger and that the older white men were the hit men. After the phone call, inadvertently he located a gun while attempting to hide some of the night's proceeds. Based on his belief that he was in immediate danger, and that calling the police would be futile, he strapped the gun onto his leg and returned to the club area. Minutes later, the police executed the search warrant and arrested him.

Croasmun contends on appeal that: (1) his proffered facts required submission of his justification defense to the jury; and (2) the ruling effectively deprived him of his constitutional right to testify on his own behalf.

ANALYSIS

Failure to give a defense instruction is reversible error if the theory is legally sound and evidence supports it. See United States v. Escobar de Bright, 742 F.2d 1196, 1201 (9th Cir. 1984). The evidence must be sufficient to enable a jury to rationally sustain the defense. United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984). We review the evidence under the defendant's version of the facts. United States v. Lemon, 824 F.2d 763, 764 (9th Cir. 1987).

To establish a justification defense to a charge of being a felon in possession of a firearm, a defendant must demonstrate that: (1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm. Lemon, 824 F.2d at 765.

Croasmun's offer of proof failed to satisfy the first and third elements of the Lemon test. The first element--that the defendant show he was under present threat of death or serious bodily injury--requires him to establish the lack of a reasonable opportunity to escape. See United States v. Wood, 566 F.2d 1108 (9th Cir. 1977) (per curiam).

Although he received information that he and his club might be attacked that night, he failed to demonstrate the lack of a reasonable opportunity to escape. According to his proffer, he left the club area, obtained the gun, and returned. Because he had the ability to leave the club, there was a reasonable means of escape.

He also failed to demonstrate the third element of the Lemon test, lack of reasonable legal alternatives. To establish that he had no choice to possessing the gun, he must show either that he actually tried an alternative or had no time to do so, or that a history of futile attempts revealed the illusionary benefits of an alternative. Lemon, 824 F.2d at 765.

Croasmun contends that because the police were unwilling to assist him following two previous reports of threats, it would have been futile to summon them under the circumstances. He further contends that, based on his belief that the hit men were already at the club, there was no time to ask the police for assistance. We reject these contentions.

There is a substantial difference between alerting police to past threats from unknown persons believed to be agents of a competitor, and reporting to the police that one's business is about to be robbed or vandalized by suspects presently on the premises. According to the proffer, officers told Croasmun that "they couldn't do anything without something specific, that threats they couldn't really handle, that if something was actually happening at the club, that they should be called."

On the night of the arrest, he could have articulated "something specific" that went beyond mere threats, and that indicated that "something was actually happening." He could have reported to police that he had received a threat that night and that the suspects were present and disguised as patrons.

The appropriate response to the situation would have been to notify the police rather than resort to arming himself unlawfully. See Lemon, 824 F.2d at 765. In any event, he could have left the club instead of returning with a firearm.

Because Croasmun failed to establish the existence of the first and third Lemon factors, we need not address the other two. See Lemon, 824 F.2d at 765. His contention that the justification defense should have been submitted to a jury fails for lack of evidence to support his theory.

Croasmun also contends that, based on Rock v. Arkansas, 483 U.S. 44 (1987), the court's ruling effectively deprived him of his constitutional right to testify. This contention lacks merit.

Rock involved a state per se evidentiary rule excluding testimony obtained under hypnosis. The Court found that the rule was arbitrary and infringed on the defendant's constitutional right to testify. Here, the court conducted an assessment of the legal sufficiency of the defense based on the facts of this case before ruling on the motion to exclude evidence. Rock is not applicable.

AFFIRMED.