Unpublished Disposition, 897 F.2d 533 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 897 F.2d 533 (9th Cir. 1990)

UNITED STATES of America, Plaintiff-Appellee,v.Larry DEAN, Defendant-Appellant.

No. 88-5079.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 28, 1990.* Decided March 5, 1990.

Before ALARCON, CYNTHIA HOLCOMB HALL and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Larry Dean appeals his conviction, following a conditional guilty plea, for one misdemeanor count of destruction of government property in violation of 18 U.S.C. § 1361. Dean admitted that he broke a plate glass window in the District Court Clerk's Office so that he would be charged with destruction of federal property and thus have an opportunity to present his complaints against the California State Bar in federal court. Dean contends that the district court erred by precluding him from presenting a necessity defense at trial and by denying his oral motion for a writ of mandamus in a separate civil action. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part and reverse and remand in part.

We review a district court's decisions precluding the admission of evidence or testimony for abuse of discretion. United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir. 1987), cert. denied, 108 S. Ct. 1024 (1988).

A district court may properly preclude a defendant from presenting evidence of an affirmative defense if he cannot show any possibility of prevailing on that defense. United States v. Bailey, 444 U.S. 394, 416 (1980); United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985). To prevail on the affirmative defense of necessity, a defendant must show that (1) he had reason to believe his actions necessary to avoid an imminent harm, (2) there were no alternative available means to avoid the imminent harm, and (3) he reasonably expected his actions to correct or avoid that harm. See, e.g., Dorrell, 758 F.2d at 431. An "imminent" harm is one which is immediately likely and threatening. See United States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983); United States v. Lowe, 654 F.2d 562 (9th Cir. 1981).

Here, Dean could not have proven any of the elements of a necessity defense at trial. Dean alleges that he was suffering continuing harm because of his inability to practice law in California and because he could not file a civil complaint against the State Bar. Nevertheless, this "harm" was not imminent. See Nolan, 700 F.2d at 484; Lowe, 654 F.2d at 566. In addition, there were alternative means by which he could have successfully filed his civil suit and had his claims against the Bar heard in a civil forum. See Dorrell, 758 F.2d at 431-33. Finally, his criminal act was not reasonably likely to lead to a court hearing on his civil claim. See id. at 433-34; United States v. May, 622 F.2d 1000, 1008 (9th Cir.), cert. denied, 441 U.S. 989 (1980). Thus, since he could not have prevailed on any of the elements of the necessity defense at trial, the district court did not abuse its discretion by precluding the defense as a matter of law. See Bailey, 444 U.S. at 416; Dorrell, 758 F.2d at 434.

The district court's jurisdiction over this action rested on 18 U.S.C. § 3231 by virtue of the federal offense alleged in the indictment. The civil action which Dean has attempted to maintain against the State Bar of California is unrelated to this criminal action. Therefore, the district court lacked jurisdiction to issue a writ of mandamus to compel filing of the civil complaint, and properly refused to do so. See 18 U.S.C. § 3231.

Dean received a special assessment of $25. Although he did not raise the issue on appeal, we have held that 18 U.S.C. § 3013 violates the origination clause of Article I, section 7 of the United States Constitution. United States v. Munoz-Flores, 863 F.2d 654, 661 (9th Cir. 1988), cert. granted, 110 S. Ct. 48 (1989). We raise this issue sua sponte, and reverse and remand to the district court to vacate the special assessment. See United States v. Hoyt, 888 F.2d 1257, 1258 (9th Cir. 1989).

AFFIRMED IN PART AND REVERSED AND REMANDED IN PART.

 *

The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3