Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^** 

Erik Thompson appeals his conviction and sentence, following a jury trial, for one count of trespass on the Department of Energy (DOE) Nevada Test Site (Test Site) in violation of 42 U.S.C. § 2278a and 10 C.F.R. 860.3. Thompson contends that the district court erred by (1) excluding evidence and precluding his presentation of an international law defense at trial, (2) refusing to give his proposed jury instruction on intent, and (3) imposing a fine in violation of Thompson's religious beliefs. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

Thompson was arrested with two other individuals after entering the Test Site without authorization from DOE. Before trial, the government moved in limine to exclude evidence pertaining to international law, the morality of nuclear weapons, or a necessity or justification defense resting on international law. This motion was granted. At trial, Thompson attempted to introduce expert testimony establishing that the government's manufacture of nuclear weapons violates international law and that Thompson's trespass was a lawful attempt to stop the violation. The district court excluded this testimony. Thompson testified that he had been arrested and cited for unlawful trespass on the Test Site on numerous earlier occasions, but that because he had never been prosecuted, he believed that the federal trespass statute did not apply to him. He also testified that he had intentionally by passed the entry gate to the Test Site because, based on his prior experiences, he did not think he would be allowed onto the site. Thompson was convicted, sentenced to three months' imprisonment, and ordered to pay the costs of his incarceration and a $5,000 fine.

We review a district court's decisions precluding the admission of evidence for abuse of discretion. United States v. Komisaruk, 885 F.2d 490, 492 (9th Cir. 1989); United States v. Poschwatta, 829 F.2d 1477, 1483 (9th Cir. 1987), cert. denied, 484 U.S. 1064 (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); see Komisaruk, 885 F.2d at 493-94. 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.), cert. denied, 462 U.S. 1123 (1983).

We have previously held that offenses committed to protest the government's nuclear policy cannot be defended on necessity grounds. See Dorrell, 758 F.2d at 434. Because Thompson could not have shown that his actions were likely to alter the government's nuclear policy or that he lacked legal alternatives for expressing his views, the district court did not err by excluding evidence pertaining to his necessity defense. See id.

Thompson does not argue on appeal that his presence at the Test Site was lawful. He admitted that he was aware of the law forbidding his presence on the Test Site and entered the premises surreptitiously because he knew he would be refused entry. Thus, his argument that he reasonably believed the activities at the Test Site to be a violation of international law which he had a legal right to attempt to disrupt was irrelevant to the issue of his intent to trespass. The district court did not err by precluding evidence of his alleged belief that the law did not apply to his actions. See Komisaruk, 885 F.2d at 494.

The district court also did not err by refusing to give Thompson's proffered jury instruction regarding ignorance of law.¹  A defendant is entitled to an instruction on his theory of the case only if "the evidence sufficiently supports the theory and the theory is supported by law." United States v. Ravel, No. 89-50247, slip op. 4705, 4712 (9th Cir. Apr. 11, 1991) (citation omitted). Jury instructions are reviewed for adequacy in light of the entire charge. United States v. Mundi, 892 F.2d 817, 818 (9th Cir. 1989), cert. denied, 111 S. Ct. 1092 (1991). Here, Thompson sought to instruct the jury that he could be acquitted if he reasonably believed his actions legal based on his understanding of international law. The evidence did not support this defense, and the district court's instructions adequately addressed the willfulness element of the offense.²  Consequently, there was no error.

Finally, Thompson's first amendment claim also lacks merit.

"To show a free exercise violation, the religious adherent ... has the obligation to prove that a governmental [action] burdens the adherent's practice of his or her religion by pressuring him or her to commit an act forbidden by the religion or by preventing him or her from engaging in conduct or having a religious experience which the faith mandates."

United States v. Turnbull, 888 F.2d 636, 638-39 (9th Cir. 1989) (quoting Graham v. C.I.R., 822 F.2d 844, 850-51 (9th Cir. 1987), aff'd sub nom. Hernandez v. Commissioner, 490 U.S. 766 (1989)), cert. denied, 111 S. Ct. 78 (1990). Although Thompson alleges on appeal that imposition of the fine violated his strongly held religious beliefs because the government will use the money to build nuclear weapons, he did not raise this argument before the trial court and does not now allege any facts showing that payment of a fine per se constitutes an act in violation of his religious beliefs.³  Consequently, he has not made the necessary showing of a first amendment violation.

AFFIRMED.