United States v. IzacUnited States v. Izac
Case Information
*1 Before MOTZ and SHEDD, Circuit Judges, and HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Fred Warren Bennett, BENNETT & BAIR, L.L.P., Greenbelt, Maryland, for Appellant. Paul Thomas Camilletti, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Martinsburg, West Virginia, for Appellee. ON BRIEF: Gary E. Bair, BENNETT & BAIR, L.L.P., Greenbelt, Maryland, for Appellant. Rita R. Valdrini, Acting Unitеd States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. *2
PER CURIAM:
Charles D. Izac appeals from his conviction for possession of
a firearm by a felon in violation of
I
At trial, the evidence tеnded to show that on November 7, 2001, Izac was involved in an incident with his neighbor, Christopher Billek. According to Izac, this incident occurred after he had filed a lawsuit against Billek and served process on him that day, causing Billek to confront him in response. During the confrontation, Billek yelled profanities at, and threatened to kill, Izac while advancing toward the fence separating Billek’s and Izac’s proрerty. In addition, Billek screamed threats to burn down Izac’s house and kill his dog. In response to Billek’s threats, Izac emerged from his house and onto his deck. Seeing that Billek was armed with what appeared to be a rifle or shotgun, Izac quickly went inside his house and retrieved a .22 caliber rifle which his *3 wife had left inside a closet in the house for Izac’s use should a confrontation with Billek occur. Izac reemerged onto the deck with the rifle in his possession and told Billek that he would kill him if he came over the fence. Billek then retreated into his house and telephoned the police, and Izac returned the riflе to his closet. At that point, Izac locked the doors to his house and went to the rear of his property, where he awaited the arrival of the police. After the police arrived, Izaс surrendered the weapon to them.
The district court permitted Izac to present a justification defense; however, it excluded evidence describing a long-running feud between Izac and Billek, including еvidence of threats and violence by Billek, which Izac contends would have bolstered the defense by demonstrating his state of mind and his fear of Billek. In excluding this evidence, the district court restricted Izac to the presentation of testimony regarding his confrontation with Billek on November 7, 2001.
The case was tried to a jury, with the Government arguing two theories in support of its case. First, the Government contended that Izac was in actual possession of the .22 rifle from the time he retrieved it from the closet until he returned it to the closet. Second, the Government argued that Izac constructively possessed the rifle during the period when the rifle was left in the closet for his use. The district court charged the jury that it could *4 convict Izac on either actual or constructive possession and that the defensе of justification did not apply to the Government’s constructive possession theory. The jury returned a general verdict of guilty, and Izac now appeals.
II
We review the district court’s exclusion of evidence, its
exclusion of Izac’s wife from jury selection, and its exclusion of
Izac’s “missing witness” argument for abuse of discretion. United
States v. Uzenski, 434 F.3d 690, 708 (4th Cir. 2006) (reviewing
evidentiary rulings for abuse of discretion); United States v.
Duncan, 598 F.2d 839, 865 n.25 (4th Cir. 1979) (noting district
court’s broad discretion over voir dire proceedings). We review de
novo the legal question of whether Izac was entitled to present a
justification defense. United States v. Perrin,
A.
Izac argues that the district court erred in excluding evidence of Billek’s past threats and aggression, which Izac contends is relevant to establishing a justification defense. The Government, on the other hand, maintаins that Izac was not entitled to a justification defense in the first place, rendering harmless any error relating to the exclusion of evidence.
To be entitled to a defense of justification, a defendant must
produce evidence which would allow a reasonable factfinder to
conclude that: (1) he was under an unlawful and present threat of
death or serious bodily injury; (2) he did not recklessly plаce
himself in a situation where he would be forced to engage in
criminal conduct; (3) he had no reasonable legal alternative (to
both the criminal act and the avoidance of the thrеatened harm);
and (4) a direct causal relationship existed between the criminal
action and the avoidance of the threatened harm. United States v.
Crittendon,
(5th Cir. 1982).
We hold that Izac failed to demonstrate thаt he had no
reasonable legal alternative to possessing a firearm. When Billek
confronted Izac, Billek was at the fence separating Izac’s property
from Billek’s. Izac, however, wаs inside his home in relative
safety. Izac then came onto his deck and observed Billek with a
firearm before returning into his house. Once again, Izac was in
*6
relative safety. At this point, remaining in his house with the
door locked was a reasonable alternative. Izac’s testimony that
his window panes were thin, that his door was weak, and that Billek
had threatened to burn down his house does nothing to make it
unreasonablе. If Billek had come onto Izac’s deck and attempted to
break a window or door, remaining in the house may have ceased to
be, at that point, a reasonable alternative. However, the defense
of justification does not allow Izac to assume that this further
escalation would have occurred. Cf. Perrin ,
Accordingly, retreating into, and remaining in, his house wаs a reasonable alternative available to Izac. Because Izac failed to avail himself of that alternative, to show that he had no time to do so, or to show that it would have beеn futile to do so, he was *7 not entitled to a justification defense. [1] Therefore, we do not consider whether the district court erred in excluding Izac’s proffered evidence because any error in the exclusion of this evidence would bе harmless. United States v. Armocida, 515 F.2d 49, 55 (3d Cir. 1975) (error committed is harmless where defendant not entitled to defense as a matter of law).
B.
Izac next argues that the district court violated his right to
a public trial when it excluded his wife from the courtroom during
jury selection. The record indicates that during jury selection
Izac’s wife, who was on Izac’s witness list, was seated in the
courtroom area where the jury venire was to be seated. On the
Government’s motion, the district court excluded Mrs. Izac from the
courtroom, observing that “a potential witness will not sit among
the jurors during jury selection.” J.A. 264.
[2]
*8
While a defendant generally has a Sixth Amendment right to a
public trial, in certain situations the exclusion of a member of
the public can be too trivial to amount to a violation of the Sixth
Amendment. United States v. Perry,
C.
Finally, Izac contends that the district court abused its discretion by preventing him from making a “missing witness” argument during closing statements to the jury. Izac maintains that he should have been permitted to argue that the fact that Billek, who was under subpoena by the Government, did not testify leads to an inference that his testimony would have been unhelpful to thе Government. We disagree with Izac’s position. Billek was identified as a witness by both Izac and the Government, was present in the courthouse under subpoena, and was available to testify. In these circumstаnces, Billek cannot be considered a exclusion of Mrs. Izac did not violate Izac’s right to a public trial, the district court’s misplaced reliance on Rule 615 was harmless.
missing witness. United States v. Brooks,
III
Based on the foregoing, the judgment of the district court is AFFIRMED.
Notes
[1] None of the evidence relating to justification which the district court excluded undermines this conclusion. For example, the district court excluded testimony that Billek had threatened Izac and his wife in the past by coming onto their deck and threatening to kill them while they were in their house. This testimony does not indicate that rеmaining in the house would have been futile or that its benefit would have been illusionary. If anything, it demonstrates that the house provided safety from Billek’s threats.
[2] The Government apparently based its motion to exclude Mrs.
Izac from the courtroom on