Opinion
02 Cr. 1210 (JFK).
March 11, 2003
MEMORANDUM OPINION and ORDER
The defendant moves to raise the defenses of "innocent possession" and "necessity" at trial. The Government opposes the motion.
On the facts presented in the moving papers, the defendant is not entitled to a charge of "innocent possession" or "necessity." In United States v. Oakland Cannabis Buyers' Cooperative, 121 S.Ct. 1711, 1717 (2001), the Supreme Court at p. 1717 stated "[w]hether, as a policy matter, an exemption should be created is a question for legislative judgment, not judicial inference." Assuming the defenses proposed exist, they are only recognized in the rarest of circumstances which do not exist here.
To submit these defenses to a jury, there are four prerequisites. The first of these is that the defendant or another was "under unlawful and present threat of death or serious bodily injury." Defense Brief p. 10. Even if this were true when the defendant first took the gun, it was no longer true when he fled from the police. The other three elements are: that the defendant did not negligently or recklessly place himself in a situation where he would be forced to engage in criminal conduct; that the defendant had no reasonable legal alternative to violating the law; and that there was a direct casual relationship between the criminal action and the avoidance of the threatened harm.
United States v. Perez, 86 F.3d 735 (7th Cir. 1996), relied on by the defense does not help its position.
Obviously, if the defendant at trial wishes to testify as suggested in the motion, he may do so. However, such testimony will not give rise to a jury charge of "innocent possession" or "necessity."
The motion is denied.