01-2103, 01-2286 & 01-2295 U.S. v. Tokash

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“Appellants’ initial claim … urges us to adopt a rule stating that imminence is not an essential element of the lesser-evil defenses. According to appellants’ theory, lesser-evil defenses should be available to defendants who can establish either that they face an imminent threat of serious bodily harm or that they reasonably believe they have no legal alternatives to violating the law. In support of their theory, appellants read United States v. Bailey and this court’s precedent following Bailey to suggest that ‘imminence was one factor which could be considered in an analysis of whether “reasonable alternatives” were available,’ but that it was not a necessary element of a justification defense.

“But the appellants cleverly misread the Supreme Court’s doctrine in Bailey and go on to misapply our precedent that relies upon Bailey. The Supreme Court held that escaped convicts were not entitled to an instruction on the defense of necessity or duress because the convicts did not immediately turn themselves in once they had escaped. In so holding, the Court noted that once the inmates had escaped, they no longer faced an imminent threat at the hands of allegedly abusive guards. Bailey, 444 U.S. at 416-17. We have repeatedly and unquestioningly held that a defendant claiming a defense of necessity or duress must establish that he was under imminent fear of death or serious bodily harm. See, e.g., United States v. Jocic, 207 F.3d 889, 892 (7th Cir. 2000); United States v. Salgado- Ocampo, 159 F.3d 322, 326 (7th Cir. 1998); United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998); United States v. Elder, 16 F.3d 733, 738 (7th Cir. 1994); United States v. Schulte, 7 F.3d 698, 699-700 (7th Cir. 1993). We decline appellants’ invitation to revisit this long line of precedent and reaffirm our holding that a criminal defendant seeking to invoke a justification defense must, as a condition precedent, establish that he faced an imminent threat and had no reasonable legal alternatives to avoid that threat.

“In this case, the appellants chose to disregard the law and armed themselves before testing available legal alternatives, such as filing grievances or seeking protective custody. Their claim that the racial tension in the prisons necessitated their hasty resort to self-help is without merit. Were we to be foolish enough to hold otherwise, we might as well hand the inmates the keys to their cell doors and allow them to govern themselves.”

Affirmed.

Appeals from the United States District Court for the Southern District of Illinois, Gilbert, J., Coffey, J.