Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Criminal No. 2-07-cr-00288-001) District Judge: Honorable Paul S. Diamond
The opinion of the court was delivered by: Rendell, Circuit Judge.
Before: RENDELL, FUENTES and HARDIMAN, Circuit Judges
This case requires us to consider whether, by including "without just cause or excuse" in the federal assault with a dangerous weapon statute, 18 U.S.C. § 113(a)(3), Congress intended to convert justification, ordinarily a common-law defense, into an element of the offense as to which the government bears the burden of proof beyond a reasonable doubt. Applying relevant Supreme Court precedent, we conclude that the existence of just cause or excuse is an affirmative defense to a § 113(a)(3) violation, and the defendant bears the burden of proving it by a preponderance of the evidence. Taylor also raises two issues relating to his testimony and offers of proof regarding justification for the assault and complains that he was selectively prosecuted. We conclude, however, that none of those arguments has merit. We will affirm the judgment of the District Court.
In the fall of 2006, defendant Aaron Taylor, who had been convicted of drug and weapons charges, was an inmate at the Federal Detention Center (FDC) in Philadelphia.
Because of some prior disciplinary violations, including previous prison assaults, Taylor was assigned to the Special Housing Unit (SHU), separate from the general prison population.
Prisoners in the SHU are allowed one hour of recreation a day, five days a week, in a fifteen-by-fifteen foot yard. Before each session, a guard asks every inmate whether he would like to take or decline recreation. Two guards then handcuff each inmate who desires recreation and transport him to one of five enclosed yards. After the inmate enters the yard, he turns his back to the locked door and places his cuffed hands into a slot (also called a "wicket") so the guards on the other side of the door can uncuff him. The same process occurs at the end of the hour: one at a time, the inmates back up to the wicket so the guards can handcuff them. Once all of the inmates have been handcuffed, the guards unlock the door and transport the inmates back to their cells. According to a prison guard who testified at Taylor‟s trial, an inmate may decline recreation, and be returned to his cell, at any time during the hour.
According to Taylor, racial tensions at the FDC were inflamed in September 2006 when a white, female psychiatrist told Taylor, who is black, to stop looking at her. Wayne Maruzin, a white inmate, overheard the exchange and, according to Taylor, later discussed the incident with Peter Bistrian, another white inmate. Bistrian then threatened Taylor. About a week later, Taylor filed a complaint with the warden asserting that the psychiatrist‟s comments were racially motivated and exacerbated racial tension among the inmates.
In early October 2006, a guard mistakenly gave Taylor an extra razor blade. Taylor used the extra blade to fashion a knife, or "shank."
Then, on October 12, 2006, Taylor was placed in the same recreation yard with Bistrian. The guards removed Taylor‟s handcuffs before they removed Bistrian‟s, and the two paced the yard for almost the entire hour. Taylor testified that Bistrian did not make any aggressive move towards him during the hour, but, after half an hour, Bistrian asked him what he was looking at and, later, told him he was "going down," which Taylor understood to mean that Bistrian was "going to come after" him.
At the end of the hour, Bistrian backed up to the wicket to be handcuffed. Taylor, who had not yet been handcuffed, followed Bistrian, and, as soon as Bistrian was handcuffed, attacked him. Taylor punched Bistrian and slashed his face, arms, and legs with the shank. Bistrian fell to the ground and kicked at Taylor. Taylor ignored the guards‟ repeated commands to stop and continued attacking Bistrian for more than two-and-a-half minutes. The guards used three cans of pepper spray to try to subdue Taylor but did not succeed until they tossed a "flash bang" grenade into the yard, stunning him. When the guards entered the yard, Taylor told them repeatedly that he "had to get" Bistrian before Bistrian got him. Bistrian was treated at the hospital for deep cuts to his face, arms, and legs. The entire incident was captured on video by the FDC‟s surveillance cameras.
Taylor was indicted and charged with assault with a dangerous weapon, under 18 U.S.C. § 113(a)(3), and assault resulting in serious bodily injury, under 18 U.S.C. § 113(a)(6), in May 2007. The government ultimately sought dismissal of the second count, and the case went to trial on a single count of assault with a dangerous weapon on November 30, 2010. Taylor did not dispute that he had attacked Bistrian, but attempted to show that he was justified in doing so. Taylor was convicted on December 3, 2010, and, on June 28, 2011, was sentenced to 120 months in prison, to be served consecutively to the federal sentence he was serving when the assault occurred.
Before trial, Taylor moved to dismiss the indictment for selective prosecution. His theory was that the prosecution was racially motivated because he was charged for this assault, on a white victim, but had not been charged for an earlier assault, also using razor blades, on two black inmates. The District Court denied the motion without ordering the government to produce discovery or holding a hearing.
Also before trial, the government filed motions in limine for a hearing on, and then to preclude altogether, Taylor‟s justification defense. The government argued that Taylor‟s evidence, which consisted of testimony from Taylor, several fact witnesses, and an expert on prison culture and would have described the racial tensions in the prison and asserted that Bistrian‟s threats against Taylor justified the attack, failed to establish the defense as a matter of law.
In this Circuit, the elements of justification are:
First, that [the defendant] was under an immediate, unlawful threat of death or serious bodily injury to himself or to others;
Second, that [the defendant] had a well-grounded [or reasonable] fear that the threat would be carried out if he did not commit the offense;
Third, that [the defendant‟s] criminal action was directly caused by the need to avoid the threatened harm and that [the defendant] had no reasonable, lawful opportunity to avoid the threatened harm without committing the offense; that is, that [the defendant] had no reasonable lawful opportunity both to refuse to do the criminal act and also to avoid the threatened harm; and
Fourth, that [the defendant] had not recklessly placed himself in a situation in which he would be forced to engage in criminal conduct.
Third Cir. Model Crim. Jury Instr. § 8.04.
The District Court held a hearing on November 22, 2010, at which Taylor made an offer of proof. Two days later, the District Court denied the government‟s motion without prejudice and decided to allow Taylor to testify. The Court stated, "I‟m going to allow the defendant to testify to whatever the defendant is going to testify to. [I]f the defendant testifies to justification, whether or not I allow the defendant to call any other witnesses to support that will depend entirely on what the ...