Opinion
CASE NO. CR16-0185JLR
04-07-2017
UNITED STATES OF AMERICA, Plaintiff, v. SAMUEL N. REZENE, Defendant.
ORDER
I. INTRODUCTION
Before the court is Plaintiff United States of America's ("the Government") motion to preclude Defendant Samuel N. Rezene from presenting a justification defense at trial. (Mot. (Dkt. # 30).) In opposition to the motion, Mr. Rezene has filed a proffer (Proffer (Dkt. # 31)), a supplemental proffer (Supp. Proffer (Dkt. # 32)), and a supplemental response (Supp. Resp. (Dkt. # 54)). On March 28, 2017, the court held an evidentiary hearing, during which five witnesses testified, a sixth witness submitted a declaration, the court admitted numerous exhibits, and the parties argued in support of their respective positions. (3/28/17 Min. Entry (Dkt. # 64); M. Rezene Decl. (Dkt. # 65).) The court has reviewed the parties' filings, the relevant portions of the record, and the applicable law. Considering itself fully advised, the court GRANTS the Government's motion.
II. BACKGROUND
At the hearing, the Government called three witnesses: (1) Detective Robert Thomas of the Seattle Police Department; (2) Detective David Heckelsmiller of the Tukwila Police Department; and (3) Sergeant Peter Kordel of the Renton Police Department. (3/28/17 Min. Entry.) Mr. Rezene then called two witnesses: (1) Alganesh Tesfaselasie, Mr. Rezene's mother; and (2) Helen Yohannes Rezene, Mr. Rezene's wife. (Id.) Meron Rezene, Mr. Rezene's sister, submitted a declaration in lieu of testifying live. (M. Rezene Decl.) The Government then argued in support of its motion, followed by Mr. Rezene's argument in opposition to the Government's motion. (3/28/17 Min. Order.) In this order, the court cites to the testimony presented at the evidentiary hearing by identifying the witness and whether the witness gave the testimony on direct, cross, redirect, or recross examination. (See, e.g., Tesfaselasie Direct (indicating that Mr. Rezene is her second-oldest out of four children).) The court cites to the argument presented at the close of the hearing by identifying the argument and its proponent. (See, e.g., S. Rezene Arg. (contending that Mr. Rezene has made a prima facie showing as to each element of a justification defense).)
When possible, the court cites to the five- or six-digit Bates number on the exhibits admitted at the hearing. However, some of those exhibits are not Bates stamped, and the court cites to those exhibits using internal pagination or time stamps.
The Government charged Mr. Rezene as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Indictment (Dkt. # 3).) That charge stems from a May 15, 2014, incident in which Mr. Rezene suffered multiple gunshot wounds while allegedly in unlawful possession of a Glock .40 caliber semi-automatic pistol with a foregrip and extended magazines. (Id. at 2; Kordel Direct; Exs. 10, 14.) Mr. Rezene intends to present evidence at trial that he was justified in possessing the pistol. (See generally Proffer; Supp. Proffer; Supp. Resp.; S. Rezene Arg.) In accordance with the // legal standard at this juncture, see infra § III.A-B., the court presents the facts below in the light most favorable to Mr. Rezene.
A. February 2012 through May 14, 2014
The events that Mr. Rezene contends support his justification defense began in 2012. (See Supp. Resp. at 7.)
Although Mr. Rezene has a history of interactions with law enforcement, the court credits his contention that the facts relevant to his justification defense began in 2012.
1. February 2012 Homicide
On February 2, 2012, Mr. Rezene was driving his family's Cadillac Escalade through Tukwila when a vehicle pulled up alongside Mr. Rezene and shot at the Escalade. (See id. at 7; Heckelsmiller Direct.) The gunshots hit Mr. Rezene's girlfriend, Nykiba McDonald. (Heckelsmiller Direct.) Mr. Rezene rushed Ms. McDonald toward the hospital, but she died on the way there. (Id.; Ex. 18 ("2/3/12 Tr.") at 001952.) Based on the angle at which the lethal bullet struck Ms. McDonald, the officers briefly suspected Mr. Rezene of accidentally shooting her in an attempt to return fire. (Ex. 21 ("2/3/12 Reports") at 001931; Heckelsmiller Direct; Heckelsmiller Cross; Heckelsmiller Redirect.) However, upon analyzing the blood spatter, officers abandoned that theory and continued investigating the crime. (Heckelsmiller Direct; Heckelsmiller Cross; Heckelsmiller Redirect.)
Tukwila police officers interviewed Mr. Rezene regarding the incident. (See Heckelsmiller Direct; 2/3/12 Tr.; 2/3/12 Reports.) During the interview, Mr. Rezene indicated that he thought the shooter had targeted him. (See Heckelsmiller Direct.) Law enforcement asked Mr. Rezene a series of questions in an attempt to ascertain one or more suspects for the shooting, but Mr. Rezene attested that he could not provide any useful information regarding potential suspects or people who had a problem with him. (Id.; 2/3/12 Tr. at 001981-82, 001986-87.) Instead, he indicated that if he knew who shot Ms. McDonald, he would take care of it himself. (Heckelsmiller Direct.) The Tukwila Police Department performed an extensive investigation into the homicide, including witness interviews, conversations with a confidential informant, ballistic analysis, an autopsy, revisiting the crime scene with Mr. Rezene, and reviewing surveillance footage from the route that Mr. Rezene drove, but the crime remains unsolved. (2/3/12 Reports at 001907-50; Heckelsmiller Direct; Hecklesmiller Cross.)
2. September 2013 Shootings
The next relevant events occurred in September 2013. On September 17, 2013, unknown assailants shot at Mr. Rezene as he disembarked his mother's Cadillac in front of his family home. (See Ex. 5 ("9/17/13 Reports") at 00395; Tesfaselasie Direct.) Police arrived on scene to investigate. The officers searched Mr. Rezene and his vehicle (see Thomas Cross) and spent at least 20 minutes investigating the scene and interviewing Mr. Rezene and other witnesses, many of whom were members of his family (see id.; Thomas Direct; Exs. 115 ("N'bound 9/17/13 Video"), 117 ("S'bound 9/17/13 Video")). Mr. Rezene indicated that he had no knowledge why someone would be shooting at him. (9/17/13 Reports at 00395; Thomas Cross.) The officers were skeptical of Mr. Rezene's professed ignorance, but he maintained that he had no useful information to provide. (See Thomas Cross.)
Approximately 20 minutes into the investigation, Mr. Rezene became upset and began to resist the officers. (See S'bound 9/17/13 Video at 18:50-19:50; Thomas Direct.) He refused to comply with orders to remain in one location, called one of the officers "Nigga" and "Boy," clenched his fists, and threatened to beat up one of the officers. (9/17/13 Reports at 00408; see also N'bound 9/17/13 Video at 19:04-34; S'bound 9/17/13 Video at 18:50-19:50.) At that time, the officers arrested Mr. Rezene for misdemeanor harassment. (9/17/13 Reports at 00408-09; see also S'bound 9/17/13 Video at 19:20-50.) An officer took Mr. Rezene to the ground and several officers assisted him in securing handcuffs. (See S'bound 9/17/13 Video at 19:20-50; N'bound Video at 19:04-34; M. Rezene Decl. ¶ 3.)
Two days later, on September 19, 2013, additional shots were fired on Mr. Rezene's block. (See Thomas Direct; Thomas Cross; M. Rezene Decl. ¶ 3.) Witnesses first heard shots early in the morning and also reported shots later in the day. (See Thomas Direct; M. Rezene Decl. ¶ 3.) The shots struck at least one home on the same block as Mr. Rezene's family's home, and officers found shell casings on that block and interviewed neighbors and witnesses. (See Thomas Direct; M. Rezene Decl. ¶ 3.) Although law enforcement does not know for certain whether the September 19, 2013, shootings were related to Mr. Rezene or the shooting two days earlier, officers suspect a connection. (See Thomas Cross.) Law enforcement investigated thoroughly but was unable to solve either September 2013 shooting. (See Thomas Direct; Thomas Cross.) // //
3. March 2014 Arson and Gun Purchase
On March 6, 2014, an unidentified male assailant broke a window and set fire to Mr. Rezene's mother's Mercedes, which was unoccupied and parked in the Holly Park neighborhood of south Seattle. (Ex. 6 ("3/6/14 Reports") at 001878-79; Tesfaselasie Direct.) Mr. Rezene often drove the Mercedes, and he twice spoke with Detective Martin Heuchert regarding the arson. (3/6/14 Reports at 001879.) Detective Heuchert called Mr. Rezene on March 11, 2014, and Mr. Rezene indicated that he was not involved in gang activity and did not know why the incident had occurred. (Id.) On March 25, 2014, in response to a March 21, 2014, voicemail from Detective Heuchert, Mr. Rezene called Detective Heuchert to confirm several details about the evening of March 6, 2014. (Id. at 001880-82.) In that call, Mr. Rezene opined that the arson was "a targeted event." (Id. at 001882.) On March 26, 2014, law enforcement closed the file on the arson because it had not identified any suspects or evidence and no known witnesses could identify a suspect. (Id.)
Sometime in "mid-March 2014" Mr. Rezene purchased the Glock pistol that he is now charged with unlawfully possessing. (Supp. Resp. at 9.) He purchased the gun from a stranger for $400.00. (Id.; Kordel Direct.) Helen Yohannes Rezene testified that she believes he purchased the gun after the arson. (See H.Y. Rezene Redirect.) // //
Because the court references both Helen Yohannes Rezene, Mr. Rezene's wife, and Meron Rezene, his sister, the court refers to Helen Yohannes Rezene and Meron Rezene by their full names rather than as "Ms. Rezene." No disrespect is intended.
4. Early May 2014 Shooting
At some point in early May 2014, unknown assailants shot toward Mr. Rezene and his then-girlfriend, Helen Yohannes Rezene, when Mr. Rezene was driving his family's BMW through Renton. (Supp. Proffer at 2; Ex. 7 at 002444-45; H.Y. Rezene Direct; Supp. Resp. at 9.) They shot toward the vehicle from the sidewalk on both sides of the street as Mr. Rezene drove by. (See H.Y. Rezene Direct.) Mr. Rezene disclosed the shooting to his insurance company, but he declined to report the incident to police because he did not have a phone and he believed the police would not care. (See id.; Ex. 7 at 002445.) Helen Yohannes Rezene also did not have a phone and did not report the incident to police. (See H.Y. Rezene Direct.) Mr. Rezene and Helen Yohannes Rezene also did not believe they were the intended targets of the shooting, but rather thought that they had merely been in the wrong place at the wrong time. (Ex. 106 ("5/15/14 Report") at 00052; H.Y. Rezene Cross.) // // // B. The May 15, 2014, Shooting and Subsequent Events
Helen Yohannes Rezene and Mr. Rezene began dating in 2012 or 2013 and married after October 2014. (See H.Y. Rezene Cross.) During all of the events in question, Helen Yohannes Rezene and Mr. Rezene were not married. (See id.)
In his supplemental response, Mr. Rezene represents that unknown assailants shot at him and Helen Yohannes Rezene in a moving car twice in the first two weeks of May 2014—once "[o]n May 3, 2014, just twelve days before Mr. Rezene was shot at the gas station," and again "[o]n May 13, 2014, just two days before Mr. Rezene was shot at the gas station." (Supp. Resp. at 9 (emphases in original).) Indeed, Mr. Rezene asserted that after the second May 2014 shooting, he "grew increasingly paranoid." (Id.) At the hearing, however, Helen Yohannes Rezene and counsel for Mr. Rezene conceded that the briefing is inaccurate and no second May 2014 shooting occurred. (See H.Y. Rezene Direct; H.Y. Rezene Redirect; S. Rezene Arg.)
Shortly before 4:00 a.m. on May 15, 2014, Mr. Rezene pulled his mother's BMW into a Shell station in Renton to add air to his tires. (Kordel Direct; H.Y. Rezene Direct; 5/15/14 Report at 00044-45.) Helen Yohannes Rezene accompanied him, and as Mr. Rezene filled the tire, Helen Yohannes Rezene walked toward the store to pay for gas. (H.Y. Rezene Direct; 5/15/14 Report at 00046.) As she was walking toward the store, an unidentified individual wearing a hooded sweatshirt approached Mr. Rezene, who remained near the car, and began shooting at him from close range. (H.Y. Rezene Direct; 5/15/14 Report at 00044, 00067.) Several of the bullets struck Mr. Rezene. (5/15/14 Report at 00044-45.) Mr. Rezene retrieved his Glock, which he kept "snugged" between the driver's seat and the center console, and returned fired at the assailant. (Id. at 00044-45, 00067.) The assailant fled behind the Shell station and was not apprehended, and Helen Yohannes Rezene threw Mr. Rezene's Glock into the car. (Id. at 00047; H.Y. Rezene Direct.)
Renton police responded immediately to the report of shots fired. (Id. at 00044.) They transported Mr. Rezene to Harborview Medical Center with life-threatening gunshot wounds. (Id. at 00044, 00053.) At the hospital, officers spoke with or attempted to speak with each member of Mr. Rezene's immediate family, but two of his siblings declined to speak with officers and none of his family members that did speak with officers provided any useful information. (Id. at 00057-59; Kordel Cross.) On June 3, 2014, after Mr. Rezene had been medically cleared, Detective Kordel interviewed him at Harborview. (5/15/14 Report at 00066-70.) Mr. Rezene indicated that he did not know who would shoot him, but that he has many enemies. (Id. at 00070.) He carried the gun to defend himself. (Id.) In a subsequent interview, Mr. Rezene confirmed that 30 to 40 people were after him, and he did not want to provide any information for fear of being branded a snitch. (Id. at 00073.)
Renton police completed a thorough investigation (see generally id.) and were unable to solve the shooting (see Kordel Direct; Kordel Cross). They did not immediately charge Mr. Rezene with felon in possession of a firearm. (Id. at 00077.) C. The October 3, 2014, Interview
On October 3, 2014, Seattle police arrested Mr. Rezene in connection with a drive-by shooting that occurred the previous day in Renton. (Thomas Direct.) Following his arrest, Officer Thomas and another Seattle police officer interviewed Mr. Rezene for approximately two hours. (Id.; see generally Ex. 19 ("10/3/14 Interview Tr.").) In that interview, the transcript and video recording of which are in the record, Mr. Rezene provided considerable information regarding potential motives and suspects for the shootings and arson described above. (10/3/14 Interview Tr.; Ex. 20 ("10/3/14 Interview Video").) Mr. Rezene had not provided any of the following information in this subsection to law enforcement until the October 3, 2014, interview. (See Thomas Direct; see also 10/3/14 Interview Tr. at 01738 ("I mean, I'm really helping you guys. This is stuff you guys never knew."), 01740 ("I'm tellin' you guys things that only I would know and they would know. Nobody else knows, not even (unintelligible) like how it really started and everything."), 01780 (acknowledging on October 3, 2014, that Mr. Rezene // knew more about the shooting at the Shell station than he told the Renton police in June 2014).)
Mr. Rezene acknowledged a longstanding feud between his group of friends—the Holly Park group—and a Tukwila-based group known as the Tuk-Town Kings. (See, e.g., 10/3/14 Interview Tr. at 01721-24; see also Thomas Direct.) He identified several members of the Tuk-Town Kings, including Ruben Donaldson, Randy Donaldson, Samuel Awealom, Mulugeta Haile, and Efrem Haile, also known as "Trouble" or "Trub." (See 10/3/14 Interview Tr. at 01722-23; Thomas Direct (indicating that in the interview, Mr. Rezene viewed pictures of the individuals listed in Exhibit 2 and identified them); Ex. 2 (listing Ruben Donaldson, Randy Donaldson, Samuel Awealom, Efrem Haile, and Mulugeta Haile).) He acknowledged that the Tuk-Town Kings had published a music video in which, in Mr. Rezene's opinion, they mock the shooting of one of Mr. Rezene's close friends. (10/3/14 Interview Tr. at 01720-22.) He identified the make and model of one of the cars that the assailants used in that shooting. (Id. at 01720.)
Mr. Rezene has consistently objected to characterizations of his group of friends in Holly Park as a gang, and the court credits that position herein. (See, e.g., Supp. Resp. at 4; 10/3/14 Interview Tr. at 01724; Thomas Direct.)
Because Ruben and Randy Donaldson and Efrem and Mulugeta Haile share common last names, the court refers to them by their full names throughout this order. See supra n.3. No disrespect is intended.
Mr. Rezene then described the circumstances that he believes led to—or at least, escalated—his feud with the Tuk-Town Kings. (See id. at 01725-41.) Sometime before the September 17, 2013, shooting, Mr. Rezene had agreed to sell $1,500.00 worth of // marijuana on behalf of the Tuk-Town Kings. (Id. at 01725-27.) Instead, he stole the buyer's $1,500.00 and kept the money for himself. (Id.) Several members of the Tuk-Town Kings took umbrage at the foregone profits that they would have made on the deal. (Id. at 01727.) Mr. Rezene had several exchanges with the Tuk-Town Kings' members, and they agreed to meet on September 17, 2013. (Id. at 01727-28.) When the Tuk-Town Kings failed to show up for the meeting, Mr. Rezene returned to his home. (Id. at 01727-28.) Before arriving, he received a text message from the Tuk-Town Kings indicating that they awaited him at his home. (Id. at 01728-29.) Fearing gunfire upon his return, Mr. Rezene dropped off his cousin and contacted his mother to ask her to open the front door to ensure he could get inside quickly. (Id. at 01729.)
Mr. Rezene also identified the make, model, and approximate year of each of the three vehicles that shot at him upon his return home. (Id. at 01729-30; see also id. at 01721 ("I swear to God to you, like I know my cars. Like that's my thing, I love cars.").) He indicated that the gunfire sounded like it came from a silenced weapon. (Id. at 01728.) He also identified Samuel Awealom, one of the members of the Tuk-Town Kings, as the owner of one of the vehicles that shot at him. (Id. at 01730-31.) Indeed, Mr. Rezene disclosed that he subsequently called Mr. Awealom and accused him of allowing his truck to be used in the shooting. (Id. at 01730.) Mr. Rezene also called Efrem Haile and accused him of committing the September 17, 2013, shooting, and Efrem Haile responded by insisting that Mr. Rezene pay the Tuk-Town Kings the money he owed them. (Id. at 01740-41.) //
In the interview, Mr. Rezene also told officers for the first time about a personal vendetta that Efrem Haile had against him. (Id. at 01733-37.) The vendetta arose from Efrem Haile's accusation that Mr. Rezene had an affair with the mother of Efrem Haile's child. (Id. at 01733-34.) Efrem Haile had called Mr. Rezene from prison and told him to stay away from the mother of Efrem Haile's child. (Id. at 01736.) Mr. Rezene believes that Efrem Haile used Mr. Rezene's theft of $1,500.00 to incite and pressure other Tuk-Town King members to avenge the personal issues he had with Mr. Rezene. (Id. at 01737.)
Ultimately, Mr. Rezene pleaded guilty to unlawfully possessing a firearm during the October 2, 2014, drive-by shooting. (Thomas Direct.) The Government subsequently charged Mr. Rezene with unlawfully possessing a firearm on May 15, 2014, which gave rise to this case. (Indictment at 1-2.)
III. ANALYSIS
A. Legal Standard
"A defendant is entitled to have the jury instructed on his or her theory of defense, as long as that theory has support in the law and some foundation in the evidence." United States v. Perdomo-Espana, 522 F.3d 983, 986-87 (9th Cir. 2008) (quoting United States v. Mason, 902 F.2d 1434, 1438 (9th Cir. 1990)); see also United States v. Yarbrough, 852 F.2d 1522, 1541 (9th Cir. 1988) ("[It] is well established that a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility."); United States v. Lemon, 824 F.2d 763, 764-65 (9th Cir. 1987). Justification is a possible defense to the crime of felon in possession of a firearm. See United States v. Gomez, 92 F.3d 770, 774 (9th Cir. 1996).
At trial, a defendant presenting a justification defense must prove four elements by a preponderance of the evidence:
(1) he was under unlawful and present threat of death or serious bodily injury; (2) he did not recklessly place himself in a situation where he would be forced to engage in criminal conduct; (3) he had no reasonable legal alternative; and (4) there was a direct causal relationship between the criminal action and the avoidance of the threatened harm.Id. at 775. To be entitled to present his justification theory to the jury, however, a defendant must only make a prima facie showing of each of these elements. See Perdomo-Espana, 522 F.3d at 989; United States v. Dorrell, 758 F.2d 427, 430 (9th Cir. 1985). Because "a criminal defendant has the right to have a jury resolve disputed factual issues," the court reviews only whether the evidence that the defendant presents constitutes a legally sufficient basis to present the defense to a jury. Dorrell, 758 F.2d at 430. Although this evidentiary threshold is low, a "mere scintilla" of evidence to support the defendant's theory is insufficient. United States v. Wofford, 122 F.3d 787, 789 (9th Cir. 1997). At this stage, the court views the evidence in the light most favorable to the defendant. Lemon, 824 F.2d at 764-65. Finally, the elements of a justification defense are viewed through an objective lens rather than from the defendant's subjective perspective. See Perdomo-Espana, 522 F.3d at 988. // //
B. Evidence before the Court
A defendant may meet his prima facie burden by presenting evidence in various forms, such as submitting a proffer or offer of proof, during a bifurcated trial, during the course of trial, or at a pretrial evidentiary hearing. The Ninth Circuit has not expressed a preference among these methods, and the court has taken a hybrid approach in light of the Government's request to have the matter decided before trial. (See generally Mot.)
Mr. Rezene submitted two proffers to the court. (See Proffer; Supp. Proffer.) Proffers can satisfy a defendant's prima facie burden, but not by promising "vague testimony" or "bald assertions." Wofford, 122 F.3d at 790. The court also held an evidentiary hearing in which Mr. Rezene and the Government presented testimony, cross-examined witnesses, and entered exhibits. (3/28/17 Min. Entry.) In addition, in lieu of presenting her testimony live, Mr. Rezene submitted a declaration from his sister, Meron Rezene, at the hearing. (See M. Rezene Decl.) The court considers as evidence Mr. Rezene's proffers and the testimony, exhibits, and declaration presented at the hearing. See supra nn. 9-10. The court views that evidence in the light most favorable to Mr. Rezene. See Lemon, 824 F.2d at 764-65.
Mr. Rezene's initial counsel submitted both proffers on his behalf (see Proffer; Supp. Proffer), and Mr. Rezene subsequently obtained new counsel and received a trial continuance (2/7/17 Order (Dkt. # 44); 2/8/17 Order (Dkt. # 45)). Over the Government's objection, the court continued the hearing on the Government's motion and allowed Mr. Rezene's new counsel to supplement the briefing and record. (2/28/17 Order (Dkt. #50).) Despite impugning Mr. Rezene's initial counsel's "three-page proffer in support of a justification defense that did not reference any of the supporting information contained in the discovery" (Prop. Order (Dkt. # 48-1)), Mr. Rezene's new counsel, after obtaining an extension to review the record, filed a supplemental brief that "relies on the defendant's proffer previously filed" by Mr. Rezene's initial counsel (Supp. Resp. at 1).
At several points in his proffer, Mr. Rezene merely restates an element of the necessity defense and asserts that he would present evidence thereof at trial. (See, e.g., Proffer ¶¶ 1.1 ("Mr. Rezene reasonably believed his life was in danger as a result of receiving these threats."), 1.3 ("Mr. Rezene reasonably believed that seeking help from law enforcement authorities would have been futile . . . .").) The court does not credit those vague, conclusory assertions. See Wofford, 122 F.3d at 790; United States v. Bailey, 444 U.S. 394, 415 (1980).
At the evidentiary hearing, the parties presented testimony and exhibits that provide greater detail than the general assertions in Mr. Rezene's proffers. Although the evidence presented is more specific, it does not conflict with the non-conclusory assertions in Mr. Rezene's proffers. Accordingly, the court treats the specific evidence presented at the hearing as clarifying and adding substance to the general statements in Mr. Rezene's proffers.
C. The Government's Motion
The Government challenges Mr. Rezene's ability to satisfy his prima facie burden as to each of the four elements of his justification defense. (See Mot. at 8.) The court addresses each of those elements below.
1. No Reasonable Legal Alternative
"To establish that he had no alternative to possessing a firearm, [Mr. Rezene] 'must show that he actually tried the alternative or had no time to try it, or that a history of futile attempts revealed the illusionary benefits of the alternatives.'" Lemon, 824 F.2d at 765 (quoting United States v. Harper, 802 F.2d 115, 118 (5th Cir. 1986)). One legal alternative is seeking help from law enforcement, which a defendant must either actually do or reasonably determine would be futile before taking matters into his own hands. Wofford, 122 F.3d at 791. Mr. Rezene argues that he actually sought aid from law enforcement and that his previous attempts to seek aid demonstrated the futility of further attempts. (Supp. Resp. at 16-17.) //
a. A dually Seeking Aid
It is difficult to analyze what would constitute seeking aid from law enforcement because Mr. Rezene so nebulously defines the purported unlawful and present threat that he faced. See Wofford, 122 F.3d at 790 ("[U]nless a defendant presents evidence of a specific threat or a specific instance when he was threatened, it is impossible for the court to determine whether the four elements to the justification defense have been met."). However, it is clear that a delay of more than a month between the identified threat and the possession of a firearm is insufficient to meet the defendant's prima facie burden as to the first element of a necessity defense. United States v. Sahakian, 965 F.2d 740, 741 (9th Cir. 1992). Accordingly, the March 6, 2014, arson cannot constitute the threat that justifies Mr. Rezene's May 15, 2014, possession of a firearm. See id.
Mr. Rezene did not contact the police regarding any subsequent threats. His final contacts with law enforcement were two March 2014 phone calls regarding the arson of his family's car. (See Supp. Resp. at 8-9; 3/6/13 Reports at 001879, 001881-82.) When he spoke with law enforcement, Mr. Rezene indicated that he thought the arsonist targeted him, but he did not provide any information regarding potential culprits. (3/6/13 Reports at 001879, 001881-82.) After March 25, 2014, despite being shot at while driving in south Seattle on either May 3, 2014, or May 13, 2014, Mr. Rezene did not have contact with law enforcement until May 15, 2014, when he was shot at the Shell station. (See Supp. Resp. at 9.)
Comparing this case to Gomez, which Mr. Rezene cites as favorable and comparable (see, e.g., Supp. Resp. at 11; S. Rezene Arg.), illustrates the strain that Mr. Rezene's argument places on the justification doctrine. The defendant in Gomez did not "rush out to arm himself as soon as he realized his life was in danger; he tried many other avenues first." 92 F.3d at 777. "He asked the Sacramento County Sheriff for help. He went to his parole officer. He went to two churches." Id. In stark contrast, Mr. Rezene armed himself within weeks of the March 2014 arson of his family's Mercedes. (Supp. Resp. at 9.) Until October 3, 2014—well after possessing the Glock pistol—Mr. Rezene provided no meaningful information to law enforcement despite having strong suspicions based on substantial concrete and persuasive evidence. See supra § ILC; (see generally 10/3/14 Interview Tr.) Beseeching law enforcement to solve the shootings and arson while withholding valuable information is not legally sufficient evidence of actually seeking the aid of law enforcement.
b. Futility of Seeking Aid
Mr. Rezene also presents legally insufficient evidence for a reasonable person in his position to conclude that seeking aid from the police would be futile. In support of this argument, Mr. Rezene places great weight on past negative interactions with various branches of law enforcement: Mr. Rezene was briefly considered a suspect in the February 2, 2012, homicide of Ms. McDonald; police arrested Mr. Rezene following the September 17, 2013, shooting at his house; police were skeptical of Mr. Rezene's failure to provide any helpful information as to any of these incidents; and police failed to solve Ms. McDonald's homicide, the September 17, 2013, shooting at Mr. Rezene's home, the September 19, 2013, shootings on Mr. Rezene's block, and the March 6, 2014, arson of Mr. Rezene's family's Mercedes. (See Supp. Resp.; S. Rezene Arg.)
But Mr. Rezene's self-serving account of these past interactions omits important uncontroverted facts. Mr. Rezene was briefly considered a suspect in 2012 only because the fatal bullet appeared to have been fired from the driver's seat, where Mr. Rezene sat. (2/3/12 Reports at 001901 ("I think it is possible that Rezene had a gun, ducked down on the floor area of the driver seat after he heard the shots, fired back at the suspect and struck [Ms. McDonald] in the left side of her head . . . .").) The police cleared him as soon as blood spatter proved that he was not the shooter. (Heckelsmiller Direct; Heckelsmiller Cross; Heckelsmiller Redirect.) On September 17, 2013, Seattle police arrested Mr. Rezene only after he disobeyed an order to remain in place, called one of the police officers on the scene "Nigga" and "Boy," clenched his fists, and threatened to beat up a police officer. (9/17/13 Reports at 00408.) These circumstances surrounding Mr. Rezene's interactions with law enforcement are uncontroverted by any evidence in the record and severely undermine Mr. Rezene's claim of futility.
Furthermore, to the extent police officers doubted Mr. Rezene's candor, their mistrust proved warranted. Indeed, Mr. Rezene's years-long unforthcoming approach played no small part in the officers' inability to solve any of the crimes that victimized Mr. Rezene. (See, e.g., Thomas Direct; Kordel Redirect.) Mr. Rezene possessed an abundance of information regarding who may have committed the unsolved crimes and for what reasons, but he withheld that information from law enforcement until an October 3, 2014, interview. See supra § II.C. As Mr. Rezene acknowledged, the details he divulged in that interview were "things that only [Mr. Rezene] would know and [the perpetrators] would know." (10/3/14 Interview Tr. at 01740.) But he did not divulge this information to law enforcement between September 2013 and May 2014. Instead, despite the arson of his family's vehicle in March 2014, death threats in early May 2014 (Supp. Proffer at 2), and shots fired at his vehicle in early May 2014, see supra n.5, Mr. Rezene declined to offer information to police, armed himself, and took matters into his own hands to avoid being identified as a snitch (Proffer ¶¶ 1.3, 1.5; 5/15/14 Report at 00073); see also Wofford, 122 F.3d at 791.
Viewed in the light most favorable to Mr. Rezene, the record before the court demonstrates that law enforcement reasonably and briefly suspected Mr. Rezene of involvement in Ms. McDonald's homicide, arrested him for disobeying and threatening an officer, correctly treated Mr. Rezene's protestations of ignorance with skepticism, and failed to solve several crimes about which Mr. Rezene—the key witness—withheld almost all of the material information he possessed. No reasonable person in Mr. Rezene's shoes could have interpreted these events to demonstrate the futility of enlisting law enforcement rather than illicitly arming himself. Concluding otherwise would vitiate firearm restrictions by sanctioning vigilante self-defense based on self-serving obstructionism and interference with law enforcement.
The contrast between this case and Contento-Pachon, which Mr. Rezene also cites favorably, is telling. In Contento-Pachon, the Ninth Circuit agreed with the defendant that surrendering to Colombian authorities did not constitute a reasonable opportunity to escape for purposes of the duress defense because the defendant had put forth evidence that he reasonably believed the Colombian police were corrupt. 723 F.2d at 694. The court therefore concluded that "[t]he trier of fact should decide whether one in Contento-Pachon's position might believe that some of the Bogota police were paid informants for drug traffickers and that reporting the matter to the police did not represent a reasonable opportunity of escape." Id. Here, no evidence suggests any objective reason to believe the Renton, Seattle, and Tukwila police with whom Mr. Rezene had history were corrupt, biased, or even ineffective. To the extent he subjectively believed that contacting the police would have been futile, that conclusion was unreasonable. See Perdomo-Espana, 522 F.3d at 988.
Viewing the evidence in the light most favorable to Mr. Rezene, he has not made a prima facie showing that he actually sought aid from law enforcement or reasonably concluded that doing so would have been futile. Accordingly, the court concludes as a matter of law that Mr. Rezene cannot satisfy the third element of a justification defense.
2. The Remaining Elements of Mr. Rezene's Prima Facie Burden
Although Mr. Rezene falls most grievously short of satisfying the third element of his justification defense, he also fails to meet his prima facie burden as to the other three elements. The court addresses those elements below.
Mr. Rezene was not under a present threat during the duration of his firearm possession. (See H.Y. Rezene Redirect.) By his own admission, Mr. Rezene purchased the Glock pistol in mid-March 2014. (Supp. Resp. at 9; see also H.Y. Rezene Redirect.) Viewed in the light most favorable to Mr. Rezene, the March 6, 2014, arson constitutes the threat that gave rise to the gun purchase. However, there is no evidence in the record of any threat to Mr. Rezene between March 6, 2014, and early May 2014. (Supp. Proffer at 2.) Furthermore, Mr. Rezene attests that he is unaware who his assailants were in each instance. (Id.) Unlike in the cases Mr. Rezene relies upon, this inability to identify the person issuing the threats precludes the court from inferring based on the characteristics of that person that the threats were omnipresent—particularly during such an extended period of time. Cf. Gomez, 92 F.3d at 776 (concluding that despite happening more than two days ago, the threat to the defendant was sufficiently immediate because its issuer was "deeply involved in the exportation of illegal substances," had his freedom on the line, had demonstrated his willingness to kill, and had gathered biographical data about his intended victims); Contento-Pachon, 723 F.2d at 694 (concluding that the immediacy element was met because "the defendant was dealing with a man who was deeply involved in the exportation of illegal substances," "[l]arge sums of money were at stake," and the person making the threats had researched the defendant and his family and watched the defendant at all times); see also Wofford, 122 F.3d at 790 ("Both [Gomez and Contento-Pachon] involved exceptional circumstances, and both defendants had presented specific evidence of very recent threats that had not yet abated."); United States v. Vasquez-Landaver, 527 F.3d 798, 803-04 (9th Cir. 2008) ("[The defendant's allegations of vague threats by unnamed individuals . . . are far removed from Contento-Pachon's allegations that he faced specific threats of immediate harm during the entire period in which he engaged in illegal activity.").
Even ignoring the dearth of threats in April 2014, Mr. Rezene only vaguely identifies first- and secondhand threats of murder and violence in the two weeks preceding the Shell station shooting. (See Supp. Proffer at 2); cf. Wofford, 122 F.3d at 790 ("Wofford's vague testimony during his offer of proof that the threats were "continuing" does not change our conclusion. He was unable to provide any details whatsoever about threats received after January 1991. The bald assertion that he was threatened throughout the relevant period is not enough to entitle Wofford to a jury instruction." (internal footnote omitted)). Mr. Rezene has specifically identified only one purported threat from that time period—the shooting from the sidewalk in early May 2014. Yet Mr. Rezene and Helen Yohannes Rezene did not believe they were targets; rather, they thought that they were merely in the wrong place at the wrong time. (5/15/14 Report at 00052.) Mr. Rezene has therefore not shown that he faced a sufficiently "present" threat of death or serious bodily injury during the lengthy period he admittedly possessed the gun. Cf Sahakian, 965 F.2d at 741 (holding that an assault 36 days prior to the possession in question is not a sufficiently "present" threat); Lemon, 824 F.2d at 765 (holding that the defendant was not under a present threat because the assailant had already left the scene).
"[U]nless a defendant presents evidence of a specific threat or a specific instance when he was threatened, it is impossible for the court to determine whether the four elements to the justification defense have been met." Wofford, 122 F.3d at 790. Notwithstanding this difficulty and the independent sufficiency of its conclusions regarding the first and third elements of a justification defense, the court notes several additional deficiencies in Mr. Rezene's prima facie evidence. First, Mr. Rezene contends that he did not recklessly necessitate the criminal conduct, but he has acknowledged that he stole money during a drug deal that implicates the potential assailants in these incidents. (10/3/14 Interview Tr. at 01725-41.) Although his proffer arguably indicates an intent to recant these videotaped confessions (see Proffer ¶ 1.7), Mr. Rezene nonetheless withheld almost all relevant information from police as they attempted to solve each of the crimes of which Mr. Rezene was a victim (see generally 10/3/14 Interview Tr.; Thomas Direct; Heckelsmiller Direct; Kordel Direct). Indeed, Mr. Rezene argues that law enforcement's failure to solve these crimes is part of what caused him to fear for his life and obtain a firearm. (Proffer ¶¶ 1.3, 1.6.) Finally, he drove a recognizable car to a gas station in the early hours of the morning despite receiving unidentified death threats in the previous two weeks. (Supp. Proffer at 2.) This evidence all shows that Mr. Rezene recklessly placed himself in a position that necessitated his criminal conduct, and he therefore fails the second element.
Second, the undisputed timeline does not support a causal relationship between Mr. Rezene's purchase of the Glock and avoiding the nebulous threats on his life. Accepting arguendo the proposition that in March 2014, Mr. Rezene was justified in purchasing the firearm by virtue of the arson "threat," Mr. Rezene faced no subsequent threat for more than a month after he purchased the Glock. Cf. United States v. Singleton, 902 F.2d 471, 473 (6th Cir. 1990) ("[A] jury instruction on the defense of justification was unwarranted because Singleton failed to show that he did not maintain possession any longer than absolutely necessary. . . . Corollary to the requirement that the defendant have no alternative to possession of the firearm is the requirement that the defendant get rid of the firearm as soon as a safe opportunity arises." (internal citations omitted)); see also Gomez, 92 F.3d at 778 (citing Singleton for this proposition with approval). Accordingly, Mr. Rezene also fails to make a prima facie showing as to this element.
IV. CONCLUSION
This court joins the chorus of other courts that have found Gomez to be an extraordinary case. See, e.g., Wofford, 122 F.3d at 790-91; United States v. Perez, 86 F.3d 735, 737 (7th Cir. 1996). The stark factual contrast between Gomez and this case, which lacks almost every characteristic that the Ninth Circuit found important in Gomez, bolsters the court's conclusion that Mr. Rezene is not entitled to present a justification defense for unlawfully possessing a firearm. For the foregoing reasons, the court GRANTS the Government's motion to preclude Mr. Rezene from presenting a justification defense.
Dated this 7th day of April, 2017.
/s/_________
JAMES L. ROBART
United States District Judge