No Innocent Posession Defense to Felon-in-Possession Charge
US v. Baker, No. 07-07-3002, (December 6, 2007): the Tenth Circuit in a published opinion rejected the defendant’s “innocent possession” defense to the charge of felon in possession of ammunition and affirmed his conviction. It also affirmed his ACCA sentence of 235 months, which was at the bottom of the guideline range.
On November 1, 2005, the defendant, who had three prior Kansas burglary convictions, was sitting in a car parked outside his daughter’s apartment complex at 4:00 am with the headlights on. A patrolling cop saw the car and decided to check it out. He shined his lights on the car. The defendant got and approached him. The cop told him to stop, got his ID, ran a records check on the vehicle and found out the tag had been reported lost or stolen. A check on the defendant disclosed two active city bench warrants. The cop arrested him and found a speed loader with six rounds in it in his pocket. The speed loader had been stolen earlier that night during a burglary of a steakhouse. At trial, the defendant testified that he found the speed loader after leaving a Halloween party and picked it up because he was worried that a child might find it. He stopped at the apartment complex to drop off a companion and that’s when the cop arrived. He got out of his car and approached the cop in order to turn the speed loader over to him, but never got the chance. He had had possession of the speed loader for only about ten minutes.
Based on that testimony, he requested an instruction that told the jury that innocent possession of the ammunition is a defense to the charge, and that it should acquit him if it found 1) the ammunition was obtained innocently and held with no illicit purpose, and 2) the possession was transitory, meaning there was a good basis to find that he took adequate measures to rid himself of the possession as promptly as reasonably possible. The instruction was modeled on the definition of the defense approved in US v. Mason, 2233 F.3d 619 (DC Cir. 2000). The district court refused to give the instruction because it felt the evidence did not warrant it. Judge Tacha, joined by Judge Murphy, held that it was not supported by the law. The DC Circuit had allowed the defense under similar circumstances because, without it, knowing possession will always be a crime, regardless how or why the defendant came into possession or how long it lasted. Judge Tacha rejected that reasoning, finding that was exactly what Congress intended by making knowing, rather than willful (i.e., with a bad purpose) possession a crime. The Court also distinguished the defense from the narrower necessity defense, which requires the defendant to show that he had no legal alternative to violating the law. Since the innocent possession defense did not require the defendant here to contemplate his legal alternatives prior to taking possession, allowing it would impermissibly expand the scope of the necessity defense, which must be “strictly and parsimoniously applied.”
Judge Holloway dissented from this holding, instead finding the reasoning in Mason persuasive. He focused on the fact that other courts that have rejected the defense on strict statutory and public policy grounds nevertheless do recognize other defenses not created by Congress, such as duress, justification and entrapment. He also took issue with the majority’s reliance on the exercise of prosecutorial discretion to not bring cases where, like here, the necessity defense is not technically available, but the facts suggest that it would nevertheless be unfair to prosecute.
As for the sentence, the PSR treated the defendant as an armed career criminal because of the three burglary convictions. He challenged the use of the first of the convictions, arguing that it should not count because, under Kansas law, his civil rights had been restored as to that conviction prior to the instant offense. Following a “whole law” rather than “conviction specific” approach, the Court held the defendant’s right to possess firearms and ammunition had never effectively been restored because he was continuously under state custody.
What the defendant did NOT challenge was the reasonableness of his sentence of 19 years and 7 months under 18 USC §3553. Even though this sentence was at the bottom of the guideline range, there was certainly an argument to be made for the minimum mandatory, given the facts upon which his defense rested. Plus, the jury acquitted him of possession of stolen ammunition, no gun was involved in this case, and no guns were involved in any of the prior burglaries. The Court may well have rejected the argument, of course, but is still puzzling why the argument was not at least advanced.
On November 1, 2005, the defendant, who had three prior Kansas burglary convictions, was sitting in a car parked outside his daughter’s apartment complex at 4:00 am with the headlights on. A patrolling cop saw the car and decided to check it out. He shined his lights on the car. The defendant got and approached him. The cop told him to stop, got his ID, ran a records check on the vehicle and found out the tag had been reported lost or stolen. A check on the defendant disclosed two active city bench warrants. The cop arrested him and found a speed loader with six rounds in it in his pocket. The speed loader had been stolen earlier that night during a burglary of a steakhouse. At trial, the defendant testified that he found the speed loader after leaving a Halloween party and picked it up because he was worried that a child might find it. He stopped at the apartment complex to drop off a companion and that’s when the cop arrived. He got out of his car and approached the cop in order to turn the speed loader over to him, but never got the chance. He had had possession of the speed loader for only about ten minutes.
Based on that testimony, he requested an instruction that told the jury that innocent possession of the ammunition is a defense to the charge, and that it should acquit him if it found 1) the ammunition was obtained innocently and held with no illicit purpose, and 2) the possession was transitory, meaning there was a good basis to find that he took adequate measures to rid himself of the possession as promptly as reasonably possible. The instruction was modeled on the definition of the defense approved in US v. Mason, 2233 F.3d 619 (DC Cir. 2000). The district court refused to give the instruction because it felt the evidence did not warrant it. Judge Tacha, joined by Judge Murphy, held that it was not supported by the law. The DC Circuit had allowed the defense under similar circumstances because, without it, knowing possession will always be a crime, regardless how or why the defendant came into possession or how long it lasted. Judge Tacha rejected that reasoning, finding that was exactly what Congress intended by making knowing, rather than willful (i.e., with a bad purpose) possession a crime. The Court also distinguished the defense from the narrower necessity defense, which requires the defendant to show that he had no legal alternative to violating the law. Since the innocent possession defense did not require the defendant here to contemplate his legal alternatives prior to taking possession, allowing it would impermissibly expand the scope of the necessity defense, which must be “strictly and parsimoniously applied.”
Judge Holloway dissented from this holding, instead finding the reasoning in Mason persuasive. He focused on the fact that other courts that have rejected the defense on strict statutory and public policy grounds nevertheless do recognize other defenses not created by Congress, such as duress, justification and entrapment. He also took issue with the majority’s reliance on the exercise of prosecutorial discretion to not bring cases where, like here, the necessity defense is not technically available, but the facts suggest that it would nevertheless be unfair to prosecute.
As for the sentence, the PSR treated the defendant as an armed career criminal because of the three burglary convictions. He challenged the use of the first of the convictions, arguing that it should not count because, under Kansas law, his civil rights had been restored as to that conviction prior to the instant offense. Following a “whole law” rather than “conviction specific” approach, the Court held the defendant’s right to possess firearms and ammunition had never effectively been restored because he was continuously under state custody.
What the defendant did NOT challenge was the reasonableness of his sentence of 19 years and 7 months under 18 USC §3553. Even though this sentence was at the bottom of the guideline range, there was certainly an argument to be made for the minimum mandatory, given the facts upon which his defense rested. Plus, the jury acquitted him of possession of stolen ammunition, no gun was involved in this case, and no guns were involved in any of the prior burglaries. The Court may well have rejected the argument, of course, but is still puzzling why the argument was not at least advanced.
posted by Anonymous at 11:33 AM
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