“Innocent Possession” Defense Rejected

Can a felon pick up dangerous ammunition for a few minutes for the purpose of giving it to a policeman and keeping it out of the possession of nearby children?  The 10th Circuit said “no” in a 2-1 decision on Thursday, creating a split of authority on the issue.What Happened?

James Baker (no relation to the televangelist with a similar sounding name), is a felon who was charged with possession of ammunition by a felon and possession of stolen ammunition in the following incident:

At approximately 4:00 a.m. on November 1, 2005, James Baker was sitting in a car in a parking lot outside his stepdaughters’ apartment complex. Officer Richard Bachman of the Wichita, Kansas Police Department was patrolling the area and thought that the vehicle, which was parked with its lights on, looked suspicious. He turned his patrol car’s lights on the vehicle. As he did so, Mr. Baker got out of the car and approached the patrol car. Officer Bachman instructed Mr. Baker to stop moving and asked Mr. Baker for identification, which he provided. The dispatcher ran a routine records check on the vehicle, which revealed that the tag had been reported as lost or stolen. Based on this information, Officer Bachman detained Mr. Baker. The dispatcher then reported that a records check on Mr. Baker revealed the existence of two active city bench warrants for his arrest. Officer Bachman therefore arrested Mr. Baker. During a search incident to the arrest, Officer Bachman found a speed loader with six rounds of live ammunition in Mr. Baker’s pocket. It was later discovered that the ammunition had been stolen earlier that night during a burglary of Doc’s Steakhouse in Wichita.

Mr. Baker made the unusual choice of testifying at trial to explain himself, despite the fact that this opened the door to allowing his testimony to be impeached by his criminal record.  Baker said he picked up the ammunition for the purpose of giving it to a cop and keeping it out of reach of children.

During the trial, Mr. Baker testified that he saw the ammunition on the ground after leaving a Halloween party at an apartment complex. According to Mr. Baker, he picked up the ammunition so that he could turn it into the police; he did not want to leave it on the ground because he was worried that a child might find it. Before Mr. Baker drove to the police station, however, he and two other individuals drove to another apartment complex. He testified that he was sitting in the car in the complex’s parking lot when he saw Officer Bachman in the patrol car. Mr. Baker figured he could hand the bullets over to Officer Bachman rather than go to the police station, so he got out of the car and approached Officer Bachman, who had exited the patrol car. Officer Bachman immediately started questioning Mr. Baker about the reason he was in the parking lot, and before Mr. Baker could give him the bullets, Officer Bachman placed him under arrest and discovered the bullets. Mr. Baker also testified that he only had the ammunition for about ten minutes before he was arrested.

The dissenting judge also noted that:

Baker testified that he had an aversion to firearms because three relatives had been killed by gunshots. He testified that he had not possessed a firearm since 1996. Further, his testimony was that on this Halloween night, in spite of the very late hour, there were children out and about at the apartment complex where he found the ammunition and that he took the contraband away from that place out of concern for safety; that he intended to take the ammunition to a police station; that he made one short stop on the way to accommodate one of his companions; and that he had been in possession of the ammunition for only ten minutes. His testimony that he approached Officer Bachman with the intention of turning the ammunition over to him was partially corroborated by the officer, who testified that Baker was approaching him before he ordered Baker to stop. Thus Baker’s testimony, which should be accepted in determining if Baker made a viable innocent possession showing, demonstrated that he did not possess the ammunition for illicit purposes.

The dissenting judge also noted “that no firearm or other weapon was involved in this

offense, nor was one involved in any of the prior convictions which formed the basis for the determination that Baker was subject to a mandatory minimum sentence of fifteen years as an ‘Armed Career Criminal.’ “

The Legal Issue

Baker asked for a jury instruction describing an “innocent possession” defense adopted by the U.S. Court of Appeals for the D.C. Circuit seven years ago in a similar case involving a firearm.  To establish the defense the D.C. Circuit held that the defendant must show that:

(1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory – i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.

The trial judge in Baker’s case refused to offer an instruction concerning the innocent possession case to the jury, on the basis that “the instruction was not warranted on the evidence presented.” 

The jury convicted Baker of possession of ammunition by a felon, but acquitted him of possession of stolen ammunition, so it is possible that the jury believed his story.  He was sentenced to 235 months in prison (almost 20 years), a sentence aggravated by his prior criminal history.

The 10th Circuit could have affirmed the trial judge’s ruling on the basis that it was not an abuse of discretion for the trial court to determine that the evidence that it was really necessary for Baker to take the ammunition to a policeman at 4 a.m., rather than making a phone call to leave a tip, for example, was too weak to merit offering a jury instruction.

Instead, the 10th Circuit ruled 2-1 that the D.C. Circuit was incorrect in interpreting the law, and that Congress meant to be harsh and punish innocent possession of ammunition by a felon with a stiff sentence.  This creates a direct split of authority on the interpretation of the law between the D.C. Circuit and the 10th Circuit with the 10th Circuit taking the more conservative position.  The 10th Circuit position has also been taken by the 1st and 7th Circuit Courts of Appeal in nearly identical cases.  There is also a case from the often liberal 9th Circuit Court of Appeals that has taken a similar legal position on facts that are less similar.

The majority rejected the D.C. Circuit’s reasoning that “absent such a defense, ‘a felon-in-possession always will be guilty once he knowingly possesses a weapon, without regard to how or why he came into possession or for how long possession was retained.’ ”  The majority concluded that this “is precisely what Congress envisioned by prohibiting knowing, as opposed to willful, possession of ammunition.”  The majority’s reason was largely textual.

The dissenting judge, in contrast, reasoned that:

The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such ” … a harsh and absurd result.” …  First, as Baker argues in his brief, courts that have rejected the innocent possession defense based on a strict statutory construction and public policy grounds have generally not acknowledged the contradiction posed by the fact that they have recognized the duress or justification defenses, which are similarly not found in the statutory language and so are, presumably, contrary to the posited legislative intent of strict liability. …

Second, the majority’s reliance on prosecutorial discretion is misplaced, as this case illustrates rather clearly. This is not because there was an abuse of prosecutorial discretion in this case. To the contrary, on this record it seems reasonable for the prosecutor to have decided that Baker’s explanation was “plausible, albeit debatable.” … That being so, it was not improper to present the case to the grand jury and to prosecute it on the basis of the resulting indictment. But to avoid injustice, the trial jury should have been instructed on the innocent possession defense on these facts. Such a narrow defense “does not offend the statute’s goal of keeping guns out of the hands of convicted felons.” …  No doubt prosecutorial discretion will lead to a decision not to prosecute in a few easy cases. But again, the instant case shows that prosecutorial discretion is hardly a panacea, or a guarantee of even-handed justice.

The dissent, in contrast, notes that judges routinely look beyond the bare text of statutes to interpret and apply them, and makes the case that an exception in this case would be consistent with the intent of Congress in enacting the relevant laws, particularly in light of the consequences of making a purely textual interpretation, which would impose a harsh sentence for a basically well meaning and civic-minded act.  The dissent also trusts the jury to make the right decision, while a strict textual reading sees the very purpose of the statute to impose strict liability, which removes discretion from the jury to interpret the context in which the offense alleged happened.

How Likely Is Further Review?

The vast majority of criminal verdicts and sentences affirmed by a federal appellate court end there.  But there is good reason to think that this case might have a different fate.  This split of authority, and the division of the panel itself, makes the case ripe for further review by the U.S. Supreme Court. 

About 60 percent of cases taken up by the U.S. Supreme Court involve this kind of split of authority.  This does not, by any means, imply that the U.S. Supreme Court reviews all splits of authority between circuits on questions of federal law. About 400 new circuit splits arise every year, and about 200 circuit split cases appealed to the U.S. Supreme Court are denied review every year, while about 30 to 40 receive review.  Well-developed splits (i.e., those involving more than just two circuits chiming in on the issue) are more likely to make the cut, as are splits of authority in cases with no facts to undistinguish them from each other legally.  Simple, fact bound  criminal cases, with squarely presented issues, are also among the most common types of cases to be granted U.S. Supreme Court review even when law clerks recommend against it (a practice called “reaching out“).  Realistically, if appealed to the U.S. Supreme Court, this case would probably have an extraordinarily high 20 to 30 percent chance of being considered.

It is also not obvious how this case would be resolved if the U.S. Supreme Court did take it up.  Fact specific interpretations of statutes often defy crude ideological characterizations, even though this case does seem to have a liberal-conservative dimension.

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Andrew Oh-Willeke

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