United States v. Baird , 712 F.3d 623 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1565
UNITED STATES OF AMERICA,
Appellee,
v.
JEFFREY BAIRD,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Howard, Stahl and Thompson,
Circuit Judges.
Michael B. Whipple, by appointment of the court, with whom
Hallett Whipple, P.A. was on brief for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom
Thomas E. Delahanty II, United States Attorney, was on brief for
appellee.
April 5, 2013
STAHL, Circuit Judge. On September 3, 2008, Jeffrey
Baird purchased a stolen handgun from Michael Hatch. Two days
later, Baird returned the gun to Hatch in exchange for the money he
had paid. Based on the brief time he possessed the weapon, Baird
was indicted and convicted of one count of possession of a stolen
firearm under 18 U.S.C. § 922(j) (2006). He was sentenced to a
$100 special assessment, a jail term of one month, and a two year
term of supervised release that he is still serving. Baird appeals
his conviction, arguing that the district court erred when it
refused to give the jury an instruction he requested, which would
have allowed him to make out a defense of "innocent possession" of
the stolen weapon. Because we believe that Baird was entitled to
an innocent possession instruction, we vacate his conviction and
remand the case for a new trial.
I. Facts & Background
This story begins on August 27, 2008, when Hatch and
another man burglarized the Pine Tree Trading pawnshop in Lewiston,
Maine, and stole 14 firearms from the store. Hatch was Baird's
next-door neighbor and lifelong friend. Baird did not own a gun,
but he learned from Hatch, a weapons collector, how to shoot and
handle one safely. At the time, Hatch had no criminal record, and
Baird had no idea that Hatch was involved in a burglary.
On September 3, Baird went to Hatch's house to visit.
Here, the various accounts of the story begin to diverge.
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According to Baird, the two started talking about guns. Hatch went
up to his bedroom, where he kept a weapons collection on display
that included a hunting rifle, a shotgun, and a handgun, as well as
knives, swords, tomahawks, and the like. Baird followed behind
him. When Baird entered the room, he saw that Hatch had laid out
several guns on top of his bed. Baird also noticed a black canvas
bag lying on the floor next to the bed. Hatch offered to sell
Baird one of the weapons, and Baird, without an inkling that the
guns had been stolen, agreed to pay $200 for a .45 caliber Smith &
Wesson pistol -- $100 immediately and $100 the next week. Baird
took the weapon and headed home.
Hatch tells a different story. In Hatch's version, Baird
entered the bedroom with him. Baird watched as Hatch reached
behind a drawer in the wall of the room where he had hidden a black
canvas bag containing the guns that he had stolen from the
pawnshop. Baird also watched as Hatch removed several of the guns
from the bag and placed them on top of his bed. Hatch then told
Baird that the guns were "hot," which is a slang term for "stolen."
Baird examined the weapons, and Hatch offered to sell him a .45
caliber Smith & Wesson pistol. They bargained over the price, and
eventually agreed on $200, with half to be paid immediately and the
rest later. At trial, Hatch added that he had never before
attempted to sell Baird a gun, and that Baird should have known
-3-
that Hatch could not have afforded to buy the guns that he showed
him.
The stories continue to differ about what happened the
day after the sale, on September 4. According to Baird, he
purchased bullets for the gun at a Wal-Mart and then went shooting
with it in the afternoon. Afterward, he went to his friend Jason
Trahan's house to show off his new acquisition. But Baird's pride
turned to distress when Trahan warned him that it was unwise to buy
a firearm in a private sale without getting more information about
its provenance. Baird returned home worried about what he should
do with the pistol, but he still did not suspect that it had been
stolen. At trial, Trahan corroborated this story, although he
admitted on cross-examination that he could not be sure about
whether the conversation took place on September 3 or September 4.
In Hatch's version, he met with Baird a second time a
"few days" after he sold him the pistol. Hatch specifically stated
that this meeting with Baird did not occur the day after the sale,
which would have been September 4. However, Hatch's story only
makes sense in relation to the other events in the case if the
encounter did take place on September 4.1 In any event, Hatch
1
There are three critical dates in this case: (1) September 3,
the day that Hatch sold Baird the gun, (2) September 4, the day of
the alleged Trahan/Baird and Hatch/Baird meetings, and (3)
September 5, the day that Baird returned the gun to Hatch. If, as
seems evident from Hatch's testimony, his alleged second meeting
with Baird took place on a different date than the return of the
gun, then the only other date on which it could have occurred is
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claims that he met with Baird, and that Baird told him that he had
purchased ammunition for the pistol at a Wal-Mart earlier in the
day and then taken it shooting. Hatch related that he became upset
with Baird, and reminded him that the gun was stolen and that it
should not be used in public. He asked Baird to give him back the
gun in exchange for the money he had paid, and Baird agreed to
return the weapon, though he did not do so at that time. At trial,
Bureau of Alcohol, Tobacco, Firearms, and Explosives Agent
Christopher Durkin, who interviewed Baird about the burglary on
October 29, 2008, claimed that Baird had confirmed to him that this
encounter with Hatch took place, although Durkin did not tape or
take any notes recording the interview. In his trial testimony,
Baird denied that this meeting with Hatch ever occurred, and
explained that he only told Durkin that it had because he had
confused it with his conversation with Trahan on that same day.
The events of the last relevant date in the case,
September 5, are no clearer. Baird claims that he went to Hatch's
house in the afternoon. He told Hatch that he had purchased
ammunition for the pistol and taken it shooting. Hatch grew angry
with him, and informed him for the first time that the gun was
stolen. Baird, who had the gun with him, immediately returned the
weapon to Hatch in exchange for his money. According to Hatch's
September 4.
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account, Baird simply came to his house with the pistol and gave it
to him in return for the money he had paid.
Now the storylines merge. Later on the same day that
Baird returned the gun to Hatch, Baird was interviewed by an
officer from the Lewiston Police Department investigating the Pine
Tree Trading burglary. Baird admitted to having briefly possessed
a stolen gun, but said that he had sold it back to the person from
whom he had purchased it. He fabricated several different stories
of how he had obtained the gun, and when the police expressed
skepticism, he declared that he would not say where he had bought
the weapon because he did not want to get his friend in trouble.
Ultimately, however, he admitted that he bought the gun from Hatch.
The police searched Baird's home but did not find any firearms
inside. Next, the police interviewed Hatch about the burglary.
Hatch immediately showed the police the stolen guns that he had
squirreled away in his bedroom wall, including the .45 Smith &
Wesson pistol that he had briefly sold to Baird. Hatch initially
lied to the police about how he had obtained the guns, but
eventually he confessed to the burglary.
On July 13, 2011, Baird was indicted on one count of
possession of a stolen firearm under 18 U.S.C. § 922(j), based on
the short time that he spent in possession of the pistol. At the
close of testimony, Baird requested that the court include the
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following instruction in its charge to the jury, which would allow
him to raise an "innocent possession" defense:
Briefness of contact alone does not preclude a
finding of possession. But if you find that
Jeffery Baird did not know or have reason to
know that the firearm was stolen when he first
possessed it and that as soon as he learned or
had reason to know that it was stolen he took
adequate steps to [get] rid of [it] as
promptly as reasonably possible, then you may
find that he did not knowingly possess a
firearm.
However, the district court declined to give this instruction. The
court analogized the situation to felon-in-possession cases, in
which our circuit has rejected such a defense, see United States v.
Teemer, 394 F.3d 59 (1st Cir. 2005), and to possession-of-stolen-
property cases, in which courts have discussed the obligation that
innocent acquirers have to return stolen property to its rightful
owners, see Godwin v. United States, 687 F.2d 585 (2d Cir. 1982);
Commonwealth v. Kelly, 446 A.2d 941 (Pa. 1982); Williams v.
Superior Court, 81 Cal. App. 3d 330 (1978). The district court
also noted that the one circuit court decision to address the
availability of such a defense in a possession-of-a-stolen-firearm
case seemed to reject it. See United States v. Al-Rekabi, 454 F.3d
1113 (10th Cir. 2006). Finally, the court emphasized that Baird
had admitted to having learned that the gun was stolen the night
before he returned the weapon,2 and that the government had
2
The district court appears to have been mistaken on this
point. Baird testified that Trahan warned him on September 4 that
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promised not to argue that Baird was guilty the moment he learned
the gun was stolen. However, the court did borrow the first
sentence from Baird's suggested instruction, telling the jury that
"Briefness of contact alone does not preclude a finding of
possession." Baird objected to the inclusion of this single phrase
standing alone, but the court was unmoved.
In its final instructions to the jury, the court
explained that the government had to prove three elements beyond a
reasonable doubt: (1) that Baird "knowingly possessed the firearm
described in the indictment"; (2) that "at the time . . . Baird
possessed the firearm, the firearm was stolen and . . . Baird knew
or had reasonable cause to believe that the firearm was stolen";
and (3) that the firearm had been transported in interstate
commerce.3 The court defined "knowingly" as "done voluntarily and
intentionally, not because of mistake or accident," and defined
"possess" as the "exercise [of] authority, dominion, or control
over something." The court also gave the "briefness of contact"
instruction described above.
he should have been more careful about buying the gun, but affirmed
that he had no idea the weapon was stolen until September 5, upon
which he immediately returned it to Hatch.
3
Cf. 18 U.S.C. § 922(j) ("It shall be unlawful for any person
to . . . possess . . . any stolen firearm . . . which has been
shipped or transported in interstate or foreign commerce . . .
knowing or having reasonable cause to believe that the firearm or
ammunition was stolen.").
-8-
During jury deliberations, the jury addressed the
following question to the court: "Is a person guilty as soon as
he/she had a reasonable cause to believe a firearm in their
possession is stolen?" The parties jointly agreed that the court
should respond to the question as follows: "the Government is not
arguing that a person is guilty as soon as he/she had a reasonable
cause to believe a firearm in their possession is stolen." The
jury returned a guilty verdict later that same day. Baird now
appeals his conviction, arguing that the court should have given
the jury the "innocent possession" instruction that he requested.
II. Analysis
A criminal defendant is entitled to an instruction on his
theory of defense so long as the theory is legally sound and
supported by evidence in the record. See United States v. Powers,
702 F.3d 1, 8-9 (1st Cir. 2012). When a district court decides
whether to give a requested instruction, it must take the evidence
in the light most favorable to the defendant, without making
credibility determinations or weighing conflicting evidence. Id.
at 9. The standard for "plausibility" is quite low. Id.; see also
United States v. Johnson, 459 F.3d 990, 993 (9th Cir. 2006).
Our circuit's precedent reveals some confusion regarding
the proper appellate standard of review in a case like this one,
where the defendant has preserved an objection to the district
court's refusal to give his requested jury instruction. Most of
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our decisions describe our review as de novo in such cases, see,
e.g., Powers, 702 F.3d at 8-9; United States v. Earle, 488 F.3d
537, 546 (1st Cir. 2007); United States v. Buttrick, 432 F.3d 373,
376 (1st Cir. 2005); United States v. Mercado, 412 F.3d 243, 251
(1st Cir. 2005), but some say that we review for abuse of
discretion, see, e.g., United States v. De La Cruz, 514 F.3d 121,
139 (1st Cir. 2008); United States v. Otero-Méndez, 273 F.3d 46, 55
(1st Cir. 2001); United States v. Lewis, 40 F.3d 1325, 1336 (1st
Cir. 1994). A few other decisions do not state any standard of
review at all. See, e.g., United States v. Marino, 277 F.3d 11, 35
(1st Cir. 2002); United States v. Gabriele, 63 F.3d 61, 68 (1st
Cir. 1995).
We hope to provide some clarity here. To successfully
challenge a district court's decision not to give a requested
instruction, the defendant first "must present sufficient evidence
to be entitled to [the] instruction." United States v. Callipari,
368 F.3d 22, 32 (1st Cir. 2004), vacated on other grounds,
Callipari v. United States, 543 U.S. 1098 (2005). This is the same
threshold that the defendant must meet when he makes his initial
request of the district court. See Powers, 702 F.3d at 8-9.
Because this determination "entails not differential fact-finding,
but merely an inquiry into the legal sufficiency of the evidence,
the standard of appellate review . . . should be plenary." United
States v. Rodriguez, 858 F.2d 809, 812 (1st Cir. 1988); see also
-10-
United States v. Lopez-Lopez, 282 F.3d 1, 18 (1st Cir. 2002).
Therefore, "[w]e review de novo the sufficiency of the evidence
supporting the proposed instruction." Callipari, 368 F.3d at 32.
Like the district court, "[w]e 'examine the evidence on the record
and . . . draw those inferences as can reasonably be drawn
therefrom, determining whether the proof, taken in the light most
favorable to the defense can plausibly support the theory of the
defense." Id. (quoting United States v. Gamache, 156 F.3d 1, 9
(1st Cir. 1998)).
If we determine on our de novo review that the evidence
at trial, taken in the defendant's favor, was sufficient to support
his requested instruction, then we move to a three-part test to
decide whether the district court's refusal to give the instruction
constitutes reversible error. See id. We will reverse a district
court's decision to deny the instruction only if the instruction
was (1) substantively correct as a matter of law, (2) not
substantially covered by the charge as rendered, and (3) integral
to an important point in the case so that the omission of the
instruction seriously impaired the defendant's ability to present
his defense. See id.; see also Mercado, 412 F.3d at 251; United
States v. Rose, 104 F.3d 1408, 1416 (1st Cir. 1997). Each step in
this three-part test involves a question of law, which we decide de
novo. See, e.g., United States v. Venti, 687 F.3d 501, 504 (1st
Cir. 2012).
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To the extent that our past cases on this matter suggest
otherwise, we believe the difference is likely due to inadvertent
conflation of the de novo standard for a court's refusal to give an
instruction with the abuse of discretion standard for a court's
phrasing of an instruction. See Gray, 289 F.3d at 133 (explaining
that claims of instructional error are either "reviewed de novo
(e.g., failure to give an instruction) or under an abuse of
discretion standard (e.g., court's choice of language)"); see also
Wilson v. Maritime Overseas Corp., 150 F.3d 1, 10 & n.7 (1st Cir.
1998). Our precedent is iron-clad on the application of de novo
review to the threshold issue of whether the evidence was
sufficient to support the instruction, see Rodriguez, 858 F.2d at
812, although we differ from some other circuits on this matter,
see, e.g., United States v. Bush, 626 F.3d 527, 538-39 (9th Cir.
2010). And it would make no sense to apply abuse of discretion
review to the legal questions implicated by the three-part test
that follows the sufficiency of the evidence determination.
Therefore, we begin with the question of whether the
evidence at trial, taken in the light most favorable to Baird,
plausibly supported his requested "innocent possession"
instruction. According to Baird, he purchased the pistol from
Hatch on September 3 under circumstances in which he did not know
or have reason to know that the gun was stolen. He grew concerned
about the propriety of the sale after speaking to Trahan on
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September 4, but he did not learn that the pistol had been stolen
until Hatch told him so on September 5, upon which he immediately
returned the weapon. This evidence provided ample support for
Baird's requested instruction, which would have told the jury that
it could acquit him if it found that he bought the gun without
knowledge that it was stolen and that he disposed of the weapon as
soon as reasonably possible after learning the truth. When the
district court considered Baird's request for an innocent
possession instruction, it based its decision on the mistaken
recollection that Baird had admitted to knowing that the gun was
stolen the night before he returned it. Perhaps if the district
court had recalled more accurately the record of the evidence
provided by Baird at trial, it would have been more amenable to his
proposed instruction.
Moving onto the three-part test, we ask first whether
Baird's requested "innocent possession" instruction was correct as
a matter of substantive law. The statute under which Baird was
convicted, 18 U.S.C. § 922(j), makes it a crime to receive or
possess a stolen firearm that has moved in interstate commerce
"knowing or having reasonable cause to believe that the firearm .
. . was stolen." Id. It is common ground between the parties that
§ 992(j) includes the scenario in which someone receives a weapon
without knowledge that it is stolen, and upon discovering that it
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is stolen continues to retain it.4 And although § 922(j) itself
is silent on the matter, it is also apparently common ground that
the statute must permit some kind of "innocent possession" defense,
because, as the government observes in its brief, "Congress would
likely not have intended absurd results that would allow conviction
of truly innocent possessors of stolen firearms." Brief for
Appellee United States of America at 32 (No. 12-1565); cf. United
States v. Holt, 464 F.3d 101, 107 (1st Cir. 2006), overruled on
other grounds, United States v. Rehlander, 666 F.3d 45 (1st Cir.
2012); Teemer, 394 F.3d at 64. The question in this case, then, is
the scope of the "innocent possession" defense available under §
922(j), and whether it covers Baird's unfortunate tale.
Without fully defining the scope of the § 922(j) innocent
possession defense, we are persuaded that it at least should have
been made available to Baird in this case. When the district court
weighed Baird's request for the innocent possession instruction, it
observed correctly that our decision in Teemer, 394 F.3d 59,
disapproved of a mandatory innocent possession defense for 18
U.S.C. § 922(g)(1) felon-in-possession cases. See id. at 64-65;
see also Holt, 464 F.3d at 107 (same for 18 U.S.C. § 922(g)(4)
4
Cf. American Law Institute, Model Penal Code & Commentaries
§ 233.6 at 235 (1980) ("By defining 'receiving' to include the
retention of possession, the Model Code also makes it possible to
convict a person who receives without knowledge that the goods were
stolen but who, upon learning of their status, nevertheless
resolves to keep or sell them.").
-14-
possession of a firearm by a person who has been committed to a
mental institution cases). But that is not all Teemer said. While
Teemer declined to create a "mandatory safe harbor" for innocent
possession, it also acknowledged that "there are circumstances that
arguably come within the letter of the law but in which conviction
would be unjust," such as if a felon snatched away a loaded gun
from his school-aged son and then called the police to retrieve it.
Teemer, 394 F.3d at 64. Therefore, although Teemer relied
primarily on prosecutorial discretion and the common sense of the
jury to weed out the cases warranting leniency in § 922(g) cases,
we have simultaneously recognized that "extraordinary cases might
arise where . . . . if the government were foolish enough to
prosecute, some caveat might indeed be needed (e.g., an instruction
on a necessity or justification defense.)" Holt, 464 F.3d at 107;
see also Teemer, 394 F.3d at 64 ("Most prosecutors and--failing
that--most juries would show good sense in such situations. But
sometimes both safeguards fail.").
We believe that a defendant prosecuted under § 922(j)
should at least receive the minimal protection afforded by Teemer
and its progeny. As Teemer recognized, the "problem of allegedly
innocent possession recurs intermittently" in cases where guilt
hinges on the defendant's possession of some item, as it does for
a possession-of-a-stolen-firearm prosecution under § 922(j).
Teemer, 394 F.3d at 64 (citing United States v. Mason, 233 F.3d
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619, 622-24 (D.C. Cir. 2000)); United States v. Kitchen, 57 F.3d
516, 521-25 (7th Cir. 1995)). Although federal criminal law
permits common law "justification" defenses such as necessity and
duress, neither defense can provide a perfect shield for every
truly innocent possessor, nor can legislatures "draft a generally
framed statute that anticipates every untoward application and
plausible exception." Teemer, 394 F.3d at 64. Therefore, like the
felon-in-possession statute, the possession-of-a-stolen-firearm
provision will inevitably contain gaps that allow the occasional
"extraordinary case" to slip through, "where voluntary possession
would exist in a literal sense and yet Congress could not have
intended the statute to apply." Holt, 464 F.3d at 107.
Indeed, the danger that someone might innocently violate
the law is much greater for § 922(j) than it is for § 922(g)(1).
The felon-in-possession provision aims "broadly to keep firearms
away from the persons Congress classified as potentially
irresponsible and dangerous. These persons are comprehensively
barred . . . from acquiring firearms by any means." Barrett v.
United States, 423 U.S. 212, 218 (1976). While it is possible to
conceive of a truly benign circumstance in which a felon could come
into possession of a firearm--for instance, the example of the
father mentioned above--those cases should be few and far between.
Accordingly, "[t]he innocent possession defense to a § 922(g)(1)
charge is necessarily narrow." Mason, 233 F.3d at 624.
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Not so for a § 922(j) charge. Intra-state gun sales
between private parties are entirely legal under federal law, see
18 U.S.C. §§ 922(a)(3) & (a)(5), 922(d); 27 C.F.R. 478.29 & 478.30,
and every time someone participates in a private sale, he runs the
risk of unwittingly purchasing a stolen weapon. While there are
few situations in which a felon could innocently procure a firearm,
there are many in which a law-abiding gun owner could inadvertently
come into possession of a stolen weapon. Just as it was
"unthinkable" to the Supreme Court "that Congress intended to
subject . . . law-abiding, well-intentioned citizens to a possible
ten-year term of imprisonment if . . . what they genuinely and
reasonably believed was a conventional semi-automatic [weapon]
turns out to . . . be a fully automatic weapon," it is equally
unthinkable to us that Congress intended to subject law-abiding,
well-intentioned citizens to a possible ten-year term of
imprisonment if what they genuinely and reasonably believed was a
legally acquired gun turned out to be stolen. Staples v. United
States, 511 U.S. 600, 615 (1994) (quoting United States v.
Anderson, 885 F.2d 1248, 1254 (5th Cir. 1989) (en banc)); see also
18 U.S.C. § 924(a)(2) (up to ten-year sentence for violation of §
922(j)). Therefore, at the very least, defendants prosecuted under
§ 922(j) should have the same opportunity to raise an innocent
possession defense as those charged under § 922(g)(1). Whether the
higher likelihood of truly innocent possession under § 922(j)
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should correspond to a broader innocent possession defense in such
cases is a question we reserve for a later decision.5 Here, we
hold only that defendants prosecuted under § 922(j) must receive,
at minimum, the innocent possession defense afforded by Teemer.
The district court relied in part on the Tenth Circuit's
decision in Al-Rekabi, 454 F.3d 1113, to conclude that Baird was
not entitled to his requested instruction. Al-Rekabi is the only
decision of which we are aware that has come close to addressing
this issue through its discussion of the related, "fleeting
possession" defense under § 922(j), which it ultimately rejected.
However, its conclusion does not compel us to reach a similar
result here. First, Al-Rekabi affirmed the denial of the fleeting
possession instruction because it believed it to be "redundant to
the necessity defense," which the defendant in that case had failed
to establish. See id. at 1126-27. However, the innocent
5
Baird urges us to follow the lead of the D.C. Circuit in
United States v. Mason, 233 F.3d 619, 623 (D.C. Cir. 2000), which
held that a defendant prosecuted under 922(g)(1) is entitled to an
innocent possession instruction so long as he can establish that
"(1) the firearm was attained innocently and held with no illicit
purpose and (2) possession of the firearm was transitory." Id. at
624. Our circuit has declined to adopt the Mason approach in §
922(g) cases, see United States v. Leahy, 473 F.3d 401, 406 n.3
(1st Cir. 2007); United States v. Holt, 464 F.3d 101, 107 (1st Cir.
2006); United States v. Mercado, 412 F.3d 243, 252 (1st Cir. 2005);
United States v. Teemer, 394 F.3d 59, 64-65 (1st Cir. 2005), but
there may be good reason to take a different tack in § 922(j)
prosecutions. Nevertheless, because we find that Teemer's case-
specific approach alone requires an innocent possession instruction
here, we need not reach the broader question of whether a § 922(j)
defendant might in all cases be entitled to a mandatory innocent
possession instruction like the one described in Mason.
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possession defense described by Teemer is specifically tailored to
cases where a necessity justification would not be available to the
defendant, see Teemer, 394 F.3d at 64, and so Al-Rekabi's reason
for rejecting the defense is not relevant here. Second, Al-Rekabi
involved a situation in which the defendant did not dispute that he
had obtained possession of the stolen weapon with knowledge that it
had been stolen, see Al-Rekabi, 454 F.3d at 1117-18, while Baird
claims he discovered that the pistol was stolen only after he had
purchased it. Therefore, we hesitate to impose the same onerous
requirements on Baird that the Tenth Circuit did on Al-Rekabi. See
id. at 1123.
Applying the Teemer rule to Baird's request for an
innocent possession instruction, we ask whether his was an
"extraordinary case[] . . . [in which] Congress could not have
intended the statute to apply." Holt, 464 F.3d at 107; see also
Teemer, 394 F.3d at 65. We believe that Baird's is just such a
case. Baird says that he had only momentary possession of the
pistol with knowledge that it was stolen before he quickly handed
it back to Hatch. This story fits precisely into the mold of the
examples given in Teemer, where the elements of a crime are
technically satisfied for a brief interlude and yet where the
circumstances are such that conviction would be unjust.6
6
Cf. Teemer, 394 F.3d at 64 ("Consider if a schoolboy came
home with a loaded gun and his ex-felon father took it from him,
put it in [a] drawer, and called the police; or if a mother--who
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We do not believe that Congress would have intended §
922(j) to brand Baird a felon under these circumstances. Like
other receipt-of-stolen-property offenses, § 922(j) aims to
discourage theft by punishing the "fences" who purchase stolen
property. See American Law Institute, Model Penal Code &
Commentaries § 233.6 at 232 (1980). That goal is met if a "fence"
unwittingly buys stolen property and then immediately returns it to
the seller upon learning its true source, since it forces the thief
to disgorge his profit. If Baird's story is true, then it is hard
to imagine what additional purpose is achieved by punishing him
after he returned the weapon. It could be that § 922(j) serves to
get stolen guns off the streets by requiring those who come into
their possession to immediately contact the police or the weapons'
true owners, but the provision itself contains no such duty, and we
hesitate to impose that responsibility in the absence of any
indication that one was intended. The other possibility is that
the provision is meant to impose a rigid obligation that buyers in
private gun sales must confirm with certainty that the seller is
the weapon's lawful owner or risk a felony; however, as we
explained above, we do not believe Congress intended to create this
requirement.
need not be a felon to be charged with drug possession--threw into
the trash an envelope of marijuana found in her daughter's bureau
drawer.").
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The government argues that no innocent possession defense
should be available in this case as a matter of law because Baird
failed to deliver the pistol either to the police, see Mason, 233
F.3d at 624; United States v. Hendricks, 319 F.3d 993, 1007 (7th
Cir. 2003), or to its true owner, see Godwin, 687 F.2d at 588;
Model Penal Code & Commentaries § 223.6(1) at 231. That
requirement is absent both from the language of the statute and
from Teemer and its progeny. Indeed, it is even absent from some
of the cases on which the government asks us to rely. While §
922(g) cases do seem to require that defendants attempt to return
weapons in their possession to the police, possession-of-stolen-
goods cases merely recognize that defendants may raise a defense if
they purchase property knowing that it is stolen but "with the
purpose of restoring [the] stolen property to the [true] owner."
Godwin, 687 F.2d at 588; see also United States v. Calkins, 906
F.2d 1240, 1246-47 (8th Cir. 1990). By acknowledging such a
defense, this latter group of cases does not exclude an innocent
possession defense in Baird's case, especially since he did not
possess the stolen weapon with any "purpose" at all--according to
his story, he only learned that the gun had been stolen after he
bought it.7 And while it is true that the D.C. Circuit has
7
Neither Commonwealth v. Kelly, 300 Pa. Super. 451 (1982) nor
Williams v. Superior Court, 81 Cal. App. 3d 330 (1978) are to the
contrary. Kelly addressed the question of whether a person could
commit the crime of theft by acquiring property innocently and then
continuing to retain possession after learning that the property
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required defendants in § 922(g)(1) cases to attempt to return the
guns in their possession to the police in order to receive an
innocent possession instruction, Mason, 233 F.3d at 624, Teemer's
more case-specific approach permits consideration of this factor
but does not call for a general rule.8 Finally, given the higher
likelihood of truly innocent possession under § 922(j) than under
§ 922(g)(1), we prefer not to impose a duty on innocent buyers of
stolen firearms that would subject them to criminal liability
unless they immediately turned the seller over to law enforcement.
The second point we must address is whether the innocent
possession instruction, though denied, was nevertheless
substantially incorporated elsewhere in the charge as rendered.
See Mercado, 412 F.3d at 251. We do not believe that the district
was stolen--an issue on which the parties here are in agreement.
See Kelly, 300 Pa. Super. at 453. Kelly's reference to a
defendant's duty to restore stolen property to its true owner comes
from the language of the state theft statute itself, a factor not
present in this case. See id. at 454 (citing 18 Pa. S.C.A. § 3925
(1972)). In Williams, the court recognized "a continuing
affirmative duty to restore [stolen] property to its rightful
owner," but only in the context of "one who receives stolen
property for his own personal use" and continues to possess it
after learning that it was stolen. Williams, 81 Cal. App. 3d at
344. The Williams court stated expressly that the "personal
obligation to return [stolen] property to its rightful owner
terminates upon . . . divesting [oneself] of possession," which
Baird did here by returning the pistol to Hatch in exchange for the
money he had paid. Id.
8
Indeed, one of Teemer's examples of an extraordinary
circumstance meriting an innocent possession instruction was a
mother who discovered marijuana in her daughter's drawer and threw
it away, rather than turning it over to the police. Teemer, 394
F.3d at 64.
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court's instructions in this case incorporated an innocent
possession defense. The court told the jury that it could convict
Baird if it found that he "knowingly possessed the firearm" at the
same time that he "knew or had reasonable cause to believe that the
firearm was stolen." This instruction, paired with the district
court's admonition that "[b]riefness of contact alone does not
preclude a finding of possession," entirely foreclosed Baird's
innocent possession defense.
The court went some way toward incorporating the
requested instruction through its response to the jury's question
during deliberations, explaining that "the Government is not
arguing that a person is guilty as soon as he/she had a reasonable
cause to believe a firearm in their possession is stolen."
However, this answer did not do enough to inform the jury that it
could acquit Baird if it believed that he only possessed the gun
for a few moments with knowledge that it was stolen. First, the
negative phrasing of the answer and its focus on the substance of
the prosecution's argument rather than what was required for a
finding of guilt may well have left the jury confused about whether
it still had to convict Baird on that theory even though the
government was "not arguing" it. Second, while not absolutely
contradictory, the answer is nevertheless difficult to reconcile
with the court's earlier "briefness of contact" instruction. In
these circumstances, we cannot know for sure that the jury did not
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still feel bound by the earlier instruction to convict Baird based
on his version of the events. Cf. United States v. DeMasi, 40 F.3d
1306, 1319 (1st Cir. 1994) ("[B]ecause we have no way of
determining which instruction the jury applied, we must instead ask
whether we can affirm the conviction based on the erroneous
instruction."). Therefore, we conclude that the court's
instructions did not substantially incorporate an innocent
possession defense.
The third and final question is whether the innocent
possession instruction was so integral to this case that its
omission seriously impaired Baird's ability to present his defense.
See Mercado, 412 F.3d at 251. There is no doubt that the innocent
possession defense was central to Baird's case--indeed, it was the
only case he put on, and he repeatedly asked the court to consider
the instruction so that he could make out his defense. In light of
the inconsistencies in Hatch's story and the fact that Hatch made
a deal with the government in exchange for his testimony against
Baird, the jurors may well have credited Baird's version of the
events but still felt bound to convict him based on the
instructions given. The issue was clearly on the jurors' minds,
given the question they asked the court during deliberations, and
as already discussed, the court's response to their query was
opaque. Without the innocent possession instruction, the district
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court's charge to the jury was entirely aligned with the
prosecution's case against Baird.
Although we hold that an innocent possession instruction
should have been given in this case, our decision does not
represent an endorsement of the precise instruction requested by
Baird. District courts have the "prerogative to craft the
'particular verbiage' that [they] will use in . . . jury
instructions. So long as that language properly explains the
controlling legal standards and is not unduly confusing or
misleading, it will not be second-guessed on appeal." Johnson v.
Spencer Press of Maine, Inc., 364 F.3d 368, 378 (1st Cir. 2004)
(quoting Febres v. Challenger Caribbean Corp., 214 F.3d 57, 62 (1st
Cir. 2000)). All we decide here is that Baird should have been
given the opportunity to raise the defense that after Hatch told
him the weapon was stolen on September 5, the brief time that he
spent in possession of the pistol before he handed it back did not
violate § 922(j).
III. Conclusion
We conclude that the district court erred as a matter of
law by declining to instruct the jury on an innocent possession
defense. Therefore, we vacate Baird's conviction and remand the
case for a new trial.
So ordered.
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