United States v. Bernard Cherry , 921 F.3d 690 ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-1157
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
BERNARD L. CHERRY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:17-cr-30040-DRH-1 — David R. Herndon, Judge.
____________________
ARGUED APRIL 2, 2019 — DECIDED APRIL 17, 2019
____________________
Before HAMILTON, BARRETT, and SCUDDER, Circuit Judges.
BARRETT, Circuit Judge. Bernard Cherry appeals his
conviction as a felon in possession of a firearm on the ground
that the district court erred by not giving the jury his
proposed “innocent possession” instruction. He also claims
that the district court erred by not asking whether he wanted
the jury to determine the forfeitability of the firearm in the
event of a guilty verdict.
2 No. 18-1157
Because we have never recognized an innocent possession
defense and because the facts here don’t support such a
defense even if we were to recognize it, the district court did
not err in refusing to give the instruction. And given that no
reasonable juror could have failed to find a nexus between the
gun and Cherry’s felon-in-possession conviction, the district
court’s failure to ask either party whether it wanted the jury
to determine the forfeitability of the firearm did not affect
Cherry’s substantial rights. We affirm the judgment of the
district court.
I.
At 3:31 a.m. on December 13, 2016, Officer Isaiah Sherrod
of the East St. Louis Police Department received a report that
a vehicle had been playing loud music. Sherrod went to the
address and saw a vehicle outside an abandoned residence
with the lights on and music playing. When he got closer,
Sherrod observed a man in the front yard of the residence
looking for something in the grass with his phone’s flashlight.
The man, Bernard Cherry, told Sherrod that he was
looking for the key to his tire rims that he had lost in that area
earlier in the day. Although Cherry seemed intoxicated,
Sherrod decided to help him find the key. As he was
searching, Sherrod noticed a firearm—a .40 caliber Smith &
Wesson handgun—a few feet from Cherry.
As soon as he saw the gun, Sherrod handcuffed Cherry
and put him in the squad car for officer safety, but without
formally arresting him. Cherry complained that the cuffs
were too tight, and Officer Sherrod got him out of the car to
adjust the cuffs. At that point, Cherry tried to run but did not
get far. Officer Sherrod then arrested Cherry and took him to
No. 18-1157 3
the police station where he was interviewed by Officer Jerry
Simon. Cherry explained to Simon that, earlier in the night, he
had stopped his car to look for a new CD to put in the car’s
CD player. He said that when he looked out the window, he
thought that he saw someone that he knew. But after rolling
down his window, he realized that he did not know the
person. Cherry said that the man pointed a gun at him but
that he knocked it out of the man’s hands. Cherry then opened
his car door and hit the stranger, who ran away. Cherry
explained that during the scuffle he lost his cell phone and got
out of the car to look for it. He also admitted to picking up the
gun briefly but said that he dropped it when he saw Sherrod
approaching.
Following the interview, Cherry was charged with being
a felon in possession of a firearm under 18 U.S.C. § 922(g)(1)
and 18 U.S.C. § 924(a)(2) and forfeiture under 18 U.S.C.
§ 924(d)(1). Because Cherry stipulated that he was a felon at
the time of his arrest, the sole question at trial was whether he
possessed a firearm. He requested an “innocent possession”
instruction to support his theory of defense, which read:
Possession of a firearm constitutes innocent
possession where: (1) the firearm was obtained
innocently and held with no illicit purpose; and
(2) possession of the firearm was only
momentary. If you find that the defendant
possessed a firearm and that possession
constituted innocent possession, you should
find the defendant not guilty.
The government objected, citing United States v. Jackson,
598 F.3d 340 (7th Cir. 2010). In Jackson we declined to
affirmatively recognize an innocent possession defense, and
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we noted that even if we were to recognize such a defense, the
defendant would still have to show that he immediately
sought to turn over the firearm to law enforcement. 598 F.3d
at 349–51. Because Cherry did not immediately seek to turn
over the firearm, the district court concluded that his case fell
within Jackson and refused the proposed instruction.
The jury ultimately found Cherry guilty of being a felon in
possession of a firearm. Following trial, the government
moved for forfeiture of the firearm under Federal Rule of
Criminal Procedure 32.2(b), and the district court granted the
motion.
On appeal, Cherry raises two issues. First, he says that the
district court erred by failing to give the innocent possession
instruction. Second, he argues that the district court violated
Federal Rule of Criminal Procedure 32.2(b)(5)(A), which
requires the court to ask whether either party wants the jury
to determine the forfeitability of the firearm in the event of a
guilty verdict.
II.
Cherry is entitled to a jury instruction on his theory of
defense if “(1) the instruction is a correct statement of the law;
(2) the evidence supports the theory of defense; (3) the
defense is not part of the government’s charge; and (4) the
failure to give the instruction would deprive the defendant of
a fair trial.” United States v. Brown, 865 F.3d 566, 571–72 (7th
Cir. 2017).
Cherry’s request for an innocent possession instruction
fails for two reasons. First, as the district court noted, we have
never recognized the innocent possession defense outside
situations in which the defendant can establish a justification
No. 18-1157 5
like necessity or duress. See Jackson, 598 F.3d at 349–50; United
States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003). Second,
even if we were to recognize such a defense, the facts here
show that Cherry would not qualify. Even though he was in
the presence of law enforcement, there is no evidence that he
took any action, much less immediate action, to turn over the
firearm. See Jackson, 598 F.3d at 350; Hendricks, 319 F.3d at
1007. In fact, he admitted to throwing the gun down when he
saw Sherrod approaching rather than immediately giving it
to him. Nor did Cherry turn over the gun during the period
in which both he and Sherrod were searching for his key and
before Sherrod noticed the gun. Thus, we see no error in the
district court’s decision not to give an innocent possession
instruction.
III.
Cherry next argues that the district court violated Federal
Rule of Criminal Procedure 32.2 because it did not submit the
forfeiture issue to the jury or obtain his waiver. But Cherry
made no objection at trial, so the forfeiture order will be
vacated only if the error affected his substantial rights. See
FED. R. CRIM. P. 52(b); United States v. Ryan, 885 F.3d 449, 454
(7th Cir. 2018). The government admits that the district court
violated Rule 32 but argues that the error did not affect
Cherry’s substantial rights. We agree. 1
Rule 32.2(b)(5)(A) requires that when a defendant’s case is
heard by a jury and the indictment states that the government
1
We also note that Cherry’s two primary arguments are at odds. On
one hand, he says that he possessed the gun for only a few seconds and
that it was not his. On the other, he asserts that the district court denied
him a substantial right when it didn’t allow the jury to determine the
forfeitability of the gun.
6 No. 18-1157
is seeking forfeiture, the district court “must determine before
the jury begins deliberating whether either party requests that
the jury be retained to determine the forfeitability of specific
property if it returns a guilty verdict.” FED. R. CRIM. P.
32.2(b)(5)(A). In United States v. Ryan, a defendant was
convicted of possessing child pornography, and the
government sought forfeiture of his computer. 885 F.3d at 451.
But, as in our case, the district court didn’t send the issue of
forfeiture to the jury, and the defendant never objected. We
concluded that the error did not affect the defendant’s
substantial rights, explaining that “no reasonable juror could
have found there was not a sufficient nexus between the
property and the offense. There was no question in this case
that the specific computer listed in the forfeiture order was
the one used by [the defendant] containing the illegal files.”
Id. at 454.
The same logic applies here. Cherry was convicted of
being a felon in possession of a firearm, and the firearm at
issue in the forfeiture order was the one that Cherry
possessed. No reasonable juror could have failed to find a
nexus between the firearm and Cherry’s conviction. As in
Ryan, the error did not affect Cherry’s substantial rights.
AFFIRMED.