United States v. Johnson ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 05-10708
Plaintiff-Appellee,
v.  D.C. No.
CR-03-00369-RCJ
WILLIAM JOHNSON,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Argued and Submitted
June 14, 2006—San Francisco, California
Filed August 29, 2006
Before: Procter Hug, Jr., and Diarmuid F. O’Scannlain,
Circuit Judges, and Jeffrey T. Miller,* District Judge.
Opinion by Judge O’Scannlain
*The Honorable Jeffrey T. Miller, United States District Judge for the
Southern District of California, sitting by designation.
10369
UNITED STATES v. JOHNSON 10371
COUNSEL
Cynthia S. Hahn, Assistant Federal Public Defender, Reno,
Nevada, argued the cause for the appellant. Franny A. Fors-
man, Federal Public Defender, and Jason F. Carr, Assistant
10372 UNITED STATES v. JOHNSON
Federal Public Defender, Las Vegas, Nevada, were on the
brief.
William R. Reed, Assistant United States Attorney, Las
Vegas, Nevada, argued the cause for the appellee and was on
the brief. Daniel G. Bogden, United States Attorney, and Rob-
ert L. Ellman, Chief, Appellate Division, were also on the
brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are asked to decide whether there exists an “innocent
possession” defense that would excuse a defendant for being
a felon in possession of a firearm if he had obtained it inno-
cently and his possession was transitory.
I
A
On August 5, 2003, Shawn Romprey, an officer with the
Las Vegas Metropolitan Police Department, was dispatched to
investigate an alleged assault and robbery. The victim
reported to the officer that the assailant was the appellant,
William Johnson, and that the incident had taken place at
Johnson’s apartment.
Officer Romprey then went to Johnson’s apartment, where
one Jenny Woodard, Johnson’s cohabiting girlfriend, granted
him permission to enter the apartment. In the bedroom, Offi-
cer Romprey discovered a silver firearm lying in plain view.
Next to the weapon was a wallet in which the officer could
plainly see Johnson’s Social Security card. Woodard informed
the officer that the gun belonged to Johnson.
UNITED STATES v. JOHNSON 10373
Officer Romprey next went to his patrol unit to investigate
Johnson’s criminal background. Finding that Johnson had
been previously convicted of a felony,1 the officer prepared a
“consent to search” form and obtained Woodard’s signature
after providing her with sufficient time to read the document.
He then searched the apartment and seized the firearm and
some ammunition.
After leaving the apartment, Officer Romprey received
word that Johnson had turned up at City Hall’s “plaza desk,”
a station at which citizens are able to file police reports. There
Johnson had voluntarily given the following statement:
I was on my way home from the Western Hotell [sic]
& casino. I walked down the alley I looked into a
trash been [sic] on the left side of the alley I saw a
gun with no clipp [sic] and no Bullet was in the
chamber I then put the 45 platnum [sic] a.c.p. in my
Pocket their [sic] was a VONS trash bag I looked in
and their [sic] I found a clip with 4 Rounds I
unloaded the clip took the gun to my house then got
on the buss [sic] came to the Police Dept after asking
Neighbors I was playing with the gun I don’t
remember if it was put back together
Johnson had admitted to the police at City Hall that he was
an “ex-felon.” Johnson was thereupon arrested and held at the
Clark County Detention Center.
B
On August 20, 2003, a federal grand jury indicted Johnson
on a single count of being a felon in possession of a firearm,
in violation of 18 U.S.C. § 922(g)(1). The indictment alleged
1
At trial, Johnson admitted that he had been convicted of battery with
substantial bodily harm in 2004, larceny from a person in 2004, receiving
stolen property in 1997, and robbery in 1994.
10374 UNITED STATES v. JOHNSON
that Johnson “did knowingly possess an AMT, model Backup,
.45 caliber pistol, serial number DL20610.”
Johnson entered a plea of not guilty and the case proceeded
to trial by jury.2 The government’s case consisted primarily of
Officer Romprey’s testimony. The prosecutor also played
recordings of phone calls which Johnson had placed to Wood-
ard from the Clark County Detention Center on August 5,
2003. Among other things, the recordings indicated that
before Johnson voluntarily entered the City Hall police station
he may have received word from Woodard via a third party
that the police had searched the apartment and seized the fire-
arm. Johnson testified in his own defense, stating that he had
found the gun near a school and that his only intention in pos-
sessing the weapon was to turn it over to the police.
At the close of evidence, Johnson submitted to the district
court a proposed jury instruction which provided as follows:
Innocent Possession legally excuses the crime of
Felon in Possession of a Firearm.
The defendant must prove Innocent Possession by
a preponderance of the evidence. A preponderance
of the evidence means that you must be persuaded
that the things the defendant seeks to prove are more
probably true than not true.
The legal excuse of Innocent Possession applies
only if at the time of the offense charged the defen-
dant can establish the following:
2
Johnson filed a pretrial motion to suppress the fruit of Officer Rom-
prey’s search of his apartment; he alleged that the police “ ‘barged’ into
his residence without permission and unlawfully seized the gun,” thus
tainting the consent subsequently given by his girlfriend. The district court
held an evidentiary hearing on July 14 and 29, 2004. It found Woodard’s
testimony not credible and denied the motion. Johnson does not appeal
this decision.
UNITED STATES v. JOHNSON 10375
1. That the firearm was attained inno-
cently and held with no illicit purpose.
2. Possession of the firearm was transi-
tory.
Transitory means that in light of the circumstances
the defendant took adequate measures to rid himself
of possession of the firearm as promptly as reason-
ably possible.
The court heard argument from counsel and declined to give
the proposed instruction. However, the court allowed counsel
to argue simply that Johnson lacked the requisite “intent” to
possess the weapon because he intended to hand it over to the
police.
After deliberating for about 90 minutes, the jury returned
a guilty verdict. Later, the district court sentenced Johnson to
77 months in prison to be followed by a three-year term of
supervised release.
Johnson filed a timely notice of appeal.
II
Johnson argues that the district court erred in refusing to
instruct the jury according to his proposed “innocent posses-
sion” defense. A criminal defendant is entitled to a proposed
jury instruction only “if it is supported by law and has some
foundation in evidence.” United States v. Escobar de Bright,
742 F.2d 1196, 1198 (9th Cir. 1984) (internal quotation marks
omitted).
A
We consider first the facts of this case to determine whether
10376 UNITED STATES v. JOHNSON
the proposed instruction had any foundation in the evidence
presented at trial.3
1
Johnson argues that the evidence in this case warranted the
instruction. He relies primarily on his own testimony, and he
submits that he “made a reasonably prompt effort to provide
the weapon to law enforcement.”
The government disagrees. Even if this court were to adopt
the “innocent possession” defense, it says, Johnson would not
have been entitled to the instruction because the evidence
clearly shows that he did not take adequate measures to rid
himself of the firearm as promptly as reasonably possible. The
government suggests that Johnson took the gun home, played
with it, and contacted the police only after an altercation took
place in his apartment.
2
[1] A criminal defendant has a constitutional right to have
the jury instructed according to his theory of the case if it has
“some foundation in evidence,” and he need only show that
“there is evidence upon which the jury could rationally find
for the defendant.” United States v. Morton, 999 F.2d 435,
437 (9th Cir. 1993) (citing Mathews v. United States, 485
U.S. 58, 63 (1988)).
[2] We have cautioned that a “mere scintilla” of evidence
supporting the defendant’s theory is not sufficient to warrant
3
We review for abuse of discretion whether the factual foundation for
a proposed instruction exists. See United States v. Medrano, 5 F.3d 1214,
1218 (9th Cir. 1993). Having reviewed the record, we are persuaded that
the district court failed accurately to apply the proposed instruction to the
facts in evidence. See, e.g., Richard S. v. Dep’t of Developmental Servs.,
317 F.3d 1080, 1085-86 (9th Cir. 2003) (noting that a court abuses its dis-
cretion where it bases its decision on an inaccurate view of the law).
UNITED STATES v. JOHNSON 10377
a defense instruction. See United States v. Jackson, 726 F.2d
1466, 1468 (9th Cir. 1984) (per curiam). However, we have
also repeatedly stated that the defendant is entitled to his pro-
posed instruction even if his evidence is “weak, insufficient,
inconsistent, or of doubtful credibility.” United States v.
Sotelo-Murillo, 887 F.2d 176, 178 (9th Cir. 1989) (internal
quotation marks omitted); accord United States v. Sanchez-
Lima, 161 F.3d 545, 549 (9th Cir. 1998). In assessing the evi-
dence, we will leave credibility determinations to the jury,
Sotelo-Murillo, 887 F.3d at 182, and we will bear in mind that
Johnson’s burden under the proposed affirmative defense was
merely a preponderance-of-the-evidence standard, cf. United
States v. Bello-Bahena, 411 F.3d 1083, 1091 (9th Cir. 2005).
We therefore consider the account Johnson provided at
trial. He explained that sometime in the “late afternoon” of
August 5, 2003, as he was walking home from a nearby
casino, he found the firearm and a grocery bag containing
ammunition in a garbage bin. This garbage bin was located in
an alley near the Las Vegas Academy, a high school. The
alley was also “about fifty yards” from Johnson’s apartment.
He put the weapon in his pocket and picked up the ammuni-
tion. According to Johnson, he “wasn’t really thinking,” but
he “thought that was the best thing to do . . . ‘cause it was
right by a school.”
Johnson further explained that he immediately consulted
one of his neighbors, an individual he could identify only as
“Shahed,” who advised Johnson to take the firearm to the
police station. Johnson did not know the location of the police
station, and so the neighbor provided him with directions by
bus.
Johnson testified that he next went home, “made sure [the
gun] wasn’t loaded,” and placed it on the bed. Although on
his way to the police station to report finding the firearm, he
left the firearm at home because he “didn’t think it was safe
to get on the bus with it.” Before he left, however, the alleged
10378 UNITED STATES v. JOHNSON
assault and robbery occurred. Johnson explained that the
altercation detained him for approximately 15 minutes, and
that he left for the police station immediately thereafter.4
According to his account, Johnson, traveling by foot,
stopped on the way at a Western Union office in order to wire
money to a friend in California. This stop took only a “short
period,” and then Johnson caught the bus that took him to the
Las Vegas City Hall police desk. He arrived at the police sta-
tion at approximately 7:45 p.m.,5 where he filed his voluntary
statement.
As noted, the jury instruction Johnson proposed would
have required him to show that he obtained the firearm inno-
cently and with no illicit purpose, and that he took adequate
measures to rid himself of possession of the firearm as
promptly as reasonably possible. See United States v. Mason,
233 F.3d 619, 624 (D.C. Cir. 2001).
[3] Surely, Johnson’s story is weakly supported and suffers
from various problems.6 But these problems could only have
been resolved by determining the extent to which Johnson tes-
4
Although Johnson could not recall precisely when he left his apart-
ment, the police received the call reporting the alleged assault and robbery
at approximately 5:47 p.m.
5
Johnson’s voluntary statement indicates a time of 8:30 p.m., but John-
son testified that there was considerable delay—of perhaps 45 minutes—
from the time he arrived until the time at which he penned his statement.
6
At trial, the prosecutor questioned why Johnson took the gun home, but
Johnson testified that he did so only to secure and to unload it. The prose-
cutor also asked why Johnson did not walk to the police station, but John-
son explained that he only knew how to get to there by bus according to
his neighbor’s instructions. He did not take the gun with him because he
did not think it safe to carry the gun on the bus. The prosecution played
a recorded phone conversation which suggested that Woodard may have
tipped off Johnson via a third party that the police were searching for him,
but on the stand Johnson denied knowing that the police had searched his
apartment and seized the firearm. Johnson’s story was subject to vigorous
cross-examination on several other points, as well.
UNITED STATES v. JOHNSON 10379
tified credibly regarding his actions and intent—issues
beyond our resolution in this appeal. Setting such credibility
issues aside, we are faced with Johnson’s testimony that he
found the gun near a school and possessed it for about two
hours; he stopped only at home to secure the weapon and at
a single errand on the way to the police station. In light of the
low evidentiary threshold Johnson must clear—“some foun-
dation in evidence,” and something more than a “more
scintilla”—we must conclude that he met his burden.7 Assum-
ing the innocent possession instruction had a foundation in
law, a jury should have determined whether Johnson provided
credible testimony sufficient to satisfy the defense’s stan-
dards.
[4] In short, Johnson’s claim is “plausible, albeit debatable.
Such cases are for the jury to decide.” Mason, 233 F.3d at
624.
7
Johnson’s account provided debatable grounds for the innocent and
transitory nature of his gun possession. We note the two illustrative hypo-
thetical situations posed by the Mason court. In the first, the court posited
a situation in which a truck driver, having left his truck to make a delivery,
returned to find that someone had broken into the vehicle and had left a
gun on the seat. If the driver were to have removed the ammunition and
immediately called “911,” the court thought that surely “a judgment of
acquittal would be in order.” 233 F.3d at 624.
By contrast, the court opined that a trial judge should reject the pro-
posed innocent possession instruction if the same truck driver had hidden
the gun and ammunition in his truck; had finished his deliveries and said
nothing to anyone about the gun; had put the gun in his pocket at the end
of the day and had taken it home to consider what to do with it; had
retained the gun overnight; and had ceased possessing the gun only when
it fell out of his pocket the next day and was discovered by a police offi-
cer. The court concluded that such “defendant could not show transitory
possession.” Id.
The evidence here falls somewhere in between but is, we think, much
more like the first hypothetical then the second.
10380 UNITED STATES v. JOHNSON
B
Given the foregoing conclusion, we must consider whether
the proposed instruction was “supported by law.” See Escobar
de Bright, 742 F.2d at 1198.8
1
Johnson requests that we adopt the innocent possession
defense as articulated by the D.C. Circuit in United States v.
Mason. See 233 F.3d at 624. He reasons that “[t]he intent of
the felon in possession statute is to prevent high-risk individu-
als from possessing weapons because of the heightened risk
of harm to citizens incurred by that possession.” Johnson also
suggests that “[i]t is counterproductive and unnecessarily
punitive to send an individual to jail for a transitory posses-
sion that [occurs] for an innocent reason.”
The government responds that the felon-in-possession stat-
ute “contains a mens rea element requiring knowledge, rather
than willfulness, which requires proof of ‘bad purpose.’ ” As
such, it contends that the proposed instruction “would under-
mine the statutory scheme that governs felon-in-possession
offenses, which expressly avoids inquiring into the motive of
a felon caught possessing a firearm.”
2
[5] This circuit has never recognized—nor explicitly
rejected—an innocent possession defense to a felon-in-
possession charge under 18 U.S.C. § 922(g)(1).9 Attention to
8
Our review with respect to this question is de novo. See Medrano, 5
F.3d at 1218.
9
We have, however, recognized a defense of “justification,” which
requires, among other things, that the defendant “was under unlawful and
present threat of death or serious bodily injury.” See United States v. Beas-
ley, 346 F.3d 930, 933 & n.2 (9th Cir. 2003) (citing United States v.
Gomez, 92 F.3d 770, 775 (9th Cir. 1996)). That defense is not applicable
here, and Johnson does not contend otherwise.
UNITED STATES v. JOHNSON 10381
the statutory text and the opinions of our sister circuits seems
appropriate.
a
Johnson relies entirely on Mason, which remains the only
circuit-level authority for his proposed defense.
The facts of Mason are similar to Johnson’s account in this
case: The defendant found a gun near a school, and “took pos-
session of the gun only to keep it out of the reach of the young
children at the school, fully intending to give the weapon to
a police officer.” Mason was arrested with the gun in his pos-
session before he could turn it over to the police, and he was
charged with violating 18 U.S.C. § 922(g)(1). See 233 F.3d at
620-22.
Relying on the government’s concession at oral argument
and various state-court decisions, a panel of the D.C. Circuit
adopted the defense. The court was primarily concerned about
a hypothetical situation in which a felon “innocently pick[ed]
up a bag containing a gun (not knowing what was in the
bag),” and then later discovered its contents. The court
“[could not] imagine” that Congress intended that such felon
be punished; it found “nothing to indicate that Congress
intended such a harsh and absurd result.” Id. at 623. The court
then defined the innocent possession defense along the lines
of Johnson’s proposed jury instruction, having become satis-
fied that the defense “does not offend the statute’s goal of
keeping guns out of the hands of convicted felons.” Id. at 624.
b
By contrast, our colleagues in the Fourth Circuit have
observed that the defense Johnson proposes is “wholly absent
from the statutory text.” United States v. Gilbert, 430 F.3d
215, 216 (4th Cir. 2005); see 18 U.S.C. § 922(g)(1) (provid-
ing that “[i]t shall be unlawful for any person . . . who has
10382 UNITED STATES v. JOHNSON
been convicted in any court of, a crime punishable by impris-
onment for a term exceeding one year . . . [to] possess in or
affecting commerce, any firearm or ammunition”).
[6] Like the Mason court, Johnson thinks that it is the reten-
tion of a firearm, not its brief possession, that should be crimi-
nalized. But like the Gilbert court, which explicitly rejected
the defense, we note that our own case law provides for only
“three elements which the government must prove beyond a
reasonable doubt: (1) that the defendant was a convicted
felon; (2) that the defendant was in knowing possession of a
firearm; and (3) that the firearm was in or affecting interstate
commerce.” United States v. Beasley, 346 F.3d 930, 933-34
(9th Cir. 2003). The statute explicitly punishes “possess[ion],”
not retention, and thus “in no way invites investigation into
why the defendant possessed a firearm or how long that pos-
session lasted.” Gilbert, 430 F.3d at 218.
[7] Not only is the proposed defense absent from the text,
but, as the government suggests, Congress also explicitly
adopted a mens rea requirement that negates it. Section
924(a)(2) of Title 18 of the United States Code states that
“[w]hoever knowingly violates” § 922(g) shall be fined or
imprisoned. (Emphasis added.) In contrast, Congress imposed
a mens rea requirement of “willfulness” in another, related
section. See 18 U.S.C. § 924(a)(1)(D). “Knowledge” refers
only to the defendant’s knowingly possessing the gun, and it
does not require knowledge that he is violating the law. See,
e.g., United States v. Kafka, 222 F.3d 1129, 1131 (9th Cir.
2000). The statute thus leaves Johnson no room to argue that
he should be acquitted because his gun possession was rea-
sonable and in good faith, and thus without intention to vio-
late the law. See Beasley, 346 F.3d at 934 (“[T]he felon in
possession statute . . . has no specific criminal intent ele-
ment.”). More simply stated, only the “willfully” mens rea
invites inquiry into whether the defendant had bad motive or
intent. Gilbert, 430 F.3d at 219 (citing Bryan v. United States,
524 U.S. 184, 188-93 (1998)); see also BLACK’S LAW DICTIO-
UNITED STATES v. JOHNSON 10383
NARY (8th ed. 2004) (noting several definitions of “willful,”
one of which holds “ ‘that the requirement added by such a
word is not satisfied unless there is bad purpose or evil
intent’ ” (quoting ROLLIN M. PERKINS & RONALD N. BOYCE,
CRIMINAL LAW 875-76 (3d ed. 1982))).
c
[8] Next, we observe that there is no clearly expressed leg-
islative intent that the proposed defense apply to the felon-in-
possession statute. Indeed, all indications are to the contrary.
In United States v. Teemer, 394 F.3d 59 (1st Cir. 2005), in
which the First Circuit rejected a proposed defense under
§ 922(g) for innocent “fleeting” or “transitory” possession,
the court noted the following:
Neither the language of the felon-in-possession stat-
ute, nor its evident purpose, encourage the court to
develop defenses that leave much room for benign
transitory possession. The statute bans possession
outright without regard to how great a danger exists
of misuse in the particular case. Indeed, one piece of
legislative history of an ancestor statute says that the
aim was “to prevent the crook and gangster, racke-
teer and fugitive from justice from being able to pur-
chase or in any way come in contact with firearms
of any kind.”
Id. at 64 (quoting Barrett v. United States, 423 U.S. 212, 220
(1976)).
We also note, quite simply, that Congress knows how to
create an affirmative defense when it wishes to do so. See,
e.g., 10 U.S.C. § 920(d)(1) (defense to statutory rape for mili-
tary personnel); 18 U.S.C. § 17 (insanity defense); id.§ 176(c) (defense against forfeiture of a biological agent,
toxin, or delivery system); id. § 229B(c) (same in regard to
chemical weapons); id. § 373(c) (defense against solicitation
10384 UNITED STATES v. JOHNSON
to commit a crime of violence); id. § 983(d) (innocent-owner
defense against civil forfeiture); id. § 3146(c) (defense against
failure to appear in court).
[9] Even more tellingly, Congress has provided for an affir-
mative defense in the context of a criminal charge quite simi-
lar to the present one. See id. § 931(b) (providing for an
affirmative defense against a charge that a violent felon has
purchased or otherwise come into ownership or possession of
body armor; felon can show that he obtained prior written cer-
tification from an employer, that use of such body armor is
necessary for the safe performance of lawful business activity,
and that the use and possession by the defendant were limited
to the course of such performance). Congress has also written
into a federal statute the very kind of innocent possession
defense that Johnson asks us to now write into the felon-in-
possession statute. See id. § 1466A(e) (providing for an affir-
mative defense against the charge of knowingly possessing a
visual depiction of a minor engaging in sexually explicit con-
duct; defendant may show that he possessed fewer than three
such depictions, that he took reasonable steps to destroy the
depictions or reported the matter to law enforcement, and that
he provided law enforcement with access to the depictions).
And in yet another statute, Congress has provided for an affir-
mative defense where the defendant simply had good inten-
tions. See id. § 1512(d) (providing for a defense against a
charge of witness tampering where the defendant’s “conduct
consisted solely of lawful conduct and that the defendant’s
sole intention was to encourage, induce, or cause the other
person to testify truthfully” (emphasis added)).
[10] That no such defense is provided for § 922(g) strongly
suggests that no such defense was intended.
d
As a policy matter, the proposed defense would invite per-
jury and thus unduly increase the government’s burden in liti-
gating these cases. As the Fourth Circuit court suggested,
UNITED STATES v. JOHNSON 10385
If we were to accept [the innocent possession
defense], purpose would suddenly become an issue
in a great number of cases. A felon caught possess-
ing a firearm could force the government to litigate
motive simply by asserting, as Gilbert does here, that
he had just found the weapon and was on his way to
turn it in to the police.
Gilbert, 430 F.3d at 219. This case illustrates the difficulty the
innocent possession defense would create; as in Gilbert, the
circumstances are such that only Johnson truly knows of the
nature and extent of his gun possession. We will not require
the government to contest motive in every § 922 case where
the facts will bear an uncorroborated assertion by the defen-
dant that he innocently came upon a firearm and was prepar-
ing to turn it over to the authorities when, alas, he was arrested.10
Moreover, the imposition of an innocent possession defense
would thwart congressional purpose. As the Gilbert court
pointed out, “In enacting § 922(g)(1), ‘Congress sought to
keep guns out of the hands of those who have demonstrated
that they may not be trusted to possess a firearm without
becoming a threat to society.’ ” 430 F.3d at 220 (quoting
Small v. United States, 125 S. Ct. 1752, 1758 (2005)). The
statute is precautionary; society deems the risk posed by
felon-firearm possession too great even to entertain the possi-
bility that some felons may innocently and temporarily pos-
sess such a weapon.
10
Both the D.C. Circuit in Mason and the First Circuit in Teemer sug-
gested hypothetical situations in which conviction under § 922(g)(1)
would seem unjust. Johnson has presented no record “of abusive indict-
ments for innocent contact [with a firearm], let alone convictions, that
would warrant an effort to craft a general limitation.” Teemer, 394 F.3d
at 65. But even if he had made such a showing, we would defer to con-
gressional statutory design. See United States v. Logan, 453 F.3d 804, 806
(7th Cir. 2006) (“The Supreme Court insists that statutes be enforced as
written even when they seem mistaken or pointless—for it is exactly then
that the temptation to substitute one’s judgment for the legislature’s is
strongest.”).
10386 UNITED STATES v. JOHNSON
Indeed, the evidence adduced in this very case discredits
the D.C. Circuit’s belief that “it is the retention of [a firearm],
rather than the brief possession for disposal . . . which poses
the danger which is criminalized.” Mason, 233 F.3d at 625
(internal quotation marks omitted). There is simply no bright
line between possession and retention; danger may arise
quickly, and long before the former has clearly become the
latter. Johnson testified that he was in possession of the fire-
arm for a short time, perhaps 15 minutes or more, while
securing it at home before leaving for the police station. Yet
in that short time an “altercation”—an alleged assault and
robbery—took place in the immediate vicinity of the weapon.
The very legislative premise of § 922(g)(1) is that Johnson, a
convicted felon, was unacceptably likely to use that gun in
such a situation.
As such, “the courts have ruled that federal firearms laws
impose something approaching absolute liability.” United
States v. Nolan, 700 F.2d 479, 484 (9th Cir. 1983); see also
United States v. Mercado, 412 F.3d 243, 251 (1st Cir. 2005)
(“Even if the evidence established only that Mercado held the
firearm for a few seconds, he could properly be convicted of
possession within the meaning of § 922(g).”); United States v.
Funches, 135 F.3d 1405, 1407 (11th Cir. 1998) (observing
that § 922 “is a strict-liability offense which ordinarily ren-
ders the defendant’s state of mind irrelevant”). We are not
inclined to undermine that statutory design.
III
[11] In light of the foregoing, we must respectfully disagree
with our colleagues in the D.C. Circuit, and we decline John-
son’s invitation to create an innocent possession defense here.
By doing so, we join the First, Fourth, and Seventh Circuits.11
11
The Seventh Circuit case is United States v. Hendricks, 319 F.3d 993(7th Cir. 2003), where the court curtly rejected the proposed defense,
explaining that it would only allow a defense of “justification.” Id. at
1007.
UNITED STATES v. JOHNSON 10387
We also find ourselves in accord with the Sixth and Eleventh
Circuits, which have rejected defenses that similarly would
have inquired into the circumstances and motivations for a
convicted felon’s gun possession.12
Accordingly, the conviction and sentence are AFFIRMED.
12
See United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000)
(rejecting claim that possession “was for an innocent reason,” and stating
that § 922(g) does not “focus on the motive or purpose of the current pos-
session of firearms”); United States v. Rutledge, 33 F.3d 671, 673 (6th Cir.
1994) (“Rutledge’s claim that he possessed the gun for innocent purposes
was not a legitimate defense to the unlawful possession charges.”). But see
United States v. Williams, 389 F.3d 402, 405 (2d Cir. 2004) (suggesting
that “circumstances ‘may be imagined’ where possession of a firearm is
too fleeting to violate 18 U.S.C. [§] 922(g)”); United States v. Adkins, 196
F.3d 1112, 1115 (10th Cir. 1999) (assuming that there may be a “fleeting
possession” defense where the defendant’s possession was momentary,
and he either lacked knowledge that he possessed contraband or had a
legally justifiable reason to possess it temporarily, such as for self-
defense).