United States v. Funches

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 96-5244
Non-Argument Calendar
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D. C. Docket No. 96-8019-CR-KLR
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ELTON LEE FUNCHES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 24, 1998)
Before EDMONDSON, COX and DUBINA, Circuit Judges.
EDMONDSON, Circuit Judge:
Defendant-Appellant Elton Lee Funches appeals his
conviction for possession of a firearm by a convicted felon: 18
U.S.C. §922(g)(1). No reversible error has been shown; we affirm.
To establish a violation of Title 18, United States Code
Section 922(g)(1), the government must prove three elements: (i)
that the defendant has been convicted of a crime punishable by
imprisonment for a term exceeding one year, (ii) that the
defendant knowingly possessed a firearm or ammunition, and (iii)
such firearm or ammunition was in or affected interstate
commerce. See United States v. Billue, 994 F.2d 1562, 1565 n.2
(11th Cir. 1993). In this case, no element of the offense is disputed.
Instead, Funches argues that the district court erred, as a matter
of law, in holding that Funches’s proffered defense -- entrapment-
by-estoppel – was unavailable.
Funches claims that, when he entered the Florida Department
of Corrections (“DOC”) to serve his sentence, he was informed
that losing his civil rights included the loss of the right to own or
to possess a firearm. Upon release, Funches claims to have
inquired specifically about the restoration of his civil rights and
was informed by some employee of the DOC that his civil rights
were restored automatically upon release. Funches contends that,
based on this advice of some unknown DOC employee, he
believed he could own firearms and ammunition and that this
belief constitutes a defense to the federal crime charged.
On the morning the trial began, Funches filed a proposed jury
instruction to the effect that, if the jury found that an official of the
State of Florida informed Funches that his civil rights had been
restored and also found that Funches believed and relied on that
advice in possessing firearms or ammunition, then the jury should
vote to acquit. The district court initially expressed skepticism
about the availability of the entrapment-by-estoppel defense and
later that day, midway through the government’s case, denied the
instruction. At the conclusion of the government’s case, Funches,
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based on the court’s ruling, declined to present an affirmative
defense or witnesses.
Entrapment-by-estoppel is no defense in this case.
Entrapment-by-estoppel is an affirmative defense that provides a
narrow exception to the general rule that ignorance of the law is
no defense. To assert this defense successfully, a defendant
must actually rely on a point of law misrepresented by an official
of the state; and such reliance must be objectively reasonable --
given the identity of the official, the point of law represented, and
the substance of the misrepresentation.
We have recognized that this defense may apply to a section
922 offense -- even though it is a strict-liability offense which
ordinarily renders the defendant’s state of mind irrelevant. See
United States v. Thompson, 25 F.3d 1558, 1563-64 (11th Cir. 1994).
But the defense is not applicable where the state incorrectly
advises the person and, then, the federal government prosecutes
the person. See United States v. Bruscantini, 761 F.2d 640, 642
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(11th Cir.1985) (entrapment-by-estoppel defense unavailable in 18
U.S.C. §922 prosecution where state judicial and prosecutorial
officials advised defendant that plea of nolo contendre did not
constitute felony conviction). The defense of entrapment-by-
estoppel, when asserted as a defense to a federal crime, requires
reliance on a misstatement by an official or agent of the federal
government. See United States v. Rector, 111 F.3d 503, 505-07 (7th
Cir. 1997) (advice from town marshal that federal law allowed
defendant to possess firearms for hunting insufficient basis for
entrapment-by-estoppel instruction); United States v. Spires, 79
F.3d 464, 466-67 (5th Cir. 1996) (to satisfy requirements of
entrapment-by-estoppel defense to federal crime, defendant must
show reliance on an official or authorized agent of federal
government); United States v. Etheridge, 932 F.2d 318, 320-21 (4th
Cir. 1991) (embraced reasoning of Bruscantini to reject application
of entrapment-by-estoppel defense to section 922 offense raised
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by defendant who claimed to rely on affirmative advice of state
trial judge that he could possess firearms for hunting).
United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994),
relied on by Funches, is not to the contrary. In Thompson, we
reversed the district court because it erroneously concluded that
the entrapment-by-estoppel defense could not be viable in a
section 922 prosecution and excluded evidence in support of the
defense: acts and statements allegedly made by FBI agents, an
assistant United States attorney, ATF officers and other local and
federal law-enforcement officials. In contrast, no federal official
or agent is alleged to have misled Funches.
But, Funches argues that, even if it was not error to deny the
entrapment-by-estoppel instruction, he nonetheless should have
been permitted to present the defense to the jury. By introducing
evidence that Funches was monitoring a police scanner when the
police executed the search warrant of his dwelling, Funches
argues the government injected an issue of felonious “intent” or
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“state of mind” into the case. As a matter of fairness, Funches
contends, he should have been allowed to “complete the story”
and to rebut the implication that he knew he was violating the law
by possessing firearms.*
Because section 922 is a strict-liability offense, the
government did not need to introduce the police-scanner
evidence; no need existed to establish that Funches did know that
his firearms possession was unlawful. Perhaps introduction of
this evidence (which was objected to by the defense) was in error,
although Funches declines specifically to argue harmful error in
*
While it is entirely clear that the district court denied Funches
his requested entrapment-by-estoppel instruction, it is not so
clear that the court prevented Funches from testifying about the
circumstances upon which he based his understanding that his
acts were lawful. The defense decided to put on no case as soon
as the district court ruled on the defense’s requested instruction;
defense counsel merely proffered for the record the facts upon
which Funches based his claim to the defense. While the court
reiterated that Funches could not use that defense, the record
reflects no request or effort to introduce evidence to counter
inferences arising from the scanner evidence and reflects no flat
denial of Funches’s testimony.
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his briefs. Instead he argues that the government’s introduction
of the scanner evidence inserted the element of “knowledge of
criminality” into the case and that the trial court abused its
discretion in, thereafter, precluding him from placing this evidence
in “context.”
Funches, however, cites us to nothing in the record
suggesting this “context” theory for admitting Funches’s
testimony was argued before or rejected by the trial court.
Moreover, unlike the instant appeal, the cases relied on by
Funches – finding reversible error based on excluded evidence
that would “complete the story” – involved inferences that were
highly significant to a material element of the case. See generally
United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (abuse of
discretion to exclude evidence of abusive relationship where
government argued inference of defendant’s knowledge from
romantic relationship); United States v. Todd, 108 F.3d 1329 (11th
Cir. 1997) (abuse of discretion to exclude evidence supporting
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good faith defense where government conceded good faith was
viable defense); United States v. Sheffield, 992 F.2d 1164 (11th Cir.
1993) (abuse of discretion to exclude evidence to explain
defendant’s acts which supported legitimate defense theory);
United States v. Lankford, 955 F.2d 1545 (11th Cir. 1992) (abuse of
discretion to exclude evidence of good faith defense to crime
requiring specific intent).
Funches correctly notes that, given the evidence presented
to the jury, the jury had no reason to acquit him. Had the jury
heard (beyond the defense’s outline in its opening statement) of
Funches’s claims that he thought his firearms possession was
lawful, the jury nonetheless would have lacked a reason in law not
to convict. The elements of the crime charged were proved by
overwhelming evidence. The uncontradicted facts and the
applicable law left Funches, in reality, without a viable defense.
Piercing through the form of Funches’s arguments, it appears
that his real contention is that he had a due process right to
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present evidence the only relevance of which is to inspire a jury
to exercise its power of nullification. As Justice Holmes
recognized long ago, “the jury has the power to bring in a verdict
in the teeth of both law and facts.” Horning v. District of
Columbia, 41 S.Ct. 53, 54 (1920). But, while the federal courts
acknowledge the jury’s de facto power to refuse to apply the law
as instructed by the court, exercise of such power is in dereliction
of the jury’s sworn duty. See United States v. Trujillo, 714 F.2d
102, 105 (11th Cir. 1983).
Juries sometimes assume the power of nullification; still,
nullification is no right of the jury. Instead, the absence of
remedial procedures by which the government may appeal an
acquittal “permits juries to acquit out of compassion or
compromise or because of their assumption of a power which
they had no right to exercise, but to which they were disposed
through lenity.” Standefer v. United States, 100 S.Ct. 1999, 2007
(1980) (internal quotations and citations omitted). Or, as
expressed by the District of Columbia Circuit:
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A jury has not more “right” to find a “guilty” defendant
“not guilty” than it has to find a “not guilty” defendant
“guilty,” and the fact that the former cannot be
corrected by a court, while the latter can be, does not
create a right out of the power to misapply the law.
Such verdicts are lawless, a denial of due process and
constitute an exercise of erroneously seized power.
United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983).
In Trujillo, 714 F.2d at 105-06, we concluded that a criminal
defendant is unentitled to a jury instruction which alerts the jury
of its de facto power and, further, that defense counsel may not
argue jury nullification during closing argument. Because the jury
enjoys no right to nullify criminal laws, and the defendant enjoys
a right to neither a nullification instruction nor a nullification
argument to the jury, the potential for nullification is no basis for
admitting otherwise irrelevant evidence. See Zal v. Steppe, 968
F.2d 924, 930-31 (9th Cir. 1992) (Trott, concurring) (no right to
present evidence that is irrelevant to a legal defense); United
States v. Gorham, 523 F.2d 1088, 1097-98 (D.C. Cir. 1975)
(affirming trial court’s refusal to admit evidence bearing no legal
relation to the charges but which might encourage a “conscience
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verdict” of acquittal), supplemented by, 536 F.2d 410 (D.C. Cir.
1976); United States v. Lucero, 895 F. Supp. 1421, 1426 (D.Kan.
1995) (“defendants are not entitled to present evidence which is
irrelevant for any purpose other than to provoke finder of fact to
disregard the law”). Cf. United States v. Horsman, 114 F.3d 822,
829 (8th Cir. 1997)(no violation of defendant’s substantial rights
where only possible deprivation suffered was possibility of jury
nullification), petition for cert. filed, (U.S. Sept. 4, 1997) (No. 97-
5872).
No reversible error is committed when evidence, otherwise
inadmissible under Rule 402 of the Federal Rules of Evidence, is
excluded, even if the evidence might have encouraged the jury to
disregard the law and to acquit the defendant.
AFFIRMED.
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