United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 13, 2000 Decided December 15, 2000
No. 00-3004
United States of America,
Appellee
v.
Tony Angelo Mason,
Appellant
Appeal from the United States District Court
for the District of Columbia
(No. 99cr00162-01)
Edward H. Rippey, appointed by the court, argued the
cause for appellant. With him on the briefs was Mark H.
Lynch.
Kenneth W. Cowgill, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief were Wilma A.
Lewis, U.S. Attorney, John R. Fisher, Mary-Patrice Brown
and John D. Crabb, Jr., Assistant U.S. Attorneys.
Before: Edwards, Chief Judge, Williams and Tatel,
Circuit Judges.
Opinion for the Court filed by Chief Judge Edwards.
Edwards, Chief Judge: Tony Angelo Mason appeals his
conviction under 18 U.S.C. s 922(g)(1) (1994). During his
trial, Mason testified that he found a gun in a paper bag near
a school while he was working as a delivery truck driver. He
claimed that he took possession of the gun only to keep it out
of the reach of the young children at the school, fully intend-
ing to give the weapon to a police officer whom he expected to
see later that day on his truck delivery route. A law enforce-
ment officer discovered the gun in Mason's possession, how-
ever, before Mason acted on his own to relinquish possession.
Mason was then arrested and subsequently indicted for a
violation of s 922(g)(1), which makes it unlawful for any
person who has been convicted of a crime punishable by
imprisonment for a term exceeding one year to possess a
firearm or ammunition.
At the conclusion of his trial, Mason asked the District
Court to instruct the jury that "innocent possession" was a
defense to the crime charged under s 922(g)(1). The trial
judge denied the request, instructing the jury instead that
"well meaning possession" was not a defense to the
s 922(g)(1) charge. The trial judge instructed the jury that,
so long as he "knowingly possessed" the gun, it did not
matter why Mason had the weapon in his possession. The
jury then returned a verdict of guilty and Mason was subse-
quently sentenced to 77 months in federal prison.
Mason's principal argument on appeal is that the District
Court erred in refusing to give an "innocent possession"
instruction. The Government concedes that, in certain cir-
cumstances, innocent possession may be a defense to a
charge under s 922(g)(1). The Government argues, however,
that such a defense could not succeed on the record in this
case.
We agree that, in appropriate circumstances, a defense of
innocent possession may be asserted in a criminal prosecu-
tion that rests on a charged violation of s 922(g)(1). We also
find that, in the instant case, the District Court erred in
refusing to give an innocent possession instruction. Accord-
ingly, we hereby reverse the judgment of the District Court
and remand the case for a new trial.
I. Background
On April 13, 1999, the day of his arrest, Mason was driving
a truck and delivering drinking water for his employer, Snow
Valley. Mason testified that, after making a delivery to a
housing development at 69 L Place, N.W., Washington, D.C.,
and as he was returning to his truck, he came upon a brown
paper bag on the ground and found a gun with ammunition in
it. Trial Transcript at 19 (Aug. 27, 1999) [hereinafter "Tr.
8/27"]. He picked up the bag and took it with him to his
truck. He then took the gun out of the bag, tucked the
weapon into the side of his weight belt, and put the ammuni-
tion in his pocket. Tr. 8/27 at 19. Mason testified further
that he picked up the gun "because it was in an area where
there is the school there and there were a lot of children
outside." Tr. 8/27 at 20. According to Mason, he proceeded
to the Library of Congress, which was his next water delivery
stop, where he intended to turn over the gun to a Library of
Congress police officer he knew. Tr. 8/27 at 20-21.
Bobby Henson, a uniformed Library of Congress police
officer, was stationed at the entrance gate adjoining a loading
dock in the Library of Congress building when Mason drove
his Snow Valley truck into the loading dock area. Having
seen Mason before, but not being able to recall Mason's
name, Officer Henson testified that he motioned for Mason to
stop so that he could record his name in the log. Trial
Transcript at 10 (Aug. 26, 1999) [hereinafter "Tr. 8/26"].
Mason testified that he thought the officer was waving him
on, so he did not stop. Tr. 8/27 at 22. After parking his
truck and unloading several bottles of water, Mason contin-
ued on towards the dock master's desk, where he signed in
before entering the Library of Congress. Tr. 8/27 at 25.
Officer Patrick J. Curtis, Jr., who was stationed at a metal
detector approximately ten to fifteen feet away from the dock
master's desk, testified that Mason walked by him on his way
to the dock master's desk. Tr. 8/26 at 27-28, 31. When
Mason leaned over the desk to sign in, Officer Curtis ob-
served what he believed to be the butt of a handgun protrud-
ing from Mason's waistband. Tr. 8/26 at 32. Officer Curtis
then approached Mason, visually confirmed that Mason was
carrying a gun, and then ordered Mason to put his hands on
the table in front of him. Officer Curtis detained Mason at
gun point and removed the gun from Mason's waistband. Tr.
8/26 at 34. Mason was subsequently arrested.
On May 13, 1999, a federal grand jury indicted Mason on
one count of unlawful possession of a firearm and ammunition
by a person convicted of a crime punishable by imprisonment
for a term exceeding one year, in violation of 18 U.S.C.
s 922(g)(1). See Indictment, United States v. Mason, Crim.
No. 99-0162 (D.D.C. May 13, 1999), reprinted in Appellant's
Appendix ("App.") at 4. A superceding indictment was filed
on August 24, 1999. See Superceding Indictment, Mason,
Crim. No. 99-0162 (D.D.C. Aug. 24, 1999), reprinted in App.
at 10.
During Mason's trial on the s 922(g)(1) charge, the prose-
cutor asked the trial judge to preclude the defense from
trying to introduce evidence that Mason was justified in
possessing the gun. Tr. 8/26 at 116. The prosecutor argued
that, pursuant to authorities such as United States v. Perrin,
45 F.3d 869 (4th Cir. 1995), the so-called "justification" de-
fense to a felon-in-possession charge under s 922(g)(1) is
available only when (1) the felon or someone else was under
an unlawful and present threat of death or serious bodily
injury; (2) the felon did not recklessly place himself in the
situation where he would be forced to engage in criminal
conduct; (3) the felon had no reasonable legal alternative that
would avoid both the criminal conduct and the threatened
death or injury; and (4) there was a direct causal relationship
between the criminal act and the avoidance of the threatened
harm. Id. at 873-74. Defense counsel objected on two
grounds: first, counsel argued that the Government's motion
was premature, because Mason had yet to present any evi-
dence; second, counsel asserted that Mason intended to rely
on an "innocent possession" defense, not the "justification"
defense. Tr. 8/26 at 116-17. In asserting the innocent
possession defense, Mason's counsel directed the District
Court's attention to Criminal Jury Instructions, District of
Columbia, No. 4.71(B) (4th ed. 1993) ("Redbook"), and to D.C.
Court of Appeals decisions, such as Carey v. United States,
377 A.2d 40, 42-44 (D.C. 1977), and Hines v. United States,
326 A.2d 247, 248 (D.C. 1974), and unspecified federal circuit
opinions, purporting to apply the innocent possession stan-
dard. Tr. 8/26 at 117, 119-20.
The District Court denied the Government's motion to
preclude the "justification" defense, finding the motion pre-
mature. Tr. 8/26 at 122. On the following day of trial,
Mason then testified, as noted above, that he possessed the
weapon with innocent and good purpose. At the conclusion of
the trial, Mason's counsel made an oral and a written request
for an instruction on the defense of innocent possession. The
proposed instruction was as follows:
Mr. Mason would be not guilty of the offense charged
here if he lacked any criminal purpose in possessing the
weapon and/or ammunition and he possessed the weapon
in an affirmative effort to aid social policy for example:
1) to protect the finder or others from harm, 2) to turn it
over to the police, or 3) to otherwise secure it.
Mr. Mason's Additional Proposed Jury Instructions, reprinted
in App. at 48. The District Court rejected the innocent
possession instruction. Instead, over the objection of defense
counsel, the trial judge instructed the jury as follows:
If you find that the defendant knowingly possessed the
gun or ammunition, then the reason the defendant may
have had for possessing them is not relevant to your
consideration of the evidence. Well meaning possession
is not a defense to the charge in this case.
Tr. 8/27 at 103.
The jury returned a guilty verdict against Mason. The
District Court then sentenced Mason to 77 months in federal
prison, followed by three years of supervised release. See
Judgment, Mason, Crim. No. 99-0162 (D.D.C. Dec. 28, 1999),
reprinted in App. at 52-53. Mason's sentence represented a
two-level reduction in the adjusted offense level pursuant to
United States Sentencing Guideline s 5K2.0.
See United States v. Mason, 90
F. Supp. 2d 1, 1 (D.D.C. 1999).
Mason now appeals his conviction, challenging the District
Court's failure to give an innocent possession instruction to
the jury. He seeks reversal of the District Court's judgment
and remand for a new trial.
II. Analysis
Both the Government and the defendant agree that there is
a "justification" defense to a felon's possession of a gun in
violation of s 922(g)(1). See, e.g., United States v. Dodd, 225
F.3d 340 (3d Cir. 2000); United States v. Deleveaux, 205 F.3d
1292 (11th Cir.), cert. denied, 120 S. Ct. 2724 (2000); United
States v. Gomez, 92 F.3d 770 (9th Cir. 1996); Perrin, 45 F.3d
869. The present case, however, does not implicate the
justification defense, because there was no evidence of an
imminent threat of death or bodily injury to Mason or others.
See Deleveaux, 205 F.3d at 1297. The parties do not disagree
over this point. Rather, the issue here is whether there is a
distinct innocent possession defense, i.e., apart from the
justification defense, to a felon-in-possession charge under
s 922(g)(1), and, if so, how it should be defined.
At oral argument, Government counsel forthrightly con-
ceded that, although narrow, there must be an innocent
possession defense to a s 922(g)(1) charge. We agree. In-
deed, we cannot imagine otherwise. It is true that some
courts have emphasized that no criminal intent is required to
establish guilt under s 922(g)(1). See, e.g., Deleveaux, 205
F.3d at 1298 (stating that under s 922(g)(1) "[t]he prosecution
need show only that the defendant consciously possessed
what he knew to be a firearm"). Nonetheless, as the Govern-
ment here recognized, to completely reject the possibility of
an innocent possession defense is to say that 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. Thus,
for example, if Mason did indeed innocently pick up a bag
containing a gun (not knowing what was in the bag), he would
be guilty the moment he was seen holding the bag knowing of
its contents, even if he had every intention of relinquishing
possession immediately. There is nothing to indicate that
Congress intended such a harsh and absurd result and Gov-
ernment counsel acknowledged that s 922(g)(1) should not be
read this broadly.
The real problem in this case is not whether there is an
innocent possession defense, but, rather, how to define it.
This is no mean feat. Although Congress may not have
meant to produce absurd results in enacting s 922(g)(1),
there is no doubt that the criminal proscription is strict.
Nonetheless, as both parties here agree, certain carefully
confined extenuating circumstances may preclude a conviction
under s 922(g)(1) based on mere knowing possession.
Some of our sister circuits appear to have recognized an
innocent possession defense; however, we can find no case in
which a circuit has squarely applied the innocent possession
defense to a s 922(g)(1) charge, where the elements of a
justification defense are not present. See United States v.
Ali, 63 F.3d 710, 716 n.7 (8th Cir. 1995) (declining to address
whether the defense was available because defense counsel
failed to seek a proper instruction on the innocent possession
theory, but noting that its case law did not foreclose such a
defense); United States v. Elder, 16 F.3d 733, 738 (7th Cir.
1994) (concluding that although the innocent possession de-
fense presented a "novel issue," it need not decide the issue
because the evidence did not support the defense); cf. United
States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991) (recogniz-
ing an "innocent possession defense," though the defense in
that case is more properly considered a "justification defense"
as life and limb were arguably at stake).
There are reported state court judgments, however, that
have allowed an innocent possession defense to a weapons
possession charge. See, e.g., Bieder v. United States, 707
A.2d 781, 783-84 (D.C. 1998) (acknowledging innocent posses-
sion defense to charge of carrying a pistol without a license);
People v. Hurtado, 54 Cal. Rptr. 2d 853, 858 (1996) (stating
that the momentary possession for disposal defense, initially
established for the possession of controlled substances, ex-
tends to possession of a firearm by a felon offenses); People
v. Williams, 409 N.E.2d 1372, 1373 (N.Y. 1980) (recognizing
innocent possession defense to a charge of criminal weapons
possession). See also Redbook, Instruction No. 4.71(B) (4th
ed. 1993) ("The defendant would be not guilty of the offense
charged here if s/he lacked any criminal purpose in carrying
or possessing the weapon [ammunition] and s/he [intended to
take it as soon and as directly as possible to law enforce-
ment]."); Criminal Jury Instructions, New York, No. 9.65
(1983) ("A person who recently finds a weapon and thus
possesses it temporarily, with no intention to retain it, but
with the intention of promptly turning it over to a lawful
authority, is not guilty of unlawful possession. Such posses-
sion, if temporary, is lawful."). Some of the statutes at issue
in the state court decisions are not felon-in-possession stat-
utes. Nevertheless, the rationale underlying these decisions
seems to apply equally to s 922(g)(1).
There are two general requirements that must be satisfied
in order for a defendant to successfully invoke the innocent
possession defense. The record must reveal that (1) the
firearm was attained innocently and held with no illicit pur-
pose 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 possi-
ble. In particular, "a defendant's actions must demonstrate
both that he had the intent to turn the weapon over to the
police and that he was pursuing such an intent with immedia-
cy and through a reasonable course of conduct." Logan v.
United States, 402 A.2d 822, 827 (D.C. 1979). When these
requirements are met, possession is "excused and justified as
stemming from an affirmative effort to aid and enhance social
policy underlying law enforcement." Hines v. United States,
326 A.2d 247, 248 (D.C. 1974).
The innocent possession defense may arise in a range of
factual scenarios, including cases like the instant one in which
the defendant's claims of innocent possession, lack of illicit
purpose, and transitory possession are plausible, albeit debat-
able. Such cases are for the jury to decide. There are some
easy cases on either end of the spectrum, however.
For example, suppose there was undisputed and credible
evidence that a defendant left his truck locked to make a
delivery and, upon returning, found that the truck had been
broken into and a gun left on the driver's seat. Suppose
further that, surprised by his discovery, the defendant picks
up the gun, removes the ammunition, and then immediately
calls "911" to seek police assistance. When the police arrive,
the defendant is found holding the gun and ammunition,
which he turns over to the officers. Surely, with such a
record, a judgment of acquittal would be in order.
On the other hand, suppose that, upon finding the firearm,
the hypothetical defendant promptly hides the gun and am-
munition in his truck. Assume further that the defendant
finishes his deliveries and says nothing to anyone about the
gun or ammunition. Then, at the end of his work day, the
defendant puts the gun and ammunition in his jacket pocket
and takes them to his home, purportedly to consider what to
do with them. The gun and ammunition remain in the
defendant's possession overnight. The firearm is accidentally
discovered the next day when a police officer sees the gun fall
out of the defendant's jacket pocket. In such a case, there
would be no plausible innocent possession defense, because
the defendant could not show transitory possession. In other
words, there would be no basis whatsoever to find that the
defendant took adequate measures to rid himself of posses-
sion of the firearm as promptly as reasonably possible. In
such a case, a trial judge should reject a request for an
innocent possession instruction.
The innocent possession defense to a s 922(g)(1) charge is
necessarily narrow. Thus, it does not offend the statute's
goal of keeping guns out of the hands of convicted felons.
See Barrett v. United States, 423 U.S. 212, 218 (1976) (noting
that the purpose behind the statute is to "keep firearms away
from the persons Congress classified as potentially irresponsi-
ble and dangerous"). On this score, it is important to recall
that "it is the retention of [a firearm], rather than the brief
possession for disposal ... , which poses the danger which is
criminalized" by felon-in-possession statutes. Hurtado, 54
Cal. Rptr. 2d at 858. With this in mind, it is easy to
understand why the innocent possession defense--which fo-
cuses precisely on how the defendant came into possession of
the gun, the length of time of possession, and the manner in
which the defendant acts to rid himself of possession--is fully
consistent with the legislative purpose underlying s 922(g)(1).
The instant case presents a close call. The asserted facts
indicate that Mason's possession of the gun and ammunition
was innocent and that he harbored no illicit purpose; there is
a question, however, as to whether Mason took the necessary
steps to dispose of the gun with immediacy and through a
reasonable course of conduct. On balance, we find that
Mason established an adequate record to warrant submission
of an innocent possession instruction to the jury. See Joy v.
Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir.
1993) ("It is well established that '[a] defendant is entitled to
an instruction on a defense theory if it has a basis in the law
and in the record.' ") (quoting Hasbrouck v. Texaco, Inc., 842
F.2d 1034, 1044 (9th Cir. 1987), aff'd, 496 U.S. 543 (1990)).
The testimony reflects that, once Mason found the weapon,
he drove directly to deliver the weapon to an officer he knew
who was only 10 minutes away; and he apparently made no
attempt to hide the gun, which was seen sticking out of his
belt. The Government, however, argues that Mason "did not
embark upon a course of conduct reasonably calculated to
result in the surrender of the pistol to police with immedia-
cy," see Appellee's Brief at 30, because Mason (1) did not call
the police, even though he had a cellular telephone, and (2)
did not surrender the weapon to the first police officer that he
saw. This is precisely the kind of dispute that should be
submitted to a jury. On remand, following a new trial, it will
be up to the jury to assess the evidence and to determine
whether, in light of the circumstances presented, Mason took
adequate measures to rid himself of possession of the firearm
as promptly as reasonably possible.
III. Conclusion
Because the District Court erred as a matter of law in not
instructing the jury on Mason's innocent possession defense,
Mason's conviction is reversed and the case is remanded for a
new trial.