United States v. McArthur

United States Court of Appeals,

Eleventh Circuit.

No. 94-7057.

UNITED STATES of America, Plaintiff-Appellee,

v.

Taneilian McARTHUR, Defendant-Appellant.

March 31, 1997.

Appeal from the United States District Court for the Middle
District of Alabama. (No. CR 94-135-N), Robert E. Varner, District
Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior
Circuit Judges.

KRAVITCH, Senior Circuit Judge:

Title 18, United States Code, section 930(a), bans the knowing

possession of a firearm in a federal facility. A separate

subsection of the statute conditions convictions under this

provision upon the posting of conspicuous notice of the

prohibition. The main issue in this case, and one of first

impression, is whether proof of adequate notice is an element of

the crime of possession or an affirmative defense. We hold that it

is an affirmative defense. We also hold, consistent with

established precedent, that a restitution order under the Victim

and Witness Protection Act can only be based upon harm resulting

from conduct of which the defendant was convicted.

I.

Taneilian McArthur was involved in an argument with another

man, Corey Smith, inside the Enlisted Men's Club at Maxwell Air

Force Base, Gunter Annex. McArthur left the club first, retrieved

his gun from the trunk of his car and placed it on the front seat.
In the parking lot later that evening, McArthur pulled his car in

front of Smith as Smith exited the club. Smith approached

McArthur's car and McArthur shot him, allegedly in self-defense.

A grand jury indicted McArthur for committing three federal

crimes: assault with intent to commit murder within the special

maritime and territorial jurisdiction of the United States, 18

U.S.C.A. § 113(a) (1969 & Supp.1996) (Count One); using and

carrying a firearm in relation to a crime of violence, 18 U.S.C.A.

§ 924(c)(1) (Supp.1996) (Count Two); and possessing a firearm in

a federal facility, 18 U.S.C.A. § 930(a) (Supp.1996), amended by

Pub.L. 104-294, § 603(u), 110 Stat. 3488,—(1996) (Count Three).1

A jury acquitted McArthur of Counts One and Two, but convicted him

of Count Three. The district court sentenced McArthur to six

months' imprisonment. In calculating restitution pursuant to the

Victim and Witness Protection Act, 18 U.S.C.A. §§ 3579-3580 (1985),

the district court found that the financial loss from Smith's

hospitalization and injuries totaled $28,176.07 and ordered

McArthur to pay that amount.

On appeal, McArthur alleges that his conviction must be

reversed because the government failed to prove an essential

element of the offense charged in Count Three. He further claims

that restitution was improper, because it was founded on counts of

which he was acquitted.

II.

1
When the instant case was briefed, Congress had not yet
amended section 930 to make technical corrections to the
section's internal cross-references. We use the current version
of the statute.
 Title 18, section 930 ("section 930") defines four federal

crimes: simple possession of a firearm or dangerous weapon in a

federal facility (subsection (a));2 simple possession in a federal
court facility (subsection (e)); possession with intent to use the

weapon in the commission of a crime (subsection (b)); and killing

or attempted killing in the course of a violation of subsections

(a) or (b) (subsection (c)). Convictions under subsections (a) and

(e) are limited by subsection (h). It provides:

Notice of the provisions of subsections (a) and (b) shall be
posted conspicuously at each public entrance to each Federal
facility, and notice of subsection (e) shall be posted
conspicuously at each public entrance to each Federal court
facility, and no person shall be convicted of an offense under
subsection (a) or (e) with respect to a Federal facility if
such notice is not so posted at such facility, unless such
person had actual notice of subsection (a) or (e) as the case
may be.

18 U.S.C.A. § 930(h).

McArthur first contends that the government failed to prove

beyond a reasonable doubt all of the elements of the crime charged

in Count Three and that the district court erred in failing to

instruct the jury as to all of the elements the offense.

Specifically, he argues that whereas subsection (a) of section 930

bans firearm possession in federal facilities, subsection (h)

prohibits a conviction under subsection (a) unless conspicuous

notice is posted to inform people of the prohibition. According to

McArthur, subsection (h) is an element of the offense of possession

2
"Except as provided in subsection (d), whoever knowingly
possesses or causes to be present a firearm or other dangerous
weapon in a Federal facility (other than a Federal court
facility), or attempts to do so, shall be fined under this title
or imprisoned not more than 1 year, or both." 18 U.S.C.A. §
930(a).
and, therefore, the government must prove the existence of the

required notice beyond a reasonable doubt. See In re Winship, 397

U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970)

(government must prove every element of a crime beyond a reasonable

doubt). We review his statutory claim de novo. United States v.

De Castro, 104 F.3d 1289, 1291 (11th Cir.1997).3

To determine whether an exception to a criminal offense is an

element of the crime or an affirmative defense, we undertake a

three-part inquiry. We begin with the language and structure of

the statute. Next, we examine the legislative history of the

provision. United States v. Laroche, 723 F.2d 1541, 1543 (11th

Cir.1984) (following United States v. Mayo, 705 F.2d 62 (2d

Cir.1983)), cert. denied, 467 U.S. 1245, 104 S.Ct. 3521, 82 L.Ed.2d

829 (1984). Finally, we decide whether the defendant or the

government is better situated to adduce evidence tending to prove

or disprove the applicability of the exception. United States v.

Jackson, 57 F.3d 1012, 1016 (11th Cir.), cert. denied, --- U.S. ---

-, 116 S.Ct. 432, 133 L.Ed.2d 346 (1995).

With regard to the language and structure of the statute, we

are guided by two interpretive presumptions. First, a narrow

proviso to a more general statutory offense is more likely to be an

3
Although McArthur did not raise this matter to the district
court, he is entitled to review for plain error. Were we to
conclude that adequate notice is an element of the offense, we
also would find plain error. Failure to instruct the jury
regarding an element of the offense is plain error where, as
here, the government introduces no evidence regarding the element
in question. Cf. De Castro, 104 F.3d at 1293-95 (noting
similarities between plain error and harmless error review and
concluding that district judge's failure to instruct on element
of offense was harmless in light of substantial trial evidence).
affirmative defense than an element of the offense. As the Supreme

Court has stated, "an indictment ... founded on a general provision

defining the elements of an offense ... need not negative the

matter of an exception made by a proviso or other distinct clause,

whether in the same section or elsewhere. ... " McKelvey v.

United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301

(1922).4 A second, but related, rule is that where one can omit

the exception from the statute without doing violence to the

definition of the offense, the exception is more likely an

affirmative defense. Thus, in United States v. Outler, 659 F.2d

1306, 1309-10 (5th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct.

1453, 71 L.Ed.2d 665 (1982), we explained that where "an exception

... [is] so necessary to a true definition of the offense ... the

elements of the crime are not fully stated without the exception."5

In that case, we held that an essential element of the crime of

prescribing controlled substances is that a physician act "without

a legitimate medical reason," even though such a requirement was

not part of the statutory definition of the crime.6 659 F.2d at

4
See also United States v. Freter, 31 F.3d 783, 788 (9th
Cir.) (exception to general proscription presumptively
affirmative defense), cert. denied, --- U.S. ----, 115 S.Ct. 646,
130 L.Ed.2d 551 (1994); United States v. Durrani, 835 F.2d 410,
421 (2d Cir.1987) (same).
5
See also United States v. English, 139 F.2d 885, 886 (5th
Cir.1944) ("where the language of the section defining the
offense is so entirely separable from the exception that the
ingredients constituting the offense may be accurately and
clearly defined without reference to the exception, the matter
contained in the exception must be set up as a defense by the
accused").
6
See also United States v. Steele, 105 F.3d 603 (11th
Cir.1997) (extending Outler from physicians to pharmacists).
1309. We reasoned that due process requires that an exception

which "embodies the culpability of the offense" must be an

essential element. Id. at 1310. Naturally, these presumptions are

merely interpretive aids; we also consider other indications of

legislative will evident in the statute.

Considering the first of our interpretive guides, subsection

(h) appears to be an affirmative defense; it is a narrow exception

to a general proscription. Specifically, subsection (a) bans all

firearm possession in federal facilities, and subsection (h)

excepts possession at facilities where notice is inadequate or

inconspicuous. Section 930's plain language indicates that

subsection (h) is a defense: "no person shall be convicted of an

offense under subsection (a) or (e)" without notice. 18 U.S.C.A.

§ 930(h) (emphasis added). Because subsection (a) by itself

comprises "an offense," subsection (h) does not appear to be an

element of the offense.7

Moreover, subsection (a) defines a perfectly cogent offense.

Absent subsection (h), subsection (a) simply bans knowing

possession on federal facilities. We do not find this troubling;

indeed, we note that section 930 defines other crimes—possession of

a firearm with intent to use it in a crime (subsection (b)) and

killing or attempted killing in the course of another violation

7
Nevertheless, section 930 "is not happily worded,"
McKelvey, 260 U.S. at 357, 43 S.Ct. at 134, and there is some
evidence supporting McArthur's reading. For instance, subsection
(a) states that firearm possession is illegal, "[e]xcept as
provided in subsection (d)." Subsection (d) states that
subsection (a) does not apply to certain weapon possession, such
as law enforcement and lawful hunting. By contrast, subsection
(a) does not mention subsection (h) as an exception.
(subsection (c))—without excepting prosecutions where notice is

deficient. This statute is not the "rare instance[ ]" where an

exception is truly an element of the crime, raising the concerns we

highlighted in Outler. Section 930 does not concealmens rea in an

exception; rather, subsection (a) requires the government to prove

that a defendant knowingly possessed a firearm in a federal

facility.8 Consequently, it ensures convictions based on more than

mere innocence—it requires that the defendant know he has a gun in
9
his possession and know that he is entering a federal facility.

In light of this requirement and the pervasive regulation of weapon

possession at federal facilities,10 due process is not offended by

8
We are not unmindful of the Supreme Court's caution, in
Staples v. United States, 511 U.S. 600, 610, 114 S.Ct. 1793,
1799, 128 L.Ed.2d 608 (1994), that "there is a long tradition of
lawful gun ownership by private individuals in this country," and
the attendant presumption against criminalizing gun possession
without the requisite illegal intent. We note, however, that the
statute here requires the government to show scienter in order to
convict a person for possessing a firearm, unlike the statute at
issue in Staples. Although McArthur's reading of the statute
would increase the likelihood that no one would be prosecuted
under the statute absent a "vicious will," see id. at 617, 114
S.Ct. at 1803, Congress has the authority to define the mens rea
it deems appropriate for a given crime. Id. at 603-06, 114 S.Ct.
at 1796-97.
9
Thus, this is not a situation where the language chosen by
Congress would "criminalize otherwise innocent conduct." United
States v. X-Citement Video, Inc., 513 U.S. 64, ----, 115 S.Ct.
464, 469, 130 L.Ed.2d 372 (1994). See also United States v.
Wells, --- U.S. ----, ----, 117 S.Ct. 921, 931, --- L.Ed.2d ----
(1997) (following plain meaning of text where "an unqualified
reading ... poses no risk of criminalizing so much conduct as to
suggest that Congress meant something short of the
straightforward reading").
10
See, e.g., 4 C.F.R. § 25.14 (possession of firearms
prohibited in GAO Building, except for "official purposes"); 32
C.F.R. § 234.10 (possession of firearms prohibited at Pentagon
without authorization from Defense Protective Service); 32
C.F.R. § 1903.7 (possession of firearms prohibited on CIA
protected property without authorization from Director of
a prosecution without proof of adequate notice.

The legislative history of section 930, although sparse,

indicates that Congress viewed subsection (h) as an affirmative

defense. Part of the massive Anti-Drug Abuse Act of 1988, Pub.L.

100-690, 102 Stat. 4181 (1988), section 930 originated in the House

of Representatives and was enacted into law as passed by the House.

See H.R. 5210, 100th Cong. § 6215 (1988). Before the Senate voted

on the measure, the Senate Judiciary Committee reviewed the House

bill and Senator Biden, the committee chair, drafted a

section-by-section analysis. With regard to the provision before

us, he stated that "the absence of the required notice will be a

complete defense to the simple possession offense [subsection (a)

] unless the defendant had actual knowledge." 134 C ONG. REC.

S.17,360-02 (daily ed. Nov. 10, 1988) (statement of Sen. Biden)

(emphasis added). Although this history would not, by itself,

carry the day for the government, it supports our reading of the

statute.11

Security); 44 C.F.R. § 15.14 (possession of firearms prohibited
at FEMA Special Facility without authorization from FEMA
Director). Cf. Downing v. Kunzig, 454 F.2d 1230, 1231 n. 1 &
1233 (6th Cir.1972) (taking judicial notice of nationwide
violence and hazard to government officials; noting that federal
officials have discretion to adopt reasonable rules to guard
against such dangers).
11
An unenacted bill from the same Congress also has arguable
bearing on the matter. The Senate considered and
abandoned—likely in favor of the more expansive House provision
discussed above—a bill that only would have prohibited firearm
possession in federal court facilities. That bill expressly
declared that the absence of conspicuous notice was an
affirmative defense. Undetectable Firearms Act, S. 2327, 100th
Cong. § 5(b) (1988). We, however, decline to draw any inferences
from its non-enactment. The omission of the affirmative defense
language in the final bill "is not dispositive because it does
not tell us precisely where the compromise was struck" in
 Next, courts determining whether a statutory exception is an

element of the crime or an affirmative defense often consider

whether the government or the defendant is in the best position to

prove facts necessary to trigger the exception. Where defendants

are better equipped to prove facts that would allow them to take

advantage of a statutory exception, we ordinarily view that

exception as an affirmative defense. See, e.g., Jackson, 57 F.3d

at 1016 (in prosecution of felon in possession of firearm,

government need not prove prior felony conviction is still valid;

"[a] defendant ordinarily will be much better able to raise the

issue of whether his prior convictions have been expunged or set

aside").12 In the instant case, we do not view either party as

necessarily better able to prove whether notice was adequate.

Evidence relevant to the issue likely would not be difficult to

collect.

Finally, although the parties identify, and we find, no case

law relevant to the precise question before us,13 courts have

enacting section 930. See Landgraf v. USI Film Prods., 511 U.S.
244, 256, 114 S.Ct. 1483, 1492, 128 L.Ed.2d 229 (1994).
12
See also Durrani, 835 F.2d at 421 (in prosecution for
illegal sales of military equipment, court rejects defendant's
claim that "official use" exception was element of crime, even
though government retained most records that would allow
defendant to prove applicability of exception; court noted that
regulations require that certain documents be publicly
available); Mayo, 705 F.2d at 76 (in prosecution for possession
of unregistered firearm, defendant in best position to show his
weapon fits within antique firearm exception).
13
McArthur claimed in his reply brief that United States v.
Lunstedt, 997 F.2d 665 (9th Cir.1993), held that conspicuous
notice was an element of the offense in section 930. At oral
argument, however, counsel conceded that the court did not reach
the issue. In Lunstedt, the district court instructed the jury
to consider whether the notice was conspicuous. The only issue
interpreted an analogous statute and its implementing regulations.

Under 40 U.S.C.A. § 318a, the General Services Administration

("GSA") is authorized to regulate government property and to make

violating such regulations a crime, so long as the rules it adopts

are posted conspicuously on site. Prior to the enactment of

section 930, a GSA regulation prohibited gun possession at federal

facilities.14 Two cases interpreting that regulation implicate the

question before us; unfortunately, their holdings conflict.

In United States v. Crow, 824 F.2d 761, 762 n. 2 (9th

Cir.1987), the Ninth Circuit refused to address a defendant's claim

that notice was lacking, raised for the first time on appeal.

Thus, the court impliedly held that absence of notice is an
15
affirmative defense that the defendant must raise at trial. By

contrast, in United States v. Strakoff, 719 F.2d 1307 (5th

before the Ninth Circuit was whether the district court
adequately defined "conspicuous."
14
GSA is "authorized to make all needful rules and
regulations for the government of the property under [its] charge
or control.... * * * Provided, That such rules and regulations
shall be posted and kept posted in a conspicuous place on such
property." 40 U.S.C.A. § 318a (1986). GSA promulgated
regulations which, inter alia, prohibited firearm possession on
federal property. 41 C.F.R. § 101-20.313 (1988). GSA amended
the regulations in 1989 when section 930 superseded the firearms
prohibition. 54 Fed.Reg. 15,757 (1989) (codified at 41 C.F.R. §
101-20.313 (1996)).
15
Our characterization of the majority's implied holding is
strengthened by Judge Noonan's dissent. He objected to the
majority's refusal to address the claim that the lack of notice
was an element of the crime, saying that posting "constitute[d]
an essential element that the United States must prove in order
to prove crime in the violation of the regulation." 824 F.2d at
762. Further, as we noted above, see supra note 3, the Ninth
Circuit could not brush aside—even on plain error review—the
defendant's claim that the government failed to prove an element
of the offense.
Cir.1983), the court reversed a conviction under the GSA

regulations because it ruled that the posted notice was not

conspicuous. Although the court did not state outright that lack

of notice was an element of the firearm offense, it indicated that

it believed as much by holding that, in light of the inconspicuous

notice at the federal building at issue, the government failed to

prove the defendant's guilt beyond a reasonable doubt. Id. at

1309. Further, it stated that "for [the defendant] to have

violated [the regulation], the regulation must have been ... posted

and kept posted "in a conspicuous place' in the Courthouse." Id.16

Although these disparate holdings give us pause, we believe

that significant differences between the GSA regulation at issue in

those cases and section 930 counsel against following the Fifth

Circuit with regard to the statute before us. The notice provision

of section 930 is located in a subsection apart from the definition

of the offense, whereas the provision authorizing GSA to regulate

federal facilities contains the notice requirement. 40 U.S.C.A. §

318a. Further, section 930, unlike the GSA regulation, requires

the government to prove that a person knowingly possesses a firearm

on federal premises. As a result, it guarantees that prosecutions

16
Were it not for this latter sentence, we would not read
the court to have concluded that absence of notice was an element
of the offense. We have stated previously that "an element is
not always an "essential element' simply because the prosecution
carries the burden of proof...." Outler, 659 F.2d at 1309; see
also Laroche, 723 F.2d at 1543 ("it is incumbent upon the
defendant to properly present the statutory exception, after
which point the government assumes the burden of disproving its
applicability"). But the Strakoff court not only placed the
burden on the government; it stated that the government could
not prove a violation of the regulation without demonstrating
absence of notice.
founded on purely innocent conduct (carrying a firearm into a

building without knowing it is a federal facility, e.g.) will fail.

Were we interpreting the GSA regulation's strict liability regime

instead of section 930, we too might be inclined to view the notice

requirement as an element of the offense, because the GSA

regulation did not ensure that a defendant have any culpability to

be convicted. See, e.g., Outler, 659 F.2d at 1309 (where a

statutory provision "embodies the culpability of the offense," it

is likely to be an essential element of the crime). Given these

distinctions, the case law does not change our view that section

930 is an affirmative defense.

In sum, our analysis of the language and structure of the

statute favors treating subsection (h) as an affirmative defense.

Moreover, the legislative history also supports our view and our

position would not place an undue evidentiary burden on defendants.

We are buoyed in this interpretation by the Ninth Circuit's similar

holding, and believe that the Fifth Circuit's contrary position can

be attributed to differences between the provision it considered

and the one before us. Consequently, we hold that unless the

defendant introduces evidence that notice of the federal law is

lacking, the government, in a prosecution for the possession of

firearms at federal facilities, need not prove that notice of the

ban on such possession was posted conspicuously at the facility.

III.

McArthur next argues that the district court erred in

imposing restitution based on conduct of which he was acquitted.

The government responds that a sentencing judge ordinarily is
allowed to consider relevant conduct, even if the jury has decided

that the prosecution failed to prove guilt beyond a reasonable

doubt.17

McArthur's position is more tenable. In Hughey v. United

States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the

Supreme Court held that a restitution order pursuant to the Victim

and Witness Protection Act, 18 U.S.C.A. §§ 3579-3580, must not

consider the harm arising from conduct of which a defendant was

acquitted. Interpreting the statute's plain language,18 the Court

stated that Congress's intent in crafting the statute was to allow

restitution only for the crime of conviction. Thus, "the loss

caused by the conduct underlying the offense of conviction

establishes the outer limits of a restitution order." 495 U.S. at

420, 110 S.Ct. at 1984. Following Hughey, we have held that

restitution is inappropriate if based on charges of which the

defendant was acquitted, even if those charges relate to the crime

of conviction. United States v. Young, 953 F.2d 1288, 1289 (11th

Cir.1992).

Applying this standard, we hold that the district court's

restitution order was improper. McArthur was convicted only of

17
At oral argument, the government also argued that McArthur
waived this argument by not making a sufficiently specific
objection to the district court. We need not evaluate the
adequacy of McArthur's argument, however, because his claim is
entitled to plain error review and we consider a district court's
misinterpretation of its authority to order restitution plain
error. United States v. Obasohan, 73 F.3d 309 (11th Cir.1996).
18
"The court, when sentencing a defendant convicted of an
offense ... may order, in addition to or in lieu of any other
penalty authorized by law, that the defendant make restitution to
any victim of the offense." 18 U.S.C.A. § 3579(a)(1).
possessing a firearm in a federal facility and his possession

occasioned no loss. Rather, his use of the firearm caused the

injuries and expenses for which the court awarded restitution.

Consequently, holding him responsible for the related costs was

error. See United States v. Cobbs, 967 F.2d 1555, 1558-59 (11th

Cir.1992) (where defendant pleaded guilty to possessing illegal

access devices to make fraudulent credit cards, but government

dismissed charges stemming from use of such devices, restitution

was improper because no loss resulted from mere possession).

The district court held, and the government argues here, that

the restitution award was proper in light of precedent establishing

the sentencing court's power to consider relevant conduct, even

where the defendant is acquitted of some charges. See United

States v. Watts, --- U.S. ----, 117 S.Ct. 633, 136 L.Ed.2d 554

(1997); United States v. Averi, 922 F.2d 765 (11th Cir.1991).

These cases are inapposite because they dealt broadly with a

sentencing court's power but did not address, as did Hughey, the

specific question before us—the statutory scope of the district

court's authority to impose restitution under the Victim and

Witness Protection Act.

We generally remand a case to the district court following our

conclusion that its restitution order was improper, so that the

district court may reevaluate its sentence in light of the vacated

restitution award and give effect to its "intent in creating a

sentencing plan." Young, 953 F.2d at 1290. In the instant case,

however, the district court did not trade restitution for leniency;

rather, McArthur received the maximum sentence and supervised
release available under the guidelines and was found incapable of

paying a fine. Thus, we see no purpose in a remand.

IV.

Accordingly, we AFFIRM McArthur's conviction and VACATE the

district court's restitution order.