United States Court of Appeals,
Eleventh Circuit.
No. 96-5244
Non-Argument Calendar.
UNITED STATES of America, Plaintiff-Appellee,
v.
Elton Lee FUNCHES, Defendant-Appellant.
Feb. 24, 1998.
Appeal from the United States District Court for the Southern District of Florida. (No. 96-8019-CR-
KLR), Kenneth Ryskamp, Judge.
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,
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 (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 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 "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 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 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
*
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.
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 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, 254 U.S.
135, 137-40, 41 S.Ct. 53, 54, 65 L.Ed. 185 (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, 447 U.S. 10, 22, 100 S.Ct. 1999, 2007, 64 L.Ed.2d 689 (1980) (internal quotations
and citations omitted). Or, as expressed by the District of Columbia Circuit:
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 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.