dissenting:
I respectfully dissent from the majority’s holding in Part I-A, which refuses to recognize a defense of innocent possession. I am persuaded by the reasoning of United States v. Mason, 233 F.3d 619, 625 (D.C.Cir.2000), which recognized the defense in circumstances similar to those presented in the instant case.
It seems we should examine the majority’s holding in its full implications. To do so, it is necessary, under our general precedents, to consider the evidence in the light most favorable to Defendant Baker in determining whether Baker is entitled to have the innocent possession defense considered. See United States v. Al-Rekabi, 454 F.3d 1113, 1121 (10th Cir.2006). Baker testified that he had an aversion to firearms because three relatives had been killed by gunshots. He testified that he had not possessed a firearm since 1996.1 Further, his testimony was that on this Halloween night, in spite of the very late hour, there were children out and about at the apartment complex where he found the ammunition and that he took the contraband away from that place out of concern for safety; that he intended to take the ammunition to a police station; that he made one short stop on the way to accommodate one of his companions; and that he had been in possession of the ammunition for only ten minutes. His testimony that he approached Officer Bachman with the intention of turning the ammunition over to him was partially corroborated by the officer, who testified that Baker was approaching him before he ordered Baker to stop. Thus Baker’s testimony, which should be accepted in determining if Baker made a viable innocent possession showing, demonstrated that he did not possess the ammunition for illicit purposes. Mason, 233 F.3d at 625.
The majority’s holding is that, even if the jury believed every part of Baker’s testimony, it is in keeping with Congres*1331sional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such “... a harsh and absurd result.” Mason, 233 F.3d at 623.
Because I find the analysis of Chief Judge Edwards in Mason persuasive, it is not necessary for me to embellish that rationale. I will, however, comment on two aspects of the instant case. First, as Baker argues in his brief, courts that have rejected the innocent possession defense based on a strict statutory construction and public policy grounds have generally not acknowledged the contradiction posed by the fact that they have recognized the duress or justification defenses, which are similarly not found in the statutory language and so are, presumably, contrary to the posited legislative intent of strict liability. Nor would even an entrapment defense, if established, afford relief if such strict statutory construction were applied.2
Second, the majority’s reliance on prose-cutorial discretion is misplaced, as this case illustrates rather clearly. This is not because there was an abuse of prosecutorial discretion in this case. To the contrary, on this record it seems reasonable for the prosecutor to have decided that Baker’s explanation was “plausible, albeit debatable.” Mason, 233 F.3d at 624. That being so, it was not improper to present the case to the grand jury and to prosecute it on the basis of the resulting indictment. But to avoid injustice, the trial jury should have been instructed on the innocent possession defense on these facts. Such a narrow defense “does not offend the statute’s goal of keeping guns out of the hands of convicted felons.” Mason, 233 F.3d at 624. No doubt prosecutorial discretion will lead to a decision not to prosecute in a few easy cases. But again, the instant case shows that prosecutorial discretion is hardly a panacea, or a guarantee of evenhanded justice.
I am convinced that in light of the Defendant Baker’s showing, which is sufficient to have the innocent possession defense considered, I would reverse and remand for a new trial where the innocent possession defense is permitted to be considered. Accordingly I respectfully dissent.
. It is worth noting also that no firearm or other weapon was involved in this offense, nor was one involved in any of the prior convictions which formed the basis for the determination that Baker was subject to a mandatory minimum sentence of fifteen years as an "Armed Career Criminal.'1 Of course, I do not doubt the power of Congress to provide for this result, but I do note that it is a striking anomaly.
. The entrapment defense theory likewise has no statutory genesis and Congress has never spoken on the subject. Mathews v. United States, 485 U.S. 58, 66, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988).