United States v. Holt

United States Court of Appeals
For the First Circuit

No. 05-2703

UNITED STATES OF AMERICA,

Appellee,

v.

ERIC HOLT,

Defendant, Appellant,

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]

Before

Boudin, Chief Judge,
Torruella and Dyk,* Circuit Judges.

Mary Davis for the appellant.
Margaret D. McGaughey, Appellate Chief, with whom, Paula D.
Silsby, United States Attorney, was on brief, for the appellee.

September 28, 2006

*
Of the Federal Circuit, sitting by designation.
 DYK, Circuit Judge. Eric Holt appeals from his

conviction, under the Gun Control Act, 18 U.S.C. § 922(g)(4)

(2000), of possession of a firearm by a person who has been

committed to a mental institution. Holt argues that he was not

“committed” to a mental institution under the meaning of the

statute. He also urges the court’s instructions concerning

possession were erroneous. We reject both contentions and affirm.

I.

In February of 2004, Holt was having marital problems

with his wife, when she announced that she wanted a divorce. Holt

temporarily moved in with his friend, Christopher Norbert. Holt

suffered major depression as a result of the separation from his

wife and a recent arrest. Norbert testified that, during this

time, Holt threatened his wife, stating that he wanted to “splatter

his wife’s brains out.” Holt’s son testified that he was concerned

that Holt would hurt himself.

On February 16, 2004, a licensed clinical social worker,

Marc Quirion, made an application for Holt’s involuntary admission

to a mental institution. Pursuant to Maine’s involuntary admission

procedures, this application was included a medical certification.

Alfonso Corona, a licensed psychiatrist and medical doctor,

certified that he examined Holt and that Holt posed a “likelihood

of serious harm due to a mental illness . . . .” The next day, on

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February 17, the application was reviewed by a Maine District Court

Judge, who then authorized the county sheriffs to transport Holt to

a medical facility. What transpired after this point with respect

to Holt’s admission to the medical facility and the duration of

such admission is not apparent from the record. It is clear,

however, that by May 10, 2004, Holt was no longer in a medical

facility and was staying with his friend, Norbert.

On May 11, 2004, Holt was cleaning out his truck—which

had been parked in Norbert’s driveway for several months (before

Holt’s admission to the mental hospital)–when he uncovered a

handgun. Holt brought the gun into Norbert’s house, and Holt and

Norbert allegedly discussed what to do with the gun; both believed

that Holt was prohibited from possessing a firearm. Norbert

testified that Holt was reluctant to surrender the gun. The two

men eventually decided that Norbert would take the gun to his

parent’s house. In the meantime, Norbert put the unloaded gun in

his gym bag in the cellar, where Holt was staying. According to

testimony by the probation officer who found the gun, Holt seemed

unaware that the gun was in the gym bag. Ammunition for the gun

was found in a dresser in Norbert’s bedroom.

The next day, Troy Thornton, Holt’s probation officer,

came to Norbert’s house with a police officer to make a home visit

and search for weapons. After Norbert consented to the search, the

officers discovered the gun and ammunition. Holt was charged with,

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and tried for, violating 18 U.S.C. § 922(g)(4), which makes it

unlawful for anyone “who has been committed to a mental

institution” to “possess” a firearm.

During the trial, the defense raised two issues which are

pertinent to this appeal. First, defense counsel proposed that the

term “committed” be left undefined for the jury, or alternatively,

that the jury be instructed that a commitment occurs only after an

application for involuntary commitment has been approved by a state

judge, the person has been taken to a medical facility, and a

follow-up examination has been performed within 24 hours of the

involuntary admission. Over the defendant’s objection, the

district court rejected both proposals and instead instructed the

jury that “[a]n involuntary commitment occurs when a State Judge,

pursuant to an application for involuntary admission to a mental

hospital, authorizes the sheriff to take the person into custody

and transport him to a hospital.”

Second, over the defendant’s objection, the district

court instructed the jury that:

The term “possess” means to exercise authority, dominion
or control over something. It is not necessarily the
same as legal ownership. Possession includes both actual
and constructive possession. A person who has direct
physical control of something on or around his or her
person is then in actual possession of it. A person who
is not in actual possession, but who has both the power
and the intention to exercise control over something is
in constructive possession of it. Briefness of contact
alone does not preclude a finding of possession . . . .
The word “knowingly” means that the possession was

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 voluntary and intentional, not because of mistake or
accident.

Appellant’s Addendum at 5. In so doing, the district court

rejected the defendant’s proposed additional instructions which

would have noted that “[a]n act is done knowingly if it is done

voluntarily and intentionally, and not because of mistake or

accident or for some other innocent reason,” and that “[i]ntent is

necessary to possession, and the requisite intent is to exercise

authority, dominion or control.” Appellant’s Br. at 24 (emphasis

added).

Thereafter, the jury found Holt guilty of possessing a

firearm after having been committed to a mental institution. Holt

timely appealed his conviction. We have jurisdiction pursuant to

28 U.S.C. § 1291 (2000).

II.

The pertinent statute, 18 U.S.C. § 922(g)(4), states that

“[i]t shall be unlawful for any person . . . who has been committed

to a mental institution . . . to . . . possess in or affecting

commerce, any firearm or ammunition . . . .”

18 U.S.C. § 922(g)(4) is part of an extensive statute,

the Gun Control Act of 1968, designed to regulate various aspects

of gun ownership; it expands the categories of persons prohibited

from possessing guns, including drug users, illegal aliens,

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dishonorably discharged service members, and people who have

renounced their citizenship. 18 U.S.C. § 922(g). Congress wanted

to keep guns out of the hands of people perceived to be dangerous,

and not just those who had permanently been confined to a mental

institute or those who continue to suffer from a mental illness.

Rather, Congress intended to prohibit persons who are mentally

unstable or “mentally irresponsible” from possessing guns. 114

Cong. Rec. 21780, 21791, 21801 (1968). Essentially, “Congress’

intent in enacting §[] 922(g) . . . was to keep firearms out of the

hands of presumptively risky people.” Dickerson v. New Banner

Inst., Inc., 460 U.S. 103, 112 n.6 (1983) (emphasis added).

The harshness of the prohibition against persons who have

been “committed” to a mental institute, however, was ameliorated by

section 925(c) of the statute, which provides that the Attorney

General may grant relief to a prohibited person if:

it is established to [the Attorney General’s]
satisfaction that the circumstances regarding the
disability, and the applicant’s record and reputation,
are such that the applicant will not be likely to act in
a manner dangerous to public safety and that the granting
of the relief would not be contrary to the public
interest.

18 U.S.C. § 925(c) (2006). Under the regulations, to be eligible

for such relief, the applicant must show “the applicant’s discharge

from commitment, [and the] restoration of mental competency . . .

.” 27 C.F.R. § 478.144(c)(5) (2006). Judicial review is available

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in cases in which the Attorney General denies relief. 18 U.S.C. §

925(c).

On appeal, Holt argues that two of 922(g)(4)’s necessary

elements—that of commitment and possession—were not established and

were not properly charged to the jury. We address each contention

in turn.

A. Commitment

In Maine, under the current statute (which was in effect

when Holt was ordered admitted to a mental hospital), a person can

be involuntarily admitted to a mental hospital on an emergency

basis. Under Maine’s emergency admission statute, to initiate such

an admission, “[a]ny health officer, law enforcement officer or

other person,” must make a written application which states his

“belief that the person [who would be admitted] is mentally ill

and, because of his illness, poses a likelihood of serious harm.”

34-B M.R.S.A. § 3863(1) (2004). This application must be

accompanied by a certificate of examination signed by a “licensed

physician, physician’s assistant, certified psychiatric clinical

nurse specialist, nurse practitioner or a licensed clinical

psychologist,” stating that the person to be admitted is “mentally

ill” and, as a result, “poses a likelihood of serious harm.” 34-B

M.R.S.A. § 3863(2). A judicial officer then reviews the

application and medical certificate. 34-B M.R.S.A. § 3863(3). If

the judicial officer finds that the documents are “regular and in

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accordance with the law, the judge...shall endorse them,” at which

point the subject of the application may be transported to a

hospital. Id.

After a person has been involuntarily admitted to a

hospital under this process, he must be examined by a “staff

physician or licensed clinical psychologist” within 24 hours. 34-B

M.R.S.A. § 3863(7)(C). If an examination does not take place

within 24 hours, or the examiner refuses to certify that the person

is mentally ill and as a result poses a likelihood of serious harm,

the person is immediately discharged. Id. If the examiner

certifies that the person poses a likelihood of serious harm as a

result of his mental illness, then the person may choose to be

informally admitted, or the chief administrator of the hospital can

seek “involuntary commitment” of the person within five days from

the initial admission under 34-B M.R.S.A. § 3864. 34-B M.R.S.A. §

3863(5)(B). Thus, in contrast to the initial admission

certification, which may be made by persons who are not licensed

psychologists or physicians, the certification required after the

24-hour examination must be made by a licensed psychologist or

physician.

In United States v. Chamberlain, 159 F.3d 656 (1st Cir.

1998), this court considered whether a person involuntarily

admitted to a hospital under 34-B M.R.S.A. § 3863 has been

“committed to a mental institution” for purposes of 18 U.S.C. §

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922(g). Under the Maine statute then in effect, a certification by

a licensed psychologist or physician was required both for initial

admission and after the 24-hour examination. Chamberlain, 159 F.3d

at 666-67. In Chamberlain, an initial application for involuntary

admission had been made, was certified by a licensed physician, and

endorsed by a judge. Id. at 657. The defendant was then admitted

to a hospital and was examined by a physician within 24 hours who

certified that the defendant posed a likelihood of serious harm as

result of a mental illness. Id. After the initial five-day

emergency admission, the defendant voluntarily admitted himself to

the hospital and, therefore, the chief administrator of the

hospital did not seek an “involuntary commitment” order under 34-B

M.R.S.A. § 3864. Id. The defendant argued that a person cannot be

deemed “committed” until after the defendant has a full hearing.

Essentially, the defendant argued that no “commitment” can occur

unless a final involuntary commitment order is secured under 34-B

M.R.S.A. § 3864. Id. at 661.

The court noted that Congress aimed broadly in the Gun

Control Act and Congress believed that “the mere risk or potential

for violence” was a “sufficient reason to prohibit certain

categories of persons from possessing firearms.” Id. at 660. In

light of these objectives, the court held that the five-day

detention was a “commitment,” concluding that the substance of the

mental institute admission procedures, rather than the label of the

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procedures as a “commitment,” is controlling for the federal

statute. Id. at 663, 665. The court thus parted ways with the

Fifth and Eighth circuits, which had allowed the state

legislature’s labeling of an emergency admission as a “commitment”

to control for federal purposes. Id. at 662.

There have been no subsequent developments that would

suggest that Chamberlain was wrongly decided, and we are obligated

to follow it in any event. There are, however, two differences

between this case and Chamberlain. First, there is a factual

difference. In Chamberlain, the patient was admitted to a mental

institute and examined within 24 hours, but here the record does

not reveal whether a 24-hour examination occurred. We do not think

that the existence of a 24-hour examination makes a difference in

the outcome, nor did Chamberlain suggest that it should. As the

Chamberlain court noted, at the time the judicial order was issued,

and before the second examination had occurred, Chamberlain was

ordered “detained in a mental institution for five days” based on

a judicial order that this was in accordance with law. Id. at 663.

This process meets the ordinary definition of “commitment” embraced

in Chamberlain: “to place in or send officially to confinement...to

consign legally to a mental institution....”1 Id. at 661 (quoting

1
To the same effect, Webster’s Third New International
Dictionary 457 (1966) defines “commit” as “to consign legally to a
mental institution” and Black’s Law Dictionary 341 (4th ed. 1957)
defines “commit” as “[t]o send a person . . . to an asylum,
workhouse, reformatory, or the like, by authority of a court or

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Webster’s Third New Int’l Dictionary (1971)). We conclude that the

term “committed” in the statute refers to a judicial (or possibly

an administrative) order of commitment and does not depend on the

ultimate outcome of the commitment. See also United States v.

Vertz, 40 Fed. Appx. 69, 73, 2002 WL 1359368 (6th Cir. 2002)

(unpublished) (finding a defendant “committed” where a petition was

filed by a psychiatrist in probate court but the required 24-hour

follow-up psychiatrist examination did not occur).2

Thus, a commitment under the Maine statute occurs when

the court orders an involuntary hospitalization and not when the

licensed psychologist or physician determines that the individual

should remain in the institution after the 24-hour examination, and

Chamberlain is not distinguishable based on the existence in that

case of a 24-hour examination.3

magistrate.”
2
There is some indication in the legislative history that
an administrative order may satisfy the commitment requirement.
See H.R. Rep. No. 90-1956 (1968) (Conf. Rep.), reprinted in 1968
U.S.C.C.A.N. 4430 (“[I]n the case of mental defectives and
committed persons [the conference substitute] does not require that
there be prior action by a court inasmuch as mental boards and
commissions constitute the adjudicating or committing authority in
some jurisdictions.”).
3
The appellant also argues that the trial court improperly
shifted the burden to prove “commitment” by only requiring the
prosecution to prove the judicial order, thereby forcing the
defense to prove the lack of a 24-hour examination. Since we
interpret a “commitment” to occur with the issuance of a judicial
order, the appellant’s argument is necessarily rejected.

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 The second difference between this case and Chamberlain

involves the amendment of the Maine statute to permit an initial

commitment to be based on a certification of a physician’s

assistant, a certified psychiatric clinical nurse specialist, or a

nurse practitioner in addition to a certification by a licensed

psychologist or physician. 34-B. M.R.S.A. § 3863(2). We need not

reach the question whether a judicial order for admission based,

for example, on a certification by a physician’s assistant would

constitute a commitment under the federal statute or, indeed,

whether such a court-ordered admission would satisfy due process

requirements (a condition, we may assume, of a commitment under the

federal statute). Here, as in Chamberlain, the initial order was

based on a physicians’s certificate. See Parham v. J.R., 442 U.S.

584 (1979) (holding due process for commitment of a minor is

satisfied if a physician evaluates the patient’s medical and

emotional condition); see also Addington v. Texas, 441 U.S. 418,

429 (1979) (“Whether the individual is mentally ill and dangerous

to either himself or others and is in need of confined therapy

turns on the meaning of the facts which must be interpreted by

expert psychiatrists and psychologists.” (emphasis omitted)).

There is therefore no merit to appellant’s arguments that

the element of commitment was not properly charged to the jury and

that he was not committed within the meaning of the federal

statute.

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 B. Possession

In the alternative, Holt argues that the district court

erred by refusing to give the jury two instructions he requested on

possession.

We first consider Holt’s request for an instruction on

the intent required for possession. Specifically, Holt asked the

court to instruct the jury that “[i]ntent is necessary to

possession, and the requisite intent is to exercise authority,

dominion or control.” Appellant’s Br. at 24. Instead, the

district court instructed the jury in part that:

The term “possess” means to exercise authority,
dominion or control over something . . . . The word
“knowingly” means that the possession was voluntary and
intentional, not because of mistake or accident.

Trial Transcript at 237-238.

Since both instructions included language on “authority,

dominion and control” and stated that possession must be

intentional, we see no material difference between them. Thus, the

court did not err in refusing Holt’s instruction.

Holt next contends that the court improperly refused to

include the underscored language in the jury charge: “[a]n act is

done knowingly if it is done voluntarily and intentionally, and not

because of mistake or accident or for some other innocent reason.”

Appellant’s Br. at 24 (emphasis added). In other words, appellant

objects to exclusion of the “some other innocent reason” language.

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 This court has recently addressed a related issue in

United States v. Teemer, 394 F.3d 59 (1st Cir. 2005). There, the

defendant was found in a car in proximity to a gun. The defendant

told police officers that he had previously touched the gun when he

moved it from a seat so that he could sit down. Id. at 61. The

defendant complained that the district court had refused to give an

instruction that would have barred conviction for “fleeting” or

“transitory” possession. Id. at 62. The court held that the

“fleeting” and “transitory” possession instruction was “overbroad”

and would be a recipe for misuse. Id. at 63-64.

Holt correctly points out that the instructions that were

actually given in Teemer included the language the appellant

requested here, stating that “[a]n act is done knowingly if it is

done voluntarily and intentionally and not because of a mistake or

accident or some other innocent reason.” 394 F.3d at 68 (emphasis

added). However, the court in Teemer did not approve this

language, although it was quoted in an appendix to the opinion.

Id. Furthermore, the court explicitly disfavored requiring such

language when combined with a “fleeting” or “transitory” possession

instruction, rejecting the District of Columbia Circuit’s approach

in United States v. Mason, 233 F.3d 619 (D.C. Cir. 2000). Id. at

64. The court in Teemer feared that an instruction “combining

requirements of innocent acquisition and brevity of retention[]

could be misused” given that the statute did not “leave much room

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for benign transitory possession.” Id. We think this same

potential for misuse could exist if we required an “innocent

possession” instruction stripped of the reference to “transitory”

or “fleeting” possession. This court, albeit in dicta, has already

read Teemer as declining “to adopt this innocent possession

defense....” United States v. Mercado, 412 F.3d 243, 252 (1st Cir.

2005). We decline to require that the district court’s instruction

include “innocent” possession as a defense.

Conceivably, extraordinary cases might arise where

voluntary possession would exist in a literal sense and yet

Congress could not have intended the statute to apply. We imagine

the felon who snatches a loaded gun out of the hand of a five year

old, or the felon who wrestles a gun from an armed intruder, and

promptly surrenders possession after the intervention. In such a

case, if the government were foolish enough to prosecute, some

caveat might indeed be needed (e.g., an instruction on a necessity

or justification defense.)4 But nothing like that is present in

this case. There were no exigent circumstances alleged here that

required Holt to personally retrieve the gun from the truck.

4
See United States v. Singleton, 902 F.2d 471, 472 (6th Cir.
1990); United States v. Holliday, 457 F.3d 121, 127 (1st Cir. 2006)
(noting that the First Circuit has appeared to assume that
justification defenses might be available).

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 III.

For the reasons stated above, the district court’s

decision is affirmed.

It is so ordered.

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