USA. v. Mason

• Decision Date: 15 December 2000
• Docket Number: No. 00-3004,00-3004
• Citation: 344 U.S. App DC 91,233 F.3d 619
• Parties: (D.C. Cir. 2000) United States of America, Appellee v. Tony Angelo Mason, Appellant
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 619

233 F.3d 619 (D.C. Cir. 2000)

United States of America, Appellee v. Tony Angelo Mason, Appellant

No. 00-3004

United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 13, 2000

Decided December 15, 2000

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. § 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 intending to give the weapon to a police officer whom he expected to see later that day on his truck delivery route. A law enforcement officer discovered the gun in Mason's possession, however, before Mason acted on his own to relinquish possession. Mason was then arrested and subsequently indicted for a violation of § 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 § 922(g)(1). The trial judge denied the request, instructing the jury instead that "well meaning possession" was not a defense to the § 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 subsequently 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 circumstances, innocent possession may be a defense to a charge under § 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 prosecution that rests on a charged violation of § 922(g)(1). We also find that, in the instant case, the District Court erred in refusing to give an innocent possession instruction. Accordingly, 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 ammunition 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 continued 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 observed what he believed to be the butt of a handgun protruding 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. § 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 § 922(g)(1) charge, the prosecutor 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" defense to a felon-in-possession charge under § 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 evidence; 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 standard. Tr. 8/26 at 117, 119-20.

The District Court denied the Government's motion to preclude the "justification" defense, finding the motion premature. 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 § 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)...