U.S. v. Hammons, 77-5262

• Decision Date: 06 February 1978
• Docket Number: No. 77-5262,77-5262
• Citation: 566 F.2d 1301
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Cornelius HAMMONS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1301

566 F.2d 1301

UNITED STATES of America, Plaintiff-Appellee, v. John Cornelius HAMMONS, Defendant-Appellant.

No. 77-5262.

United States Court of Appeals,

Fifth Circuit.

Feb. 6, 1978.

Gregory Hughes, Mobile Ala., for defendant-appellant.

W. A. Kimbrough, Jr., U. S. Atty., J. B. Sessions, III, Asst. U. S. Atty., Mobile, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Alabama.

Before TUTTLE, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

Defendant John Hammons appeals his conviction under 18 U.S.C.A. § 922(h) for illegal receipt of a firearm by a convicted felon. ¹ At trial, he admitted receiving the firearm, but alleged that he had acted only to protect the safety of another. The trial court, over defendant's objection, instructed the jury to disregard defendant's alleged reasons for receiving the firearm. On this appeal defendant contends that § 922(h) does not impose on convicted felons absolute liability for receiving firearms but that the jury should have been allowed to consider the circumstances surrounding his receipt of the gun. We need not decide whether § 922(h) renders criminal the receipt of a firearm by a convicted felon in every emergency or allegedly innocent circumstance. We hold only that under the facts of this case the trial court's jury instruction did not constitute reversible error.

We must view this case under defendant's version of the facts, for "defendant (was) entitled to have presented instructions relating to a theory of defense for which there is any foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972), quoting Tatum v. United States, 88 U.S.App.D.C. 386, 391, 190 F.2d 612, 617 (1950).

In August 1973 defendant was convicted of interstate transportation of a stolen motor vehicle and sentenced to three concurrent terms of three years imprisonment. ² On June 10, 1976, defendant, while on probation under this conviction, was with Connie Floyd and Melvin Lee at "Ye Old Spot," a nightclub in Pritchard, Alabama. At approximately 3:00 a. m., Hudson Bridges, a friend of defendant, entered the club, looking for his girlfriend Pat Townley. When Townley refused to leave the club, Bridges retrieved a pistol from his car, returned to the club, and forcefully escorted Townley outside. Defendant, aware of Bridges' reputation for violence, followed the couple outside "to keep (Bridges) from hurting (Townley)."

Defendant persuaded Bridges to hand over the gun and reentered the club with the gun still in his possession. When two police officers entered the club approximately 10 minutes later, defendant attempted to give the gun to a waitress with whom he had been talking. During the exchange, however, the gun went off, shooting defendant in the buttocks.

Five months later defendant was charged with violating 18 U.S.C.A. § 922(h) (1), which makes it unlawful for a convicted felon "to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce." At the close of the trial, defendant requested several jury instructions which, in essence, charged (1) that the jury could consider the circumstances surrounding defendant's receipt of the gun and (2) that if defendant had gained temporary control of the gun under a reasonable fear for the life and safety of another, the jury should vote for acquittal. The trial judge denied the requested instructions and charged the jury as follows:

(To) receive a firearm, as that term is used, means to take possession of or to knowingly accept the same. The reason for receiving the firearm is not part of the equation and you are not to burden yourselves in trying to determine why the firearm was received, if in fact it was.

Defendant's objection to this instruction was overruled, and the jury retired. After a period of deliberation, the jury sent the judge a note inquiring: "In arriving at the decision, should we (1) consider the circumstances as to how he acquired the gun, or (2) strictly by the law?" Over defendant's objection, the court replied, "Strictly by the law." After further deliberation, the jury indicated that it was unable to reach a verdict and requested that the law be read again. The court read its charge relative to the statute and again instructed the jury that they were not to burden themselves in trying to determine why the firearm was received. The jury returned a verdict of guilty, and defendant was sentenced to two and one-half years imprisonment.

Defendant does not contend that the Government must prove, as an element of the offense under § 922(h), that defendant received the gun without legal excuse. ³ Rather, he argues that the trial court erred in refusing to allow the jury to consider, as a defense, the circumstances attending defendant's receipt of the weapon. Defendant urges that Congress could not have intended criminally to punish a felon who receives a firearm under emergency conditions not of his own making. The Government maintains that the absolute language of § 922(h) admits of no exceptions: a convicted felon violates the law when he receives a firearm, regardless of how innocent or exigent the circumstances.

Section 922(h) prohibits, in absolute terms, the receipt of a firearm by a convicted felon. Section 925 details the limited exceptions to liability under § 922(h). As the Supreme Court has noted, Congress "sought broadly to keep firearms away from the persons Congress classified as potentially irresponsible...