566 F.2d 1301 (5th Cir. 1978), 77-5262, United States v. Hammons

Docket Nº:77-5262.
Citation:566 F.2d 1301
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. John Cornelius HAMMONS, Defendant-Appellant.
Case Date:February 06, 1978
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1301

566 F.2d 1301 (5th Cir. 1978)

UNITED STATES of America, Plaintiff-Appellee,

v.

John Cornelius HAMMONS, Defendant-Appellant.

No. 77-5262.

United States Court of Appeals, Fifth Circuit

February 6, 1978

Page 1302

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

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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...

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