688 F.2d 268 (5th Cir. 1982), 81-4447, United States v. Panter

Docket Nº:81-4447.
Citation:688 F.2d 268
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lester Giles PANTER, Defendant-Appellant.
Case Date:September 16, 1982
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 268

688 F.2d 268 (5th Cir. 1982)

UNITED STATES of America, Plaintiff-Appellee,


Lester Giles PANTER, Defendant-Appellant.

No. 81-4447.

United States Court of Appeals, Fifth Circuit

September 16, 1982

Page 269

J. C. Gardner, John F. Bryan, III, Pascagoula, Miss., for defendant-appellant.

Deborah Selph Davis, Jerry A. Davis, Asst. U. S. Attys., Biloxi, Miss., for plaintiff-appellee.

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

Before CLARK, Chief Judge, GEE and GARZA, Circuit Judges.

CLARK, Chief Judge:

Lester Giles Panter was convicted by a jury of violating 18 U.S.C.App. § 1202(a)(1), which prohibits convicted felons from possessing firearms. 1 At trial Panter stipulated to a prior felony conviction and to the interstate commerce jurisdictional requirement. His only defense was that he possessed the firearm only momentarily and in self-defense. The district court instructed the jury, however, that neither the length of, nor the reason for, Panter's possession was relevant. Panter contends here that § 1202(a)(1) does not impose absolute liability and that the jury should have been allowed to consider his self-defense theory. We agree and reverse Panter's conviction with instructions to the district court to grant him a new trial.

The government disputes Panter's theory that he possessed the gun only momentarily in self-defense. Evidence was adduced at trial that Panter had purchased the gun for ten or fifteen dollars and owned it for several months before the shooting incident that led to this prosecution. This proof, according to the government, makes Panter's self-defense claim irrelevant. We would agree if the evidence were uncontroverted. But Panter denies owning the gun, and, because error is alleged in the jury instructions, we must view the facts in the light most favorable to him. See United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972). Therefore, what follows is Panter's story.

Panter was tending bar at the Roadrunner Lounge in Jackson County, Mississippi, on the evening of March 28, 1980. Bud Lins, a convicted murderer, 2 was present and had been drinking heavily. He approached Panter after a brief argument between the two and stated: "Well, you ain't done me right. I'm going to kill you." Lins forthwith set out to keep this promise. He brandished a pocketknife and stabbed Panter in the abdomen. But Panter did not succumb easily; he began to fight back. He soon found himself on the floor beneath his assailant, however, and he reached underneath the bar for a club that he knew was kept there. At this point providence intervened. Panter's hand fell not upon the intended club, but rather upon a pistol. Three shots subdued Lins, who died the next day.

Immediately after the shooting, Panter placed the pistol on the bar, where it was later found by the police. The gun belonged to an employee named Judy, who later married Panter. He never touched it either before or after the fateful encounter with Mr. Lins.

Panter was arrested for murdering Lins, but a grand jury refused to indict him.

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Approximately one year after the incident, Panter was charged with possession of a firearm in violation of § 1202(a)(1).

Throughout Panter's one day trial, the district court frustrated defense counsel's attempts to demonstrate that Panter's possession of the gun was in self-defense. 3 At the close of the evidence, the court charged the jury with the following instruction, which was requested by the government:

Title 18, Section 1202(a), Appendix makes it unlawful for a person who has previously been convicted of a felony to receive or possess a firearm. The statute is written in absolute terms, and the fact that possession is momentary or fleeting is immaterial. You should not consider the defendant's reasons for possession of the firearm as a defense to the offense charged in the indictment.

Inexplicably, the court subsequently charged the jury with this instruction requested by Panter:

If you find the defendant in this case, Lester Giles Panter, gained temporary control of a gun under the circumstances where he was reasonably reacting out of a reasonable fear for the life and safety of himself or others, and if you further find that the defendant did not continue to possess the gun after the emergency conditions had vanished, then you should vote to acquit the defendant.

These instructions are irreconcilable. They espouse diametrically opposing theories of the law. If the government's charge was erroneous, Panter's instruction did not cure it. Instructions must be consistent and not misleading. "(A) correct instruction does not cure the error in giving another inconsistent one." United States v. Durham, 512 F.2d 1281, 1286 (5th Cir.), cert. denied, 423 U.S. 871, 96 S.Ct. 137, 46 L.Ed.2d 102 (1975). This is clearly not a case where the alleged error was so insignificant that the instructions, read as a whole, were correct. See, e.g., Jordan v. Watkins, 681 F.2d 1067, 1076 (5th Cir. 1982). Thus, we must assume that the jury heeded the government's instruction and ignored Panter's reason for possessing the firearm. If so, the guilty verdict was a foregone conclusion. Panter admitted possessing the gun for the short time necessary to defend himself from Lins. In fact, his sole aim at trial was to convince the jury that he possessed the gun only then and only in self-defense. But if Panter's reason for possession was irrelevant, then self-defense is no defense, and the government's instruction in effect directed a guilty verdict.

In sum, Panter testified that he possessed the gun only to defend himself from an armed, convicted killer. The district court instructed the jury to ignore Panter's claim of self-defense. Thus, we are squarely faced with a question of first impression: Is self-defense a cognizable defense in a prosecution for firearms possession under 18 U.S.C.App. § 1202(a)(1)?

On three previous occasions, we have been urged to address the question whether the existence of exigent circumstances or an emergency is a defense to a firearms possession charge. United States v. Scales, 599 F.2d 78 (5th Cir. 1979); United States v. Hammons, 566 F.2d 1301 (5th Cir.), vacated and remanded on other grounds, 439 U.S. 810, 99 S.Ct. 68, 58 L.Ed.2d 102 (1978); United States v. Parker, 566 F.2d 1304 (5th Cir.), cert. denied, 435 U.S. 956, 98 S.Ct. 1589, 55 L.Ed.2d 808 (1978). In each case we found it unnecessary to decide the issue because the defendant kept the gun beyond the time of the emergency that allegedly

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