Herrington v. U.S.

• Decision Date: 04 November 2010
• Docket Number: No. 07-CF-98.,07-CF-98.
• Citation: 64 A.L.R.6th 725,6 A.3d 1237
• Parties: Kevin A. HERRINGTON, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

6 A.3d 1237 64 A.L.R.6th 725 Kevin A. HERRINGTON, Appellant, v. UNITED STATES, Appellee. No. 07-CF-98. District of Columbia Court of Appeals. Argued Sept. 30, 2009. Decided Nov. 4, 2010.

Christine A. Monta, Public Defender Service, with whom James Klein, Alice Wang and Joshua Deahl, Public Defender Service, were on the brief, for appellant.

Stephan E. Oestreicher, Jr., Special Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time, and Roy W. McLeese III, Assistant United States Attorney, were on the brief, for appellee.

Before GLICKMAN and FISHER, Associate Judges, and WAGNER, Senior Judge.

GLICKMAN, Associate Judge:

Appellant Kevin Herrington was convicted in 2006 of unlawful possession of ammunition (UA), in violation of D.C.Code § 7-2506.01 (2001) (now § 7-2506.01(a) (Supp.2010)). His conviction was based solely on evidence that he possessed handgun ammunition in his home. Subsequently, in District of Columbia v. Heller,¹ the Supreme Court held that the District's general ban on possession of usable handguns in the home violated the Second Amendment. As a corollary of that holding, appellantargues, his conviction under the UA statute for simply possessing handgun ammunition in the home also violates the Second Amendment. We agree, and because the error in applying the UA statute to appellant is plain on the existing record, we reverse his conviction.

I.

Appellant was standing on the sidewalk outside his home on the afternoon of November 1, 2005, when two police officers, mistaking him for someone under a court order to stay away from the neighborhood, drove up and asked to speak to him. Appellant ignored the request and went into his house. A short time later, the officers saw appellant leave his house on a bicycle. They pursued him in their police cruiser. After turning a corner, appellant got off his bike and ran back to his house. As he ran, according to the officers, appellant withdrew a black handgun and pointed it at them. At one point appellant stumbled and dropped something, which the officers initially thought was the gun, but which turned out to be a black baseball cap.

Appellant entered his house, which soon was surrounded by police. After a while, appellant emerged, surrendered, and was placed under arrest. Appellant's mother then permitted the police to search the house. In a heating vent in appellant's bedroom, the police discovered two boxes of ammunition-one containing .380-caliber rounds and the other containing 9-mm. rounds. Appellant's fingerprints were on the .380-caliber ammunition box.²

The ensuing indictment charged appellant with two counts of assault on a police officer while armed (APOWA), two counts of assault with a dangerous weapon (ADW), one count of possession of a firearm during a crime of violence (PFCV), and one count of unlawful possession of ammunition (UA). The government dismissed the ADW counts before trial.

At the close of the government's case, appellant moved for a judgment of acquittal on the UA count, arguing that the evidence was insufficient to convict him of violating D.C.Code § 7-2506.01 because the prosecution had failed to prove that he lacked a valid registration certificate for a firearm of the same gauge or caliber as the ammunition recovered from his bedroom. The trial court denied the motion, agreeing with the prosecutor that all the government needs to prove to obtain a UA conviction are "that the defendant possessed ammunition, and that he did so knowingly and intentionally." The court so instructed the jury at the close of the trial.

The jury acquitted appellant of the APOWA and PFCV charges. It found him guilty only of UA.

II.

What is now subsection (a) of D.C.Code § 7-2506.01 provides as follows:

No person shall possess ammunition in the District of Columbia unless:

(1) He is a licensed dealer pursuant to subchapter IV of this unit;

(2) He is an officer, agent, or employee of the District of Columbia or the United States of America, on duty and acting within the scope of his duties when possessing such ammunition;

(3) He is the holder of the valid registration certificate for a firearm of the same gauge or caliber as the ammunition he possesses; except, that no such person shall possess restricted pistol bullets; or(4) He holds an ammunition collector's certificate on September 24, 1976.

In Logan v. United States,³ we rejected the argument that the government bears the burden of proving the absence of an appropriate firearm registration certificate (or the absence of any of the other enumerated exceptions) as "an essential element of the offense" of UA.⁴ The structure of the statute, we explained, "makes clear that possession of ammunition is presumptively unlawful," and that "the failure to meet one of the conditions defining a lawful possessor is not a descriptive part of the offense." ⁵ Thus, we held, "the government is required to prove only that [the accused] possessed ammunition ... in order to establish the essential element of the offense." ⁶ The four statutory exceptions, including the registrant exception in paragraph (3), define affirmative defenses; "and when 'a defendant interposes an affirmative defense such as an exception in a statute, it is the burden of the defendant to bring himself within the exception rather than that of the prosecutor to negative it.' " ⁷ In short, we held in Logan that the burden of persuasion with respect to any of the four exceptions is on the defendant, not on the prosecution.⁸

The trial court properly adhered to Logan in denying appellant's motion for judgment of acquittal. Consequently, the government was able to convict appellant of UA merely by proving that he possessed handgun ammunition in his own home,⁹ without any evidence that he lacked a valid registration certificate for a corresponding firearm.

Appellant argues that his conviction must be reversed because "the right of the people to keep and bear Arms" recognized in the Second Amendment ¹⁰ encompasses the possession of handgun ammunition in the home, and the UA statute unconstitutionally criminalizes all such possession without requiring proof that the accused was disqualified from exercising his Second Amendment rights by his failure to comply with valid registration and licensingrequirements or by any other reason. In other words, appellant contends, the UA statute is unconstitutional-if not in all its applications, then at least as applied to him in this prosecution.

Because appellant did not raise this Second Amendment claim at trial, it is "subject to the strictures of 'plain error' review." ¹¹ To survive such scrutiny, appellant must show (1) an "error" (2) that is "plain," and (3) that affected his "substantial rights." ¹² "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." ¹³ We consider these requirements in turn.

A. The "Error"-Unconstitutionality of the UA Statute as Applied to Appellant

In Heller, the Supreme Court held that the Second Amendment protects an individual right to keep and bear arms for purposes of self-defense. The Court subsequently held this right to be "fundamental"-necessary to our system of ordered liberty and deeply rooted in the history and traditions of our Nation-and hence incorporated in the concept of due process (and enforceable against state as well as federal limitations on the possession and use of "arms").¹⁴ The right to keep and bear arms is presumptively enjoyed by all American citizens ("the people" ¹⁵), though some individuals may be disqualified from exercising it because they cannot satisfy, or have not complied with, valid regulatory conditions.¹⁶ In view of the fundamental nature of the right, however, any restrictions on its exercise are subject to heightened judicial scrutiny.¹⁷

The Second Amendment right is "not a right to keep and carry any weaponwhatsoever in any manner whatsoever and for whatever purpose." ¹⁸ But it does encompass a right to keep ordinary handguns in the home for use in self-defense. Heller specifically held that "the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense." ¹⁹ The latter prohibition, derived from a District statute requiring lawfully-possessed firearms to be kept "unloaded and disassembled or bound by a trigger lock or similar device," ²⁰ was unconstitutional because it made it "impossible for citizens to use [their handguns] for the core lawful purpose of self-defense." ²¹

In neither Heller nor McDonald did the Supreme Court directly address restrictions on the possession of ammunition per se. (The District's requirement that lawfully-maintained firearms be kept unloaded was not challenged in Heller.) Nonetheless, from the Court's reasoning, it logically follows that the right to keep and bear arms extends to the possession of handgun ammunition in the home; for if such possession could be banned (and not simply regulated), that would make it "impossible for citizens to use [their handguns] for the core lawful purpose of self-defense." ²² By the same token, given the obvious connection between handgun ammunition and the right protected by the Second Amendment, we are hard-pressed to see how a flat ban on the possession of such ammunition in the home could survive heightened scrutiny of any kind. We therefore conclude that the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there. The government has not taken issue with that conclusion.

As we discussed, the UA statute makes it a crime to possess ammunition of any kind anywhere, regardless of its use or purpose; and the prosecution may obtain a conviction...