U.S. v. Baker

• Decision Date: 06 December 2007
• Docket Number: No. 07-3002.,07-3002.
• Citation: 508 F.3d 1321
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James E. BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

508 F.3d 1321

UNITED STATES of America, Plaintiff-Appellee, v. James E. BAKER, Defendant-Appellant.

No. 07-3002.

United States Court of Appeals, Tenth Circuit.

December 6, 2007.

John K. Henderson, Jr., Assistant Federal Public Defender, Office of the Federal Public Defender for the District of Kansas, Wichita, KS, appearing for Appellant.

Matt Treaster, Assistant United States Attorney (Eric F. Melgren, United States Attorney, with him on the brief), Office of the United States Attorney for the District of Kansas, Wichita, KS, appearing for Appellee.

Before TACHA, Chief Circuit Judge, HOLLOWAY, and MURPHY, Circuit Judges.

TACHA, Chief Circuit Judge.

Defendant-Appellant James Baker appeals his conviction for being a felon in possession of ammunition, as well as his sentence. We are called upon to decide whether the jury should have been instructed on Mr. Baker's proposed "innocent possession" defense to being a felon in possession of ammunition and whether 18 U.S.C. § 921(a)(20) of the Armed Career Criminal Act contemplates a "conviction-specific" approach to its application. We answer both questions in the negative.

I. BACKGROUND

At approximately 4:00 a.m. on November 1, 2005, James Baker was sitting in a car in a parking lot outside his stepdaughters' apartment complex. Officer Richard Bachman of the Wichita, Kansas Police Department was patrolling the area and thought that the vehicle, which was parked with its lights on, looked suspicious. He turned his patrol car's lights on the vehicle. As he did so, Mr. Baker got out of the car and approached the patrol car. Officer Bachman instructed Mr. Baker to stop moving and asked Mr. Baker for identification, which he provided. The dispatcher ran a routine records check on the vehicle, which revealed that the tag had been reported as lost or stolen. Based on this information, Officer Bachman detained Mr. Baker. The dispatcher then reported that a records check on Mr. Baker revealed the existence of two active city bench warrants for his arrest. Officer Bachman therefore arrested Mr. Baker. During a search incident to the arrest, Officer Bachman found a speed loader with six rounds of live ammunition in Mr. Baker's pocket. It was later discovered that the ammunition had been stolen earlier that night during a burglary of Doc's Steakhouse in Wichita.

Mr. Baker was charged in a two-count indictment with being a felon in possession of ammunition, in violation of 18 U.S.C. § 922(g)(1), and with possession of stolen ammunition, in violation of 18 U.S.C. § 922(j). He pleaded not guilty, and the case went to trial. During the trial, Mr. Baker testified that he saw the ammunition on the ground after leaving a Halloween party at an apartment complex. According to Mr. Baker, he picked up the ammunition so that he could turn it into the police; he did not want to leave it on the ground because he was worried that a child might find it. Before Mr. Baker drove to the police station, however, he and two other individuals drove to another apartment complex. He testified that he was sitting in the car in the complex's parking lot when he saw Officer Bachman in the patrol car. Mr. Baker figured he could hand the bullets over to Officer Bachman rather than go to the police station, so he got out of the car and approached Officer Bachman, who had exited the patrol car. Officer Bachman immediately started questioning Mr. Baker about the reason he was in the parking lot, and before Mr. Baker could give him the bullets, Officer Bachman placed him under arrest and discovered the bullets. Mr. Baker also testified that he only had the ammunition for about ten minutes before he was arrested.

At the close of the evidence, Mr. Baker requested an "innocent possession" jury instruction. Specifically, he sought the following instruction:

It is a defense to the charge of unlawful possession of ammunition that the defendant's possession of the ammunition constituted innocent possession. Possession of ammunition constitutes innocent possession where:

1. The ammunition was obtained innocently and held with no illicit purpose; and

2. Possession of the ammunition was transitory, i.e., in light of the circumstances presented there is a good basis to find that the defendant took adequate measures to rid himself of possession of the ammunition as promptly as reasonably possible.

If you find that the defendant possessed ammunition specified in Count 1 and Count 2 and that possession constituted innocent possession, you should find the defendant not guilty.

The District Court concluded that the instruction was not warranted on the evidence presented and denied the motion. Following the two-day trial, the jury convicted Mr. Baker of being a felon in possession of ammunition, but acquitted him of possession of stolen ammunition. Mr. Baker moved for judgment of acquittal or a new trial, again arguing that he was entitled to a jury instruction on "innocent possession." The District Court denied the motion.

The probation office prepared a presentence report ("PSR") recommending that Mr. Baker be sentenced as an armed career criminal under 18 U.S.C. § 924(e) and § 4B1.4 of the U.S. Sentencing Guidelines ("Guidelines") based upon the office's determination that Mr. Baker had three prior convictions for violent felonies. Mr. Baker argued that he should not be sentenced as an armed career criminal, objecting to the characterization of one of his prior convictions as a "violent felony." The District Court overruled Mr. Baker's objection and adopted the recommendations of the PSR. Based upon a total offense level of 33 and criminal history category VI, the Guidelines recommended a sentencing range of 235 to 293 months' imprisonment. The District Court concluded that a sentence within the advisory range was appropriate in this case and sentenced Mr. Baker to a term of 235 months. Mr. Baker now appeals both his conviction and his sentence, arguing that the District Court erred in refusing to give the jury an instruction on "innocent possession" and in sentencing him as an armed career criminal.¹ We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

II. DISCUSSION

A. Innocent Possession

We review jury instructions de novo, asking whether, as a whole, the instructions accurately informed the jury of the issues and the governing law. United States v. LaVallee, 439 F.3d 670, 684 (10th Cir.2006). Importantly, a criminal defendant is entitled to a jury instruction on his theory of defense if that instruction is supported by the law and has some foundation in the evidence. United States v. Al-Rekabi, 454 F.3d 1113, 1121 (10th Cir. 2006). For the reasons that follow, we conclude that Mr. Baker's requested jury instruction is not supported by the law.

To obtain a conviction under § 922(g)(1), the government must prove beyond a reasonable doubt that (1) the defendant was previously convicted of a felony; (2) the defendant thereafter knowingly possessed ammunition; and (3) the possession was in or affecting interstate commerce. United States v. Ledford, 443 F.3d 702, 713 (10th Cir.2005). The government need not establish that the defendant possessed the contraband for any illicit purpose; the defendant's motive for possessing ammunition is irrelevant to the crime. See United States v. DeSoto, 950 F.2d 626, 632 (10th Cir.1991) (explaining that motive for possessing a firearm is irrelevant to offense of being a felon in possession of a firearm); see also United States v. Gilbert, 430 F.3d 215, 218 (4th Cir.2005) ("The statute [§ 922(g)] in no way invites investigation into why the defendant possessed a firearm or how long that possession lasted."); United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000) ("Section[] 922(g) . . . do[es] not focus on the motive or purpose of the current possession of firearms."). In fact, we have previously characterized federal firearms laws as imposing "something approaching absolute liability." United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir.1999) (quotation omitted).

Mr. Baker argues, however, that his motive in possessing the ammunition is (or should be) relevant to the crime charged. Specifically, he contends that if a defendant obtains ammunition innocently, with no illicit purpose, and takes adequate measures to rid himself of it as promptly as reasonably possible, he cannot be convicted under § 922(g). As support for this contention, Mr. Baker cites United States v. Mason, 233 F.3d 619 (D.C.Cir.2000), in which the D.C. Circuit recognized the "innocent possession" defense and applied it to facts similar to those in the present case.

In Mason, the defendant (a felon) testified that he found a gun in a bag while working as a delivery driver. Id. at 621. He claimed he picked up the bag and gun because he was near a school and there were children around. Id. He then drove to the Library of Congress, his next delivery stop, where he intended to turn the gun over to a police officer he knew. Id. As the defendant was entering the building, however, another officer saw the gun and arrested the defendant. Id. The court of appeals held that the district court should have instructed the jury on the innocent possession defense. Id. at 625. Specifically, the court held that the defense is available when the record reveals that:

(1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory—i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.

Id. at 624. It reasoned that absent such a defense, "a felon-in-possession always will be guilty once he knowingly possesses a weapon, without regard to how or why he came into possession or for how long possession was retained." Id. at 623.

In our view, however, that is precisely what Congress envisioned by...