U.S. v. Funches

• Decision Date: 24 February 1998
• Docket Number: No. 96-5244,96-5244
• Citation: 135 F.3d 1405
• Parties: 48 Fed. R. Evid. Serv. 1163, 11 Fla. L. Weekly Fed. C 1095 UNITED STATES of America, Plaintiff-Appellee, v. Elton Lee FUNCHES, Defendant-Appellant. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1405

135 F.3d 1405

48 Fed. R. Evid. Serv. 1163, 11 Fla. L. Weekly

Fed. C 1095

UNITED STATES of America, Plaintiff-Appellee, v. Elton Lee FUNCHES, Defendant-Appellant.

No. 96-5244

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

Feb. 24, 1998.

Kathleen M. Williams, Fed. Pub. Defender, Miami, FL, Brenda Bryn, Asst. Fed. Pub. Defender, Ft. Lauderdale, FL, for Defendant-Appellant.

William A. Keefer, Janice LeClainche, Asst. U.S. Atty., West Palm Beach, Fl, Dawn Bowen, Marc Eagelson, Nina Stillman Mandel, Assts. U.S. Attys., Miami, FL, for Plaintiff-Appellee.

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

Before EDMONDSON, COX and DUBINA, Circuit Judges.

EDMONDSON, Circuit Judge:

Defendant-Appellant Elton Lee Funches appeals his conviction for possession of a firearm by a convicted felon: 18 U.S.C. § 922(g)(1). No reversible error has been shown; we affirm.

To establish a violation of Title 18, United States Code Section 922(g)(1), the government must prove three elements: (i) that the defendant has been convicted of a crime punishable by imprisonment for a term exceeding one year, (ii) that the defendant knowingly possessed a firearm or ammunition, and (iii) such firearm or ammunition was in or affected interstate commerce. See United States v. Billue, 994 F.2d 1562, 1565 n. 2 (11th Cir.1993). In this case, no element of the offense is disputed. Instead, Funches argues that the district court erred, as a matter of law, in holding that Funches's proffered defense--entrapment-by-estoppel--was unavailable.

Funches claims that, when he entered the Florida Department of Corrections ("DOC") to serve his sentence, he was informed that losing his civil rights included the loss of the right to own or to possess a firearm. Upon release, Funches claims to have inquired specifically about the restoration of his civil rights and was informed by some employee of the DOC that his civil rights were restored automatically upon release. Funches contends that, based on this advice of some unknown DOC employee, he believed he could own firearms and ammunition and that this belief constitutes a defense to the federal crime charged.

On the morning the trial began, Funches filed a proposed jury instruction to the effect that, if the jury found that an official of the State of Florida informed Funches that his civil rights had been restored and also found that Funches believed and relied on that advice in possessing firearms or ammunition, then the jury should vote to acquit. The district court initially expressed skepticism about the availability of the entrapment-by-estoppel defense and later that day, midway through the government's case, denied the instruction. At the conclusion of the government's case, Funches, based on the court's ruling, declined to present an affirmative defense or witnesses.

Entrapment-by-estoppel is no defense in this case. Entrapment-by-estoppel is an affirmative defense that provides a narrow exception to the general rule that ignorance of the law is no defense. To assert this defense successfully, a defendant must actually rely on a point of law misrepresented by an official of the state; and such reliance must be objectively reasonable--given the identity of the official, the point of law represented, and the substance of the misrepresentation.

We have recognized that this defense may apply to a section 922 offense--even though it is a strict-liability offense which ordinarily renders the defendant's state of mind irrelevant. See United States v. Thompson, 25 F.3d 1558, 1563-64 (11th Cir.1994). But the defense is not applicable where the state incorrectly advises the person and, then, the federal government prosecutes the person. See United States v. Bruscantini, 761 F.2d 640, 642 (11th Cir.1985) (entrapment-by-estoppel defense unavailable in 18 U.S.C. § 922 prosecution where state judicial and prosecutorial officials advised defendant that plea of nolo contendre did not constitute felony conviction). The defense of entrapment-by-estoppel, when asserted as a defense to a federal crime, requires reliance on a misstatement by an official or agent of the federal government. See United States v. Rector, 111 F.3d 503, 505-07 (7th Cir.1997) (advice from town marshal that federal law allowed defendant to possess firearms for hunting insufficient basis for entrapment-by-estoppel instruction); United States v. Spires, 79 F.3d 464, 466-67 (5th Cir.1996) (to satisfy requirements of entrapment-by-estoppel defense to federal crime, defendant must show reliance on an official or authorized agent of federal government); United States v. Etheridge, 932 F.2d 318, 320-21 (4th Cir.1991) (embraced reasoning of Bruscantini to reject application of entrapment-by-estoppel defense to section 922 offense raised by defendant who claimed to rely on affirmative advice of state trial judge that he could possess firearms for hunting).

United States v. Thompson, 25 F.3d 1558 (11th Cir.1994), relied on by Funches, is not to the contrary. In Thompson, we reversed the district court because it erroneously concluded that the entrapment-by-estoppel defense could not be viable in a section 922 prosecution and excluded evidence in support of the defense: acts and statements allegedly made by FBI agents, an assistant United States attorney, ATF officers and other local and federal law-enforcement officials. In contrast, no federal official or agent is alleged to have misled Funches.

But, Funches argues that, even if it was not error to deny the entrapment-by-estoppel instruction, he nonetheless should have been permitted to present the defense to the jury. By introducing evidence that Funches was monitoring a police scanner when the police executed the search warrant of his dwelling, Funches argues the government injected an issue of felonious "intent" or "state of mind" into the case. As a matter of fairness, Funches contends, he should have been allowed to "complete the story" and to rebut the implication that he knew he was violating the law by possessing firearms. ^*

Because section 922 is a strict-liability offense, the government did not need to introduce the police-scanner evidence; no need existed to establish that Funches did know that his firearms possession was unlawful. Perhaps introduction of this evidence (which was objected to by the defense) was in error, although Funches declines specifically to argue harmful error in his briefs. Instead he argues that the government's introduction of the scanner evidence inserted the element of "knowledge of criminality" into the case and that the trial court abused its discretion in, thereafter, precluding him from placing this evidence in "context."

Funches, however, cites us to nothing in the record suggesting this "context" theory for admitting Funches's testimony was argued before or rejected by the trial court. Moreover, unlike the instant appeal, the cases relied on by Funches--finding reversible error based on excluded evidence that would "complete the story"--involved inferences that were highly significant to a material element of the case. See generally United States v. Word, 129 F.3d 1209 (11th Cir.1997) (abuse of discretion to exclude evidence of abusive relationship where government argued inference of defendant's knowledge from...