U.S. v. Gilbert

• Decision Date: 28 November 2005
• Docket Number: No. 04-5004.,04-5004.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alphonso Buster GILBERT, Sr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 215

430 F.3d 215

UNITED STATES of America, Plaintiff-Appellee, v. Alphonso Buster GILBERT, Sr., Defendant-Appellant.

No. 04-5004.

United States Court of Appeals, Fourth Circuit.

Argued October 26, 2005.

Decided November 28, 2005.

ARGUED: Paul Anthony Dull, Brumberg, Mackey & Wall, P.L.C., Roanoke, Virginia, for Appellant. Ronald Andrew Bassford, Assistant United States Attorney, Office of the United States Attorney, Roanoke, Virginia, for Appellee. ON BRIEF: John L. Brownlee, United States Attorney, Jill Lowell, Third Year Practice Law Student, Office of the United States Attorney, Roanoke, Virginia, for Appellee.

Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge WILLIAMS and Judge TRAXLER joined.

WILKINSON, Circuit Judge.

The defendant in this case seeks to overturn his conviction as a felon in possession of a firearm by invoking an affirmative defense of "innocent possession." He claims that 18 U.S.C. § 922(g)(1) (2000) does not apply when a defendant can show that his possession was both transitory and without illicit motive. We find such a defense to be wholly absent from the statutory text and decline to subvert the congressional scheme by imposing a judicially crafted exception. We moreover conclude that even if the defense did exist, it would not apply to the facts of this case. We therefore affirm the conviction.

I.

Some time after 8:00 a.m. on June 12, 2003, a concerned motorist called the police department in Roanoke, Virginia, to report a suspicious person on a public street carrying what appeared to be firearms. Two policemen in patrol cars, Officers William Fike and Scott Terwilliger, responded to the ensuing dispatch call. Approaching the scene, each independently observed the defendant, Alphonso Gilbert, walking across the Tenth Street bridge toting a backpack and a bundle of objects wrapped in a brown blanket. The wooden stock of a weapon could be seen protruding out of the end of the blanket.

Officer Fike exited his vehicle, approached Gilbert from behind, and ordered him to stop. After Officer Terwilliger arrived, Officer Fike inventoried the contents of the bundle and the backpack. The bundle contained two shotguns, a .22-gauge rifle, and an air rifle. The backpack contained ammunition, eight knives, and a set of brass knuckles. Gilbert admitted to the officers that he was a convicted felon, and the officers placed him under arrest for possession of firearms.

At trial, Gilbert testified to the events surrounding his possession of the weapons. He claimed that he had happened upon the bundle and the backpack approximately ten to fifteen minutes prior to encountering the officers. He had been on his way to work when he spotted what appeared to be some aluminum and sheet metal in a nearby alley. Because his son collects scrap metal for sale to a junkyard, Gilbert decided to enter the alley and investigate. Under the metal debris, he found the blanket containing the firearms and the backpack containing the ammunition and additional weapons.

Gilbert testified that he decided to turn over the firearms to the police. He was aware that the police would pay a fifty-dollar reward for each gun, and he claimed to be concerned about leaving the weapons in a place that he knew to be frequented both by children and by people drinking alcohol. The police station was only five blocks away, but Gilbert decided that a nearby payphone, which lay in the opposite direction, was a better option. He gathered up all of the weapons from their hiding place and carried them out to the street. He discovered, however, that the telephone was broken.

Since carrying the weapons to the payphone had taken him further away from the police station, Gilbert decided that his best course at this point was to continue in the direction he was already traveling. He set out to carry the backpack and the firearms up Tenth Street and across a bridge to find an acquaintance who ran an engine shop. Gilbert was hoping that this acquaintance would give him and the guns a ride back to the police station. Gilbert had been walking along the street with the weapons for about ten to fifteen minutes and had traveled roughly four "short" blocks when he encountered the officers responding to the concerned motorist's call.

The officers' testimony differed from that of Gilbert. While Gilbert testified that he tried to flag down one of the officers as the officer passed in his marked police car, each officer testified that he did not see Gilbert make such an attempt. Gilbert also testified that he voluntarily relinquished the guns when Officer Fike came up to him, but Officer Fike testified that Gilbert put down the guns only when ordered to do so and then only "reluctantly."

The testimony is also in conflict concerning the explanation Gilbert offered at the time for his activities. According to Gilbert, he immediately told Officer Fike: "Look, I'm going to turn them into you anyway. I've got a felony on my record and I don't want to be involved in no guns like that." But Officer Fike testified that Gilbert's first reaction upon being stopped was instead to ask what he had done. Both officers stated that Gilbert never explained that he was taking the weapons to the police. Instead, he claimed that he was taking them across the bridge to turn them over to a friend who would be interested in them. Gilbert agreed with the officers' testimony that he could not recall the name of this friend at the time of the police encounter. Gilbert did describe to the officers the location where he claimed to have found the weapons, but when Officer Fike went to investigate, he was unable to locate the debris under which Gilbert claimed the bundle and backpack had been hidden.

The government indicted Gilbert for violation of 18 U.S.C. § 922(g)(1), which criminalizes a felon's possession of a firearm that has traveled in interstate commerce, and 18 U.S.C. § 924(e) (2000 & Supp. II), which imposes a mandatory minimum sentence when such a felon has a history of violent or drug offenses. Gilbert stipulated to the elements of the § 922(g) offense: that he was a convicted felon, that he knowingly possessed firearms, and that at least one of the firearms had traveled in interstate commerce. Nevertheless, he asserted in a pre-trial motion that he was entitled to an affirmative defense of "innocent possession," because he had no illicit motive in possessing the guns and had attempted to dispose of them quickly.

The district court held a bench trial solely on the issue of innocent possession. Following the trial, the district court found, based upon the evidence and stipulations, that Gilbert was a convicted felon who had "knowingly and willfully had in his possession a firearm" that had moved in interstate commerce. It then concluded:

I think, I have to find him guilty based on this evidence. Although, I think he's a sincere gentleman. I expect he, I think he probably found [the guns] but, I don't think that gets him an innocent verdict. . . . [H]e knowingly picked the firearms up and was carrying them. If he had picked them up and headed towards the police station . . . it might have been a different situation. But here, according to the officers, . . . he wanted to know why he was being stopped. And then he was reluctant in laying them down. I find that there is no defense to the charge and that he is guilty as charged in the one (1) count indictment.

The district court revisited the innocent possession issue at sentencing. It stated that "I don't think there's any intent on his part to do anything wrong with these weapons," and it noted that "I want the record to show that if the Fourth Circuit . . . adopted the innocent possession defense, then I would have found him not guilty." Gilbert appeals.

II.

The sole issue on appeal is whether we should reverse Gilbert's conviction as a felon-in-possession under 18 U.S.C. § 922(g)(1) on the ground that he qualifies for an "innocent possession" defense. Gilbert requests that we find an exception to § 922(g)(1) when a felon has no illicit motive and attempts to quickly rid himself of the weapon. We decline to adopt such an exception.

Section 922(g)(1) states that

It shall be unlawful for any person . . . who has been convicted in any court of[ ] a crime punishable by imprisonment for a term exceeding one year . . . to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

This text simply does not allow for the exception that Gilbert requests. We have previously explained that the elements required for conviction under § 922(g)(1) are:

(1) the defendant previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; (2) the defendant knowingly possessed, transported, shipped, or received, the firearm; and (3) the possession was in or affecting commerce, because the firearm had travelled in interstate or foreign commerce at some point during its existence.

United States v. Langley, 62 F.3d 602, 606 (4th Cir.1995) (en banc). So long as these three elements are met — and Gilbert has stipulated to them here — the government has conclusively established culpability. The statute in no way invites investigation into why the defendant possessed a firearm or how long that possession lasted.

Indeed, such an inquiry would undermine the statutory scheme governing felon-in-possession offenses, which expressly avoids inquiring into the motive of a felon caught possessing a firearm. We had the opportunity to examine that scheme at length in Langley. We found there that the mens rea applicable to the possession element of § 922(g)(1) was located in the default penalty provision for that statute, 18 U.S.C. § 924(a)(2). See ...