U.S. v. Johnson

• Decision Date: 29 August 2006
• Docket Number: No. 05-10708.,05-10708.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William JOHNSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 990

459 F.3d 990

UNITED STATES of America, Plaintiff-Appellee, v. William JOHNSON, Defendant-Appellant.

No. 05-10708.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 14, 2006.

Filed August 29, 2006.

Cynthia S. Hahn, Assistant Federal Public Defender, Reno, NV, argued the cause for the appellant. Franny A. Forsman, Federal Public Defender, and Jason F. Carr, Assistant Federal Public Defender, Las Vegas, Nevada, were on the brief.

William R. Reed, Assistant United States Attorney, Las Vegas, NV, argued the cause for the appellee and was on the brief. Daniel G. Bogden, United States Attorney, and Robert L. Ellman, Chief, Appellate Division, were also on the brief.

Appeal from the United States District Court for the District of Nevada; Robert C. Jones, District Judge, Presiding. D.C. No. CR-03-00369-RCJ.

Before PROCTER HUG, JR., and DIARMUID F. O'SCANNLAIN, Circuit Judges, and JEFFREY T. MILLER,^* District Judge.

O'SCANNLAIN, Circuit Judge.

We are asked to decide whether there exists an "innocent possession" defense that would excuse a defendant for being a felon in possession of a firearm if he had obtained it innocently and his possession was transitory.

I

A

On August 5, 2003, Shawn Romprey, an officer with the Las Vegas Metropolitan Police Department, was dispatched to investigate an alleged assault and robbery. The victim reported to the officer that the assailant was the appellant, William Johnson, and that the incident had taken place at Johnson's apartment.

Officer Romprey then went to Johnson's apartment, where one Jenny Woodard, Johnson's cohabiting girlfriend, granted him permission to enter the apartment. In the bedroom, Officer Romprey discovered a silver firearm lying in plain view. Next to the weapon was a wallet in which the officer could plainly see Johnson's Social Security card. Woodard informed the officer that the gun belonged to Johnson.

Officer Romprey next went to his patrol unit to investigate Johnson's criminal background. Finding that Johnson had been previously convicted of a felony,¹ the officer prepared a "consent to search" form and obtained Woodard's signature after providing her with sufficient time to read the document. He then searched the apartment and seized the firearm and some ammunition.

After leaving the apartment, Officer Romprey received word that Johnson had turned up at City Hall's "plaza desk," a station at which citizens are able to file police reports. There Johnson had voluntarily given the following statement:

I was on my way home from the Western Hotell [sic] & casino. I walked down the alley I looked into a trash been [sic] on the left side of the alley I saw a gun with no clipp [sic] and no Bullet was in the chamber I then put the 45 platnum [sic] a.c.p. in my Pocket their [sic] was a VONS trash bag I looked in and their [sic] I found a clip with 4 Rounds I unloaded the clip took the gun to my house then got on the buss [sic] came to the Police Dept after asking Neighbors I was playing with the gun I don't remember if it was put back together

Johnson had admitted to the police at City Hall that he was an "ex-felon." Johnson was thereupon arrested and held at the Clark County Detention Center.

B

On August 20, 2003, a federal grand jury indicted Johnson on a single count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The indictment alleged that Johnson "did knowingly possess an AMT, model Backup, .45 caliber pistol, serial number DL20610."

Johnson entered a plea of not guilty and the case proceeded to trial by jury.² The government's case consisted primarily of Officer Romprey's testimony. The prosecutor also played recordings of phone calls which Johnson had placed to Woodard from the Clark County Detention Center on August 5, 2003. Among other things, the recordings indicated that before Johnson voluntarily entered the City Hall police station he may have received word from Woodard via a third party that the police had searched the apartment and seized the firearm. Johnson testified in his own defense, stating that he had found the gun near a school and that his only intention in possessing the weapon was to turn it over to the police.

At the close of evidence, Johnson submitted to the district court a proposed jury instruction which provided as follows:

Innocent Possession legally excuses the crime of Felon in Possession of a Firearm.

The defendant must prove Innocent Possession by a preponderance of the evidence. A preponderance of the evidence means that you must be persuaded that the things the defendant seeks to prove are more probably true than not true.

The legal excuse of Innocent Possession applies only if at the time of the offense charged the defendant can establish the following:

1. That the firearm was attained innocently and held with no illicit purpose.

2. Possession of the firearm was transitory.

Transitory means that in light of the circumstances the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible.

The court heard argument from counsel and declined to give the proposed instruction. However, the court allowed counsel to argue simply that Johnson lacked the requisite "intent" to possess the weapon because he intended to hand it over to the police.

After deliberating for about 90 minutes, the jury returned a guilty verdict. Later, the district court sentenced Johnson to 77 months in prison to be followed by a three-year term of supervised release.

Johnson filed a timely notice of appeal.

II

Johnson argues that the district court erred in refusing to instruct the jury according to his proposed "innocent possession" defense. A criminal defendant is entitled to a proposed jury instruction only "if it is supported by law and has some foundation in evidence." United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir.1984) (internal quotation marks omitted).

A

We consider first the facts of this case to determine whether the proposed instruction had any foundation in the evidence presented at trial.³

Johnson argues that the evidence in this case warranted the instruction. He relies primarily on his own testimony, and he submits that he "made a reasonably prompt effort to provide the weapon to law enforcement."

The government disagrees. Even if this court were to adopt the "innocent possession" defense, it says, Johnson would not have been entitled to the instruction because the evidence clearly shows that he did not take adequate measures to rid himself of the firearm as promptly as reasonably possible. The government suggests that Johnson took the gun home, played with it, and contacted the police only after an altercation took place in his apartment.

A criminal defendant has a constitutional right to have the jury instructed according to his theory of the case if it has "some foundation in evidence," and he need only show that "there is evidence upon which the jury could rationally find for the defendant." United States v. Morton, 999 F.2d 435, 437 (9th Cir.1993) (citing Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)).

We have cautioned that a "mere scintilla" of evidence supporting the defendant's theory is not sufficient to warrant a defense instruction. See United States v. Jackson, 726 F.2d 1466, 1468 (9th Cir. 1984) (per curiam). However, we have also repeatedly stated that the defendant is entitled to his proposed instruction even if his evidence is "weak, insufficient, inconsistent, or of doubtful credibility." United States v. Sotelo-Murillo, 887 F.2d 176, 178 (9th Cir.1989) (internal quotation marks omitted); accord United States v. Sanchez-Lima, 161 F.3d 545, 549 (9th Cir. 1998). In assessing the evidence, we will leave credibility determinations to the jury, Sotelo-Murillo, 887 F.2d at 182, and we will bear in mind that Johnson's burden under the proposed affirmative defense was merely a preponderance-of-the-evidence standard, cf. United States v. Bello-Bahena, 411 F.3d 1083, 1091 (9th Cir. 2005).

We therefore consider the account Johnson provided at trial. He explained that sometime in the "late afternoon" of August 5, 2003, as he was walking home from a nearby casino, he found the firearm and a grocery bag containing ammunition in a garbage bin. This garbage bin was located in an alley near the Las Vegas Academy, a high school. The alley was also "about fifty yards" from Johnson's apartment. He put the weapon in his pocket and picked up the ammunition. According to Johnson, he "wasn't really thinking," but he "thought that was the best thing to do ... `cause it was right by a school.'"

Johnson further explained that he immediately consulted one of his neighbors, an individual he could identify only as "Shahed," who advised Johnson to take the firearm to the police station. Johnson did not know the location of the police station, and so the neighbor provided him with directions by bus.

Johnson testified that he next went home, "made sure [the gun] wasn't loaded," and placed it on the bed. Although on his way to the police station to report finding the firearm, he left the firearm at home because he "didn't think it was safe to get on the bus with it." Before he left, however, the alleged assault and robbery occurred. Johnson explained that the altercation detained him for approximately 15 minutes, and that he left for the police station immediately thereafter.⁴

According to his account, Johnson, traveling by foot, stopped on the way at a Western Union office in order to wire money to a friend in California. This stop took only a "short period," and then Johnson caught the bus that took him to the Las Vegas City Hall police desk. He arrived at the police station at approximately 7:45 p.m.,⁵ where he filed his voluntary statement.

As noted, the jury instruction Johnson proposed would have required him to show that he obtained the...