United States v. Baird

• Decision Date: 05 April 2013
• Docket Number: No. 12–1565.,12–1565.
• Parties: UNITED STATES of America, Appellee, v. Jeffrey BAIRD, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

712 F.3d 623

UNITED STATES of America, Appellee,

v.Jeffrey BAIRD, Defendant, Appellant.

No. 12–1565.

United States Court of Appeals,First Circuit.

April 5, 2013.

Michael B. Whipple, by appointment of the court, with whom Hallett Whipple, P.A. was on brief for appellant.

Renée M. Bunker, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief for appellee.

Before HOWARD, STAHL and THOMPSON, Circuit Judges.

STAHL, Circuit Judge.

On September 3, 2008, Jeffrey Baird purchased a stolen handgun from Michael Hatch. Two days later, Baird returned the gun to Hatch in exchange for the money he had paid. Based on the brief time he possessed the weapon, Baird was indicted and convicted of one count of possession of a stolen firearm under 18 U.S.C. § 922(j) (2006). He was sentenced to a $100 special assessment, a jail term of one month, and a two year term of supervised release that he is still serving. Baird appeals his conviction, arguing that the district court erred when it refused to give the jury an instruction he requested, which would have allowed him to make out a defense of “innocent possession” of the stolen weapon. Because we believe that Baird was entitled to an innocent possession instruction, we vacate his conviction and remand the case for a new trial.

I. Facts & Background

This story begins on August 27, 2008, when Hatch and another man burglarized the Pine Tree Trading pawnshop in Lewiston, Maine, and stole 14 firearms from the store. Hatch was Baird's next-door neighbor and lifelong friend. Baird did not own a gun, but he learned from Hatch, a weapons collector, how to shoot and handle one safely. At the time, Hatch had no criminal record, and Baird had no idea that Hatch was involved in a burglary.

On September 3, Baird went to Hatch's house to visit. Here, the various accounts of the story begin to diverge. According to Baird, the two started talking about guns. Hatch went up to his bedroom, where he kept a weapons collection on display that included a hunting rifle, a shotgun, and a handgun, as well as knives, swords, tomahawks, and the like. Baird followed behind him. When Baird entered the room, he saw that Hatch had laid out several guns on top of his bed. Baird also noticed a black canvas bag lying on the floor next to the bed. Hatch offered to sell Baird one of the weapons, and Baird, without an inkling that the guns had been stolen, agreed to pay $200 for a .45 caliber Smith & Wesson pistol—$100 immediately and $100 the next week. Baird took the weapon and headed home.

Hatch tells a different story. In Hatch's version, Baird entered the bedroom with him. Baird watched as Hatch reached behind a drawer in the wall of the room where he had hidden a black canvas bag containing the guns that he had stolen from the pawnshop. Baird also watched as Hatch removed several of the guns from the bag and placed them on top of his bed. Hatch then told Baird that the guns were “hot,” which is a slang term for “stolen.” Baird examined the weapons, and Hatch offered to sell him a .45 caliber Smith & Wesson pistol. They bargained over the price, and eventually agreed on $200, with half to be paid immediately and the rest later. At trial, Hatch added that he had never before attempted to sell Baird a gun, and that Baird should have known that Hatch could not have afforded to buy the guns that he showed him.

The stories continue to differ about what happened the day after the sale, on September 4. According to Baird, he purchasedbullets for the gun at a Wal–Mart and then went shooting with it in the afternoon. Afterward, he went to his friend Jason Trahan's house to show off his new acquisition. But Baird's pride turned to distress when Trahan warned him that it was unwise to buy a firearm in a private sale without getting more information about its provenance. Baird returned home worried about what he should do with the pistol, but he still did not suspect that it had been stolen. At trial, Trahan corroborated this story, although he admitted on cross-examination that he could not be sure about whether the conversation took place on September 3 or September 4.

In Hatch's version, he met with Baird a second time a “few days” after he sold him the pistol. Hatch specifically stated that this meeting with Baird did not occur the day after the sale, which would have been September 4. However, Hatch's story only makes sense in relation to the other events in the case if the encounter did take place on September 4.¹ In any event, Hatch claims that he met with Baird, and that Baird told him that he had purchased ammunition for the pistol at a Wal–Mart earlier in the day and then taken it shooting. Hatch related that he became upset with Baird, and reminded him that the gun was stolen and that it should not be used in public. He asked Baird to give him back the gun in exchange for the money he had paid, and Baird agreed to return the weapon, though he did not do so at that time. At trial, Bureau of Alcohol, Tobacco, Firearms, and Explosives Agent Christopher Durkin, who interviewed Baird about the burglary on October 29, 2008, claimed that Baird had confirmed to him that this encounter with Hatch took place, although Durkin did not tape or take any notes recording the interview. In his trial testimony, Baird denied that this meeting with Hatch ever occurred, and explained that he only told Durkin that it had because he had confused it with his conversation with Trahan on that same day.

The events of the last relevant date in the case, September 5, are no clearer. Baird claims that he went to Hatch's house in the afternoon. He told Hatch that he had purchased ammunition for the pistol and taken it shooting. Hatch grew angry with him, and informed him for the first time that the gun was stolen. Baird, who had the gun with him, immediately returned the weapon to Hatch in exchange for his money. According to Hatch's account, Baird simply came to his house with the pistol and gave it to him in return for the money he had paid.

Now the storylines merge. Later on the same day that Baird returned the gun to Hatch, Baird was interviewed by an officer from the Lewiston Police Department investigating the Pine Tree Trading burglary. Baird admitted to having briefly possessed a stolen gun, but said that he had sold it back to the person from whom he had purchased it. He fabricated several different stories of how he had obtained the gun, and when the police expressed skepticism, he declared that he would not say where he had bought the weapon because he did not want to get his friend in trouble. Ultimately, however, he admitted that he bought the gun from Hatch. The police searched Baird's home but did not find any firearms inside. Next, the police interviewed Hatch about the burglary. Hatch immediately showed the police the stolen guns that he had squirreled away in his bedroom wall, including the .45 Smith & Wesson pistol that he had briefly sold to Baird. Hatch initially lied to the police about how he had obtained the guns, but eventually he confessed to the burglary.

On July 13, 2011, Baird was indicted on one count of possession of a stolen firearm under 18 U.S.C. § 922(j), based on the short time that he spent in possession of the pistol. At the close of testimony, Baird requested that the court include the following instruction in its charge to the jury, which would allow him to raise an “innocent possession” defense:

Briefness of contact alone does not preclude a finding of possession. But if you find that Jeffery Baird did not know or have reason to know that the firearm was stolen when he first possessed it and that as soon as he learned or had reason to know that it was stolen he took adequate steps to [get] rid of [it] as promptly as reasonably possible, then you may find that he did not knowingly possess a firearm.

However, the district court declined to give this instruction. The court analogized the situation to felon-in-possession cases, in which our circuit has rejected such a defense, see United States v. Teemer, 394 F.3d 59 (1st Cir.2005), and to possession-of-stolen-property cases, in which courts have discussed the obligation that innocent acquirers have to return stolen property to its rightful owners, see Godwin v. United States, 687 F.2d 585 (2d Cir.1982); Commonwealth v. Kelly, 300 Pa.Super. 451, 446 A.2d 941 (1982); Williams v. Superior Court, 81 Cal.App.3d 330, 146 Cal.Rptr. 311 (1978). The district court also noted that the one circuit court decision to address the availability of such a defense in a possession-of-a-stolen-firearm case seemed to reject it. See United States v. Al–Rekabi, 454 F.3d 1113 (10th Cir.2006). Finally, the court emphasized that Baird had admitted to having learned that the gun was stolen the night before he returned the weapon, ² and that the government had promised not to argue that Baird was guilty the moment he learned the gun was stolen. However, the court did borrow the first sentence from Baird's suggested instruction, telling the jury that “Briefness of contact alone does not preclude a finding of possession.” Baird objected to the inclusion of this single phrase standing alone, but the court was unmoved.

In its final instructions to the jury, the court explained that the government had to prove three elements beyond a reasonable doubt: (1) that Baird “knowingly possessed the firearm described in the indictment”; (2) that “at the time ... Baird possessed the firearm, the firearm was stolen and ... Baird knew or had reasonable cause to believe that the firearm was stolen”; and (3) that the firearm had been transported in interstate commerce.³ The court defined “knowingly” as “done voluntarily and intentionally, not because of mistakeor accident,” and defined “possess” as the “exercise [of] authority, dominion, or control over something.” The court also gave the “briefness of contact” instruction described...