United States v. Gilbert ( 2005 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 04-5004
ALPHONSO BUSTER GILBERT, SR.,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
James C. Turk, Senior District Judge.
(CR-03-109)
Argued: October 26, 2005
Decided: November 28, 2005
Before WILKINSON, WILLIAMS, and TRAXLER, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the opinion,
in which Judge Williams and Judge Traxler joined.
COUNSEL
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.
2 UNITED STATES v. GILBERT
OPINION
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 suspi-
cious person on a public street carrying what appeared to be firearms.
Two policemen in patrol cars, Officers William Fike and Scott Ter-
williger, 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 fire-
arms.
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
UNITED STATES v. GILBERT 3
spotted what appeared to be some aluminum and sheet metal in a
nearby alley. Because his son collects scrap metal for sale to a junk-
yard, 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 weap-
ons 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. Gil-
bert 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 trav-
eled 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 volun-
tarily 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 immedi-
ately told Officer Fike: "Look, I’m going to turn them into you any-
way. 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
4 UNITED STATES v. GILBERT
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 inter-
ested 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 fire-
arms 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 offi-
cers, . . . 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.
UNITED STATES v. GILBERT 5
The district court revisited the innocent possession issue at sentenc-
ing. 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 pos-
session 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. Gil-
bert 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 con-
victed 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 trans-
ported 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
6 UNITED STATES v. GILBERT
to them here — the government has conclusively established culpabil-
ity. 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 stat-
ute, 18 U.S.C. § 924(a)(2). See Langley, 62 F.3d 604-06 & n.4. Since
§ 924(a)(2) provides for punishment only where a defendant "know-
ingly violates" § 922(g)(1), knowledge of possession is necessary for
conviction. 18 U.S.C. § 924(a)(2) (2000) (emphasis added); see Lang-
ley, 62 F.3d 604-06. In applying the mens rea of knowledge, Congress
specifically declined to require the showing of willfulness necessary
to punish violations of certain other subsections of § 922. Id. at 605;
see also 18 U.S.C. § 924(a)(1)(D) (2000) (imposing punishment for
"willful[ ]" violations of certain provisions of § 922); Bryan v. United
States, 524 U.S. 184, 188 (1998) (noting the different mens rea
requirements). Unlike a mens rea of willfulness, which generally
requires a "bad purpose," the mens rea of knowledge in most contexts
"merely requires proof of knowledge of the facts that constitute the
offense." Bryan, 524 U.S. at 191, 193 (internal quotation marks omit-
ted).
Gilbert’s proposed innocent possession defense would therefore
rewrite the statute. If we were to accept his view, purpose would sud-
denly become an issue in a great number of cases. A felon caught pos-
sessing a firearm could force the government to litigate motive simply
by asserting, as Gilbert does here, that he had just found the weapon
and was on his way to turn it in to the police. Had Congress intended
such a result, it would have required a willful violation of the statute,
rather than merely a knowing one. As we determined in Langley,
Congress deliberately decided to do otherwise. See 62 F.3d at 605.
Our recent decision in United States v. Scott, 424 F.3d 431 (4th Cir.
2005), is not to the contrary. In Scott, the defendant argued that he did
not violate § 922(g)(1) when "he knew a passenger in his car had
physical possession of a gun, [but] he (Scott) never had the subjective
UNITED STATES v. GILBERT 7
intent to exercise dominion and control over the gun." Id. at 433.
Here, by contrast, Gilbert freely admits possession was voluntary and
intentional. Id. at 435. He goes well beyond Scott in requesting an
affirmative defense based upon the allegedly innocent purpose behind
that possession. Scott’s requirement that a felon intend his possession
of a firearm does not read a much broader motive requirement into
the statute.
Gilbert maintains that we should nevertheless recognize his sug-
gested innocent possession defense because we have already recog-
nized the plausibility of a justification defense to a felon-in-
possession charge. See, e.g., United States v. Perrin, 45 F.3d 869,
873-75 (4th Cir. 1995). We have suggested that a felon may assert a
defense of justification in the narrow circumstance where, inter alia,
he was "‘under a present or imminent threat of death or injury’" and
possessing a firearm was the only reasonable alterative to avoid the
threatened harm. Id. at 874 (quoting United States v. Crittendon, 883
F.2d 326, 330 (4th Cir. 1989)).
Even were we to assume that the possibility of one defense sug-
gests the presence of an entirely different one, there are sound reasons
why justification is plausible but innocent possession is not. Accord
United States v. Teemer, 394 F.3d 59, 64 (1st Cir. 2005). First, as we
noted in Crittendon, justification is a common-law criminal defense,
and "‘Congress in enacting criminal statutes legislates against a back-
ground of Anglo-Saxon common law.’" 883 F.2d 329 (quoting United
States v. Bailey, 444 U.S. 394, 415 n.11 (1980)). Gilbert presents no
such pedigree for his proposed defense of innocent possession. Sec-
ond, because the courts of appeals have construed the justification
defense "very narrowly" and applied it "only on the rarest of occa-
sions," Perrin, 45 F.3d at 874, 875, the scenarios in which a defendant
could even colorably assert its applicability are extraordinarily
uncommon. By contrast, a claim of innocent possession may arise in
a wide swath of cases: a felon might plausibly assert it in any case
where the purpose and duration of his firearm possession are known
only to him. Thus, unlike justification, the innocent possession
defense could create an exception that swallows the rule.
Accordingly, we respectfully disagree with our one sister circuit
that has recognized an innocent possession defense to a § 922(g)(1)
8 UNITED STATES v. GILBERT
charge, see United States v. Mason, 233 F.3d 619, 623 (D.C. Cir.
2001), and join the two that have expressly rejected one, see Teemer,
394 F.3d at 64-65; United States v. Hendricks, 319 F.3d 993, 1007
(7th Cir. 2003); see also United States v. Adkins, 196 F.3d 1112, 1115
(10th Cir. 1999) (rejecting contention that knowledgeable and unjusti-
fied possession for "a mere second or two" falls outside § 922(g));
United States v. Reynolds, 215 F.3d 1210, 1214 (11th Cir. 2000)
(rejecting contention that possession of a firearm "for an innocent rea-
son" falls outside § 922(g)); United States v. Rutledge, 33 F.3d 671,
673 (6th Cir. 1994) (rejecting contention that possession of a firearm
"for innocent purposes" was "a legitimate defense" to § 922(g)).
Indeed, a felon-in-possession charge is the very last context in
which such a defense ought to be countenanced. In enacting
§ 922(g)(1), "Congress sought to keep guns out of the hands of those
who have demonstrated that they may not be trusted to possess a fire-
arm without becoming a threat to society." Small v. United States, 125
S. Ct. 1752, 1758 (2005) (internal quotation marks omitted). Extend-
ing defenses to § 922(g)(1) beyond the justification defense set forth
above would run athwart this basic congressional purpose. In the
interest of public safety, felons are simply not people whom society
trusts to possess firearms "innocently."
III.
Moreover, even if the statutory scheme allowed us to recognize an
innocent possession defense, the defense would be unavailable here.
Gilbert claims that this is an innocent possession case, and the district
court made some comments to similar effect. But even if we were to
take Gilbert’s version of events as true,* we cannot agree.
Gilbert’s possession of the guns was needlessly prolonged, and his
actions provide no objective evidence of his claimed innocent motive.
It was not necessary for Gilbert to extract the weapons from under-
neath the debris in the first place: they were well-hidden and were
*The testimony of the officers of course conflicts with Gilbert’s on
several important points. It is unclear whose testimony the district court
found more credible, and we will assume for purposes of argument that
Gilbert should be taken at his word.
UNITED STATES v. GILBERT 9
thus a pointless and dangerous encumbrance if his plan was simply
to find a phone and call the police. And even if Gilbert were for some
reason determined to turn the guns in himself, the reasonable way to
accomplish this objective would have been to head directly to the
police station, which was a mere five blocks away. But Gilbert
instead proceeded to travel an equivalent distance in precisely the
opposite direction, purportedly hoping to get a ride back to the station
from an acquaintance whose name he could not even recall. Thus, the
innocent possession defense would not apply even under the more
permissive standards of our sister circuit. See Mason, 233 F.3d at 624
(stating that to qualify for innocent possession, a defendant must be
attempting to relinquish a firearm to the police "with immediacy and
through a reasonable course of conduct").
IV.
The judgment of the district court is therefore
AFFIRMED.