Petition for Writ of Certiorari — Michael Terrill Faircloth, Petitioner v. United States

No. 19IN THE

Supreme Court of the United States

___________

MICHAEL TERRILL FAIRCLOTH,

v.

UNITED STATES,

___________

Petitioner,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Eleventh Circuit

___________

PETITION FOR A WRIT OF CERTIORARI

___________

WILLIAM M. KENT

RYAN MCFARLAND

KENT & MCFARLAND

ATTORNEYS AT LAW

24 N. Market Street

Suite 300

Jacksonville, FL 32202

(904) 398-8000

CARTER G. PHILLIPS *

JEFFREY T. GREEN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

Counsel for Petitioner

October 3, 2019

* Counsel of Record

QUESTION PRESENTED

Whether a felon may assert an affirmative defense

of innocent, transitory possession when charged as a

felon-in-possession of a firearm under § 922(g)(1) of the

Safe Streets Act, 18 U.S.C. 922(g)(1), as the District of

Columbia Circuit allows or whether all such defenses

are barred by that statute as the Eleventh Circuit held

in this case.

(i)

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

Petitioner is Michael Terrill Faircloth. Respondent

is the United States. No party is a corporation.

iii

RULE 14.1(b)(iii) STATEMENT

This case arises from the following proceedings in

the United States District Court for the Middle District of Florida, and the United States Court of Appeals

for the Eleventh Circuit:

United States v. Faircloth, No. 17-12998 (11th Cir.

May 6, 2019)

United States v. Faircloth, No. 2:14-cr-00076-SPCMRM (M.D. Fla. June 19, 2017)

There are no other proceedings in state or federal

trial or appellate courts, or in this Court directly related to this case.

iv

TABLE OF CONTENTS

Page

QUESTION PRESENTED ...................................

i

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT ............................................

ii

RULE 14.1(b)(iii) STATEMENT ..........................

iii

TABLE OF AUTHORITIES .................................

vi

PETITION FOR A WRIT OF CERTIORARI .......

1

OPINIONS BELOW .............................................

1

JURISDICTION ...................................................

1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED .......................................

1

STATEMENT OF THE CASE..............................

2

I. BACKGROUND OF THE CASE ..................

4

A. Factual Background ..................................

4

B. Proceedings Below ....................................

5

REASONS FOR GRANTING THE PETITION ...

6

I. THE COURT SHOULD GRANT REVIEW

TO RESOLVE A CONFLICT AMONG THE

COURTS OF APPEALS AND STATE SUPREME COURTS..........................................

8

II. THE TEXT OF SECTION 922(g) AND ITS

LEGISLATIVE INTENT ARE COMPATIBLE WITH THE INNOCENT TRANSITORY POSSESSION DEFENSE .................

11

III. THE COURT SHOULD GRANT REVIEW

BECAUSE THE QUESTION PRESENTED IS IMPORTANT AND RECURRING ............................................................

14

v

TABLE OF CONTENTScontinued

CONCLUSION .....................................................

Page

16

APPENDICES

APPENDIX A: Opinion, United States v. Faircloth, No. 17-12998 (11th Cir. May 6, 2019)

(per curiam) .......................................................

1a

APPENDIX B: Judgment, United States v. Faircloth, No. 2:14-cr-00076-SPC-MRM (M.D. Fla.

June 19, 2017)....................................................

8a

APPENDIX C: Brief of Appellant, United States

v. Faircloth, No. 17-12998 (11th Cir. Nov. 8,

2017) ................................................................... 14a

APPENDIX D: Reply Brief of Appellant, United

States v. Faircloth, No. 17-12998 (11th Cir.

Oct. 15, 2018) .................................................... 78a

vi

CASES

TABLE OF AUTHORITIES

Page

Anderson v. State, 89 So. 98 (Ala. Ct. App.

1921) ..........................................................

12

Bieder v. United States, 707 A.2d 781 (D.C.

1998) ......................................................... 8, 9, 10

Coleman v. State, No. A-5878, 1997 WL

775567 (Alaska Ct. App. Dec. 17, 1997) ...

10

Dixon v. United States, 548 U.S. 1

(2006) .....................................................

7, 12

Johnson v. State, 47 N.E. 926 (Ind. 1897) ...

12

People v. Dupree, 788 N.W.2d 399 (Mich.

2010) ..........................................................

10

People v. Hurtado, 54 Cal. Rptr. 2d 853 (Ct.

App. 1996)..................................................

8

People v. Mijares, 491 P.2d 1115 (Cal.

1971) .......................................................... 10, 13

People v. Persce, 97 N.E. 877 (N.Y. 1912) ....

12

People v. Williams, 409 N.E.2d 1372 (N.Y.

1980) ..................................................

8, 9, 13

Rehaif v. United States, 139 S.Ct. 2191

(2019) ......................................................... 13, 14

Small v. United States, 544 U.S. 385

(2005) .........................................................

11

State v. Miller, 193 P.3d 92 (Utah 2008) .....

10

United States v. Bailey, 444 U.S. 394

(1980) ......................................................... 9, 12

United States v. Baker, 508 F.3d 1321 (10th

Cir. 2007) .................................................. 2, 7, 12

United States v. Baker, 523 F.3d 1141 (10th

Cir. 2008) ................................................... 3, 15

United States v. DeJohn, 368 F.3d 533 (6th

Cir. 2004) ................................................... 6, 9

vii

TABLE OF AUTHORITIEScontinued

Page

United States v. Gilbert, 430 F.3d 215 (4th

Cir. 2005) ...................................................

12

United States v. Harris, 332 F. App’x 55

(4th Cir. 2009) (per curiam) ...................... 2, 7

United States v. Hendricks, 319 F.3d 993

(7th Cir. 2003) ...........................................

9

United States v. Jackson, 598 F.3d 340 (7th

Cir. 2010) ................................................... 6, 9

United States v. Johnson, 459 F.3d 990 (9th

Cir. 2006) .............................................. 2, 7, 11

United States v. Langforddavis, 454 F.

App’x 34 (3d Cir. 2011) ............................. 2, 7

United States v. Mason, 233 F.3d 619 (D.C.

Cir. 2000) .............................................. 3, 6, 7, 8

United States v. Miles, 748 F.3d 485 (2d Cir.

2014) (per curiam) ..................................... 6, 7

United States v. Riley, 376 F.3d 1160 (D.C.

Cir. 2004) ...................................................

11

United States v. Teemer, 394 F.3d 59 (1st

Cir. 2005) ................................................... 2, 7

United States v. Vereen, 920 F.3d 1300 (11th

Cir. 2019) ...................................................

3

United States v. Wright, 682 F.3d 1088 (8th

Cir. 2012) ................................................... 2, 7

In re Welfare of S.J.J., 755 N.W.2d 316

(Minn. Ct. App. 2008)................................

10

CONSTITUTIONS AND STATUTES

U.S. Const. amend. II ...................................

U.S. Const. amend. VI..................................

1

2

viii

TABLE OF AUTHORITIEScontinued

18 U.S.C. § 922(g)(1) ....................................

Page

2

OTHER AUTHORITIES

U.S. Sentencing Comm’n, Quick Facts Archives, Felon in Possession of a Firearm

(FY 2017) https://www.ussc.gov/sites/default/files/pdf/research-and-publications/

quick-facts/Felon_in_Possesion_FY17.

pdf ..............................................................

Christopher Ingraham, There Are More

Guns Than People in the United States,

According to a New Study of Global Firearm Ownership, Washington Post, (Sept.

30,

2019)

https://www.washingtonpost.com/news/wonk/wp/2018/06/19/th

ere-are-more-guns-than-people-in-theunited-states-according-to-a-new-studyof-global-firearm-ownership/ ....................

14

15

PETITION FOR A WRIT OF CERTIORARI

Michael Terrill Faircloth respectfully petitions for a

writ of certiorari to review the decision of the United

States Court of Appeals for the Eleventh Circuit in this

case.

OPINIONS BELOW

The opinion of the Eleventh Circuit is unreported,

and is reproduced in the appendix to this petition at

Pet. App. 1a. The opinion of the district court is unpublished and is reproduced at Pet. App. 8a.

JURISDICTION

The Eleventh Circuit entered judgment on May 6,

2019, Pet. App. 1a. On July 22, 2019, Justice Clarence

Thomas granted the application extending the time to

file a petition for a writ of certiorari to October 3, 2019.

This Court has jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Second Amendment of the U.S. Constitution

provides that “[a] well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S.

Const. amend. II.

The Sixth Amendment of the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein the

crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be

confronted with the witnesses against him; to have

2

compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.

The statutory provision involved is 18 U.S.C.

§ 922(g)(1), which provides that:

(g) It shall be unlawful for any person—

(1) 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.

STATEMENT OF THE CASE

The circuit courts are squarely divided on whether a

defendant may assert an “innocent, transitory possession” defense for a felon-in-possession charge under

§ 922(g)(1) of the Safe Streets Act. 18 U.S.C.

§ 922(g)(1). The issue is entrenched and needs to be

resolved to ensure justice for criminal defendants in all

jurisdictions. Someone’s guilt or innocence should not

turn on the fortuity of geography.

The circuits are split between the D.C. Circuit, and

the Eleventh Circuit joining other circuit courts.1

1 See United States v. Teemer, 394 F.3d 59, 62–65 (1st Cir.

2005); United States v. Langforddavis, 454 F. App’x 34, 36–37 (3d

Cir. 2011); United States v. Harris, 332 F. App’x 55, 56–57 (4th

Cir. 2009) (per curiam); United States v. Wright, 682 F.3d 1088,

1090–91 (8th Cir. 2012); United States v. Johnson, 459 F.3d 990,

998–99 (9th Cir. 2006); and United States v. Baker, 508 F.3d

1321, 1330 (10th Cir. 2007).

3

Other circuit courts and some state supreme courts

have recognized the innocent possession defense in

some capacity. For felon-in-possession cases, the

availability of an innocent possession defense (or innocent, transitory possession defense) is fundamentally

important. Given the ubiquity of firearms in this country, the risk of innocent possession is a serious one.

For those who find a gun and merely do the right thing,

viz., pick it up to take it to legal authorities for proper

disposition, Congress could not have intended to inflict

upon them a harsh and unbending criminal sanction.

United States v. Mason, 233 F.3d 619, 623 (D.C. Cir.

2000). Yet, it seems “the current state of our jurisprudence regarding implicit affirmative defenses is in disarray.” United States v. Baker, 523 F.3d 1141, 1143

(10th Cir. 2008) (McConnell, J., dissenting from the

denial of reh’g en banc). And only this Court can clear

up the confusion.

This case is a strikingly clean vehicle for resolving

the issue because the affirmative defense at issue is

dispositive. Mr. Faircloth stumbled upon a gun in a

vacant home that he was moving into, and within

minutes, was headed to his non-felon neighbor’s house

to turn into the police. However, police happened on

the scene almost immediately because there was a

warrant out regarding Mr. Faircloth, and he was

charged as a felon-in-possession under § 922(g)(1), despite the innocent, transitory nature of his possession.

If the jury had received instructions to consider the defense of innocent, transitory possession, this could

very well have changed the outcome of the case. This

case, along with its sister case, United States v. Vereen,

920 F.3d 1300 (11th Cir. 2019), allow for a meaningful

resolution of the entrenched conflict among the cir-

4

cuits and state courts of appeals as to whether a common law defense may be brought in light of a statutory

violation of § 922(g)(1) under the Safe Streets Act.

I. BACKGROUND OF THE CASE

A. Factual Background

Michael Terrill Faircloth was preparing to move into

a vacant house in Cape Coral, Florida that was owned

by his wife. Pet. App. 45a. Previously, the house had

been occupied by others. Id. While in the house, Mr.

Faircloth noticed a purse in the foyer. Id. at 45a–46a.

He did not know there was a firearm in the purse. Id.

at 45a. When he was moving objects from the floor to

the counter, the purse fell, and he noticed what looked

like the butt of a gun and a wallet inside the purse. Id.

at 46a. He checked to see if the gun was loaded. Id.

As a convicted felon, Mr. Faircloth knew that he could

not possess a firearm. Id. Mr. Faircloth did not have

a useable cellphone available, id., but he had met his

new neighbor and decided to take the firearm from his

house to the neighbor, Mr. Hendrick’s, so that he could

call law enforcement and safely dispose of the gun. Id.

Mr. Faircloth was wearing shorts and flip flops, and no

shirt. Id. He did not conceal the firearm. Id. Mr.

Faircloth put the firearm in his back pocket to carry it

to his neighbor, rather than having it out in the open.

Id. Mr. Faircloth knew that Mr. Hendrick’s kids were

in the yard, and he did not want to scare them. Id.

Mr. Faircloth intended to dispose of the weapon in a

safe manner. Id. at 47a.

As Mr. Faircloth crossed into Mr. Hendrick’s yard,

several cars, trucks, and SUVs drove into the yard. Id.

The occupants identified themselves as police officers.

Id. Mr. Faircloth thought they might shoot. Id. He

5

told them there were kids in the yard. Id. Mr. Faircloth stated he had a firearm, informed them he would

take it out, and tossed it to the police. Id.

Police later explained that they were outside Mr.

Faircloth’s house because they had been following him

given an outstanding arrest warrant. Id. at 48a.

Mr. Faircloth testified that his intentions were to

give the firearm to his neighbor, tell him that he was

a convicted felon, and to ask him to please send the

firearm to the police. Id. at 50a. He knew that the

purse was not his wife’s purse, and when he found the

firearm, he walked it straight over to his neighbor’s

within four minutes of finding it. Id. at 49a. Mr. Faircloth was stuck between federal law and Florida Statutes §§ 705.102 and 790.174, which require the reporting of finding lost or abandoned property, and moving

from his premises a loaded firearm that a minor might

discover. Id at 59a.

B. Proceedings Below

Mr. Faircloth was charged in the Middle District of

Florida with possession of a firearm as a convicted

felon under § 922(g)(1). Petitioner proposed to raise

the defense of innocent, transitory possession and to

request that the jury be instructed as to the elements

of the affirmative defense. Mr. Faircloth testified as to

how he found the gun and would not have touched it if

he had known it was a gun. Pet. App. 45a–46a. He

testified that his only intention was to get the gun out

of his possession and into the hands of law enforcement. Id. at 47a. This was the end result, but only

because the police had been following Mr. Faircloth

and surrounded him immediately when Mr. Faircloth

came out of the vacant house. Id. at 46a–47a. Prosecutors objected to Mr. Faircloth’s assertion of an innocent possession defense and objected to Mr. Faircloth’s

6

proposed jury instruction on the defense. The district

court held that it was not present in the statutory language of § 922(g)(1), and on that ground rejected the

instruction.

The Eleventh Circuit affirmed on the same ground

as the district court.

REASONS FOR GRANTING THE PETITION

The Eleventh Circuit’s ruling that Mr. Faircloth

could not avail himself of the innocent possession defense implicates an important and recurring federal issue on which the courts of appeals and a number of

state courts are in conflict. This Court should grant

review and resolve the split now because the conflict is

important, recurring, and deeply entrenched. In addition, this case presents a particularly strong vehicle

because the question has been thoroughly preserved

and the facts are uncontested. Ultimately, in the interest of fairness and unanimity, the Court should decide this issue because with the current split, defendants’ fates turn on the fortuity of where they happen

to be arrested.

The D.C. Circuit has recognized the innocent possession defense to a felon-in-possession charge under 18

U.S.C. § 922(g), which among other things makes it illegal for a convicted felon to ship, transport, or possess

a firearm. Mason, 233 F.3d at 623–25. The D.C. Circuit is joined by the Sixth and Seventh Circuits in recognizing the defense.2 The Second Circuit has struggled with the question, but not yet decided it. See, e.g.,

United States v. Miles, 748 F.3d 485, 489–90 (2d Cir.

2 See United States v. DeJohn, 368 F.3d 533, 546 (6th Cir.

2004); United States v. Jackson, 598 F.3d 340, 349–51 (7th Cir.

2010).

7

2014) (per curiam) (“[W]e have ‘repeatedly rejected efforts to assert such a defense where the possession was

not “‘momentary,”’ or ‘only for as long as necessary’ to

deal with a justifying necessity of some kind.”) (internal citation omitted).

The Eleventh Circuit, on the other hand, barred Mr.

Faircloth from raising the defense, and joined other

circuit courts that have declined to recognize the defense.3 Although the split of authorities seems somewhat lopsided, the issue is deeply entrenched.

Moreover, the Eleventh Circuit’s position has serious consequences. Without the defense, any person

with a prior felony conviction who finds a gun (and

thus “knowingly possesses” it) can be convicted under

§ 922(g) and sentenced to up to ten years in prison, regardless of the circumstances under which he obtained

possession or the length of time he possessed the firearm. Congress did not intend such “harsh and absurd

result[s].” Mason, 233 F.3d at 623. Congress legislates against background, common law principles of

criminal law, like affirmative defenses. It does not explicitly include them in the text of every statute. And

in fact, this Court has recognized that defendants can

raise affirmative defenses, like duress, to a § 922(g)

charge even though the statute is silent in that regard.

Circuit courts that have rejected the innocent, transitory possession defense have ignored those instructions from this Court. E.g., Dixon v. United States, 548

U.S. 1, 7 (2006) (“[W]e can safely assume that the 1968

3 See Teemer, 394 F.3d at 62–65; Langforddavis, 454 F. App’x

at 36–37; Harris, 332 F. App’x at 56–57; Wright, 682 F.3d at

1090–91; Johnson, 459 F.3d at 998–99; and Baker, 508 F.3d at

1330.

8

Congress was familiar with . . . the long-established

common-law rule.”).

I. THE COURT SHOULD GRANT REVIEW TO

RESOLVE A CONFLICT AMONG THE

COURTS OF APPEALS AND STATE SUPREME COURTS

In Mason, the D.C. Circuit considered a defendant

who testified that he found a gun with ammunition in

a paper bag near a school and took possession of the

gun with the intention of turning it over to the police.

233 F.3d at 621–22. Relying on state court judgments

from New York, California, and the District of Columbia,4 and recognizing the harsh results and backwards

incentives an unflinching application of the statute

creates, the court held that the defendant was entitled

to a jury instruction on “innocent possession.” Id. at

625. The court explained that the innocent possession

defense, like similar affirmative defenses, is narrow

and only available when: “(1) the firearm was attained

innocently and held with no illicit purpose and (2) possession of the firearm was transitory—i.e., in light of

the circumstances presented, there is a good basis to

find that the defendant took adequate measures to rid

himself of possession of the firearm as promptly as reasonably possible.” Id. at 624.

Other courts of appeals have recognized the defense,

but as a more limited form of the justification defense.

The Sixth Circuit requires a defendant to show:

“[T]hat he or another was under an unlawful and imminent threat of death or serious bodily injury, that he

had not placed himself recklessly in that situation,

that he had no reasonable alternative to violating the

4 People v. Williams, 409 N.E.2d 1372, 1373 (N.Y. 1980); People

v. Hurtado, 54 Cal. Rptr. 2d 853, 858–59 (Ct. App. 1996); Bieder

v. United States, 707 A.2d 781, 783–84 (D.C. 1998).

9

law, that a direct causal relationship existed between

possessing the firearm and avoiding the threat, and

that he did not maintain the illegal conduct any longer

than necessary.” United States v. DeJohn, 368 F.3d

533, 546 (6th Cir. 2004). The Sixth Circuit relied upon

this Court’s opinion in United States v. Bailey, acknowledging Congress enacts criminal statutes with

an understanding of common law affirmative defenses,

including duress and coercion and therefore, a narrowly construed affirmative defense is appropriate despite a lack of statutory language. 444 U.S. 394, 415

n.11 (1980) (construing 18 U.S.C. § 751 to have been

passed with at the least knowledge, and possibly contemplation of the common law affirmative defenses of

duress and coercion, because they are not inconsistent

with the statute, which lacks a heightened mens rea

requirement).

The Seventh Circuit similarly limits the innocent

possession defense. United States v. Jackson, 598 F.3d

340, 349–50 (7th Cir. 2010). The court observes that if

it were to adopt a distinct innocent, transitory possession defense, it would adopt the factors in Mason. Id.

at 350; United States v. Hendricks, 319 F.3d 993, 1007

(7th Cir. 2003).

State courts are similarly divided. The highest court

in New York noted an innocent possession instruction

may be warranted “to foster a civic duty on the part of

citizens to surrender dangerous weapons to the police.”

People v. Williams, 409 N.E.2d 1372, 1373 (N.Y. 1980).

Similarly, the high court in D.C. recognized an innocent possession defense but stressed its narrow scope.

Bieder v. United States, 707 A.2d 781, 783–84 (D.C.

1998) (“[T]he narrowness of the innocent possession

exception is demonstrated by the fact that no reported

decision in this jurisdiction can be found in which that

defense was recognized as applicable on the facts.”).

10

Similar to New York, D.C. focused on the social policy

aspects, explaining a defendant must show innocence

and an excuse or justification to aid law enforcement.

Id. at 783. Other state courts have considered similar

affirmative defenses contemplating innocent and momentary possession. See Coleman v. State, No. A-5878,

1997 WL 775567 (Alaska Ct. App. Dec. 17, 1997) (discussing at length the pros and cons of the doctrines of

“momentary possession” and “passing control” as it encourages disposal of dangerous items, such as firearms

and drugs); People v. Dupree, 788 N.W.2d 399, 401

(Mich. 2010) (holding self-defense applied to a felon-inpossession charge despite the statute lacking explicit

statutory language because of the assumption that a

defendant is allowed to bring a common law affirmative defense if the evidence supports it); State v. Miller,

193 P.3d 92, 96–97 (Utah 2008). But see In re Welfare

of S.J.J., 755 N.W.2d 316, 318–19 (Minn. Ct. App.

2008) (holding a “fleeting-control exception” is not

available for the crime of illegal possession of a firearm

under State law).

The California Supreme Court, in conflict with circuit courts prohibiting the affirmative defense, provides an apt example of the negative consequences

without resolution of this issue. In the absence of the

defense, a woman who unknowingly picks up a package containing contraband is guilty of the crime the

moment she opens the package and identifies its contents. See People v. Mijares, 491 P.2d 1115, 1119–20

(Cal. 1971). Under the Eleventh Circuit’s formulation,

nothing she did next would matter. She would be

guilty, and subject to ten years in prison, even if she

immediately dropped the bag and walked away; her

immediate remedial actions and guiltless mind would

be irrelevant for a conviction. Ironically, without the

defense, she is incentivized to take the gun and hide it,

11

directly contradicting congressional intent—namely,

“to keep guns out of the hands of those who have

demonstrated they may not be trusted to possess a

firearm without becoming a threat to society.” Small

v. United States, 544 U.S. 385, 393 (2005) (internal

quotation marks omitted). If she were like the defendant in Mason, who found a gun near a school yard,

those incentives could have disastrous results. In California, whether this result may occur would be based

on whether you are in one area of California state

court, where you may assert the defense, or in the

Ninth Circuit in California, under § 922(g). See

United States v. Johnson, 459 F.3d 990, 995–99 (9th

Cir. 2006). Still, despite the opposition by a majority

of the circuit courts, the D.C. Circuit continues to recognize the defense. See, e.g., United States v. Riley,

376 F.3d 1160, 1167–68 (D.C. Cir. 2004) (“[T]his circuit

has held that innocent possession could be a defense in

a § 922(g) case . . . . To qualify for such a defense, we

held that the record must show that the defendant's

possession was ‘transitory’ and that he ‘took adequate

measures to rid himself of possession of the firearm as

promptly as reasonably possible.’”). The split is therefore not going away and ripe for this Court’s review.

II. THE TEXT OF SECTION 922(g) AND ITS

LEGISLATIVE INTENT ARE COMPATIBLE

WITH THE INNOCENT TRANSITORY POSSESSION DEFENSE

The Eleventh Circuit’s reasoning for denying Mr.

Faircloth the ability to present an innocent, transitory

possession defense was that it “[found] nothing in the

[statutory] text to suggest the availability of an [innocent transitory possession defense] to a § 922(g)

charge.” Pet App. 6a.

Yet this Court has instructed that affirmative defenses, of justification or excuse, can be given effect by

12

the federal courts despite the lack of express language

in the statute. Dixon, 548 U.S. at 13–14. In Dixon,

this Court considered the defense of duress and held

that federal courts can give effect to affirmative defenses even where the legislature has been silent. Id.

at 17. Prosecutors charged the defendant, a felon, with

unlawful purchase of firearms under § 922(n). The defendant maintained that her boyfriend had threatened

to kill her if she did not purchase the guns. Relying

upon Bailey, 444 U.S. at 415 (duress, in the form beatings, could be a defense to an escape from prison

charge), this Court recognized that necessity and duress could be defenses despite the fact that Congress

had not expressly provided for such defenses. Other

courts followed. See, e.g., Baker, 508 F.3d at 1325–26

(acknowledging the availability of a necessity defense

in its circuit); United States v. Gilbert, 430 F.3d 215,

219 (4th Cir. 2005) (acknowledging “a defense of justification in the narrow circumstance where, inter alia,

he was ‘under a present or imminent threat of death

or injury.’”) (internal quotation marks omitted).

When Congress enacted the Safe Streets Act, the innocent possession defense was a long-recognized principle of criminal law for analogous mere-possession

crimes. See, e.g., People v. Persce, 97 N.E. 877, 878

(N.Y. 1912) (“Possession” forbidden by a weapons control statute “clearly should not be construed to mean a

possession . . . which might result temporarily and incidentally from the performance of some lawful act”);

Johnson v. State, 47 N.E. 926, 926–27 (Ind. 1897) (recognizing the concept of innocent possession in the context of possession of stolen property); Anderson v.

State, 89 So. 98, 99 (Ala. Ct. App. 1921) (supporting

the possibility of the defense of innocent possession of

alcohol to a violation of a Prohibition law). States have

also long applied the defense in felon-in-possession

13

cases predating the Safe Streets Act. Those courts recognize that there are instances where mere physical

handling or control over a prohibited weapon cannot

be deemed criminal. See Williams, 409 N.E.2d 1372;

Mijares, 491 P.2d at 1119–20. The innocent possession

defense in these states “has long been [recognized] to

allow the jury to temper the seemingly absolute language of the statute with a pragmatic assessment of

the circumstances in order to determine whether the

defendant’s conduct was truly culpable.” Williams,

409 N.E.2d at 1048. Despite being aware of its existence, Congress did not foreclose the use of the innocent

possession defense when it enacted the Safe Streets

Act.

Instead, allowing the defense ensures that Congress’

purpose is respected by preventing an overbroad application of § 922(g). Contrary to the Eleventh Circuit’s

assertion that the defense would frustrate the purpose

of § 922(g), recognizing the defense allows a defendant

to demonstrate that he did, in fact, intend to act in a

blameless fashion. Put differently, the innocent possession defense—like all affirmative defenses—operates to prevent overbroad application of the statute

and thus ensures that Congress’ purpose is respected

rather than frustrated. Indeed, as this Court highlighted last term, a fundamental principle underpinning criminal law is the importance of “a vicious will”

or a culpable mental state. Rehaif v. United States,

139 S. Ct. 2191, 2196 (2019). Criminal statutes are

presumed to require the degree of knowledge sufficient

to make the person legally responsible for the consequences of his or her act. Id. Absent an innocent possession defense, defendants without a “vicious will”

are subject to harsh penalties beyond the scope of

those contemplated by Congress.

14

III. THE COURT SHOULD GRANT REVIEW BECAUSE THE QUESTION PRESENTED IS

IMPORTANT AND RECURRING

Whether the innocent possession defense is available to a felon-in-possession charge is an important

question. A person with a prior felony conviction who

innocently comes into possession of a weapon and either immediately dispossesses him or herself of the

weapon or turns it over to law enforcement does not

have the “vicious will” required to punish in a just

criminal justice system. See Rehaif, 139 S. Ct. at 2196.

Where no such defense has been recognized, defendants are left to rely entirely on the prosecutors’ discretion in close cases; a system that is open to arbitrary

and capricious decision-making. Where the defense is

recognized, prosecutors have an unquestionable and

transparent basis to decline even to charge innocent

possession cases; defendants who meet the minimum

evidentiary burden have the ability to present a defense to the jury upheld. Currently, under the circuit

split, defendants with an innocent mind are dependent

solely on venue to have their defense heard.

The question presented is also recurring. According

to the United States Sentencing Commission, convictions under § 922(g) account for nearly ten percent of

federal convictions in a year.5 As the case law shows,

the innocent possession defense has been raised in the

majority of circuit courts and a number of states. This

is not surprising because of the prevalence of firearms

5 In FY17, 9% of all federal offenders were convicted under

§ 922(g), which is equivalent to 6,032 individuals in 2017 alone.

U.S. Sentencing Comm’n, Quick Facts Archives, Felon in Possession of a Firearm (FY 2017) https://www.ussc.gov/sites/default/files/pdf/research-and-publications/quick-facts/Felon_in_

Possession_FY17.pdf.

15

in the United States6 and the reality that felons may

associate within individuals who possess guns.

Finally, this case is a good vehicle for the Court to

resolve the circuit split because the question presented

has been preserved throughout, the facts of the case

are undisputed, and resolving this question is dispositive. Rarely in the cases previously discussed do the

facts warrant a jury to evaluate whether the facts meet

the elements of the innocent possession defense. If the

defense is available, petitioner is entitled to a new

trial. Moreover, if the defendant has the opportunity

to testify at that trial about the innocent, transitory

possession defense, and the jury is the properly instructed, the outcome likely will be very different. At

a minimum he should have that opportunity.

“[N]ow that the Supreme Court has resolved that

Congress enacts criminal statutes against the background of unstated common law defenses, which the

federal courts are charged with putting into effect, [in

Dixon], it is time for us to reexamine this field and determine the applicability of common law defenses in a

more coherent and consistent fashion.” Baker, 523

F.3d at 1143.

6 See Christopher Ingraham, There Are More Guns Than People

in the United States, According to a New Study of Global Firearm

Ownership, Washington Post (Sept. 30, 2019), https://www.washingtonpost.com/news/wonk/wp/2018/06/19/there-are-more-gunsthan-people-in-the-united-states-according-to-a-new-study-ofglobal-firearm-ownership/.

16

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

Respectfully submitted,

WILLIAM M. KENT

RYAN MCFARLAND

KENT & MCFARLAND

ATTORNEYS AT LAW

24 N. Market Street

Suite 300

Jacksonville, FL 32202

(904) 398-8000

CARTER G. PHILLIPS *

JEFFREY T. GREEN

SIDLEY AUSTIN LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

cphillips@sidley.com

SARAH O’ROURKE SCHRUP

NORTHWESTERN SUPREME

COURT PRACTICUM

375 East Chicago Avenue

Chicago, IL 60611

(312) 503-0063

Counsel for Petitioner

October 3, 2019

* Counsel of Record