Petition for Writ of Certiorari — Lawrence Johnson, Petitioner v. United States

No. _____

In the Supreme Court of the United States

LAWRENCE JOHNSON,

Petitioner,

v.

UNITED STATES,

Respondent.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

for the Second Circuit

PETITION FOR A WRIT OF CERTIORARI

CARLA M. SANDERSON

Carla Sanderson Law

260 Madison Ave., Floor 22

New York, NY 10016

LOUIS M. FREEMAN

Freeman, Nooter & Ginsberg

75 Maiden Ln., No. 503

New York, NY 10038

MICHAEL B. KIMBERLY

Counsel of Record

PAUL W. HUGHES

McDermott Will &

Emery LLP

500 N. Capitol St. NW

Washington, DC 20001

(202) 756-8000

mkimberly@mwe.com

Counsel for Petitioner

i

QUESTIONS PRESENTED

In Dixon v. United States, 548 U.S. 1 (2006), this

Court held that every “long-established common-law”

affirmative defense is incorporated into the federal

criminal code, even where a federal criminal statute

“does not mention the defense.” Id. at 13-14.

One settled common-law affirmative defense to illegal possession crimes is the so-called “innocent transitory possession” defense. Courts in New York, for example, have long recognized that citizens bear a civic

duty to surrender dangerous weapons to the police.

The New York Court of Appeals has thus recognized,

for longer than a century, that innocent possession of

a weapon for a reasonable period of time to convey it

to law enforcement authorities is not a violation of the

State’s illegal possession statutes.

The first question presented—over which there

is a persistent and openly recognized split among the

federal circuits—is whether innocent transitory possession is an affirmative defense to illegal possession

of a firearm under 18 U.S.C. 922(g).

The second question presented—which arises

only if the Court denies review of the first question—

is whether the Court should hold this case pending decisions on the merits in United States v. Gary, No. 20444 (cert. granted Jan. 8, 2021) and Greer v. United

States, No. 19-8709 (cert. granted Jan. 8, 2021).

ii

TABLE OF CONTENTS

Questions Presented ................................................... i

Table of Authorities................................................... iii

Opinions Below ............................................................1

Jurisdiction ..................................................................1

Statutory Provision Involved ......................................1

Introduction .................................................................1

Statement ....................................................................3

A. Factual background ..........................................3

B. Procedural background ....................................4

Reasons for Granting the Petition ..............................6

I. The first question presented warrants review .....7

A. The courts of appeals are divided on the

question presented............................................7

1. Two circuits require the jury to be

instructed on the innocent transitory

possession defense .......................................7

2. Three circuits have defined the defense

so narrowly that it is never available .......10

3. Five circuits have rejected the innocent

transitory possession defense outright .....11

B. The question presented is important, and

this is a suitable vehicle for review................12

C. The decision below is wrong ...........................16

II. Alternatively, the Court should hold this

case for Gary and Greer .......................................19

Conclusion .................................................................20

Appendix A – court of appeals decision .................... 1a

Appendix B – district court decision....................... 11a

Appendix C – order denying rehearing .................. 21a

Appendix D – petitioner’s affidavit......................... 22a

iii

TABLE OF AUTHORITIES

Cases

Allen-Bradley v. Wisconsin

Employment Relations Bd.,

315 U.S. 740 (1942) .............................................. 18

Barrett v. United States,

423 U.S. 212 (1976) .............................................. 17

Commonwealth v. Adkins,

331 S.W.3d 260 (Ky. 2011)............................. 13, 18

Dixon v. United States,

548 U.S. 1 (2006) .......................................... passim

Hines v. United States,

326 A.2d 247 (D.C. 1974) ............................... 15, 18

Jordan v. State,

819 P.2d 39 (Alaska Ct. App. 1991)..................... 13

People v. Cezar,

149 Misc. 2d 620 (N.Y. Crim. Ct. 1991) .............. 14

People v. Corona,

2008 WL 2487905 (Cal. Ct. App. 2008) ............... 14

People v. Furey,

13 A.D.2d 412 (N.Y. App. Div. 1961) ................... 13

People v. La Pella,

4 N.E.2d 943 (1936) ............................................. 18

People v. Mairena,

144 N.E.3d 340 (N.Y. 2019) ................................. 14

People v. Martin,

25 P.3d 1081 (Cal. 2001) ................................ 15, 19

People v. Mijares,

491 P.2d 1115 (Cal. 1971) .............................. 13, 18

People v. Morris,

999 N.E.2d 160 (N.Y. 2013) ............................. 4, 14

iv

Cases—continued

People v. Williams,

409 N.E.2d 1372 (N.Y. 1980) ......................... 15, 18

People v. Zarate,

2019 WL 4127299 (Cal. Ct. App. 2019) ............... 13

Rehaif v. United States,

139 S. Ct. 2191 (2019) ............................................ 6

In re S.M.,

807 N.E.2d 1102 (Ill. Ct. App. 2004) ................... 15

Stanton v. State,

746 So. 2d 1229 (Fla. Dist. Ct. App. 1999) .......... 13

State v. Dodd,

728 P.2d 402 (Kan. Ct. App. 1986) ...................... 14

State v. Hunter,

599 N.E.2d 886 (Ohio Com. Pl. 1992) .................. 14

State v. Jones,

629 P.2d 181 (Kan. 1981) ............................... 15, 18

State v. Miller,

193 P.3d 92 (Utah 2008) ...................................... 18

State v. Neal,

529 P.2d 114 (Kan. 1974) ..................................... 13

State v. Rivera,

440 P.3d 694 (Utah Ct. App. 2019)...................... 13

State v. Tyler,

718 P.2d 214 (Ariz. Ct. App. 1986) ................ 14, 15

United States v. Bailey,

444 U.S. 394 (1980) .............................................. 17

United States v. Baird,

712 F.3d 623 (1st Cir. 2013) .............................. 8, 9

United States v. Baker,

508 F.3d 1321 (10th Cir. 2007) ............................ 12

v

Cases—continued

United States v. Balde,

943 F.3d 73 (2d Cir. 2019) ............................. 19, 20

United States v. Becerra,

958 F.3d 725 (8th Cir. 2020) ................................ 11

United States v. Cherry,

921 F.3d 690 (7th Cir. 2019) .......................... 10, 11

United States v. DeJohn,

368 F.3d 533 (6th Cir. 2004) ................................ 11

United States v. Doe,

705 F.3d 1134 (9th Cir. 2013) .............................. 17

United States v. Gilbert,

430 F.3d 215 (4th Cir. 2005) ................................ 12

United States v. Herron,

432 F.3d 1127 (10th Cir. 2005) ............................ 13

United States v. Jackson,

598 F.3d 340 (7th Cir. 2010) ................................ 11

United States v. Johnson,

459 F.3d 990 (9th Cir. 2006) ........................ 4, 5, 12

United States v. Leahy,

473 F.3d 401 (1st Cir. 2007) ................................ 17

United States v. Livings,

2008 WL 398432 (D. Neb. 2008) .......................... 13

United States v. Mason,

233 F.3d 619 (D.C. Cir. 2000) ...................... passim

United States v. Miles,

748 F.3d 485 (2d Cir. 2014) ......................... passim

United States v. Miller,

954 F.3d 551 (2d Cir. 2020) ................................... 6

United States v. Mooney,

497 F.3d 397 (4th Cir. 2007) ................................ 17

vi

Cases—continued

United States v. Ortiz,

927 F.3d 868 (5th Cir. 2019) ................................ 17

United States v. Paul,

110 F.3d 869 (2d Cir. 1997) ............................. 5, 17

United States v. Teemer,

394 F.3d 59 (1st Cir. 2005) ................................ 8, 9

United States v. Theunick,

651 F.3d 578 (6th Cir. 2011) ................................ 17

United States v. Vereen,

920 F.3d 1300 (11th Cir. 2019),

cert. denied, 140 S. Ct. 1273 (2020)..................... 11

United States v. Waldman,

835 F.3d 751 (7th Cir. 2016) ................................ 17

United States v. White,

552 F.3d 240 (2d Cir. 2009) ............................. 5, 10

West v. State,

69 So.3d 1075 (Fla. 1st DCA 2011)...................... 15

Other authorities

1 Criminal Jury Instructions for the District of

Columbia 6.501(C) (5th ed. 2020)........................ 14

18 U.S.C.

922(g) ............................................................ passim

922(g)(1).................................................... 10, 17, 19

922(j) ....................................................................... 9

28 U.S.C. 1254(1)......................................................... 1

New York Penal Law

§ 265.01(1) .............................................................. 4

§ 265.01-B(1) .......................................................... 4

§ 265.02(1) .............................................................. 4

§ 265.03(3) .............................................................. 4

Pub. L. 90-351, Title IV, § 901(a)(2)

(June 19, 1968) ..................................................... 17

Petitioner Lawrence Johnson respectfully petitions for a writ of certiorari to review the judgment of

the United States Court of Appeals for the Second Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

1a-10a) is available at 816 Fed. App’x 604. The district

court’s decision was delivered orally (App., infra, 11a20a) and is unreported.

JURISDICTION

The court of appeals issued its opinion on June 17,

2020. On August 27, 2020, the court of appeals denied

a timely filed petition for rehearing. On March 19,

2020, this Court extended the time within which to

file a petition for a writ of certiorari due on or after

that date to 150 days from the date of, as relevant

here, the order denying a timely petition for rehearing. Under that order, the deadline for filing a petition

for a writ of certiorari is January 24, 2021. This

Court’s jurisdiction rests on 28 U.S.C. 1254(1).

STATUTORY PROVISION INVOLVED

Title 18, Section 922(g) of the U.S. Code states in

relevant part that “[i]t 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.”

INTRODUCTION

This case presents a question of enormous practical importance to criminal defendants nationwide

that has divided the courts of appeals: whether

innocent transitory possession is an affirmative defense to illegal possession of a firearm under 18 U.S.C.

922(g).

2

Two circuits—the D.C. and First Circuits—have

recognized innocent transitory possession as a defense

to charges under 18 U.S.C. 922(g) and require courts

to instruct juries on the defense when the record supports it. Three other circuits have left the door open to

the defense but have defined it so narrowly that it is

effectively never available. And five circuits have categorically rejected the innocent transitory possession

defense in Section 922(g) cases.

The Second Circuit’s oft-cited decision in United

States v. Miles, 748 F.3d 485 (2d Cir. 2014), is an example falling within the second category. Miles defined the innocent transitory possession defense out of

existence, openly acknowledging the split along the

way. The Second Circuit applied Miles as the basis for

affirming the district court’s refusal to instruct the

jury on petitioner’s innocent transitory possession defense in this case.

Further review of that decision is imperative. Section 922(g) prosecutions are among the most common

in the federal criminal justice system, and the innocent transitory possession defense arises with remarkable frequency among them. Yet similarly situated defendants are being treated diametrically differently depending on mere geography—some are receiving innocent possession instructions, while others

are not; and some are winning acquittals on that basis, while others are not permitted even to try. Because the question involves criminal liability, moreover, clarity on the question presented is essential:

Those with felony records must know whether or not

it is lawful for them to possess a firearm or ammunition briefly, for the purposes of turning it over to the

police—a common scenario complicated further by

state common-law rules recognizing the defense.

3

This appeal involves a fully developed record, and

the outcome turns cleanly on the answer to the question presented. The petition should be granted.

STATEMENT

A. Factual background

Petitioner Lawrence Johnson found a bag in the

bushes near the street. App., infra, 22a. The bag contained a closed case, which he took to his apartment.

Petitioner ran a brief errand to pick up a medication

prescription. Upon returning, he opened the case and

discovered a firearm inside. Ibid.

Several years earlier, at a community antigun initiative meeting, petitioner learned from local and federal authorities that New York City had implemented

a “no questions asked” gun amnesty program, which

encourages residents to turn in firearms to police authorities at any precinct by offering a cash reward.

App., infra, 23a. With this program in mind, petitioner left his apartment to deliver the firearm to police custody.

Carrying the closed case in plain view, petitioner

began walking toward the New York Police Department’s 75th Precinct. On his way, petitioner spotted

and waved down a marked police cruiser. He approached the cruiser and explained that he was heading to the precinct to turn in a firearm he had found.

App., infra, 24a. He handed the case to one of the officers. Ibid.; see also C.A. App. 65, 78, 91.

At the officers’ invitation, petitioner got in the

backseat of the cruiser to head to the police precinct.

App., infra, 13a, 24a. Petitioner was not under arrest;

rather, his impression was that he was going to the

precinct to collect the cash award under the City’s gun

amnesty program. App., infra, 13a, 23a. After arriving

4

at the precinct, however, petitioner was handcuffed

and placed under arrest.

B. Procedural background

Petitioner was initially charged by state prosecutors with criminal possession, in violation of New York

Penal Law §§ 265.01(1), 265.01-B(1), 265.02(1),

265.03(3). If petitioner’s case had remained in the

New York state justice system, he could have raised a

voluntary-surrender defense under Section 265.20 of

the Penal Law and a common-law innocent-possession

defense. See People v. Morris, 999 N.E.2d 160, 164

(N.Y. 2013). But petitioner’s case was transferred to

federal court, instead, where he was charged with a

single count of unlawful possession of a firearm in violation of 18 U.S.C. 922(g). C.A. App. 71-21.

Prior to trial, the government moved to exclude

evidence demonstrating that petitioner innocently

possessed the firearm and was on his way to the police

precinct when he flagged down the police cruiser and

voluntarily surrendered the case. Dist. Ct. Dkt. 44, at

2-11. Petitioner responded with a motion seeking a

jury instruction on innocent transitory possession, relying on United States v. Mason, 233 F.3d 619 (D.C.

Cir. 2000). See Dist. Ct. Dkt. 57, at 1-6.

The district court denied both motions from the

bench. App., infra, 11a-20a. Although the court admitted petitioner’s statements to the police that he was

turning in the weapon under New York City’s gun amnesty program, it refused an innocent possession defense because it did “not think there is a basis in law

for an innocent possession defense of the kind laid out

in Mason.” App., infra, 14a. The district court instead

“subscribe[d] to the view” that “Judge O’Scannlain articulate[d]” for the Ninth Circuit in United States v.

Johnson, 459 F.3d 990 (9th Cir. 2006). Ibid. There, the

5

Ninth Circuit “respectfully disagree[d] with * * * the

D.C. Circuit” in Mason and “join[ed] the First, Fourth,

and Seventh Circuits” in holding that the innocent

transitory possession defense is not available under

Section 922(g). Johnson, 459 F.3d at 998. The district

court’s principal line of reasoning was that the “innocent possession [defense] as defined by Mason * * * is

wholly absent from the statutory text.” App., infra,

15a.

After the court denied petitioner’s motion for an

innocent possession instruction, the government requested that the court charge the jury that “[w]ellmeaning possession is not a defense.” C.A. App. 145.

The district court gave the charge. On summation,

over petitioner’s objections, the government argued

that the jury need only find the defendant knew he

possessed a firearm to convict, and that petitioner’s

informing the police he wanted to turn in the firearm

was a “confession.” C.A. App. 157, 200. The jury returned a conviction. C.A. App. 213.

The Second Circuit affirmed. App., infra 1a-10a.

With respect to the innocent transitory possession issue, the court explained that its “prior cases have

made clear that the defense is not available ‘where the

possession was not momentary or only for as long as

necessary to deal with a justifying necessity of some

kind.’” App., infra, 6a (quoting United States v. Miles,

748 F.3d 485, 490 (2d Cir. 2014)). Under this line of

cases, “a ‘momentary’ possession must be fleeting”

and “does not include, as here, carrying a gun down

the street for purposes of taking it to a police precinct.”

Ibid (quoting United States v. Paul, 110 F.3d 869, 872

(2d Cir. 1997)). The defense also requires “an imminent danger, such as a threat of serious physical injury or death,” and there was “no such circumstance

in this case.” Ibid (quoting United States v. White, 552

6

F.3d 240, 247-248 (2d Cir. 2009)). “Thus,” the court

held, “even taking into consideration the facts set

forth in Johnson’s affidavit, there would have been no

evidentiary basis in this case for an innocent possession defense, and the district court’s refusal to instruct the jury as to the defense was not error.” App.,

infra, 6a-7a.

As for petitioner’s objection to the “well-meaning

possession is not a defense” instruction, the court held

that it was “a necessary antidote to defense counsel’s

arguments with respect to innocent possession” and

affirmed on that basis. App., infra, 7a-8a.

The court of appeals also rejected petitioner’s argument that his conviction should be vacated under

Rehaif v. United States, 139 S. Ct. 2191 (2019). App.,

infra, 2a-5a. Applying its recent decision in United

States v. Miller, 954 F.3d 551 (2d Cir. 2020), the court

held that petition failed to satisfy the requirements

for relief upon plain error. App., infra, 4a-5a.

REASONS FOR GRANTING THE PETITION

The federal courts of appeals are openly divided

over the availability of an innocent transitory possession defense to a Section 922(g) felon-in-possession

charge. The D.C. Circuit has recognized the defense,

and the First Circuit has held that an innocent possession instruction should be given liberally, leaving

it to the jury to decide whether innocent possession is

a ground for acquittal. In contrast, three other circuits—including the Second Circuit in Miles—have effectively defined it out of existence. Five circuits have

explicitly rejected the defense. The circuit split is

openly recognized and entrenched.

Proper resolution of the question presented is a

matter of profound importance for criminal defend-

7

ants nationwide. Similarly situated criminal defendants are being treated differently depending on happenstance of location. What’s more, those with felony

records lack clear guidance from the courts as to

whether innocent possession is permissible.

This case is a suitable vehicle for resolving the circuit split. Petitioner was denied a jury instruction because the Second Circuit has rejected the reasoning of

the D.C. and First Circuits. If this case had arisen in

either of those other jurisdictions, the instruction

would have been given. Because the Second Circuit’s

reasoning is out of step with this Court’s teachings,

further review is warranted.

I.

THE FIRST QUESTION PRESENTED WARRANTS REVIEW

A. The courts of appeals are divided on the

question presented

The federal courts of appeals are openly divided

on the question of whether innocent transitory possession is a defense to a charge under 18 U.S.C. 922(g).

There is little doubt that petitioner’s case would have

been decided differently if it had arisen in the D.C.

Circuit or First Circuit.

1. Two circuits require the jury to be

instructed on the innocent transitory

possession defense

The D.C. Circuit recognized the innocent transitory possession defense in United States v. Mason, 233

F.3d 619 (D.C. Cir. 2000). The defendant in that case,

a delivery truck driver, found a paper bag containing

a gun near a school, where “there were a lot of children

outside.” Id. at 621. The defendant claimed that he

picked up the bag and intended to surrender the

weapon to a police officer he knew at his next stop, but

another officer noticed the weapon before he had the

8

opportunity to do so. Ibid. The D.C. Circuit concluded

that “to completely reject the possibility of an innocent

possession defense” would give rise to “a harsh and

absurd result.” Id. at 623. It therefore outlined criteria

for invoking the defense:

The record must reveal that (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. Cases in which the defendant’s innocent

transitory possession defense is “plausible, albeit debatable,” the D.C. Circuit explained, “are for the jury

to decide.” Ibid. 1

The First Circuit likewise has concluded that the

innocent transitory possession defense presents a

question properly reserved for the jury. See United

States v. Baird, 712 F.3d 623 (1st Cir. 2013); United

States v. Teemer, 394 F.3d 59 (1st Cir. 2005).

In Teemer, the First Circuit recognized that “there

are circumstances that arguably come within the let-

Then-Tenth Circuit Judge McConnell agreed with the D.C.

Circuit’s reasoning in a dissent from a denial of rehearing en

banc. See United States v. Baker, 523 F.3d 1141, 1141-1142 (10th

Cir. 2008). For a felon who removes ammunition from a playground to face criminal liability would be an “important and

troubling result,” he wrote. Id. at 1141. Judge McConnell also

noted that the court’s rejection of the innocent transitory possession defense was “in tension” with this Court’s decision in Dixon

v. United States, 548 U.S. 1 (2006), which held that “Congress

enacts criminal statutes against the background of unstated

common law defenses.” Baker, 523 F.3d at 1141-1143.

1

9

ter of the law but in which conviction would be unjust.” 394 F.3d at 64. Although it opted not to “fram[e]

a general exception” like the D.C. Circuit’s, the court

expressly disapproved of jury instructions precluding

an innocent transitory possession defense, such as

those issued by the district court in this case. Id. at

65. Recognizing that “common sense is the touchstone

in situations of innocent contact,” the court held that

the question of whether to convict in instances of alleged innocent possession properly falls to the jury.

Ibid.

The First Circuit more recently extended Teemer’s

reasoning in a case involving a stolen firearm. In

Baird, the court held that a defendant accused of possessing a stolen firearm in violation of Section 922(j)

was “at least” entitled to an innocent possession jury

instruction. 712 F.3d at 629. The court explained that

the statute “must permit some kind of ‘innocent possession’ defense” in order to avoid absurd results, recognizing that “prosecutorial discretion and the common sense of the jury” might not always provide sufficient protection. Ibid.

There is no doubt that petitioner’s request for an

innocent transitory possession instruction would have

been granted in either the D.C. Circuit or the First

Circuit. Petitioner’s testimony was assuredly adequate for a jury to conclude (if given the chance) that

the firearm in this case was attained innocently and

that possession of the firearm was transitory. Petitioner was denied his request—and the court issued

the opposite instruction instead—because the case

arose in the Second Circuit. That kind of variability in

the federal criminal law is not tolerable.

10

2. Three circuits have defined the defense

so narrowly that it is never available

The Second, Sixth, and Seventh Circuits have

acknowledged that the innocent transitory possession

defense may exist but have defined it so unrealistically narrowly that it never applies. In these three circuits, the innocent transitory possession defense is not

meaningfully available to defendants.

The Second Circuit explained in Miles that although it has “not decided whether to recognize an innocent possession defense in the section 922(g)(1) context,” it nevertheless has “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.” 748 F.3d at

490 (cleaned up).

An example of fleeting possession would include,

according to the Second Circuit, the implausible scenario of a felon “noticing a police officer’s pistol slip to

the floor while the officer [is] seated at a lunch counter, pick[ing] up the weapon, and immediately return[ing] it to the officer.” United States v. White, 552

F.3d 240, 249 (2d Cir. 2009) (citation omitted). It is not

realistic to imagine a bystander with a felony criminal

record picking up a loaded weapon “dropped by a police officer” sitting at a lunch counter. And outside

that farfetched circumstance, if a felon “extend[s] his

possession of a firearm far beyond the fleeting sort,”

the defense is not available. Ibid (citation omitted).

Two circuits have taken positions similar to the

one adopted in Miles and White. In United States v.

Cherry, 921 F.3d 690 (7th Cir. 2019), in an opinion by

then-Judge Barrett, the Seventh Circuit likewise refused to foreclose the innocent transitory possession

defense. But the court determined that the defense

11

was not available where the defendant did not take

“immediate action” to turn the weapon over to law enforcement who are present at the time. Id. at 692; accord United States v. Jackson, 598 F.3d 340, 350 (7th

Cir. 2010).

The Sixth Circuit similarly has recognized that

the innocent possession defense is a “very narrow”

one, essentially equivalent to the defense of necessity,

requiring “imminent threat of death or serious bodily

injury,” the absence of any “reasonable alternative” to

possessing the weapon, and a duration of possession

no “longer than necessary.” United States v. DeJohn,

368 F.3d 533, 546 (6th Cir. 2004).

3. Five circuits have rejected the innocent

transitory possession defense outright

Finally, five circuits have explicitly rejected the

defense of innocent transitory possession in Section

922(g) cases. In nearly every one of these cases, the

deciding court has recognized the split and expressly

rejected the D.C. Circuit’s reasoning in Mason:

• United States v. Becerra, 958 F.3d 725, 730

(8th Cir. 2020) (observing that “[t]he D.C. Circuit has said that [there is an innocent transitory possession defense], but other circuits

have come out the other way” and rejecting

Mason), cert. denied, 2021 WL 78244, at *1

(2021).

• United States v. Vereen, 920 F.3d 1300, 13091310 (11th Cir. 2019) (“respectfully disagree[ing]” with Mason and finding “no room

for an innocent or transitory exception”), cert.

denied, 140 S. Ct. 1273 (2020).

12

•

United States v. Baker, 508 F.3d 1321, 1327

(10th Cir. 2007) (rejecting Mason and “refus[ing] to create an innocent possession defense”), cert. denied, 555 U.S. 853 (2008).

• United States v. Johnson, 459 F.3d 990, 998

(9th Cir. 2006) (“respectfully disagree[ing]

with * * * the D.C. Circuit” and “declin[ing]

* * * to create an innocent possession defense”), cert. denied, 549 U.S. 1266 (2007).

• United States v. Gilbert, 430 F.3d 215, 220

(4th Cir. 2005) (“respectfully disagree[ing]

with [the D.C.] [C]ircuit” and opting not to

“recogniz[e] an innocent possession defense”),

cert. denied, 549 U.S. 832 (2006).

Against this background, there is no denying that,

as Judge McConnell put it, “the current * * * jurisprudence regarding implicit affirmative defenses” to federal possession offenses “is in disarray.” Baker, 523

F.3d at 1143. It is past time for the Court to restore

uniformity on the question presented.

B. The question presented is important, and

this is a suitable vehicle for review

Review is further warranted because the question

presented is unusually important.

1. Illegal possession crimes, and in particular

charges under Section 922(g), are among the most

common in the federal criminal justice system. And

defendants charged with such crimes often request a

jury instruction on innocent possession. The frequency with which the question presented arises is

demonstrated plainly enough by the fact that it has

reached the federal courts of appeals in at least ten

circuits. See supra pp. 6-11.

13

At the same time, published opinions and jury instructions referencing the innocent possession defense assuredly underrepresent the frequency of defendants’ requests. Decisions on jury instructions are

rarely written, much less published, by district courts.

Even still, legal databases contain dozens of federal

cases where innocent possession jury instructions

were requested, including some where the instruction

was granted. See, e.g., United States v. Herron, 432

F.3d 1127, 1135 (10th Cir. 2005) (innocent transitory

possession instruction requested and given); United

States v. Livings, No. 4:07CR3163, 2008 WL 398432,

at *1 (D. Neb. Feb. 13, 2008) (innocent possession instruction requested but denied).

2. Resolution of the question presented affects

practical outcomes, both in terms of instructions given

and the ultimate result of criminal trials.

In jurisdictions that recognize an innocent or temporary possession defense, appellate courts have overturned convictions where the trial court erred in refusing to provide the innocent possession jury instruction. See, e.g., People v. Zarate, No. A153400, 2019 WL

4127299, at *1 (Cal. Ct. App. Aug. 30, 2019); State v.

Neal, 529 P.2d 114, 116 (Kan. 1974); People v. Furey,

13 A.D.2d 412, 415 (N.Y. App. Div. 1961). In the drug

possession context, appellate courts have reversed

convictions in states as diverse as Alaska, California,

Florida, Kentucky, and Utah. See, e.g., Jordan v.

State, 819 P.2d 39, 43 (Alaska Ct. App. 1991); People

v. Mijares, 491 P.2d 1115, 1120 (Cal. 1971); Stanton v.

State, 746 So. 2d 1229, 1230-1231 (Fla. Dist. Ct. App.

1999); Commonwealth v. Adkins, 331 S.W.3d 260, 267

(Ky. 2011); State v. Rivera, 440 P.3d 694, 705-706

(Utah Ct. App. 2019).

In addition to appellate reversals, innocent possession defenses demonstrably lead to acquittals at

14

trial. While direct evidence of acquittals is hard to

come by (an acquittal does not typically result in a

published opinion and cannot be appealed), acquittals

based on this defense do occur. See, e.g., People v. Morris, 999 N.E.2d 160, 164 (N.Y. 2013) (noting that the

defendant was acquitted of criminal possession of a

weapon after the jury was instructed on the defense of

temporary innocent possession of a firearm); People v.

Cezar, 149 Misc. 2d 620, 627 (N.Y. Crim. Ct. 1991)

(setting aside a jury verdict and acquitting the defendant in a drug-paraphernalia possession case because

“defense of temporary lawful possession was established as a matter of law”); State v. Hunter, 599

N.E.2d 886, 887 (Ohio Com. Pl. 1992) (finding the defendant in a drug possession case not guilty because

his possession was intended to prevent the violation

of law by another).

Short of acquittals, there is plentiful evidence that

innocent possession jury instructions are often given

at trial and present in state pattern jury instructions.

See, e.g., State v. Tyler, 718 P.2d 214, 218 (Ariz. Ct.

App. 1986); People v. Corona, No. C053161, 2008 WL

2487905, at *2 (Cal. Ct. App. June 23, 2008); State v.

Dodd, 728 P.2d 402, 404 (Kan. Ct. App. 1986); People

v. Mairena, 144 N.E.3d 340, 344 (N.Y. 2019); 1 Criminal Jury Instructions for the District of Columbia

6.501(C) (5th ed. 2020).

There accordingly cannot be any doubt that the division of authority among the federal courts of appeals

on the question presented is leading to divergent results on similar facts. This state of affairs cries out for

this Court’s intervention.

3. The question is also important because decisions like the one in this case conflict with the publicsafety policies of the States on matters of fundamen-

15

tally local concern. A significant portion of the Nation’s population lives in States that recognize and use

the innocent possession defense to encourage residents to turn in dangerous firearms and ammunition

to the police.

Jurisdictions that recognize an innocent possession defense for firearms charges include California

(People v. Martin, 25 P.3d 1081, 1088 (Cal. 2001));

New York (People v. Williams, 409 N.E.2d 1372, 1373

(N.Y. 1980)); Illinois (In re S.M., 807 N.E.2d 1102,

1107 (Ill. Ct. App. 2004)); the District of Columbia

(Hines v. United States, 326 A.2d 247, 248 (D.C.

1974)); and Kansas (State v. Jones, 629 P.2d 181, 183

(Kan. 1981)). 2 Nearly a third of the American population lives within these jurisdictions. In all but the District of Columbia, residents with felony records are receiving mixed messages concerning the legality of

their conduct, and local public safety policy is being

overridden by federal courts.

The divergence in the availability of the innocent

possession defense as between state and federal authorities also impacts prosecutors’ charging decisions.

This case proves the point.

4. This case is an ideal vehicle for addressing this

important question. The evidence shows without dispute that petitioner obtained the firearm innocently,

with no illicit purpose, and he took measures to turn

in the firearm to the police as promptly as reasonably

possible. App., infra, 23a-24a. Moreover, petitioner

lives in New York, which recognizes the innocent transitory possession defense and has adopted an express

gun amnesty program. Ibid; see also Williams, 409

Court also have suggested that the defense is available in Arizona and Florida. See State v. Tyler, 718 P.2d 214, 218 (Ariz. Ct.

App. 1986); West v. State, 69 So.3d 1075 (Fla. 1st DCA 2011).

2

16

N.E.2d at 1373. It therefore implicates the intolerable

tension between state common-law rules and federal

statutory law that this Court meant to resolve in

Dixon. See infra at 16-19.

The Second Circuit’s decision below turned

straightforwardly on Miles, which makes the defense

unavailable as a practical matter to virtually any defendant who might raise it: Because Johnson possessed the firearm longer than momentarily (even if he

did so innocently), the court held that his requested

instruction was not warranted. App., infra, 6a-7a.

This case falls squarely within the gap between Miles

and Mason, and therefore presents a suitable vehicle

for resolving the circuit split. 3

C. The decision below is wrong

The clean presentation of a question of profound

practical importance for criminal defendants implicating a circuit conflict provides ample reason to grant

certiorari. Review is further warranted because the

decision below is wrong.

The starting point on the merits is Dixon v. United

States, 548 U.S. 1 (2006). There, this Court recognized

The court of appeals criticized petitioner for not testifying in

his own defense. App., infra, 7a-8a & n.1. But petitioner declined

to testify only because the district court refused to instruct the

jury on innocent transitory possession. He can hardly be faulted

for declining to give testimony to support a defense that the district court had foreclosed, particularly when the government’s

theory was that such testimony would amount to a “confession.”

C.A. App. 200. That is why petitioner submitted a sworn affidavit

for the court’s consideration, instead. App., infra, 22a-24a. And

the court of appeals ultimately rejected petitioner’s arguments

as though he “had testified at trial consistently with his affidavit.” App., infra, 8a.

3

17

that criminal statutes are enacted against the backdrop of common-law defenses, to which the federal

courts must give effect. That is to say, Congress is

aware of “long-established” common-law defenses and

is presumed to have incorporated them into its criminal enactments, even where a federal criminal statute

“does not mention the defense.” Id. at 13. Accord

United States v. Bailey, 444 U.S. 394, 415 n.11 (1980)

(The “defense[s] of duress [and] coercion may well

have been contemplated by Congress when it enacted”

the statute at issue there because they are long-established common law defenses). 4

That logic resolves the question presented here.

The Safe Streets Act of 1968, from which Section

922(g)(1) originated, was premised on the notion that

firearm possession by convicted felons is “contrary to

the public interest” and a “significant factor in the

prevalence of lawlessness and violent crime.” Pub. L.

90-351, Title IV, § 901(a)(2) (June 19, 1968); accord

Barrett v. United States, 423 U.S. 212, 220 (1976) (history of 1968 Act reflects a concern with “keeping firearms out of the hands of categories of potentially irresponsible persons”). The innocent transitory possession defense is consistent with that purpose, exempting from criminal sanction those felons who maniFollowing Dixon, at least eight circuits have recognized the

availability of various common-law defenses to federal crimes defined by statutes that do not expressly provide for them. See, e.g.,

United States v. Ortiz, 927 F.3d 868, 877 (5th Cir. 2019); United

States v. Waldman, 835 F.3d 751, 754 (7th Cir. 2016); United

States v. Doe, 705 F.3d 1134, 1145 (9th Cir. 2013); United States

v. Theunick, 651 F.3d 578, 590 (6th Cir. 2011); United States v.

Leahy, 473 F.3d 401, 409 (1st Cir. 2007); United States v. Mooney,

497 F.3d 397, 403 (4th Cir. 2007); United States v. Mason, 233

F.3d 619 (D.C. Cir. 2000); United States v. Paul, 110 F.3d 869 (2d

Cir. 1997).

4

18

festly do not possess a firearm in a circumstance

where Congress meant to forbid it.

Consistent with Dixon, moreover, the innocent

transitory possession defense is well settled by common law authorities among the States. By 1912 at the

latest, courts in New York recognized the innocent

transitory possession defense for firearms and other

weapons based on the public-policy benefits of fostering a “civic duty on the part of citizens to surrender

dangerous weapons to the police.” Williams, 409

N.E.2d at 1373 (citing People v. La Pella, 4 N.E.2d

943, 943 (1936)). Other state courts similarly adopted

the defense through common-law judicial reasoning.

Other common law authorities have likewise recognized the defense. See, e.g., People v. Mijares, 491 P.2d

1115, 1120 (Cal. 1971) (contraband); Hines v. United

States, 326 A.2d 247, 248 (D.C. 1974) (firearms); State

v. Jones, 629 P.2d 181, 183 (Kan. 1981) (firearms);

Commonwealth v. Adkins, 331 S.W.3d 260, 264 (Ky.

2011); State v. Miller, 193 P.3d 92, 96 (Utah 2008)

(controlled substances).

Recognition of the innocent transitory possession

defense is dictated not only by Dixon, but also by the

federalist structure of the American system of government. Given the significant overlap between federal

and state criminal law today—an overlap that would

come as a surprise to the Constitution’s Framers—a

refusal to recognize the defense means that federal

authorities’ charging decisions under Section 922(g)

are overriding the local public policy judgments of the

States and their municipalities that mean to encourage residents to turn over firearms to the police.

Recognition of the innocent transitory possession defense falls within the historic police powers of the

States, Allen-Bradley v. Wisconsin Employment Relations Bd., 315 U.S. 740, 749 (1942), and arose to

19

“serve[] the salutary purpose and sound public policy

of encouraging disposal and discouraging retention of

dangerous items such as controlled substances and

firearms.” Martin, 25 P.3d at 1088.

This Court should not countenance federal courts

so blithely overriding local public safety judgments.

Dixon recognizes that federal criminal statutes must

be read consistently with settled common-law rules.

The innocent transitory-possession defense is one

such rule and is therefore available to defendants

charged with violating Section 922(g). If the law is

otherwise, it should be this Court that says so.

II. ALTERNATIVELY, THE COURT SHOULD

HOLD THIS CASE FOR GARY AND GREER

If the Court does not grant review of the innocent

transitory possession issue, it should instead hold this

case pending decisions on the merits in United States

v. Gary, No. 20-444 (cert. granted Jan. 8, 2021) and

Greer v. United States, No. 19-8709 (cert. granted Jan.

8, 2021).

In Gary, this Court will decide whether a defendant who pleaded guilty to possessing a firearm as a

felon, in violation of Sections 922(g)(1) and 924(a), is

automatically entitled to plain-error relief if the district court did not advise him that one element of that

offense is knowledge of his status as a felon. Among

the cases cited by the government as falling within the

circuit split on that issue is United States v. Balde,

943 F.3d 73 (2d Cir. 2019), which the government defends as correctly decided. Petn. 18-21, United States

v. Gary, No. 20-444. The court of appeals relied in

Balde to reject petitioner’s position that his conviction

must be vacated in this case. See App., infra, 2a (petitioner’s “argument has been squarely foreclosed by

20

* * * Balde.”). Whether Balde was correctly decided is

the issue under review in Gary.

The same is true of Greer, in which the Court will

consider whether a court of appeals may review matters outside the trial record to determine whether an

error is a plain error. Among the cases cited by the

petitioner as falling within the circuit split on that

issue is United States v. Miller, 954 F.3d 551 (2d Cir.

2020), which the petitioner argues was wrongly

decided. Petn. 6-10, United States v. Greer, No. 198709. The court of appeals relied on Miller in this case

as ground for considering the extra-record presentence report. See App., infra, 4a (“As this Court made

plain in [Miller], on the record here, Johnson cannot

satisfy the fourth prong of plain error review.”).

Whether Miller was correctly decided is the issue

under review in Greer.

If it does not grant plenary review of the first

question presented, therefore, the Court should hold

this petition pending its decisions in Gary and Greer

and then dispose of the petition as appropriate in light

of those decisions. 5

CONCLUSION

The Court should grant review of the first question presented. If it does not, it should hold this petition pending its decisions in Gary and Greer and then

dispose of the petition as appropriate in light of those

decisions.

The Court appears to be holding a number of similar cases for

Gary or Greer. See Sandford v. United States, No. 20-6165; Burden v. United States, No. 20-5939; Haynes v. United States, No.

20-5747; Smith v. United States, No. 20-5558; Mack v. United

States, No. 20-5407; Kachina v. United States, No. 20-5400; Pugh

v. United States, No. 20-5037; Reed v. United States, No. 19-8679.

5

Respectfully submitted.

CARLA M. SANDERSON

Carla Sanderson Law

260 Madison Ave., Floor 22

New York, NY 10016

MICHAEL B. KIMBERLY

Counsel of Record

PAUL W. HUGHES

McDermott Will &

Emery LLP

LOUIS M. FREEMAN

500 N. Capitol St. NW

Freeman, Nooter & Ginsberg

Washington, DC 20001

75 Maiden Ln., No. 503

(202) 756-8000

New York, NY 10038

mkimberly@mwe.com

Counsel for Petitioner