Petition — Hammons v. United States

RECEIVED

APR 10 1978

OFFICE OF THE CLERK

SUPREME COURT. US

IN THE

SUPREME COURT OF THE UNITED STATES

OCOTBER TERM, 1977

No. preseee T7-GOSL

JOHN CORNELIUS HAMMONS, Petitioner

Vv.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

W. GREGORY HUGHES

Attorney for Peititoner

1350 Dauphin Street

Mobile, Alabama 36604

Page

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‘She REC 5 .oe's sc nbs 0d 642 E SNS OP OP ERS SEER OR ORT eae 1

Questions presented ......---e-eeeeereersrrrereerescceres 2

Statutory provisions imwolved ...ccccvecscsesendecetewses 2

Statement of the Case ......- se cceerreccsceserowcorercces 2

Reasons for granting the writ ...----+-esrerrererrreseeces 4

1. This is a case of first impression. The

lower Courts’ opinion leaves the applicat-

tion of criminal statute Title 18 U.S.C.

Section 922 (h) (1) ambiguous and unclear.

2. The evidence in this instant case supports

the defendant's position and the trial court

erred in refusing to allow the defendant to

raise the defense of an emergency or momen~

tary receipt of a firearm, justified by

emergency circumstances.

3. Im the decision below, the Court shifted

from judging the law to judging the facts,

and in so doing misconstrued the facts that

were before the trial court.

4. The results of the lower Courts’ decisions

are unconscionable and unfair.

pene eE OE |. oo cc ks Cha wae RE a cod CRIA St AOR EOTR TOO Oe WO ee 7

Appendix (Opinion and Judgment of Court of Appeals) 1 (Appen. )

(Notice of Denying Petition) .......cceecececee 5 (Appen. )

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77-5262

JOHN CORNELIUS HAMMONS, Petitioner

v.

UNITED STATES OF AMERICA, Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioner John Cornelius Hammons respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Fifth

Circuit entered in this proceeding on February 6, 1978.

OPINION BELOW

The opinion of the Court of Appeals appears in the Appen-

dix hereto. No opinion was rendered by the District Court for

the Southern District of Alabama.

JURISDICTION

The judgment of tne Court of Appeals for the Fifth Circuit

ee

was entered on February 6, 1978. A timely petition for rehear-

ing en banc was denied on March 8, 1978>"and, this petition was

filed within thirty days of that date. This Court's jurisdic-

tion is invoked under 28 U.S.C. Section 1254(1).

ste

QUESTIONS PRESENTED

1. Whether a defense of emergency or innocent possession

may be raised as a defense to a charge of violating 18 U.S.C.

Section 922(h)(1), which prevents a convicted felon from re-

ceiving a firearm that has been shipped in interstate commerce.

STATUTORY PROVISIONS INVOLVED

The statute involved 18 U.S.C. Section 922(h) (1), which

makes lt unlawful for a convicted felon to receive any firearm

or ammunition which has been shipped or transported in inter-

state commerce.

STATEMENT OF THE CASE

On August 7, 1973, the Defendant was convicted of inter-

state transportation of a stolen motor vehicle and sentenced

to three concurrent terms of three years imprisonment. On

June 10, 1976, the Defendant was with other individuals at a

nightclub.

At approximately 3:00 A.M., Hudson Bridges, a friend of the

Defendant, entered the club looking for his girlfriend, Pat

Townley. When Townley refused to leave the club, Bridges re-

trieved a pistol from his car, returned to the club and force-

fully drug her outside.

The Defendant, at the request of others, and being aware of

x

,

Bridges’ reputation for violence, followed the couple outside

in an effort to keep Bridges from hurting Townley.

The Defendant persuaded Bridges to hand over the gun and

reentered the club with the gun still in his possession. Ap-

proximately ten minutes later, at a time when the police arrived

on the scene, the Defendant attempted to give the gun to a

waitress with whom he had been talking. During the exchange,

the gun went off shooting the Defendant in the buttocks.

At the close of the evidence, the Defendant requested

several jury instructions which charged in essence: (1) that

the jury should consider the circumstances surrounding the

Defendant's receipt of the gun, and (2) that if the Defendant

had gained temporary control of the gun under a reasonable fear

for the life and safety of another, the jury should vote for an

acquittal. The Court denied the Defendant's request for charges

and charged the jury essentially that they were not to consider

the reasons why the firearm was received. The Defendant objected

and the jury retired.

After deliberating, the jury returned and inquired: (1)

whether they could consider the circumstances as to how the

Defendant acquired the gun, or (2) strictly by the law. The

Court answered, "Strictly by the law".

The jury later returned and indicated that they were unable

to reach a verdict. The Court again read its charge relative to

the statute and again instructed the jury that they were not to

burden themselves in trying to determine why the firearm was

received.

The jury returned a verdict of guilty and the Defendant

was sentenced to two and one-half years imprisonment.

The Defendant appealed to the Circuit Court of Appeals

and the trial court's judgment was affirmed on February 6, 1978.

The Defendant then filed a petition for rehearing en banc, which

the EFrfth Circuit Court of Appeals denied on March 8, 1978. The

Defendant now comes to this Court by petition for writ of cer-

tiorari to the Fifth Circuit Court of Appeals.

REASONS FOR GRANTING THE WRIT

1. This is a case of first impression. The lower Courts'

opinion leaves the application of criminal statute

Title 18 U.S.C. Section 922(h)(1) ambiguous and unclear.

This case involved the question of whether a felon may

legally take possession of a firearm under an emergency situation,

not of his own making, and only in a momentary effort to protect

another.

This is a case of first impression and the opinion below

served to confuse the question rather than answer it.

The evidence produced at trial was in all essential respects

not controverted and squarely presented the Court with a case

wherein a convicted felon took possession of a firearm from a

drunken, violent individual who was posing an imminent threat

to an innocent third party. The evidence was clear that the

felon acted only at the request of others and his possession wes

only momentary.

The opinion below gives the impression that such a defense

==

as that offered by the Defendant, ie innocent or momentary

possession justified by emergency circumstances, may be

proper under certain circumstances.

This case involves a criminal statute and its applica-

a

tion should be clear and unambiguous in order to serve as a

future precedent. This Court has the power and opportunity

to settle this question, leaving nothing to speculation.

2. The evidence in this instant case supports the de-

fendant’s position and the trial Court erred in

refusing to allow the defendant to raise the defense

of a emergency or momentary receipt of a firearm,

justified by emergency circumstances.

The decision below restated the law that the defendant

is entitled to have presented instructions relating to a theory

of defense for which there is any foundation in the evidence,

even though the evidence may be weak, insufficient, inconsistent

or of doubtful credibility. ;

The evidence presented by both sides provides a substan-

tail basis for the defendant's requested charges regarding a

defense of momentary or innocent receipt of a firearm. The

trial Court erred in refusing to give the defendants requested

instructions and in instructing the jury that they could not

consider the circumstances under which the Defendant took pos-

session of the firearm.

If there is such a defense, this defendant should certainly

have been ailowed to raise it, in that the evidence is entirely

consistent with an innocent or momentary possession justified

by emergency circumstances.

3. In the decision below, the Court shifted from

judging the law to judging the facts, and in so

doing misconstrued the facts that were before

the trial Court.

The decision below indicates that the Court erred in

its interpretation of the facts. The Court's opinion indi-

cated that the Court felt the facts that: (1) the defendant

possessed a gun for ten minutes after the emergency, and (2)

a surreptitious transfer by the defendant were not consistent

with the theory of justified or innocent receipt of the fire-

arm. Both of these points indicated by the Court as being

determinative of the defendant's intent, occurred after the

initial receipt of the firearm and do not show his intent at

the time he received the firearm. All of the testimony con-

cerning the defendant prior to the receipt of the firearm

is consistent with the defendant's suggested defense.

The Court below failed to note that the owner of the gun

was still on the premises during the entire time that the

defendant retained possession of the firearm, under this cir-

cumstance, is entirely reasonable and consistent with his de-

ferise.

The fact that the Defendant attempted a surreptitious

transfer of the firearm is not inconsistent with the defendant's

defense. The defendant was 4 convicted felon and realized

that he could be in trouble with the police for possessing 4

firearm.

For aught that appears the defendant took possession of

the firearm as he states and then became frightened at the

arrival of the police.

4. The resulcs of the lower Courts' decisions are

unconscionable and unfair.

The decision below would punish a convicted felon for

preventing death or serious bodily injury to another. Surely

Congress could not have intended that the law would be so

construed that one could and would be imprisoned for protect-

ing an innocent person from harm by taking momentary posses-

sion of a firearm. Under the trial Court's interpretation of

the statute and the Court of Appeals’ decisions, a felon could

be convicted of a violation such as in this case,where the felon

disarmed another individual who had assaulted him with a fire-

arm. Such unreasonable and unconscionable results could not

have been intended by Congress.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be granted.

Respectfully submitted,

April 5, 1978

UNITED STATES v. HAMMONS 2026

UNITED STATES of America,

Plaintiff-Appellee,

v.

John Cornelius HAMMONS,

Defendant-Appellant.

No. 77-5262.

United States Court of Appeals,

Fifth Circuit.

Feb. 6, 1978

In a prosecution for receipt of a

firearm by a convicted felon, the United

States District Court for the Southern

District of Alabama at Mobile, William

Brevard Hand, J., instructed, over de-

fendant’s objection, that defendant's al-

leged reasons for recciving the firearm

were to be disregarded. Defendant was

convicted Defendant appealed. The

Court of Appeals, Roney, Circuit Judge,

held that where defendant admittedly

had purposely approached a man with a

gun and had taken possession of the gun,

and had retained possession for approxi-

mately ten minutes after reentering a

bar, and did not attempt to rid himself

of the gun until police officers entered

the bar, the trial court did not err in

refusing requested instructions and in-

stead charging that the reason for de-

fendant’s receipt of the firearm was “not

part of the equation” or in replying, in

answer to a subsequent inquiry from

jury, that the jury was te arrive at a

decision “Strictly by the law.”

Affirmed.

1. It shall be unlawfui for any person—

(1) who ts under indictment for, of who

has been convicted in any court of, a crime

1. Criminal Law <>770(2), 1144.14

Defendant was entitied to have

presented instructions relating to any

theory of defense for which there was

any foundation tn evicde nee though evi-

dence might be weak, insufficient, incon-

sistent or of doubtful credibility, and

thus where defendant complained on ap-

peal of refusai of instruction, case was to

be viewed under defendant's version of

the facts.

2. Weapons <17(6)

Where defendant admittedly had

purposely approached man with gun and

had taken possession of gun, and had

retained possession for approximately

ten minutes after reentering bar, and

did not attempt to rid himself ef gun

until police officers entered bar, trial

court did not err, at trial on charges of

receipt of firearm by convicted felon, in

refusing requested instructions and in-

stead charging that reason for defend-

ant's receipt of firearm was “not part of

the equation” or in replying, in answer

to subsequent inquiry from jury, that

jury was to arrive at decision “Strictly

by the law.” 18 U.S.C.A. §§ 922{h),

(hx 1), 925, 2312; 26 U.S.C.A. (1.R.C.1954)

§ 5861(d); 18 U.S.C.A. App. § 1202(a).

Appest from the United States Dis-

trict Court for the Southern District of

Alabama.

Before TUTTLE, CLARK and RO-

NEY, Circuit Judges.

RONEY, Circuit Judge:

Defendant John Hammens appeals his

conviction under 18 U.S.C.A. § 922th) for

illegal receipt of a firearm by a convict-

ed felon.' At trial, he admitted receiv-

punishable by imprisonment for a term ex-

ceeding one year,

(2) who is a fugitive from justice;

Synopses, Syllabi and Key Number Classification

COPYRIGHT ¢ 1978, by WEST PUBLISHING CO

The Synopses, Syllabi and Key Number Classifi-

cation constitute nv part of the opimon of the court

Appen. l

2027 UNITED STATES v. HAMMONS

ing the firearm, but alleged that he had

acted only to protect the safety of an-

other. The trial court, over defendant's

objection, instructed the jury to disre-

gard defendant's alleged reasons for re-

ceiving the firearm. On this appeal ce-

fendant contends that § 922(h) does not

impose op currvicted felons absolute lia-

bility for reeeiwing firearms but that the

jury shmeulti ave been allowed to con-

sider tte wcumstances surrounding his

receip! off se gun. We need not decide

whether & $22(h) renders criminal the

receuzt oifa firearm by a convicted felon

in every emergency or allegedly innocent

circurastance. We hold only that under

the facts of this case the trial court’s

jury instruction did not constitute re-

verwble error.

{lJ We must view this case under de-

fezafant’s version of the facts, fer “de-

femdant [was] entitled to have presented

instructions reialing to a theory of de-

femse for which there is any foundation

in the evidence, even though the evi-

ikence may be weak, insufficient, incon-

sistent, or of doubtful credibility.” U'nit-

ed States v. Young, 464 F.2d 160, 164

(5th Cir. 1972), quoting Tatum v. United

States, 88 U.S.App.D.C. 386, 391, 190

F' 2d 612, 617 (1950).

In August 1973 defendant was convict-

e¢ of interstate transportation of a sto-

Jen motor vehicle and sentenced to three

cancurrent terms of three years impris

(3) who is an unlawful! user of or addicted

to marihuana or any depressant or stimulant

drug (as defined in section 20i(v) of the Fed

erai Food, Drug. and Cosmetic Act} or nar

cotic drug (as defined in section 4731(a) of

the Internal Revenue Code of 1954). or

(4) who has been adjudicated as a mental

defective or who has been committed to any

mental institution;

to receive any firearm of ammunition which

has been shopped or transported in interstate

or foreign commerce

18 US.C.A 9 922(h)

onment2 On June 10, 1976, defendant,

while on probation under this conviction,

was with Connie Floyd and Melvin Lee

at “Ye Old Spot.” a nightclub in Pritch-

ard, Alabama. At approximately 3:00 a

m., Hudson Bridges, a friend of defend-

ant, entered the club, looking for his

girlfriend Pat Townley. When Townley

refused to leave the club, Bridges re-

trieved a pistol from his car, returned to

the club, and forcefully escorted Town-

ley outside Defendant, aware of

Bridges’ reputaticn for violence, followed

the coupie outside “to keep [Bridges]

from hurting [Townley].”

Defendant persuaded Bridges to hand

over the gun and reentered the club with

the gun still in his possession. When

two police officers entered the club uap-

proximately 10 minutes later, defendant

attempted to give the gun to a waitress

with whom he had been ta!king. During

the exchange, however, the gun went

off, shooting defendant in the buttocks.

Five months later defendant was

charged with violating 18 U.S.C.A.

§ 9224h\1), which makes it unlawful for

a convicted felon “to receive any firearm

or ammunition which has been shipped

or transported in interstate or foreign

commerce.” At the close of the trial,

defendant requested several jury instrue-

tions which, in essenceZcharged (1) that

the jury couk! consider the circumstances

surrounding defendant's receipt of the

2. IS USCA. § 2312 provides

Whoever transports in interstate or for

eign commerce a motor vehicle or aircraft

knowing the same to have been stolen, shall

be fined not more than $5,000 or imprisoned

not more than five years, or both

UNITED STATES v. HAMMONS 2028

gun and (2) that if defendant had gained

temporary control of the gun under a

reasonable fear for the life and safety of

another, the jury should vote for aequit-

tal. The trial judge denied the request-

ed irxtructions and charged the jury as

follews:

{¥o} receive a firearm, as that term is

used, means to take possession of or to

knowingly accept the same. The rea-

son for receiving the firearm is not

part of the equation and you are not

5 ——

to burden vourselves in trying to de-

termine why the firearm was received,

if in fact it was.

Defendant's objection to this instruction

was overruled, and the jury retired. Af-

ter a period of deliberation, the jury sent

the judge a note inquiring: “In arriving

at the decision, should we (1) consider

the circumstances as to how he acquired

the gun, or (2) strietly by the law?”

Over defendant's objection, the court re-

plied, “Strictly by the law.” After fur-

ther deliberation, the jury indicated that

it was unable to reach a verdict and

requested that the law be read again.

The court read its charge relative to the

statute and again instructed the jury

that they were not to burden themselves

in trying to determine why the firearm

was received. The jury returned a ver-

dict of guilty, and defendant was sen-

tenced to two and one-half years impris-

onment.

Defendant does not contend that the

Government must prove, as an element

of the offense under § 922%(h), that de-

3. This argument as to a similar statute was

rejected in United States v Parker, slip opin-

ion 2030, — F.2d (5th Cir, 1978) [No

77 5384, Feb. 6, 1978], which was orally ar

gued at the same time as this case. Detendant

Parker was convicted under 26 USCA

§ 5861(d) for possession of an unregistered

sawed-off shotgun. At trial Parker contended

that his possession was justified by exigent

fendant reecived the gun without legal

excuse? Rather, he argues that the trial

court erred in refusing to allow the jury

to consider, as a defense, the circum-

stances attending defendant's receipt of

the weapon. Defendant urges that Con-

gress could not have intended criminally

to punish a feion who receives a firearm

under emergency conditions not of his

own making The Government main-

tains that the absolute language of

§ 922(h) admits of no exceptions: a con-

victed felon violates the law when he

receives a firearm, regardless of how in-

nocent or exigent the circumstances.

Section 922(h) prohibits, in absolute

terms, the receipt of a firearm by a con-

victed felon. Section 925 details the lim-

ited exceptions to liability under

§ 92%h). As the Supreme Court has

noted, Congress “sought broadly to keep

firearms away from the persons Con-

gress classified as potentially irresponsi-

ble and dangerous. These persons are

comprehensively barred by the Act from

acquiring firearms by any means.” Bar-

rett v. United States, 423 U.S. 212, 218,

(96 S.Ct. 498, 502, 46 L.Ed.2d 450] (1976).

The question presented by defendant's

contentions, therefore, is whether a de-

fense of emergency or exigent circum-

stances to be judicially read into the oth-

erwise unambiguous terms of the stat-

ute. We need not here decide whether

some set of facts may sometime be held

to present such a defense, although te

date no court has constructed such ade-

fens, We only hold that the facts of

circumstances. On appeal Parker argued, in

effect. that in order to prove “knowing” pos-

session, the Government must prove that de-

fendant’s possession was not justified by some

innocent reason. We held that the Govern-

ment need only show that defendant willfully

and consciously possessed what he knew tu be

a firearm

2029 UNITED STATES v. HAMMONS

this case do not demonsiraie 2 legal de-

fense to the charge.

{2} Defendant admits that he pur-

posefully approached Bridges and took

possession of the gun. Moreover, de-

fendant retained possession of the fire-

arm for approximately 10 minutes after

reentering the bar, an act which is itself

an apparent violation of federal gun con-

tre! legislation. See i US.C.A-App.

§ 1202a). Finally, noi unti! police offi-

cers entered the club did defendant at-

tempt to rid himself of the gun, and

then he apparently tried to conceal the

transfer from the officers. Defendant's

continued possession of the gun after the

alleged emergency conditions nad van-

ished and the surreptitious manner in

which he attempted to transfer uo were

hardly consistent with his theory of jus-

tified or innocent receipt of the firearm.

On the whole, the record in this case

does not support defendant's contention

that the trial court erred in instructing

the jury as it did. We express no opin-

ion on whether a different set of facts

might support the judicial creation of

such a defense to § 922(h).

AFFIRMED

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn.

—lnited States Court of Appeals

FIFTH CIRCUIT

TEL 604-589-8514

EQWARD ‘Ww. WAOSWORTH OFFICE OF THE CLERK 600 CAMP STREET

CLERK NEW ORLEANS LA 70150

March 8, 1978

TO ALL PARTIES LISTED BELOW:

NO. 77-5262 - U.S.A. v. JOHN CORNELIUS HAMMONS

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition( ) for rehearing; and

no member of the panel nor Judge in regular active

service on the Court having requested that the

Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 12) the petition( ) for rehearing

en banc has also been denied,

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate,

Very truly yours,

EDWARD W. WADSWORTH, Clerk

oy Granda. Mguch

eputy r

*on behalf of the appellan John Cornelius Hammons,

bmh

cc: Mr. Gregory Hughes”

Messrs. W. A. Kimbrough, Jr.

J. B. Sessions, III

Appen. 5