# Petition — Hammons v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1263%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 439 U.S. 810 ## Text 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 Dpiakits WOR 6 oe 60.5 c nya cs teeny ee te Mae eRe? 2887 l ‘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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1263%3A1. Public record. Not legal advice.