UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


UNITED STATES

v.

MASON, TONY ANGELO


00-3004a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Tony Angelo Mason appeals his  conviction under
18 U.S.C. s 922(g)(1) (1994). During his  trial, Mason testified that
he found a gun in a paper bag near  a school while he was working as a
delivery truck driver. He  claimed that he took possession of the gun
only to keep it out  of the reach of the young children at the school,
fully intend- ing to give the weapon to a police officer whom he
expected to  see later that day on his truck delivery route. A law
enforce- ment officer discovered the gun in Mason's possession, how-
ever, before Mason acted on his own to relinquish possession.  Mason
was then arrested and subsequently indicted for a  violation of s
922(g)(1), which makes it unlawful for any  person who has been
convicted of a crime punishable by  imprisonment for a term exceeding
one year to possess a  firearm or ammunition.


At the conclusion of his trial, Mason asked the District  Court to
instruct the jury that "innocent possession" was a  defense to the
crime charged under s 922(g)(1). The trial  judge denied the request,
instructing the jury instead that  "well meaning possession" was not a
defense to the  s 922(g)(1) charge. The trial judge instructed the
jury that,  so long as he "knowingly possessed" the gun, it did not 
matter why Mason had the weapon in his possession. The  jury then
returned a verdict of guilty and Mason was subse- quently sentenced to
77 months in federal prison.


Mason's principal argument on appeal is that the District  Court erred
in refusing to give an "innocent possession"  instruction. The
Government concedes that, in certain cir- cumstances, innocent
possession may be a defense to a  charge under s 922(g)(1). The
Government argues, however,  that such a defense could not succeed on
the record in this  case.


We agree that, in appropriate circumstances, a defense of  innocent
possession may be asserted in a criminal prosecu-


tion that rests on a charged violation of s 922(g)(1). We also  find
that, in the instant case, the District Court erred in  refusing to
give an innocent possession instruction. Accord- ingly, we hereby
reverse the judgment of the District Court  and remand the case for a
new trial.


I. Background


On April 13, 1999, the day of his arrest, Mason was driving  a truck
and delivering drinking water for his employer, Snow  Valley. Mason
testified that, after making a delivery to a  housing development at
69 L Place, N.W., Washington, D.C.,  and as he was returning to his
truck, he came upon a brown  paper bag on the ground and found a gun
with ammunition in  it. Trial Transcript at 19 (Aug. 27, 1999)
[hereinafter "Tr.  8/27"]. He picked up the bag and took it with him
to his  truck. He then took the gun out of the bag, tucked the  weapon
into the side of his weight belt, and put the ammuni- tion in his
pocket. Tr. 8/27 at 19. Mason testified further  that he picked up the
gun "because it was in an area where  there is the school there and
there were a lot of children  outside." Tr. 8/27 at 20. According to
Mason, he proceeded  to the Library of Congress, which was his next
water delivery  stop, where he intended to turn over the gun to a
Library of  Congress police officer he knew. Tr. 8/27 at 20-21.


Bobby Henson, a uniformed Library of Congress police  officer, was
stationed at the entrance gate adjoining a loading  dock in the
Library of Congress building when Mason drove  his Snow Valley truck
into the loading dock area. Having  seen Mason before, but not being
able to recall Mason's  name, Officer Henson testified that he
motioned for Mason to  stop so that he could record his name in the
log. Trial  Transcript at 10 (Aug. 26, 1999) [hereinafter "Tr. 8/26"].
 Mason testified that he thought the officer was waving him  on, so he
did not stop. Tr. 8/27 at 22. After parking his  truck and unloading
several bottles of water, Mason contin- ued on towards the dock
master's desk, where he signed in  before entering the Library of


Officer Patrick J. Curtis, Jr., who was stationed at a metal  detector
approximately ten to fifteen feet away from the dock  master's desk,
testified that Mason walked by him on his way  to the dock master's
desk. Tr. 8/26 at 27-28, 31. When  Mason leaned over the desk to sign
in, Officer Curtis ob- served what he believed to be the butt of a
handgun protrud- ing from Mason's waistband. Tr. 8/26 at 32. Officer
Curtis  then approached Mason, visually confirmed that Mason was 
carrying a gun, and then ordered Mason to put his hands on  the table
in front of him. Officer Curtis detained Mason at  gun point and
removed the gun from Mason's waistband. Tr.  8/26 at 34. Mason was
subsequently arrested.


On May 13, 1999, a federal grand jury indicted Mason on  one count of
unlawful possession of a firearm and ammunition  by a person convicted
of a crime punishable by imprisonment  for a term exceeding one year,
in violation of 18 U.S.C.  s 922(g)(1). See Indictment, United States
v. Mason, Crim.  No. 99-0162 (D.D.C. May 13, 1999), reprinted in
Appellant's  Appendix ("App.") at 4. A superceding indictment was
filed  on August 24, 1999. See Superceding Indictment, Mason,  Crim.
No. 99-0162 (D.D.C. Aug. 24, 1999), reprinted in App.  at 10.


During Mason's trial on the s 922(g)(1) charge, the prose- cutor asked
the trial judge to preclude the defense from  trying to introduce
evidence that Mason was justified in  possessing the gun. Tr. 8/26 at
116. The prosecutor argued  that, pursuant to authorities such as
United States v. Perrin,  45 F.3d 869 (4th Cir. 1995), the so-called
"justification" de- fense to a felon-in-possession charge under s
922(g)(1) is  available only when (1) the felon or someone else was
under  an unlawful and present threat of death or serious bodily 
injury; (2) the felon did not recklessly place himself in the 
situation where he would be forced to engage in criminal  conduct; (3)
the felon had no reasonable legal alternative that  would avoid both
the criminal conduct and the threatened  death or injury; and (4)
there was a direct causal relationship  between the criminal act and
the avoidance of the threatened  harm. Id. at 873-74. Defense counsel
objected on two  grounds: first, counsel argued that the Government's


was premature, because Mason had yet to present any evi- dence; second,
counsel asserted that Mason intended to rely  on an "innocent
possession" defense, not the "justification"  defense. Tr. 8/26 at
116-17. In asserting the innocent  possession defense, Mason's counsel
directed the District  Court's attention to Criminal Jury
Instructions, District of  Columbia, No. 4.71(B) (4th ed. 1993)
("Redbook"), and to D.C.  Court of Appeals decisions, such as Carey v.
United States,  377 A.2d 40, 42-44 (D.C. 1977), and Hines v. United
States,  326 A.2d 247, 248 (D.C. 1974), and unspecified federal
circuit  opinions, purporting to apply the innocent possession stan-


The District Court denied the Government's motion to  preclude the
"justification" defense, finding the motion pre- mature. Tr. 8/26 at
122. On the following day of trial,  Mason then testified, as noted
above, that he possessed the  weapon with innocent and good purpose.
At the conclusion of  the trial, Mason's counsel made an oral and a
written request  for an instruction on the defense of innocent
possession. The  proposed instruction was as follows:


Mr. Mason would be not guilty of the offense charged  here if he lacked
any criminal purpose in possessing the  weapon and/or ammunition and
he possessed the weapon  in an affirmative effort to aid social policy
for example:  1) to protect the finder or others from harm, 2) to turn
it  over to the police, or 3) to otherwise secure it.


Mr. Mason's Additional Proposed Jury Instructions, reprinted  in App.
at 48. The District Court rejected the innocent  possession
instruction. Instead, over the objection of defense  counsel, the
trial judge instructed the jury as follows:


If you find that the defendant knowingly possessed the  gun or
ammunition, then the reason the defendant may  have had for possessing
them is not relevant to your  consideration of the evidence. Well
meaning possession  is not a defense to the charge in this case.


Tr. 8/27 at 103.


The jury returned a guilty verdict against Mason. The  District Court
then sentenced Mason to 77 months in federal 


prison, followed by three years of supervised release. See  Judgment,
Mason, Crim. No. 99-0162 (D.D.C. Dec. 28, 1999),  reprinted in App. at
52-53. Mason's sentence represented a  two-level reduction in the
adjusted offense level pursuant to  United States Sentencing Guideline
s 5K2.11, which permits  a departure where a crime was committed "in
order to avoid  a perceived greater harm." See United States v. Mason,
90  F. Supp. 2d 1, 1 (D.D.C. 1999).


Mason now appeals his conviction, challenging the District  Court's
failure to give an innocent possession instruction to  the jury. He
seeks reversal of the District Court's judgment  and remand for a new
trial.


II. Analysis


Both the Government and the defendant agree that there is  a
"justification" defense to a felon's possession of a gun in  violation
of s 922(g)(1). See, e.g., United States v. Dodd, 225  F.3d 340 (3d
Cir. 2000); United States v. Deleveaux, 205 F.3d  1292 (11th Cir.),
cert. denied, 120 S. Ct. 2724 (2000); United  States v. Gomez, 92 F.3d
770 (9th Cir. 1996); Perrin, 45 F.3d  869. The present case, however,
does not implicate the  justification defense, because there was no
evidence of an  imminent threat of death or bodily injury to Mason or
others.  See Deleveaux, 205 F.3d at 1297. The parties do not disagree 
over this point. Rather, the issue here is whether there is a 
distinct innocent possession defense, i.e., apart from the 
justification defense, to a felon-in-possession charge under  s
922(g)(1), and, if so, how it should be defined.


At oral argument, Government counsel forthrightly con- ceded that,
although narrow, there must be an innocent  possession defense to a s
922(g)(1) charge. We agree. In- deed, we cannot imagine otherwise. It
is true that some  courts have emphasized that no criminal intent is
required to  establish guilt under s 922(g)(1). See, e.g., Deleveaux,
205  F.3d at 1298 (stating that under s 922(g)(1) "[t]he prosecution 
need show only that the defendant consciously possessed  what he knew
to be a firearm"). Nonetheless, as the Govern- ment here recognized,
to completely reject the possibility of 


an innocent possession defense is to say that a felon-in- possession
always will be guilty once he knowingly possesses  a weapon, without
regard to how or why he came into  possession or for how long
possession was retained. Thus,  for example, if Mason did indeed
innocently pick up a bag  containing a gun (not knowing what was in
the bag), he would  be guilty the moment he was seen holding the bag
knowing of  its contents, even if he had every intention of
relinquishing  possession immediately. There is nothing to indicate
that  Congress intended such a harsh and absurd result and Gov-
ernment counsel acknowledged that s 922(g)(1) should not be  read this


The real problem in this case is not whether there is an  innocent
possession defense, but, rather, how to define it.  This is no mean
feat. Although Congress may not have  meant to produce absurd results
in enacting s 922(g)(1),  there is no doubt that the criminal
proscription is strict.  Nonetheless, as both parties here agree,
certain carefully  confined extenuating circumstances may preclude a
conviction  under s 922(g)(1) based on mere knowing possession.


Some of our sister circuits appear to have recognized an  innocent
possession defense; however, we can find no case in  which a circuit
has squarely applied the innocent possession  defense to a s 922(g)(1)
charge, where the elements of a  justification defense are not
present. See United States v.  Ali, 63 F.3d 710, 716 n.7 (8th Cir.
1995) (declining to address  whether the defense was available because
defense counsel  failed to seek a proper instruction on the innocent
possession  theory, but noting that its case law did not foreclose
such a  defense); United States v. Elder, 16 F.3d 733, 738 (7th Cir. 
1994) (concluding that although the innocent possession de- fense
presented a "novel issue," it need not decide the issue  because the
evidence did not support the defense); cf. United  States v. Wolak,
923 F.2d 1193, 1198 (6th Cir. 1991) (recogniz- ing an "innocent
possession defense," though the defense in  that case is more properly
considered a "justification defense"  as life and limb were arguably


There are reported state court judgments, however, that  have allowed
an innocent possession defense to a weapons  possession charge. See,
e.g., Bieder v. United States, 707  A.2d 781, 783-84 (D.C. 1998)
(acknowledging innocent posses- sion defense to charge of carrying a
pistol without a license);  People v. Hurtado, 54 Cal. Rptr. 2d 853,
858 (1996) (stating  that the momentary possession for disposal
defense, initially  established for the possession of controlled
substances, ex- tends to possession of a firearm by a felon offenses);
People  v. Williams, 409 N.E.2d 1372, 1373 (N.Y. 1980) (recognizing 
innocent possession defense to a charge of criminal weapons 
possession). See also Redbook, Instruction No. 4.71(B) (4th  ed. 1993)
("The defendant would be not guilty of the offense  charged here if
s/he lacked any criminal purpose in carrying  or possessing the weapon
[ammunition] and s/he [intended to  take it as soon and as directly as
possible to law enforce- ment]."); Criminal Jury Instructions, New
York, No. 9.65  (1983) ("A person who recently finds a weapon and thus
 possesses it temporarily, with no intention to retain it, but  with
the intention of promptly turning it over to a lawful  authority, is
not guilty of unlawful possession. Such posses- sion, if temporary, is
lawful."). Some of the statutes at issue  in the state court decisions
are not felon-in-possession stat- utes. Nevertheless, the rationale
underlying these decisions  seems to apply equally to s 922(g)(1).


There are two general requirements that must be satisfied  in order for
a defendant to successfully invoke the innocent  possession defense.
The record must reveal that (1) the  firearm was attained innocently
and held with no illicit pur- pose 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
possi- ble. In particular, "a defendant's actions must demonstrate 
both that he had the intent to turn the weapon over to the  police and
that he was pursuing such an intent with immedia- cy and through a
reasonable course of conduct." Logan v.  United States, 402 A.2d 822,
827 (D.C. 1979). When these 


requirements are met, possession is "excused and justified as  stemming
from an affirmative effort to aid and enhance social  policy
underlying law enforcement." Hines v. United States,  326 A.2d 247,
248 (D.C. 1974).


The innocent possession defense may arise in a range of  factual
scenarios, including cases like the instant one in which  the
defendant's claims of innocent possession, lack of illicit  purpose,
and transitory possession are plausible, albeit debat- able. Such
cases are for the jury to decide. There are some  easy cases on either
end of the spectrum, however.


For example, suppose there was undisputed and credible  evidence that a
defendant left his truck locked to make a  delivery and, upon
returning, found that the truck had been  broken into and a gun left
on the driver's seat. Suppose  further that, surprised by his
discovery, the defendant picks  up the gun, removes the ammunition,
and then immediately  calls "911" to seek police assistance. When the
police arrive,  the defendant is found holding the gun and ammunition,
 which he turns over to the officers. Surely, with such a  record, a
judgment of acquittal would be in order.


On the other hand, suppose that, upon finding the firearm,  the
hypothetical defendant promptly hides the gun and am- munition in his
truck. Assume further that the defendant  finishes his deliveries and
says nothing to anyone about the  gun or ammunition. Then, at the end
of his work day, the  defendant puts the gun and ammunition in his
jacket pocket  and takes them to his home, purportedly to consider
what to  do with them. The gun and ammunition remain in the 
defendant's possession overnight. The firearm is accidentally 
discovered the next day when a police officer sees the gun fall  out
of the defendant's jacket pocket. In such a case, there  would be no
plausible innocent possession defense, because  the defendant could
not show transitory possession. In other  words, there would be no
basis whatsoever to find that the  defendant took adequate measures to
rid himself of posses- sion of the firearm as promptly as reasonably
possible. In  such a case, a trial judge should reject a request for


The innocent possession defense to a s 922(g)(1) charge is  necessarily
narrow. Thus, it does not offend the statute's  goal of keeping guns
out of the hands of convicted felons.  See Barrett v. United States,
423 U.S. 212, 218 (1976) (noting  that the purpose behind the statute
is to "keep firearms away  from the persons Congress classified as
potentially irresponsi- ble and dangerous"). On this score, it is
important to recall  that "it is the retention of [a firearm], rather
than the brief  possession for disposal ... , which poses the danger
which is  criminalized" by felon-in-possession statutes. Hurtado, 54 
Cal. Rptr. 2d at 858. With this in mind, it is easy to  understand why
the innocent possession defense--which fo- cuses precisely on how the
defendant came into possession of  the gun, the length of time of
possession, and the manner in  which the defendant acts to rid himself
of possession--is fully  consistent with the legislative purpose
underlying s 922(g)(1).


The instant case presents a close call. The asserted facts  indicate
that Mason's possession of the gun and ammunition  was innocent and
that he harbored no illicit purpose; there is  a question, however, as
to whether Mason took the necessary  steps to dispose of the gun with
immediacy and through a  reasonable course of conduct. On balance, we
find that  Mason established an adequate record to warrant submission 
of an innocent possession instruction to the jury. See Joy v.  Bell
Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir.  1993) ("It is
well established that '[a] defendant is entitled to  an instruction on
a defense theory if it has a basis in the law  and in the record.' ")
(quoting Hasbrouck v. Texaco, Inc., 842  F.2d 1034, 1044 (9th Cir.
1987), aff'd, 496 U.S. 543 (1990)).


The testimony reflects that, once Mason found the weapon,  he drove
directly to deliver the weapon to an officer he knew  who was only 10
minutes away; and he apparently made no  attempt to hide the gun,
which was seen sticking out of his  belt. The Government, however,
argues that Mason "did not  embark upon a course of conduct reasonably
calculated to  result in the surrender of the pistol to police with
immedia- cy," see Appellee's Brief at 30, because Mason (1) did not
call  the police, even though he had a cellular telephone, and (2) 


did not surrender the weapon to the first police officer that he  saw.
This is precisely the kind of dispute that should be  submitted to a
jury. On remand, following a new trial, it will  be up to the jury to
assess the evidence and to determine  whether, in light of the
circumstances presented, Mason took  adequate measures to rid himself
of possession of the firearm  as promptly as reasonably possible.


III. Conclusion


Because the District Court erred as a matter of law in not  instructing
the jury on Mason's innocent possession defense,  Mason's conviction
is reversed and the case is remanded for a  new trial.