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    107.3 Exfelon In Possession Of Firearm: Defenses And Defense Theories

    107.3.1 Exfelon In Possession Of Firearm: Lack Of Knowledge Or Intent As Defense Theory
    107.3.2 Exfelon In Possession Of Firearm: Intoxication Or Mental Impairment May Negate Knowledge Of Weapon's Presence
    107.3.3 Exfelon: Carrying Firearm -- Applicability Of Momentary, Innocent And Justifiable Possession
    107.3.4 Possession Of Firearm By Exfelon: Mistake Of Fact Regarding Exfelon Status As Defense Theory
    107.3.5 Exfelon In Possession Of Firearm: Mistake As To Possession As Defense Theory
    107.3.6 Exfelon In Possession Of Firearm: Justification As Defense
    107.3.7 Self Defense By Exfelon: General Principles
    107.3.8 Restoration Of Civil Rights To Possess Firearm As Defense Theory
    107.3.9 Exfelon In Possession Of Firearm: Additional Defenses And Defense Theories

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RATIONALE: Without an explicit instruction, the jury may not fully understand the intent and knowledge elements of the crime of exfelon in possession of a firearm.

POINTS AND AUTHORITIES: An essential element of a possession offense is that the possession be knowing and intentional. (See FORECITE National™ 56.3.2.2 [Possession: Accidental Or Unwitting Possession As Defense]; but see U.S. v. Emerson (5th Cir. 2001) 270 F3d 203 [18 USC 922(g)(8), does not violate the due process clause by failing to require that the defendant was aware that his or her possession of the firearm was unlawful]. (But see opinion of the district court likening 18 USC 922(g)(8) to the felon-registration law struck down on notice grounds in Lambert v. California (CA 1957) 355 US 225 [78 SCt 240; 2 LEd2d 228].) This element has been recognized in the context of firearm possession offenses. (See People v. Jeffers (CA 1996) 41 CA4th 917, 924 [49 CR2d 86]; People v. Mendival (CA 1992) 2 CA4th 562, 575 [3 CR2d 566]; People v. Bland (CA 1995) 10 C4th 991, 1002-03 [43 CR2d 77]; People v. Corkrean (CA 1984) 152 CA3d 35, 41 [199 CR 375]; White v. State (FL 1989) 539 So2d 577, 578 [state had burden of proving that defendant's possession of firearm was conscious and substantial and not merely involuntary or superficial to convict defendant]; People v. Emery (MI 1986) 389 NW2d 472, 476; Dear v. State (OK 1989) 773 P2d 760, 761; State v. Fry (WI 1985) 388 NW2d 565, 577; see also WISCONSIN JURY INSTRUCTIONS - CRIMINAL, WIS-JI-Criminal 1340, comment [Possession Of A Switchblade Knife] p. 2 (University of Wisconsin Law School, 1999).)

    Hence, the defendant should have the right to a defense theory instruction on this principle.

    See FORECITE National™ 106.4.3.1 [Possession Of Weapons: Intoxication Or Mental Impairment May Negate Knowledge].

    See FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

    When a person carries a firearm without knowing that [he] [she] has the firearm, and [he] [she] later learns that [he] [she] has the firearm, [he] [she] does not automatically become liable for a weapon enhancement upon acquiring knowledge of the weapon. The person becomes liable for the enhancement only if [he] [she] intentionally carries the weapon without taking immediate steps to relinquish possession of it.

[Source: FORECITE National™.]

    An essential element of the crime of carrying a concealed weapon is that the defendant must have knowingly carried the weapon.

    Unless the prosecution has proven beyond a reasonable doubt that the defendant knew that the weapon was [on [his] [her] person] [in the automobile], you must find the defendant not guilty.

[See MICHIGAN CRIMINAL JURY INSTRUCTIONS 11.7 [Defense--Defendant Unaware Of Weapon] p. 11-15 (ICLE, 2nd ed. 1999).]

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RATIONALE: Without an explanatory instruction the jury may not understand that the intent and knowledge elements of the crime of exfelon in possession of a firearm may be negated by intoxication or mental impairment.

POINTS AND AUTHORITIES: A necessary element of the crime of exfelon in possession of a firearm is "knowledge of the presence of the weapon." (See e.g., People v. Corkrean (CA 1984) 152 CA3d 35, 41 [199 CR 375]; see also Dear v. State (OK 1989) 773 P2d 760, 761; FORECITE National™ 107.3.1 [Possession Of Weapon By Exfelons: Lack Of Knowledge Or Intent As Defense Theory].) The question of whether intoxication, mental defect, etc. may negate the knowledge elements of drug possession crimes is discussed at FORECITE National™ 106.4.3.1 [Possession Of Weapons: Intoxication Or Mental Impairment May Negate Knowledge], see also FORECITE National™ 256.6.1.15 [Intoxication Or Mental Impairment: Negation Of Knowledge Element].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

    It is [a] [the] defense theory that due to the defendant's [intoxication] [and] [mental impairments] the defendant did not knowingly possess the weapon.

    If, after consideration of this defense theory in light of all the evidence, you have a reasonable doubt that the defendant knew [he] [she] possessed the firearm, you must give the defendant the benefit of that doubt and return a verdict of not guilty. 

[Cf. OKLAHOMA UNIFORM JURY INSTRUCTIONS - CRIMINAL, OUJI-CR 6-37 [Unlawful Possession Of A Firearm-Elements] (Oklahoma Center for Criminal Justice, 2nd ed. 1996).]

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    See FORECITE National™ 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

    See a;sp FORECITE National™ 107.3.6 [Exfelon In Possession Of Firearm: Justification As Defense].

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PRACTICE NOTE: It has been held that a mistake of fact as to his or her status as a felon is not a defense to exfelon based offenses. (People v. Snyder (CA 1982) 32 C3d 590, 594-95 [186 CR 485].)  However, it may be argued that the defendant's knowledge of the exfelon status should be an element of the charge.  (See generally FORECITE National™ 45.1.3 (Presumption That Silent Statute Requires Criminal Intent].)

    Moreover, mistake of fact can be a defense if unusual factors, such as governmental advice, may have misled (or "mousetrapped") the defendant. (Snyder, 32 C3d at 595; see also FORECITE National™ 257.4 [Equitable Estoppel].)

    For example, 18 USC 921(a)(20) defines "conviction" for purposes of 18 USC 922(g)(1). Under this statute, even if the defendant’s conviction was improperly "set aside" by a state court, the defendant may still not be convicted if he or she was "mousetrapped" – that is, led to believe by the state that the state had released him from all penalties and disabilities from the crime of which he had been convicted. (See U.S. v. Laskie (9th Cir. 2001) 258 F3d 1047, 1052.)

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

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PRACTICE NOTE: Wrongful intent must be shown with regard to the possession and custody elements of the crime of being a felon in possession of a firearm. (See e.g., People v. Snyder (CA 1982) 32 C3d 590, 598 [186 CR 485].) A person who commits a prohibited act through misfortune or by accident, when it appears that there was no evil design, intention or culpable negligence has not committed a crime. (See FORECITE National™ See also FORECITE National™ 252.8 [Mistake Of Fact], see also FORECITE National™ 252.10 [Innocent Intent, Good Faith].) Thus, a felon who acquires possession of a firearm through misfortune or accident, but who has no intent to exercise control or to have custody, commits the prohibited act without the required wrongful intent. (People v. Jeffers (CA 1996) 41 CA4th 917, 922 [49 CR2d 86].) Otherwise, the exfelon would be strictly liable for the crime immediately on finding a firearm, even if found under innocent circumstances. Accordingly, the failure to instruct on criminal intent in such a case is reversible error. (Ibid.)

    See also FORECITE National™ 253.4.1.15 [Self Defense: Exfelon In Possession Of Weapon].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

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    107.3.6    Exfelon In Possession Of Firearm: Justification As Defense

RATIONALE: If the defendant possessed the firearm to prevent a greater evil a defense of necessity may be appropriate.

    People v. Pepper (CA 1996) 41 CA4th 1029, 1034-35 [48 CR2d 877] implied that under the right circumstances necessity could be a defense to possession of a firearm by an exfelon. (See also Wade v. State (FL 1992) 610 So2d 664, 666-67 [defendant was entitled to instruction on necessity as defense to charge of possession of firearm by convicted felon, even though jury was instructed on justifiable use of deadly force, where defendant allegedly fired gun at victim only after victim had robbed him and attempted to shoot him].)

    States v. Panter (5th Cir. 1982) 688 F2d 268, 271-72; U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1135-36 [defendant entitled to instruction on defense of justification in possession of firearm by convicted felon charge where defense is that defendant grabbed gun from someone who was assaulting a third person]; Bieder v. U.S. (DC 1998) 707 A2d 781, 783-84 [to assert defense of innocent possession to charge of carrying pistol without a license, defendant must show not only absence of criminal purpose but also that his possession was excused and justified as stemming from affirmative effort to aid and enhance social policy underlying law enforcement]; United States v. Beasley (9th Cir. 2003) 346 F3d 930 [former felon charged with possessing a firearm in violation of 18 USC 922(g)(1) bears burden of proof if he raises a justification defense].)

    However, some cases suggest that the defense of necessity will rarely lie in a felon-in-possession case unless the ex-felon, not being engaged in criminal activity, does nothing more than grab a gun with which he or another is being threatened. (The other might be the possessor of the gun, threatening suicide.) (E.g., U.S. v. Paolello (3rd Cir. 1991) 951 F2d 537, 542-43; U.S. v. Newcomb (6th Cir. 1993) 6 F3d 1129, 1135-36; U.S. v. Toney (7th Cir. 1994) 27 F3d 1245, 1248.) For example, it has been questioned whether necessity applies when the defendant armed himself in advance after unsuccessfully seeking protection from the authorities. (See e.g., U.S. v. Gomez (9th Cir. 1996) 92 F3d 770, 777-78.)

    The Seventh Circuit held in United States v. Talbott (7thCir. 1996) 78 F3d 1183 that absent a statute explicitly allocating to the defendant the burden of proving an affirmative defense to a 18 USC 922(g)(1) charge, a court has no power to make that allocation. This position was rejected by the 9th Circuit in United States v. Beasley (9th Cir. 2003) 346 F3d 930. Other circuits have also rejected the Seventh Circuit’s holding. (United States v. Dodd (3rd Cir. 2000) 225 F3d 340; United States v. Deleveaux (11th Cir. 2000) 205 F3d 1292.)

    See also FORECITE National™ 107.3.7 [Self Defense By Exfelon: General Principles].

    See also FORECITE National™ 254.2 [Necessity, Emergency, Choice Of Evils, Competing Harms].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

See 1st Circuit Pattern Jury Instructions - Criminal 4.06.

See also 5th Circuit Pattern Jury Instructions - Criminal 2.47.

See also 9th Circuit Pattern Jury Instructions - Criminal 8.60.

    Necessity is a defense to a charge of being an exfelon in possession of a firearm if

    (1)     The defendant reasonably believed possession of a firearm was necessary to avoid or minimize a harm; and

    (2)     The harm sought to be avoided was greater than the harm resulting from a violation of the law;

    (3)     The threatened harm was not brought about by the defendant; and

    (4)     No reasonable [equally effective] legal alternative existed.

[Cf. WASHINGTON PATTERN JURY INSTRUCTIONS - CRIMINAL, WPIC 18.02 [Necessity-Defense] 1998 Pocket Part, p. 63 (West, 2nd ed. 1994).]

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PRACTICE NOTE: Where a convicted felon, reacting out of reasonable fear for life or safety of himself, in the actual, physical course of conflict that he did not provoke, takes temporary possession of a firearm for purpose or in course of defending himself, he should not be guilty of violating a statute prohibiting convicted felons from possessing firearms. (See FORECITE National™ 253.4.1.15 [Self Defense: Exfelon In Possession Of Weapon].)

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RATIONALE: When the prior conviction upon which an exfelon charge is predicated is from a jurisdiction that permits restoration of rights, it may be appropriate to specifically instruct the jury on this issue.

POINTS AND AUTHORITIES: An instruction such as the one set forth below may be appropriate when the predicate felony conviction occurred in a state where the defendant has the right to restore his or her civil right to possess a firearm. (See e.g., U.S. v. Thomas (4th Cir. 1995) 52 F3d 82, 84 [prosecution must prove no restoration of rights under State law as an element of the charge].)

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 2.3; 4.1].

USE NOTE: There is a conflict among federal courts as to whether civil rights may be restored with respect to a federal conviction. (See U.S. v. Jones (4th Cir. 1993) 993 F2d 1131, 1136 [state’s post-conviction restoration of civil rights not applicable to federal conviction but acknowledging 8th and 9th Circuit cases to the contrary].)

    See also FORECITE National™ 107.3.4 [Possession Of Firearm By Exfelon: Mistake Of Fact Regarding Exfelon Status As Defense Theory].

SAMPLE INSTRUCTION # 1:

    Another element which the prosecution must prove beyond a reasonable doubt before you may find the defendant guilty of being an exfelon in the possession of a firearm is that the defendant's right to possess a firearm has not been restored.

    Under [State] law, a convicted felon’s right to possess a firearm is restored [State applicable terms].

    Unless the prosecution has proven beyond a reasonable doubt that the defendant's right to possess a firearm was not restored, you must acquit.

[Source: FORECITE National™.]

    You must also find that the defendant's civil rights to possess a firearm have not been restored.

[Source: FORECITE National™.]

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PRACTICE NOTE: The defenses and defense theories discussed in this chapter are offered to provide ideas which may be helpful in developing a defense strategy and are not intended to be a complete checklist. Depending on the jurisdiction and the factual circumstances, other theories may be available. (See generally FORECITE National™ Volume 11: Affirmative Defenses And Defense Theories (Ch. 250-264).) For example, in any given case defensive theories may be available as to one or more of the basic elements of criminal liability. (See generally FORECITE National™ Volume 5: Basic Elements Of A Criminal Allegation And Defenses Thereto (Ch. 43-62).)