United States v. Lee Anton Jackson, 09-2279 (7th Cir. 2010).

On March 9, 2008, police found a gun in a computer case belonging to Defendant Lee Anton Jackson, who had prior felony convictions. A grand jury subsequently returned an indictment charging Defendant Jackson with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After Defendant entered a conditional guilty plea, the district court sentenced Defendant to 120 months in prison.

On appeal, Defendant Jackson challenges the search of the computer case and the district court's denial of his requests to (1) pursue an "innocent possession" defense and (2) apply Guidelines Section 5K2.11. We affirm the district court in all respects.

ANALYSIS

Defendant makes three arguments on appeal: (2) the district court should have allowed Defendant's proposed "innocent possession" theory of defense.

II. "Innocent Possession" Defense

Defendant next argues that the district court erred in denying his request to raise an "innocent possession" defense. Defendant asserts that, because he was moving to Atlanta, Georgia, which has a high crime rate, his friend "insisted on giving him a .357 handgun."   According to Defendant, although he declined his friend's offer, his friend "left the firearm behind without permission." Defendant further contends that, "because of the Madison Police Department's antagonistic relationship with his family," he "contacted his mother in order to get rid of the gun." Because Eaton was also a felon, however, Defendant claims that he intended to have Eaton give the firearm to someone who was not a felon to turn it over to law enforcement.

Defendant's innocent possession argument fails for two reasons.

First, we have not recognized such a defense and decline to do so in this case. See United States v. Kilgore, 591 F.3d 890, 894 n.1 (7th Cir. 2010); United States v. Matthews, 520 F.3d 806, 810-11 (7th Cir. 2008) (holding that possessing a firearm even "for a brief period of time is sufficient to constitute possession within the meaning of section 922"); United States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003).

Second, Defendant's actions would not support an innocent possession defense because he did not immediately seek to submit the firearm to law enforcement. See Hendricks, 319 F.3d at 1007 (noting in dicta the minimum requirements of such a defense).

Even if we were to recognize an innocent possession defense, Defendant's proffered facts come nowhere close to the hypothetical scenarios to which courts have found that an innocent possession defense might apply. In United States v. Wilson, 922 F.2d 1336 (7th Cir. 1991), for example, we mentioned in dicta that an innocent possession instruction might be warranted if a felon momentarily handles a gun while taking it away from children who were playing with it. Id. at 1338-39.

Similarly, the Second Circuit has noted that such an instruction might be appropriate where "a felon who notices 'a police officer's pistol slip to the floor while the officer was seated at a lunch counter,' picks up the weapon, and immediately returns it to the officer." United States v. Williams, 389 F.3d 402, 405 (2d Cir. 2004); see also United States v. Mason, 233 F.3d 619, 624-25 (D.C. Cir. 2001) (after observing that "[t]he innocent possession defense to a § 922(g)(1) charge is necessarily narrow," finding that an innocent possession instruction should be given with respect to a defendant who, upon finding a weapon, drove directly to deliver it to a law enforcement officer without attempting to hide it).

The facts of this case do not fall into either of these categories.

Initially, Defendant's contention that he planned to have Eaton find someone else to return the firearm is undermined by the magistrate judge's finding that Eaton "was genuinely shocked [when she saw the gun in the computer case], proclaiming that she had had no idea that the gun had been in there."  Furthermore, Defendant's proffered version of events would not entitle him to an innocent possession defense because he did not seek to immediately turn the gun over to law enforcement. Instead, he purportedly asked Eaton, herself a convicted felon, to find someone else to turn the gun over to law enforcement. Accordingly, the district court properly declined to give an innocent possession jury instruction.

CONCLUSION

For the foregoing reasons, we affirm the district court.

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