April 2, 2019
from the United States District Court for the Southern
District of Illinois. No. 3:17-cr-30040-DRH-1 - David R.
Hamilton, Barrett, and Scudder, Circuit Judges.
BARRETT, CIRCUIT JUDGE.
Cherry appeals his conviction as a felon in possession of a
firearm on the ground that the district court erred by not
giving the jury his proposed "innocent possession"
instruction. He also claims that the district court erred by
not asking whether he wanted the jury to determine the
forfeitability of the firearm in the event of a guilty
we have never recognized an innocent possession defense and
because the facts here don't support such a defense even
if we were to recognize it, the district court did not err in
refusing to give the instruction. And given that no
reasonable juror could have failed to find a nexus between
the gun and Cherry's felon-in-possession conviction, the
district court's failure to ask either party whether it
wanted the jury to determine the forfeitability of the
firearm did not affect Cherry's substantial rights. We
affirm the judgment of the district court.
a.m. on December 13, 2016, Officer Isaiah Sherrod of the East
St. Louis Police Department received a report that a vehicle
had been playing loud music. Sherrod went to the address and
saw a vehicle outside an abandoned residence with the lights
on and music playing. When he got closer, Sherrod observed a
man in the front yard of the residence looking for something
in the grass with his phone's flashlight.
man, Bernard Cherry, told Sherrod that he was looking for the
key to his tire rims that he had lost in that area earlier in
the day. Although Cherry seemed intoxicated, Sherrod decided
to help him find the key. As he was searching, Sherrod
noticed a firearm-a .40 caliber Smith & Wesson handgun-a
few feet from Cherry.
as he saw the gun, Sherrod handcuffed Cherry and put him in
the squad car for officer safety, but without formally
arresting him. Cherry complained that the cuffs were too
tight, and Officer Sherrod got him out of the car to adjust
the cuffs. At that point, Cherry tried to run but did not get
far. Officer Sherrod then arrested Cherry and took him to the
police station where he was interviewed by Officer Jerry
Simon. Cherry explained to Simon that, earlier in the night,
he had stopped his car to look for a new CD to put in the
car's CD player. He said that when he looked out the
window, he thought that he saw someone that he knew. But
after rolling down his window, he realized that he did not
know the person. Cherry said that the man pointed a gun at
him but that he knocked it out of the man's hands. Cherry
then opened his car door and hit the stranger, who ran away.
Cherry explained that during the scuffle he lost his cell
phone and got out of the car to look for it. He also admited
to picking up the gun briefly but said that he dropped it
when he saw Sherrod approaching.
the interview, Cherry was charged with being a felon in
possession of a firearm under 18 U.S.C. § 922(g)(1) and
18 U.S.C. § 924(a)(2) and forfeiture under 18 U.S.C.
§ 924(d)(1). Because Cherry stipulated that he was a
felon at the time of his arrest, the sole question at trial
was whether he possessed a firearm. He requested an
"innocent possession" instruction to support his
theory of defense, which read:
Possession of a firearm constitutes innocent possession
where: (1) the firearm was obtained innocently and held with
no illicit purpose; and (2) possession of the firearm was
only momentary. If you find that the defendant possessed a
firearm and that possession constituted innocent possession,
you should find the defendant not guilty.
government objected, citing United States v.
Jackson, 598 F.3d 340 (7th Cir. 2010). In
Jackson we declined to affirmatively recognize an
innocent possession defense, and we noted that even if we
were to recognize such a defense, the defendant would still
have to show that he immediately sought to turn over the
firearm to law enforcement. 598 F.3d at 349-51. Because
Cherry did not immediately seek to turn over the firearm, the
district court concluded that his case fell within
Jackson and refused the proposed instruction.
jury ultimately found Cherry guilty of being a felon in
possession of a firearm. Following trial, the government
moved for forfeiture of the firearm under Federal Rule of