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United States v. Cherry

United States Court of Appeals, Seventh Circuit

April 17, 2019

United States of America, Plaintiff-Appellee,
v.
Bernard L. Cherry, Defendant-Appellant.

          Argued April 2, 2019

          Appeal from the United States District Court for the Southern District of Illinois. No. 3:17-cr-30040-DRH-1 - David R. Herndon, Judge.

          Before Hamilton, Barrett, and Scudder, Circuit Judges.

          BARRETT, CIRCUIT JUDGE.

         Bernard 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 verdict.

         Because 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.

         I.

         At 3:31 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.

         The 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 soon 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.

         Following 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.

         The 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.

         The 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 Criminal ...


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