921 F.3d 690
7th Cir.2019Background
- At 3:31 a.m., Officer Sherrod found Bernard Cherry searching a yard near an abandoned residence; a .40 caliber handgun lay a few feet from Cherry.
- Sherrod handcuffed Cherry for officer safety; Cherry briefly escaped but was arrested and later interviewed by police.
- Cherry admitted picking up the gun during an altercation with a stranger, said he dropped it when he saw Sherrod, and stipulated at trial that he was a felon.
- Charged under 18 U.S.C. § 922(g)(1) and § 924(a)(2) for being a felon in possession; the government also sought forfeiture under § 924(d)(1).
- Cherry requested an "innocent possession" jury instruction claiming momentary, innocent possession; the district court refused, citing Seventh Circuit precedent.
- After conviction, the district court granted forfeiture; Cherry appealed both the refusal to instruct and the court's failure to ask before deliberations whether the jury should decide forfeiture under Rule 32.2(b)(5)(A).
Issues
| Issue | Cherry's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether district court erred by denying an "innocent possession" instruction | Requested instruction: possession was innocent if obtained innocently and only momentary, so acquittal required | Court and government: Seventh Circuit hasn’t recognized innocent-possession defense generally; even if recognized, Cherry didn’t promptly surrender the gun | No error: court has not recognized the defense outside duress/necessity; facts here don’t meet Jackson/Hendricks standard |
| Whether failure to ask parties pre-deliberation if jury should decide forfeiture (Fed. R. Crim. P. 32.2(b)(5)(A)) violated Cherry’s substantial rights | Argues Rule 32.2 violation required submitting forfeiture to jury or obtaining waiver; loss of substantial right | Government concedes procedural error but says no prejudice because nexus between gun and offense was obvious | No reversible error: procedural violation, but no effect on substantial rights because no reasonable juror could doubt nexus between the firearm and the conviction |
Key Cases Cited
- United States v. Jackson, 598 F.3d 340 (7th Cir. 2010) (declines to recognize innocent-possession defense broadly and requires immediate effort to surrender firearm even if defense recognized)
- United States v. Hendricks, 319 F.3d 993 (7th Cir. 2003) (discusses limits on innocent-possession theory; links defense to justification like necessity or duress)
- United States v. Brown, 865 F.3d 566 (7th Cir. 2017) (framework for when a defendant is entitled to a jury instruction on a theory of defense)
- United States v. Ryan, 885 F.3d 449 (7th Cir. 2018) (procedural Rule 32.2 omission harmless where no reasonable juror could doubt nexus between property and offense)