United States v. Funches

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 24, 1998
• Docket: 96-5244
• Status: Published

Opinion

PUBLISH

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_____________________________________

No. 96-5244 Non-Argument Calendar _____________________________________ D. C. Docket No. 96-8019-CR-KLR

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELTON LEE FUNCHES,

Defendant-Appellant.

______________________________________

Appeal from the United States District Court for the Southern District of Florida _______________________________________

(February 24, 1998)

Before EDMONDSON, COX and DUBINA, Circuit Judges. EDMONDSON, Circuit Judge:

Defendant-Appellant Elton Lee Funches appeals his

conviction for possession of a firearm by a convicted felon: 18

U.S.C. §922(g)(1). No reversible error has been shown; we affirm.

To establish a violation of Title 18, United States Code

Section 922(g)(1), the government must prove three elements: (i)

that the defendant has been convicted of a crime punishable by

imprisonment for a term exceeding one year, (ii) that the

defendant knowingly possessed a firearm or ammunition, and (iii)

such firearm or ammunition was in or affected interstate

commerce. See United States v. Billue, 994 F.2d 1562, 1565 n.2

(11th Cir. 1993). In this case, no element of the offense is disputed.

Instead, Funches argues that the district court erred, as a matter

of law, in holding that Funches’s proffered defense -- entrapment-

by-estoppel – was unavailable.

Funches claims that, when he entered the Florida Department

of Corrections (“DOC”) to serve his sentence, he was informed

that losing his civil rights included the loss of the right to own or to possess a firearm. Upon release, Funches claims to have

inquired specifically about the restoration of his civil rights and

was informed by some employee of the DOC that his civil rights

were restored automatically upon release. Funches contends that,

based on this advice of some unknown DOC employee, he

believed he could own firearms and ammunition and that this

belief constitutes a defense to the federal crime charged.

On the morning the trial began, Funches filed a proposed jury

instruction to the effect that, if the jury found that an official of the

State of Florida informed Funches that his civil rights had been

restored and also found that Funches believed and relied on that

advice in possessing firearms or ammunition, then the jury should

vote to acquit. The district court initially expressed skepticism

about the availability of the entrapment-by-estoppel defense and

later that day, midway through the government’s case, denied the

instruction. At the conclusion of the government’s case, Funches,

3 based on the court’s ruling, declined to present an affirmative

defense or witnesses.

Entrapment-by-estoppel is no defense in this case.

Entrapment-by-estoppel is an affirmative defense that provides a

narrow exception to the general rule that ignorance of the law is

no defense. To assert this defense successfully, a defendant

must actually rely on a point of law misrepresented by an official

of the state; and such reliance must be objectively reasonable --

given the identity of the official, the point of law represented, and

the substance of the misrepresentation.

We have recognized that this defense may apply to a section

922 offense -- even though it is a strict-liability offense which

ordinarily renders the defendant’s state of mind irrelevant. See

United States v. Thompson, 25 F.3d 1558, 1563-64 (11th Cir. 1994).

But the defense is not applicable where the state incorrectly

advises the person and, then, the federal government prosecutes

the person. See United States v. Bruscantini, 761 F.2d 640, 642

4 (11th Cir.1985) (entrapment-by-estoppel defense unavailable in 18

U.S.C. §922 prosecution where state judicial and prosecutorial

officials advised defendant that plea of nolo contendre did not

constitute felony conviction). The defense of entrapment-by-

estoppel, when asserted as a defense to a federal crime, requires

reliance on a misstatement by an official or agent of the federal

government. See United States v. Rector, 111 F.3d 503, 505-07 (7th

Cir. 1997) (advice from town marshal that federal law allowed

defendant to possess firearms for hunting insufficient basis for

entrapment-by-estoppel instruction); United States v. Spires, 79

F.3d 464, 466-67 (5th Cir. 1996) (to satisfy requirements of

entrapment-by-estoppel defense to federal crime, defendant must

show reliance on an official or authorized agent of federal

government); United States v. Etheridge, 932 F.2d 318, 320-21 (4th

Cir. 1991) (embraced reasoning of Bruscantini to reject application

of entrapment-by-estoppel defense to section 922 offense raised

5 by defendant who claimed to rely on affirmative advice of state

trial judge that he could possess firearms for hunting).

United States v. Thompson, 25 F.3d 1558 (11th Cir. 1994),

relied on by Funches, is not to the contrary. In Thompson, we

reversed the district court because it erroneously concluded that

the entrapment-by-estoppel defense could not be viable in a

section 922 prosecution and excluded evidence in support of the

defense: acts and statements allegedly made by FBI agents, an

assistant United States attorney, ATF officers and other local and

federal law-enforcement officials. In contrast, no federal official

or agent is alleged to have misled Funches.

But, Funches argues that, even if it was not error to deny the

entrapment-by-estoppel instruction, he nonetheless should have

been permitted to present the defense to the jury. By introducing

evidence that Funches was monitoring a police scanner when the

police executed the search warrant of his dwelling, Funches

argues the government injected an issue of felonious “intent” or

6 “state of mind” into the case. As a matter of fairness, Funches

contends, he should have been allowed to “complete the story”

and to rebut the implication that he knew he was violating the law

by possessing firearms.*

Because section 922 is a strict-liability offense, the

government did not need to introduce the police-scanner

evidence; no need existed to establish that Funches did know that

his firearms possession was unlawful. Perhaps introduction of

this evidence (which was objected to by the defense) was in error,

although Funches declines specifically to argue harmful error in

* While it is entirely clear that the district court denied Funches his requested entrapment-by-estoppel instruction, it is not so clear that the court prevented Funches from testifying about the circumstances upon which he based his understanding that his acts were lawful. The defense decided to put on no case as soon as the district court ruled on the defense’s requested instruction; defense counsel merely proffered for the record the facts upon which Funches based his claim to the defense. While the court reiterated that Funches could not use that defense, the record reflects no request or effort to introduce evidence to counter inferences arising from the scanner evidence and reflects no flat denial of Funches’s testimony. 7 his briefs. Instead he argues that the government’s introduction

of the scanner evidence inserted the element of “knowledge of

criminality” into the case and that the trial court abused its

discretion in, thereafter, precluding him from placing this evidence

in “context.”

Funches, however, cites us to nothing in the record

suggesting this “context” theory for admitting Funches’s

testimony was argued before or rejected by the trial court.

Moreover, unlike the instant appeal, the cases relied on by

Funches – finding reversible error based on excluded evidence

that would “complete the story” – involved inferences that were

highly significant to a material element of the case. See generally

United States v. Word, 129 F.3d 1209 (11th Cir. 1997) (abuse of

discretion to exclude evidence of abusive relationship where

government argued inference of defendant’s knowledge from

romantic relationship); United States v. Todd, 108 F.3d 1329 (11th

Cir. 1997) (abuse of discretion to exclude evidence supporting

8 good faith defense where government conceded good faith was

viable defense); United States v. Sheffield, 992 F.2d 1164 (11th Cir.

1993) (abuse of discretion to exclude evidence to explain

defendant’s acts which supported legitimate defense theory);

United States v. Lankford, 955 F.2d 1545 (11th Cir. 1992) (abuse of

discretion to exclude evidence of good faith defense to crime

requiring specific intent).

Funches correctly notes that, given the evidence presented

to the jury, the jury had no reason to acquit him. Had the jury

heard (beyond the defense’s outline in its opening statement) of

Funches’s claims that he thought his firearms possession was

lawful, the jury nonetheless would have lacked a reason in law not

to convict. The elements of the crime charged were proved by

overwhelming evidence. The uncontradicted facts and the

applicable law left Funches, in reality, without a viable defense.

Piercing through the form of Funches’s arguments, it appears

that his real contention is that he had a due process right to

9 present evidence the only relevance of which is to inspire a jury

to exercise its power of nullification. As Justice Holmes

recognized long ago, “the jury has the power to bring in a verdict

in the teeth of both law and facts.” Horning v. District of

Columbia, 41 S.Ct. 53, 54 (1920). But, while the federal courts

acknowledge the jury’s de facto power to refuse to apply the law

as instructed by the court, exercise of such power is in dereliction

of the jury’s sworn duty. See United States v. Trujillo, 714 F.2d

102, 105 (11th Cir. 1983).

Juries sometimes assume the power of nullification; still,

nullification is no right of the jury. Instead, the absence of

remedial procedures by which the government may appeal an

acquittal “permits juries to acquit out of compassion or

compromise or because of their assumption of a power which

they had no right to exercise, but to which they were disposed

through lenity.” Standefer v. United States, 100 S.Ct. 1999, 2007

(1980) (internal quotations and citations omitted). Or, as

expressed by the District of Columbia Circuit:

10 A jury has not more “right” to find a “guilty” defendant “not guilty” than it has to find a “not guilty” defendant “guilty,” and the fact that the former cannot be corrected by a court, while the latter can be, does not create a right out of the power to misapply the law. Such verdicts are lawless, a denial of due process and constitute an exercise of erroneously seized power.

United States v. Washington, 705 F.2d 489, 494 (D.C. Cir. 1983).

In Trujillo, 714 F.2d at 105-06, we concluded that a criminal

defendant is unentitled to a jury instruction which alerts the jury

of its de facto power and, further, that defense counsel may not

argue jury nullification during closing argument. Because the jury

enjoys no right to nullify criminal laws, and the defendant enjoys

a right to neither a nullification instruction nor a nullification

argument to the jury, the potential for nullification is no basis for

admitting otherwise irrelevant evidence. See Zal v. Steppe, 968

F.2d 924, 930-31 (9th Cir. 1992) (Trott, concurring) (no right to

present evidence that is irrelevant to a legal defense); United

States v. Gorham, 523 F.2d 1088, 1097-98 (D.C. Cir. 1975)

(affirming trial court’s refusal to admit evidence bearing no legal

relation to the charges but which might encourage a “conscience

11 verdict” of acquittal), supplemented by, 536 F.2d 410 (D.C. Cir.

1976); United States v. Lucero, 895 F. Supp. 1421, 1426 (D.Kan.

1995) (“defendants are not entitled to present evidence which is

irrelevant for any purpose other than to provoke finder of fact to

disregard the law”). Cf. United States v. Horsman, 114 F.3d 822,

829 (8th Cir. 1997)(no violation of defendant’s substantial rights

where only possible deprivation suffered was possibility of jury

nullification), petition for cert. filed, (U.S. Sept. 4, 1997) (No. 97-

5872).

No reversible error is committed when evidence, otherwise

inadmissible under Rule 402 of the Federal Rules of Evidence, is

excluded, even if the evidence might have encouraged the jury to

disregard the law and to acquit the defendant.

AFFIRMED.