United States v. Steven Sorensen

73 F.4th 488

• Court: Court of Appeals for the Seventh Circuit
• Decided: July 11, 2023
• Docket: 22-1801
• Status: Published

Opinion

In the

United States Court of Appeals For the Seventh Circuit ____________________ No. 22-1801 UNITED STATES OF AMERICA, Plaintiff-Appellee, v.

STEVEN SORENSEN, Defendant-Appellant. ____________________

Appeal from the United States District Court for the Western District of Wisconsin. No. 3:21-cr-00056 — James D. Peterson, Chief Judge. ____________________

ARGUED MARCH 31, 2023 — DECIDED JULY 11, 2023 ____________________

Before EASTERBROOK, RIPPLE, and WOOD, Circuit Judges. RIPPLE, Circuit Judge. A grand jury indicted Steven Sorensen on one count of possession of a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). He filed a motion in limine to present an innocent possession defense at trial. He con- ceded the only purpose of the motion was to preserve the op- portunity to persuade us to recognize such a defense. The dis- trict court denied the motion. Mr. Sorensen then entered a 2 No. 22-1801

conditional guilty plea, reserving the right to appeal the de- nial of his motion in limine. We decline to recognize an innocent possession defense to 18 U.S.C. § 922(g)(1) in this case. We therefore affirm the judg- ment of the district court. I A On March 5, 2021, Mr. Sorensen’s truck would not start 1 and so he went to visit a friend who worked on cars. That friend did not answer the door when Mr. Sorensen knocked, but Mr. Sorensen ran into another friend, Jake Berg, and Berg’s girlfriend in the parking lot of the apartment building. Berg pointed to a Subaru and told Mr. Sorensen to drive it and to follow him back to his house. Mr. Sorensen drove the Sub- aru, but he quickly lost track of Berg’s car and therefore was not able to follow him. Mr. Sorensen slept in the Subaru and woke up sometime the next day. On March 6, 2021, at around 10:30 a.m., Mr. Sorensen called Brandolyn Charles, with whom he has a child, to invite her to lunch. He picked her up and they drove to Texas Road- house. After lunch, Mr. Sorensen noticed a small silver hand- gun in the driver-side door of the Subaru. He panicked be- cause he knew that, as a felon, he was not allowed to have a gun, and he believed that a felon-in-possession charge carried a mandatory ten-year sentence. Mr. Sorensen did not tell Charles about the firearm because she also had a felony

1 We credit Mr. Sorensen’s proffered evidence for purposes of this appeal. See United States v. Dingwall, 6 F.4th 744, 759 (7th Cir. 2021). No. 22-1801 3

record and he worried about the wellbeing of their child if she also were charged. Mr. Sorensen drove about three-quarters of a mile from Texas Roadhouse to the Kohl’s parking lot. He decided to take the gun to the community center that was located in two rooms at the back of the Goodwill store on the other side of the parking lot. He believed that there was a drop box there for disposing of illegal items without police involvement. When Mr. Sorensen arrived at Goodwill, both rooms of the community center appeared to be in use with the doors shut. He decided to wait. He lingered in the section immedi- ately in front of the doors to see if anyone would leave. He did not want to make a scene or scare anyone. He hoped to find someone who seemed to be in charge. At some point, he tried entering one of the community center rooms, but a meet- ing was still in progress, so he quickly left. In the meantime, police had received a report from Lee Thao that someone stole his Subaru and that a loaded .38 re- volver and several rounds of .38 caliber and 9mm ammuni- tion were in the driver’s door compartment. Police officers discovered the Subaru in the parking lot near Goodwill. The officers first located Charles and placed her under ar- rest. Mr. Sorensen heard Charles talking to police officers and panicked. After trying one of the doors to the community cen- ter, Mr. Sorensen hid the gun on a back shelf in the Goodwill store. He hoped that an employee would find it when restock- ing and bring it to the community center. A Goodwill employee notified officers that a man, later identified as Mr. Sorensen, had been hiding in a maintenance closet and ran out of the store upon being discovered. Officers 4 No. 22-1801

arrested Mr. Sorensen and found the Subaru keys on his per- son. After his arrest, Mr. Sorensen told officers that he had placed the gun on a shelf in the Goodwill store. The officers took Mr. Sorensen to Goodwill, and he showed them the lo- cation of the gun. The officers found the loaded firearm on a bottom shelf behind an electronic item. The officers noted that there were many people, including children, in the store. B A grand jury indicted Mr. Sorensen on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). He filed a motion in limine to present an innocent possession defense at trial, which the district court denied. The court explained that Mr. Sorensen “concede[d] that un- der the facts of his case, an innocent possession defense [was] plainly foreclosed by circuit precedent” and that he simply had made “the motion to preserve the opportunity to per- suade the Court of Appeals to recognize an innocent posses- 2 sion defense.” Mr. Sorenson entered a conditional guilty plea, reserving the right to appeal the denial of his motion in limine. The dis- trict court sentenced him to thirty-four months’ imprison- ment and three years of supervised release. Mr. Sorensen timely appealed.

2 R.23. No. 22-1801 5

II DISCUSSION Mr. Sorensen asks us to recognize an innocent possession defense to a § 922(g)(1) felon-in-possession charge in this case. We review the legal sufficiency of a defense proffered in a mo- tion in limine de novo. See United States v. Wade, 962 F.3d 1004, 1011 (7th Cir. 2020) (quoting United States v. Santiago-Godinez, 12 F.3d 722, 726 (7th Cir. 1993)). We have explained that a district court “may, and often should, preclude a defendant from introducing evidence of a proposed defense where the defendant cannot establish all el- ements of that defense.” United States v. Jackson, 598 F.3d 340, 349–50 (7th Cir. 2010) (citing United States v. Haynes, 143 F.3d 1089, 1090 (7th Cir. 1998)). A court may preclude an affirma- tive defense by motion in limine if “the court accepts as true the evidence proffered by the defendant” and finds that that evidence, “even if believed, would be insufficient as a matter of law to support the affirmative defense.” United States v. Baker, 438 F.3d 749, 753 (7th Cir. 2006) (citing United States v. Tokash, 282 F.3d 962, 967 (7th Cir. 2002)). To be entitled to pre- sent an affirmative defense to the jury, a defendant must pre- sent “more than a scintilla of evidence” demonstrating that he can satisfy each element of the proposed defense. Tokash, 282 F.3d at 967 (quoting United States v. Blassingame, 197 F.3d 271, 279 (7th Cir. 1999)). We previously have declined to recognize a broad inno- cent possession defense to § 922(g)(1); we have recognized “innocent possession” as a defense in § 922(g)(1) cases only when the defendant can establish a justification defense, such as necessity or duress. See United States v. Green, Nos. 21-2062 6 No. 22-1801

& 21-2409, 2022 WL 1535026, at *2 (7th Cir. May 16, 2022); United States v. Cherry, 921 F.3d 690, 692 (7th Cir. 2019); Jack- son, 598 F.3d at 349–50; United States v. Kilgore, 591 F.3d 890, 894 n.1 (7th Cir. 2010); United States v. Hendricks, 319 F.3d 993, 1007 (7th Cir. 2003). Mr. Sorensen does not contend that a jus- tification defense is at issue in this case. We also have indicated in dicta that, if we were to recog- nize an innocent possession defense to § 922(g)(1), such a de- fense would feature the same two requirements as the District of Columbia Circuit’s innocent possession defense: The record must reveal that (1) the firearm was attained innocently and held with no illicit pur- pose and (2) possession of the firearm was tran- sitory—i.e., in light of the circumstances pre- sented, there is a good basis to find that the de- fendant took adequate measures to rid himself of possession of the firearm as promptly as rea- sonably possible. In particular, a defendant’s ac- tions must demonstrate both that he had the in- tent to turn the weapon over to the police and that he was pursuing such an intent with imme- diacy and through a reasonable course of con- duct. Hendricks, 319 F.3d at 1007 (quoting United States v. Mason, 233 F.3d 619, 624 (D.C. Cir. 2000)); Jackson, 598 F.3d at 350. We therefore have explained that “[w]here a Section 922(g) de- fendant does not immediately seek to turn a firearm over to law enforcement, an innocent possession instruction is not warranted.” Jackson, 598 F.3d at 350 (citing Hendricks, 319 F.3d at 1007–08); see also Cherry, 921 F.3d at 692; Green, 2020 WL 1535026, at *2. No. 22-1801 7

Mr. Sorensen urges us to adopt a modified version of the District of Columbia Circuit’s innocent possession defense that would not require that a defendant sought to turn the firearm over to law enforcement directly. He contends that, because of safety concerns associated with a felon approach- ing police with a firearm, a defense requiring relinquishment of the firearm directly to police would not effectively incen- tivize the disposal of firearms. Instead, he suggests that a de- fendant should be able to satisfy the second requirement of the defense—that possession of the firearm was “transi- tory”—“[b]y delivering or attempting to deliver the firearm to someone who the defendant reasonably believed was in a 3 position to safely surrender it to law enforcement.” In his view, expanding the scope of the innocent possession defense in this way would better serve the purpose of 18 U.S.C. § 922(g), which is to “keep guns out of the hands of those who have demonstrated that they may not be trusted to possess a firearm without becoming a threat to society.” Small v. United States, 544 U.S. 385, 393 (2005) (internal quotation marks omit- ted). Even if we were to recognize a broader innocent posses- sion defense, Mr. Sorensen’s proffered facts would not entitle him to present such a defense in this case. The record does not show that he took reasonable steps to turn over the firearm to law enforcement directly or through a third party. Ultimately, he removed a loaded firearm from the door compartment of a car and left it on a bottom shelf in a Goodwill store that was full of people, including children. He then hid from police of- ficers in a maintenance closet and only revealed the location

3 Appellant’s Br. 30. 8 No. 22-1801

of the firearm to law enforcement after he was arrested. Fur- thermore, although Mr. Sorensen states that he believed that there was a drop box for contraband in the community center, there is no evidence that such a drop box existed. Mr. Sorensen cannot present an innocent possession defense to the charge of being a felon in possession of a firearm under 4 these facts. The district court therefore properly denied Mr. Sorensen’s motion in limine to present such a defense in this case. CONCLUSION For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED

4 Cf. United States v. Bailey, 444 U.S. 394, 415 (1980) (concluding that de- fendants, who had escaped from prison, were not entitled to an instruction on the duress or necessity defenses because “a bona fide effort to surren- der or return to custody as soon as the claimed duress or necessity had lost its coercive force” was “an indispensable element” of each defense and “[v]ague and necessarily self-serving statements of defendants or wit- nesses as to future good intentions or ambiguous conduct simply d[id] not support a finding of this element”).