United States v. Ernest Vereen Jr (11th Cir. April 2019)

Firearm Offenses/21 U.S.C. § 922 – Defendants charged with possession of a firearm by a convicted felon under § 922(g)(1) are not entitled to a jury instruction that their possession was “innocent” or “transitory.”

Ernest Vereen Jr. was convicted for possession of a firearm by a convicted felon under § 922(g)(1). At his trial, a mailman testified that he had seen a gun in Vereen’s mailbox, and Vereen was arrested after police witnessed him walk out of his apartment, pull the gun out of the mailbox, and put it in his pocket.

Vereen testified that he was surprised to find the gun in the mailbox, that he had taken it out to give to the police, and that he put it in his pocket so his children would not see it. The government countered that Vereen made conflicting statements and that a shotgun was found in the apartment along with ammunition matching the gun in the mailbox.

On appeal, Vereen challenged the trial court’s refusal to instruct the jury on “the innocent transitory possession (“ITP”) defense, which Vereen defined as a faultless and brief possession that does not constitute “possession” under § 922(g)(1).

The Court affirmed the conviction and sentence, holding that the ITP defense “is not available as a defense against § 922(g).” The Court reasoned that there was no textual support for the ITP in the statute, and since § 922(g)(1) is a general intent crime and not one requiring a willful violation of the law, “the purpose or the timespan” of a defendant’s possession of a firearm is irrelevant since § 922(g)(1) “explicitly punishes possession, not retention.”

The Court added that the ITP defense would be “extremely difficult to administer” and suggested that defendants may be entitled to a justification or necessity defense under similar circumstances. Under the circumstances in this case, however, those defenses may not apply since Vereen could have called the police or kept his children away from the mailbox, The Court added that it could not ignore the shotgun and matching ammunition also found in the apartment.

Vereen raised additional arguments that “unlawful possession” under § 922(g)(1) was unconstitutionally vague, that the government failed to prove his prior convictions were violent felonies under the ACCA, that his sentence was unconstitutionally enhanced based on facts not proven to a jury, and that § 922(g) was unconstitutional.

The Court rejected Vereen’s argument that “unlawful possession” was unconstitutionally vague as a result of the Court not having previously decided whether the ITP defense is available. The court rejected this argument under plain error review, noting that it found no legal support for the notion that “a court’s failure to affirmatively determine whether a defense is available for a crime renders the underlying criminal statute unconstitutionally vague.”

The court further held that Vereen’s prior convictions for Florida aggravated battery and felony battery were predicate ACCA convictions, noting that the he was convicted of felony battery under the “bodily harm prong.” The Court also rejected Vereen’s arguments that his sentence was unconstitutionally increased based on prior convictions that were never submitted to a jury and that § 922(g) is an unconstitutional exercise of the Commerce Clause, as both arguments are foreclosed by precedent in Apprendi v. New Jersey, 530 U.S. 466 (2000) and United States v. Scott, 263 F.3d 1270 (11th Cir. 2001), respectively.

Appeal from the Middle District of Florida

Opinion by Marcus, joined by Newsom and Anderson

Click here to read the opinion.


Tom Church

Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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