We have previously limited the "innocent possession" defense in a Section 922(g)(1) case to situations in which the defendant can establish a justification defense (i.e., necessity, duress or self defense). [United States. v. Hendricks], 319 F.3d at 1007 (citing United States v. Perez, 86 F.3d 735 (7th Cir. 1996), United States v. Toney, 27 F.3d 1245 (7th Cir. 1994), and United States v. Elder, 16 F.3d 733). In Hendricks we noted in dicta, however, that if we were to adopt a distinct "innocent possession" defense, two requirements would have to be satisfied to trigger it: "The record must reveal that (1) the firearm was attained innocently and held with no illicit purpose and (2) possession of the firearm was transitory--i.e., in light of the circumstances presented, there is a good basis to find that the defendant took adequate measures to rid himself of possession of the firearm as promptly as reasonably possible. In particular, a defendant's actions must demonstrate both that he had the intent to turn the weapon over to the police and that he was pursuing such an intent with immediacy and through a reasonable course of conduct." Hendricks, 319 F.3d at 1007 (quoting United States v. Mason, 233 F.3d 619, 624, 344 U.S. App. D.C. 91 (D.C. Cir. 2000)). Where a Section 922(g) defendant does not immediately seek to turn a firearm over to law enforcement, an innocent possession instruction is not warranted. See Hendricks, 319 F.3d at 1007-08.
For subscription based briefing and sample instructions on this and related issues see:
Forecite National™
56.3 - Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession
56.3.2 - Innocent Possession
The Shellow Instructions
Weapons Crimes
Forecite California™
F 12.40 - Possession of Deadly Weapon
