Possession Of Firearm (18 USC 922(g)(1)): Innocent Possession Defense (7th Circuit)

United States v. Jackson, 598 F.3d 340, 350 (7th Cir. Wis., No. 09-2279, March 12, 2010) explained the “innocent possession” defense as follows:

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

Wire Fraud (18 USC 1343): Scheme To Defraud – “Ordinary Prudence” Instruction (3rd Circuit)

United States v. Newmark, (3d Cir. Pa., No. 08-3356, Mar. 12, 2010) identified a persuasive rational which trial counsel may use to support a request for an “ordinary prudence” instruction: “The Government's argument that the materiality instruction ["A material fact is a fact that would be of importance to a reasonable person in making a decision about a particular matter or transaction"] adequately covers the ‘ordinary prudence’ instruction, although supported by a district court case, see United States v. Zomber, 358 F. Supp. 2d 442, 459 (E.D. Pa. 2005), is unavailing. The materiality instruction concerns whether a reasonable person would consider a fact important, whereas the "ordinary prudence" instruction concerns whether a reasonable person would be deceived by a scheme. Moreover, because of the apparent tension between an instruction that a victim's gullibility or negligence is no defense and an instruction that a scheme must be calculated to deceive a person of ordinary prudence and comprehension, there is some force to Newmark's argument that the error was compounded by the district court's inclusion of the former instruction.” (United States v. Newmark, supra.)

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
18 USC 1343: Wire Fraud

Failure To Object To Prosecutorial Misconduct Does Not Waive The Appellate Claim When No Instruction Could Mitigate The Misconduct

The failure of trial counsel to object to prosecutorial misconduct during argument to the jury does not necessarily preclude an appellate claim based on the misconduct.  For example, the second circuit has held that “[d]efense counsel’s failure to request specific instructions may be overlooked where the prosecutor’s misconduct is so prejudicial that no instruction could mitigate its effects....”  U.S. v. Melendez, 57 F.3d 238, 242 (2nd Cir. 1995); see also People v. Hill (1998) 17 Cal.4th 800, 820.  However, “in less egregious cases, the failure to request specific instructions before the jury retires will limit the defense’s ability to complain about the relative lack of curative measures for the first time on appeal.”  Ibid.; see also U.S. v. Deandrade, 600 F.3d 115, 199-120 (2nd Cir. N.Y. March 12, 2010, No. 08-4815-cr) [judge did not have sua sponte duty to give curative instruction when misconduct was not sufficiently egregious]. 

The rationale for such a rule is that counsel generally need not make futile objections.  Thus, if the misconduct is so egregious that it cannot be cured by a limiting instruction then the claim is not waived by the failure of counsel to request such an instruction:

"A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. [Citations and quote marks omitted.]" People v. Hill, 17 Cal. 4th 800, 820-821 (Cal. Supreme Court 1998).

Additionally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” Ibid.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
Chapter 20: Prosecutor Duties And Misconduct At Trial
272.4 - Prosecutor Misconduct During Summation/Closing Argument
The Shellow Instructions
Prosecution Misconduct
Forecite California™
PG VII(I)(b) - Grounds For All Cases—Capital and Non-Capital
F 2.019 - Prosecutorial Misconduct