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United States v. Becerra

United States District Court, D. Minnesota

December 13, 2017

United States of America, Plaintiff,
Erik Becerra, Defendant.

          Bradley M. Endicott and Lindsey E. Middlecamp, United States Attorney for the Government.

          Manvir K. Atwal and Lisa M. Lopez for Defendant.



         This matter is before the Court on the Government's pre-trial Motion in Limine to Preclude Testimony or Arguments that Encourage Jury Nullification (“Gov't's Mot.”) [Doc. No. 103]. For the reasons set forth below, and as stated on the record during the second day of Defendant's trial, the Court grants the Government's Motion.

         I. BACKGROUND

         Defendant Erik Becerra (“Becerra”) is charged with one count of being a felon in possession of a firearm and one count of being a felon in possession of ammunition, both in violation of 18 U.S.C. § 922(g)(1) and § 924(e). (Am. Indictment, Counts 1-2 [Doc. No. 111].) Becerra's trial commenced on December 11, 2017, and as of the date and time of the Court's ruling on this motion, his trial was still underway.

         Before trial, the Government filed a motion in limine urging this Court to preclude “any attempts by the defense to encourage jury nullification.” (Gov't's Mot. at 2.) Becerra opposed. (See Def.'s Opp'n [Doc. No. 106].). At the final pre-trial conference, this Court ordered supplemental briefing, which the parties duly submitted. (See Min. Entry for Nov. 17, 2017 Proceedings [Doc. No. 109], at 2; Def.'s Suppl. Mem. [Doc. No. 112]; Gov't's Suppl. Mem. [Doc. No. 116].)

         The Government argues that Becerra should be prohibited from advancing any arguments to try to “justify” his alleged possession of a gun and ammunition-for example, by claiming that he was merely handing over the weapon and ammunition to his probation officer on the day of his arrest. (Gov't's Mot. at 2.) First, the Government contends that a “defendant's justification or state-of-mind behind possessing the firearm is irrelevant” to the three elements needed for a conviction, and thus arguments going to those issues would “serve no purpose other than to encourage jury nullification.” (Id.; Gov't's Suppl. Mem. at 8.) In the alternative, the Government argues that even if relevant, evidence regarding the circumstances of how Becerra came to possess the gun should nevertheless be excluded under Federal Rule of Evidence 403 because it would mislead and confuse the jury. (Gov't's Suppl. Mem. at 8.) Second, the Government urges this Court to preclude the “innocent possession” defense at trial-an affirmative defense in felon-in-possession cases that thus far has only been recognized under limited circumstances by the District of Columbia Circuit Court of Appeals. (Id. at 2-8.) The Government argues that this defense is precluded by the statutory text as several circuits have held. (Id. at 7.)

         For his part, Becerra argues that granting the Government's motion would contravene the Federal Rules of Evidence and more importantly, effectively deprive him of his constitutional right to a fair trial, to tell his full story, and to present a full defense. (See Def.'s Opp'n; Def.'s Suppl. Mem.) First, Becerra argues that he should be permitted to offer “a full account as to how [he] came to possess the offending item(s) at issue, an explanation as to why he came to possess said item(s), how long he possessed said item(s), and so on” as “these matters are directly relevant” to the element of knowing possession. (Def.'s Suppl. Mem. at 3.) In other words, Becerra argues that he must be “permitted to demonstrate that any touching was too fleeting to pass muster under the charged statute, ” or “that any possession was insufficiently knowing to result in a guilty verdict.” (Id. at 4.) Second, Becerra also argues that this Court should not preclude an “innocent possession” defense before the full trial evidence is in. (Id. at 6.) He stresses that even if several federal circuit courts have rejected the “innocent possession” defense, the availability of the defense is still an open question in the Eighth Circuit. (Id.)

         On the morning of December 11, 2017, just before the start of Becerra's jury trial, the Court advised the parties that it would defer ruling on the Government's motion until the Government finished its case in chief and Becerra decided whether he would testify on his own behalf.[1] On December 12, 2017, during the second day of trial, Becerra elected to testify, and the Court requested that he proffer some evidence that would support an “innocent possession” defense so that the Court could make the appropriate admissibility determination and rule on the Government's motion. The Court underscored that its ruling would be based on the relevance of the proffered testimony.

         That same afternoon, the Court entertained a proffer by Becerra's counsel, as well as a statement offered directly by Becerra. In his statement, while asking the Court to permit an “innocent possession” defense, Becerra also strongly contested the constitutionality of the search of the vehicle where the gun was ultimately found the afternoon of May 5, 2015.

         The proffer by Becerra's counsel was as follows. As to how he came to drive the red car that was searched on the day of his arrest, Becerra stated that on May 4, 2015, he went to a car dealership looking for a car to purchase. He contends that someone at the car dealership then put him in touch with another individual who subsequently let him keep the car temporarily in order to test drive it. This red car, however, was not test-driven from the dealership.

         In the early morning hours of May 5, 2015, at approximately 4:30 to 5 a.m., Becerra drove the red car to the Minneapolis-St. Paul airport and parked it. Very concerned for his safety with respect to a domestic issue and believing that he was being followed, Becerra made contact with the airport police and asked for their help. According to him, however, the airport police were not helpful and did not believe him. Specifically, he believes that they did not take seriously his requests to follow up regarding a vehicle that was following him.

         After his exchange with the airport police, Becerra went back to the red car and for the first time noticed what he thought might be a gun under the driver's seat. When asked by the Court why he did not immediately notify the airport police about the object he thought might be a gun, defense counsel indicated that it was because by then, Becerra had no ...

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