D.C. Court of Appeals said:
....At oral argument, Government counsel forthrightly conceded that, although narrow, there must be an innocent possession defense to a § 922(g)(1) charge. We agree. Indeed, we cannot imagine otherwise. It is true that some courts have emphasized that no criminal intent is required to establish guilt under § 922(g)(1). See, e.g., Deleveaux, 205 F.3d at 1298 (stating that under § 922(g)(1) “[t]he prosecution need show only that the defendant consciously possessed what he knew to be a firearm”). Nonetheless, as the Government here recognized, to completely reject the possibility of an innocent possession defense is to say that a felon-in-possession always will be guilty once he knowingly possesses a weapon, without regard to how or why he came into possession or for how long possession was retained. Thus, for example, if Mason did indeed innocently pick up a bag containing a gun (not knowing what was in the bag), he would be guilty the moment he was seen holding the bag knowing of its contents, even if he had every intention of relinquishing possession immediately. There is nothing to indicate that Congress intended such a harsh and absurd result and Government counsel acknowledged that § 922(g)(1) should not be read this broadly.
The real problem in this case is not whether there is an innocent possession defense, but, rather, how to define it. This is no mean feat. Although Congress may not have meant to produce absurd results in enacting § 922(g)(1), there is no doubt that the criminal proscription is strict. Nonetheless, as both parties here agree, certain carefully confined extenuating circumstances may preclude a conviction under § 922(g)(1) based on mere knowing possession.
Some of our sister circuits appear to have recognized an innocent possession defense; however, we can find no case in which a circuit has squarely applied the innocent possession defense to a § 922(g)(1) charge, where the elements of a justification defense are not present. See United States v. Ali, 63 F.3d 710, 716 n. 7 (8th Cir.1995) (declining to address whether the defense was available because defense counsel failed to seek a proper instruction on the innocent possession theory, but noting that its case law did not foreclose such a defense); United States v. Elder, 16 F.3d 733, 738 (7th Cir.1994) (concluding that although the innocent possession defense presented a “novel issue,” it need not decide the issue because the evidence did not support the defense); cf. United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir.1991) (recognizing an “innocent possession defense,” though the defense in that case is more properly considered a “justification defense” as life and limb were arguably at stake).
There are reported state court judgments, however, that have allowed an innocent possession defense to a weapons possession charge. See, e.g., Bieder v. United States, 707 A.2d 781, 783-84 (D.C.1998) (acknowledging innocent possession defense to charge of carrying a pistol without a license); People v. Hurtado, 47 Cal.App.4th 805, 54 Cal.Rptr.2d 853, 858 (1996) (stating that the momentary possession for disposal defense, initially established for the possession of controlled substances, extends to possession of a firearm by a felon offenses); People v. Williams, 50 N.Y.2d 1043, 431 N.Y.S.2d 698, 409 N.E.2d 1372, 1373 (N.Y.1980) (recognizing innocent possession defense to a charge of criminal weapons possession). See also Redbook, *624 **96 Instruction No. 4.71(B) (4th ed.1993) (“The defendant would be not guilty of the offense charged here if s/he lacked any criminal purpose in carrying or possessing the weapon [ammunition] and s/he [intended to take it as soon and as directly as possible to law enforcement].”); Criminal Jury Instructions, New York, No. 9.65 (1983) (“A person who recently finds a weapon and thus possesses it temporarily, with no intention to retain it, but with the intention of promptly turning it over to a lawful authority, is not guilty of unlawful possession. Such possession, if temporary, is lawful.”). Some of the statutes at issue in the state court decisions are not felon-in-possession statutes. Nevertheless, the rationale underlying these decisions seems to apply equally to § 922(g)(1).
34 There are two general requirements that must be satisfied in order for a defendant to successfully invoke the innocent possession defense. 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.” Logan v. United States, 402 A.2d 822, 827 (D.C.1979). When these requirements are met, possession is “excused and justified as stemming from an affirmative effort to aid and enhance social policy underlying law enforcement.” Hines v. United States, 326 A.2d 247, 248 (D.C.1974).
The innocent possession defense may arise in a range of factual scenarios, including cases like the instant one in which the defendant's claims of innocent possession, lack of illicit purpose, and transitory possession are plausible, albeit debatable. Such cases are for the jury to decide. There are some easy cases on either end of the spectrum, however.
For example, suppose there was undisputed and credible evidence that a defendant left his truck locked to make a delivery and, upon returning, found that the truck had been broken into and a gun left on the driver's seat. Suppose further that, surprised by his discovery, the defendant picks up the gun, removes the ammunition, and then immediately calls “911” to seek police assistance. When the police arrive, the defendant is found holding the gun and ammunition, which he turns over to the officers. Surely, with such a record, a judgment of acquittal would be in order.
