United States v. Cherry

At 3:31 a.m., East St. Louis Police Officer Sherrod received a report of a vehicle playing loud music. Approaching the vehicle, Sherrod saw Cherry looking for something in the grass. Cherry stated that he was looking for the key to his tire rims. Although Cherry seemed intoxicated, Sherrod decided to help him. As he was searching, Sherrod noticed a handgun a few feet from Cherry. Sherrod handcuffed Cherry for officer safety, without arresting him. Cherry tried to run. Sherrod then arrested Cherry and took him the police station where Cherry told Officer Simon that, earlier that night, he had stopped his car to pick a CD and thought that he saw an acquaintance. After rolling down his window, he realized that he did not know the person, who had a gun; Cherry knocked it out of the man’s hands. The stranger then fled. Cherry explained that during the scuffle he lost his cell phone and got out of the car to look for it. He admitted to picking up the gun.Cherry was charged as a felon in possession of a firearm, 18 U.S.C. 922(g)(1); 924(a)(2) for forfeiture, 18 U.S.C. 924(d)(1). Cherry requested an “innocent possession” instruction. The Seventh Circuit affirmed Cherry’s conviction, declining to recognize an innocent possession defense. Even where the defense is recognized, it applies only where the defendant immediately surrenders the firearm to law enforcement. No reasonable juror could have failed to find a nexus between the gun and Cherry’s conviction, so the court’s failure to ask whether either party wanted the jury to determine forfeitability of the firearm did not affect Cherry’s substantial rights. View "United States v. Cherry" on Justia Law