Appeal from the Superior Court of the District of Columbia. (Hon. Lee Satterfield, Trial Judge)
Before Schwelb and Ruiz, Associate Judges, and Belson, Senior Judge. Opinion for the court by Associate Judge Schwelb. Dissenting opinion by Associate Judge Ruiz..
The opinion of the court was delivered by: Schwelb
Schwelb, Associate Judge : Robert L. Bieder was convicted by a jury of carrying a pistol without a license, *fn1 unlawful possession of an unregistered firearm, *fn2 and unlawful possession of ammunition for an unregistered firearm. *fn3 The prosecution was instituted after Bieder attempted to hand a pouch containing a loaded pistol to a U.S. Capitol Police Officer at the entrance to the United States Capitol.
On appeal, Bieder contends that the trial Judge erred by declining to instruct the jury with respect to the federal Firearms Owner Protection Act (FOPA), 18 U.S.C. §§ 921 et seq., on which Bieder based a part of his theory of the case, and by precluding Bieder from presenting a defense based on the FOPA. We agree with Bieder and reverse his convictions.
The relevant evidentiary facts are not in dispute. Bieder owns a small plumbing supply business which is located below his home in the Bronx, N.Y. In October 1992, following numerous burglaries and armed robberies at his store, Bieder secured a New York permit to carry a handgun. He subsequently purchased a pistol from a federal firearms dealer.
On Friday, July 16, 1993, Bieder drove with his wife and daughter, who was then seven years of age, to Virginia for a weekend visit with friends and relatives. On Sunday, July 18, Bieder began the return journey to New York City. En route, he drove into Washington, D.C. and decided to show his wife and daughter the Capitol. Because his wife is disabled, Bieder parked in the handicapped parking area, which is approximately 100 feet from the Capitol building.
While the family was travelling to and from Virginia, Bieder's handgun was unloaded, and both the weapon and an ammunition clip were in the locked trunk of his car. Upon his arrival at the Capitol parking area, however, Bieder removed the pistol from the trunk, loaded his ammunition clip into the pistol, and placed the weapon, which now had a round in the chamber, into a pouch which he wore around his waist. Bieder testified that he took this action because the handbook provided to him by the New York City police department stated:
Firearms are not to be left in the glove compartment or trunk of autos or any place where a thief or other person may readily obtain them.
Bieder then walked to the Capitol. Upon entering the building, and as he was about to pass through a metal detector, he handed his New York permit and the pouch to a Capitol police officer. Bieder explained that the pouch contained a handgun and that he had a New York permit to carry the weapon. In response to a question by the officer, Bieder acknowledged that he did not have a District of Columbia license. After consulting with one of his superiors, the officer placed Bieder under arrest. The instant prosecution followed.
At trial, Bieder's defense was "innocent possession." As reflected in his "theory of the case," that defense consisted of two parts which, when taken together, were designed to account for the entire period during which he was in the District of Columbia.
First, Bieder contended that from the time that he entered the District until he removed the pistol from his care, his conduct was lawful under the provisions of the federal FOPA. That statute provides, in pertinent part, that notwithstanding any state or local law, a person may lawfully transport a weapon between two states in which it is lawful to carry the weapon, so long as the weapon is unloaded and inaccessible from the passenger compartment of the car. 18 U.S.C. § 926A. Bieder's attorney asked the Judge to instruct the jury, in that connection, that
federal law allows a person to transport a handgun and ammunition through the District of Columbia, so long as the person is travelling from one state where it is legal to carry and possess the gun to another state where it is legal to possess and carry the gun, so long as the gun is transported unloaded and in the trunk of the car. In addition, New York City allows a person to possess and carry a gun with a valid permit, and Virginia state law allows a person to openly carry a handgun unless he is a convicted felon or a juvenile. When considering whether the government has proven beyond a reasonable doubt that Mr. Bieder was not ...