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Herrington v. United States

November 4, 2010

KEVIN A. HERRINGTON, APPELLANT,
v.
UNITED STATES, APPELLEE.



Appeal from the Superior Court of the District of Columbia Criminal Division. (FEL 6549-05) (Hon. Lynn Leibovitz, Trial Judge).

The opinion of the court was delivered by: Glickman, Associate Judge

Argued September 30, 2009

Before GLICKMAN and FISHER, Associate Judges, and WAGNER, Senior Judge.

Concurring opinion by Associate Judge FISHER at page 15.

Appellant Kevin Herrington was convicted in 2006 of unlawful possession of ammunition (UA), in violation of D.C. Code § 7-2506.01 (2001) (now § 7-2506.01 (a) (Supp. 2010)). His conviction was based solely on evidence that he possessed handgun ammunition in his home. Subsequently, in District of Columbia v. Heller,*fn1 the Supreme Court held that the District's general ban on possession of usable handguns in the home violated the Second Amendment. As a corollary of that holding, appellant argues, his conviction under the UA statute for simply possessing handgun ammunition in the home also violates the Second Amendment. We agree, and because the error in applying the UA statute to appellant is plain on the existing record, we reverse his conviction.

I.

Appellant was standing on the sidewalk outside his home on the afternoon of November 1, 2005, when two police officers, mistaking him for someone under a court order to stay away from the neighborhood, drove up and asked to speak to him. Appellant ignored the request and went into his house. A short time later, the officers saw appellant leave his house on a bicycle. They pursued him in their police cruiser. After turning a corner, appellant got off his bike and ran back to his house. As he ran, according to the officers, appellant withdrew a black handgun and pointed it at them. At one point appellant stumbled and dropped something, which the officers initially thought was the gun, but which turned out to be a black baseball cap.

Appellant entered his house, which soon was surrounded by police. After a while, appellant emerged, surrendered, and was placed under arrest. Appellant's mother then permitted the police to search the house. In a heating vent in appellant's bedroom, the police discovered two boxes of ammunition -- one containing .380-caliber rounds and the other containing 9-mm. rounds. Appellant's fingerprints were on the .380-caliber ammunition box.*fn2

The ensuing indictment charged appellant with two counts of assault on a police officer while armed (APOWA), two counts of assault with a dangerous weapon (ADW), one count of possession of a firearm during a crime of violence (PFCV), and one count of unlawful possession of ammunition (UA). The government dismissed the ADW counts before trial.

At the close of the government's case, appellant moved for a judgment of acquittal on the UA count, arguing that the evidence was insufficient to convict him of violating D.C. Code § 7-2506.01 because the prosecution had failed to prove that he lacked a valid registration certificate for a firearm of the same gauge or caliber as the ammunition recovered from his bedroom. The trial court denied the motion, agreeing with the prosecutor that all the government needs to prove to obtain a UA conviction are "that the defendant possessed ammunition, and that he did so knowingly and intentionally." The court so instructed the jury at the close of the trial.

The jury acquitted appellant of the APOWA and PFCV charges. It found him guilty only of UA.

II.

What is now subsection (a) of D.C. Code § 7-2506.01 provides as follows:

No person shall possess ammunition in the District of ...


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