Argued Nov. 20, 2012.
[Copyrighted Material Omitted]
Ian A. Williams, Washington, DC, for appellant.
Patricia A. Heffernan, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Adrienne Dedjinou, Assistant United States Attorneys, were on the brief, for appellee.
Mikel-Meredith Weidman, Public Defender Service, with whom James Klein and Samia Fam, Public Defender Service, were on the brief, amicus curiae in support of appellant Antwaun Conley.
Before GLICKMAN, THOMPSON, and OBERLY, Associate Judges.
GLICKMAN, Associate Judge:
In 2009, the Council of the District of Columbia enacted a statute, D.C.Code § 22-2511 (2012 Repl.), making it a felony offense for a person to be present in a motor vehicle if the person knows that the vehicle contains a firearm (" PMVCF" ), even if the person has no connection to or control over the weapon and is not involved in any wrongdoing whatsoever. This is the first appeal of a PMVCF conviction to come before this court. Appellant Antwaun Conley, joined by the Public Defender Service as amicus curiae, contends that the law is unconstitutional and that the trial court plainly erred in allowing the jury to convict him of this crime.
We agree that the PMVCF statute violates due process. We reach that conclusion for two reasons. First, the essence of the offense is the defendant's voluntary presence in a vehicle after he learns that it contains a firearm. Yet instead of requiring the government to prove that the defendant's continued presence was voluntary, § 22-2511 requires the defendant to shoulder the burden of proving, as an affirmative defense, that his presence in the vehicle was involuntary. This shifting of the burden of persuasion with respect to a
critical component of the crime is incompatible with due process.
Were that the only defect in the statute, it would not necessarily be fatal, for we might sever the constitutionally invalid affirmative defense and construe the remainder of § 22-2511 as imposing on the government the burden to prove that the defendant stayed in the vehicle voluntarily after he learned that it contained a firearm. But burden-shifting is not the statute's only constitutional defect; it offends due process in another way. As the Supreme Court explained in Lambert v. California,  it is incompatible with due process to convict a person of a crime based on the failure to take a legally required action— a crime of omission— if he had no reason to believe he had a legal duty to act, or even that his failure to act was blameworthy. The fundamental constitutional vice of § 22-2511 is that it criminalizes entirely innocent behavior— merely remaining in the vicinity of a firearm in a vehicle, which the average citizen would not suppose to be wrongful (let alone felonious)— without requiring the government to prove that the defendant had notice of any legal duty to behave otherwise. This is a defect that we cannot cure by interpreting the statutory language. Accordingly, we are obliged to hold that § 22-2511 is unconstitutional on its face and that appellant's conviction for violating that statute must be reversed.
I. Factual Background
This case began on July 24, 2010, with an early-morning traffic stop by officers of the Metropolitan Police Department of a Honda Accord on Stanton Road in Southeast, Washington, D.C. Appellant was in the driver's seat and a second man, Kendra Allen, was in the front passenger seat. The police took the two occupants to the rear of the vehicle and held them there while officers shone their flashlights into the passenger compartment. When they did so, they observed a handgun in plain view in the center console between the two front seats. The weapon was loaded. A crime scene search officer later dusted the gun and bullets for fingerprints, but no prints were recovered.
In due course, appellant was charged by indictment with four possessory offenses— unlawful possession of a firearm, carrying a pistol without a license, possession of an unregistered firearm, and unlawful possession of ammunition — plus the non-possessory offense of PMVCF, in violation of D.C.Code § 22-2511. He pleaded not guilty. At trial, his defense was that he neither possessed the gun nor knew it was in the car, and that the weapon must have been placed in the console after he exited the vehicle by either Mr. Allen or one of the police officers. Appellant did not challenge the constitutionality of his prosecution for PMVCF.
The judge defined PMVCF for the jury as follows:
The elements of unlawful presence in a motor vehicle containing a firearm, each of which the Government must prove beyond a reasonable doubt, are that one, Mr. Conley was voluntarily in a motor vehicle; two, a firearm was in the motor vehicle; three, Mr. Conley knew the firearm was in [the] motor vehicle; and four, the firearm was not lawfully carried or lawfully transported.[]
The jury acquitted appellant of all the possessory offenses. It found him guilty only of PMVCF. For that offense, the judge sentenced appellant to thirty-four months in prison.
II. The Statutory Offense
D.C.Code § 22-2511, the PMVCF statute, reads in pertinent part as follows:
(a) It is unlawful for a person to be voluntarily in a motor vehicle if that person knows that a firearm is in the vehicle, unless the firearm is being lawfully carried or lawfully transported.
(b) It shall be an affirmative defense to this offense, which the defendant must prove by a preponderance of the evidence, that the defendant, upon learning that a firearm was in the vehicle, had the specific intent to immediately leave the vehicle, but did not have a reasonable opportunity under the circumstances to do so.
The offense is a felony, punishable by up to five years in prison.
The statute was enacted as part of the Omnibus Public Safety and Justice Amendment Act of 2009. As the Council's Committee on Public Safety and the Judiciary explained in its report on the legislation, the new offense of PMVCF was created in order to allow convictions to be obtained when a firearm is found in a car with more than one occupant and the government cannot prove who possessed it:
The issue that this provision seeks to address is when a car is stopped with multiple occupants and a firearm is present in the vehicle— the police are unable to prove who was in possession of the firearm. Even if the police believe they know who possessed the firearm— constructive possession with multiple occupants in the car is very difficult to prove at trial. The proposal therefore seeks to make it illegal for every occupant to be present in the vehicle as opposed to just the occupant that possessed the weapon.[]
As originally proposed, subsection (a) of the PMVCF statute would have made it " unlawful for a person to be in a motor vehicle if that person knows that a firearm is in the vehicle"  without regard to whether the person is in the vehicle voluntarily, and the statute did not include an affirmative defense of involuntariness such as that which now appears in subsection (b). The Public Defender Service for the District of Columbia and the D.C. Association of Criminal Defense Lawyers opposed the legislation, among other reasons because it would make felons of citizens who wanted nothing to do with the firearm and were innocent of any wrongdoing. In response to the criticisms, the Committee on Public Safety and the Judiciary revised the statute to its current form. The alterations, which included adding the word " voluntarily" to subsection (a) and creating the affirmative defense now set forth in subsection (b), were intended " to ensure," inter alia, that the PMVCF statute would " not be used against those who ... had no ability to safely distance themselves from the firearm."  " In addition," the Committee stated, its " recommended language makes it clear that there must be some deliberate decision on the part of the accused to be in a vehicle with an illegal firearm present." 
III. The Availability and Scope of Review
In the trial court, appellant did not raise a constitutional challenge to his prosecution for PMVCF. As a threshold matter, therefore, we must consider whether his attack on the constitutionality of D.C.Code § 22-2511 is properly before us and the scope of our review if it is. The government argues that appellant waived his claim of unconstitutionality by failing to raise it as a defect in the indictment prior to trial pursuant to Criminal Rule 12(b)(2). However, we do not believe that provision is triggered here.
Although Rule 12(b)(2) provides generally that objections based on defects in the indictment are waived unless raised prior to trial, it makes an exception for objections that the indictment " fails to show jurisdiction in the Court or to charge an offense. "  Those objections, the Rule states, " shall be noticed by the Court at any time during the pendency of the proceedings." Federal courts, construing a substantially identical provision in the Federal Rules of Criminal Procedure, have held that " [t]he defense of failure of an indictment to charge an offense includes the claim that the statute apparently creating the offense is unconstitutional" and that such a claim therefore is not waived by failing to raise it before trial.  We agree with that conclusion. An indictment clearly fails to charge an offense if the Constitution precludes the prosecution.
Accordingly, appellant did not waive his constitutional challenge to the PMVCF statute. His failure to present his claim to the trial court, however, comes at a price— namely, that on appeal his claim " is subject to the rigors of plain error review."  This means appellant must do more than simply demonstrate (1) that an error was committed in his trial court proceedings; he also must show (2) that the error is plain under current law and (3) that it affected his substantial rights. We then may exercise our discretion to notice the forfeited error and grant appellant relief, but only if " (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." 
IV. Legal Discussion
A. The Constitutionality of § 22-2511
The first prong of plain error analysis— whether the trial court erred in allowing appellant to be convicted for PMVCF— requires us to evaluate the merits of appellant's claim that D.C.Code § 22-2511 is violative ...