United States Court of Appeals,

Eleventh Circuit.

No. 94-7057.

UNITED STATES of America, Plaintiff-Appellee,

v.

Taneilian McARTHUR, Defendant-Appellant.

March 31, 1997.

Appeal from the United States District Court for the Middle

District of Alabama. (No. CR 94-135-N), Robert E. Varner, District

Judge.

Before ANDERSON, Circuit Judge, and FAY and KRAVITCH, Senior

Circuit Judges.

KRAVITCH, Senior Circuit Judge:

Title 18, United States Code, section 930(a), bans the knowing

possession of a firearm in a federal facility. A separate

subsection of the statute conditions convictions under this

provision upon the posting of conspicuous notice of the

prohibition. The main issue in this case, and one of first

impression, is whether proof of adequate notice is an element of

the crime of possession or an affirmative defense. We hold that it

is an affirmative defense. We also hold, consistent with

established precedent, that a restitution order under the Victim

and Witness Protection Act can only be based upon harm resulting

from conduct of which the defendant was convicted.

I.

Taneilian McArthur was involved in an argument with another

man, Corey Smith, inside the Enlisted Men's Club at Maxwell Air

Force Base, Gunter Annex. McArthur left the club first, retrieved

his gun from the trunk of his car and placed it on the front seat.
 1

When the instant case was briefed, Congress had not yet

amended section 930 to make technical corrections to the

section's internal cross-references. We use the current version

of the statute. 

In the parking lot later that evening, McArthur pulled his car in

front of Smith as Smith exited the club. Smith approached

McArthur's car and McArthur shot him, allegedly in self-defense.

A grand jury indicted McArthur for committing three federal

crimes: assault with intent to commit murder within the special

maritime and territorial jurisdiction of the United States, 18

U.S.C.A. § 113(a) (1969 & Supp.1996) (Count One); using and

carrying a firearm in relation to a crime of violence, 18 U.S.C.A.

§ 924(c)(1) (Supp.1996) (Count Two); and possessing a firearm in

a federal facility, 18 U.S.C.A. § 930(a) (Supp.1996), amended by

Pub.L. 104-294, § 603(u), 110 Stat. 3488,—(1996) (Count Three).1

A jury acquitted McArthur of Counts One and Two, but convicted him

of Count Three. The district court sentenced McArthur to six

months' imprisonment. In calculating restitution pursuant to the

Victim and Witness Protection Act, 18 U.S.C.A. §§ 3579-3580 (1985),

the district court found that the financial loss from Smith's

hospitalization and injuries totaled $28,176.07 and ordered

McArthur to pay that amount.

On appeal, McArthur alleges that his conviction must be

reversed because the government failed to prove an essential

element of the offense charged in Count Three. He further claims

that restitution was improper, because it was founded on counts of

which he was acquitted.

II.
 2

"Except as provided in subsection (d), whoever knowingly

possesses or causes to be present a firearm or other dangerous

weapon in a Federal facility (other than a Federal court

facility), or attempts to do so, shall be fined under this title

or imprisoned not more than 1 year, or both." 18 U.S.C.A. §

930(a). 

Title 18, section 930 ("section 930") defines four federal

crimes: simple possession of a firearm or dangerous weapon in a

federal facility (subsection (a));2

 simple possession in a federal

court facility (subsection (e)); possession with intent to use the

weapon in the commission of a crime (subsection (b)); and killing

or attempted killing in the course of a violation of subsections

(a) or (b) (subsection (c)). Convictions under subsections (a) and

(e) are limited by subsection (h). It provides:

Notice of the provisions of subsections (a) and (b) shall be

posted conspicuously at each public entrance to each Federal

facility, and notice of subsection (e) shall be posted

conspicuously at each public entrance to each Federal court

facility, and no person shall be convicted of an offense under

subsection (a) or (e) with respect to a Federal facility if

such notice is not so posted at such facility, unless such

person had actual notice of subsection (a) or (e) as the case

may be.

18 U.S.C.A. § 930(h).

 McArthur first contends that the government failed to prove

beyond a reasonable doubt all of the elements of the crime charged

in Count Three and that the district court erred in failing to

instruct the jury as to all of the elements the offense.

Specifically, he argues that whereas subsection (a) of section 930

bans firearm possession in federal facilities, subsection (h)

prohibits a conviction under subsection (a) unless conspicuous

notice is posted to inform people of the prohibition. According to

McArthur, subsection (h) is an element of the offense of possession
 3

Although McArthur did not raise this matter to the district

court, he is entitled to review for plain error. Were we to

conclude that adequate notice is an element of the offense, we

also would find plain error. Failure to instruct the jury

regarding an element of the offense is plain error where, as

here, the government introduces no evidence regarding the element

in question. Cf. De Castro, 104 F.3d at 1293-95 (noting

similarities between plain error and harmless error review and

concluding that district judge's failure to instruct on element

of offense was harmless in light of substantial trial evidence). 

and, therefore, the government must prove the existence of the

required notice beyond a reasonable doubt. See In re Winship, 397

U.S. 358, 364, 90 S.Ct. 1068, 1072-73, 25 L.Ed.2d 368 (1970)

(government must prove every element of a crime beyond a reasonable

doubt). We review his statutory claim de novo. United States v.

De Castro, 104 F.3d 1289, 1291 (11th Cir.1997).3

 To determine whether an exception to a criminal offense is an

element of the crime or an affirmative defense, we undertake a

three-part inquiry. We begin with the language and structure of

the statute. Next, we examine the legislative history of the

provision. United States v. Laroche, 723 F.2d 1541, 1543 (11th

Cir.1984) (following United States v. Mayo, 705 F.2d 62 (2d

Cir.1983)), cert. denied, 467 U.S. 1245, 104 S.Ct. 3521, 82 L.Ed.2d

829 (1984). Finally, we decide whether the defendant or the

government is better situated to adduce evidence tending to prove

or disprove the applicability of the exception. United States v.

Jackson, 57 F.3d 1012, 1016 (11th Cir.), cert. denied, --- U.S. ---

-, 116 S.Ct. 432, 133 L.Ed.2d 346 (1995).

 With regard to the language and structure of the statute, we

are guided by two interpretive presumptions. First, a narrow

proviso to a more general statutory offense is more likely to be an
 4

See also United States v. Freter, 31 F.3d 783, 788 (9th

Cir.) (exception to general proscription presumptively

affirmative defense), cert. denied, --- U.S. ----, 115 S.Ct. 646,

130 L.Ed.2d 551 (1994); United States v. Durrani, 835 F.2d 410,

421 (2d Cir.1987) (same). 

 5See also United States v. English, 139 F.2d 885, 886 (5th

Cir.1944) ("where the language of the section defining the

offense is so entirely separable from the exception that the

ingredients constituting the offense may be accurately and

clearly defined without reference to the exception, the matter

contained in the exception must be set up as a defense by the

accused"). 

 6See also United States v. Steele, 105 F.3d 603 (11th

Cir.1997) (extending Outler from physicians to pharmacists). 

affirmative defense than an element of the offense. As the Supreme

Court has stated, "an indictment ... founded on a general provision

defining the elements of an offense ... need not negative the

matter of an exception made by a proviso or other distinct clause,

whether in the same section or elsewhere. ... " McKelvey v.

United States, 260 U.S. 353, 357, 43 S.Ct. 132, 134, 67 L.Ed. 301

(1922).4 A second, but related, rule is that where one can omit

the exception from the statute without doing violence to the

definition of the offense, the exception is more likely an

affirmative defense. Thus, in United States v. Outler, 659 F.2d

1306, 1309-10 (5th Cir.1981), cert. denied, 455 U.S. 950, 102 S.Ct.

1453, 71 L.Ed.2d 665 (1982), we explained that where "an exception

... [is] so necessary to a true definition of the offense ... the

elements of the crime are not fully stated without the exception."5

In that case, we held that an essential element of the crime of

prescribing controlled substances is that a physician act "without

a legitimate medical reason," even though such a requirement was

not part of the statutory definition of the crime.6 659 F.2d at
 7

Nevertheless, section 930 "is not happily worded,"

McKelvey, 260 U.S. at 357, 43 S.Ct. at 134, and there is some

evidence supporting McArthur's reading. For instance, subsection

(a) states that firearm possession is illegal, "[e]xcept as

provided in subsection (d)." Subsection (d) states that

subsection (a) does not apply to certain weapon possession, such

as law enforcement and lawful hunting. By contrast, subsection

(a) does not mention subsection (h) as an exception. 

1309. We reasoned that due process requires that an exception

which "embodies the culpability of the offense" must be an

essential element. Id. at 1310. Naturally, these presumptions are

merely interpretive aids; we also consider other indications of

legislative will evident in the statute.

 Considering the first of our interpretive guides, subsection

(h) appears to be an affirmative defense; it is a narrow exception

to a general proscription. Specifically, subsection (a) bans all

firearm possession in federal facilities, and subsection (h)

excepts possession at facilities where notice is inadequate or

inconspicuous. Section 930's plain language indicates that

subsection (h) is a defense: "no person shall be convicted of an

offense under subsection (a) or (e)" without notice. 18 U.S.C.A.

§ 930(h) (emphasis added). Because subsection (a) by itself

comprises "an offense," subsection (h) does not appear to be an

element of the offense.7

 Moreover, subsection (a) defines a perfectly cogent offense.

Absent subsection (h), subsection (a) simply bans knowing

possession on federal facilities. We do not find this troubling;

indeed, we note that section 930 defines other crimes—possession of

a firearm with intent to use it in a crime (subsection (b)) and

killing or attempted killing in the course of another violation
 8

We are not unmindful of the Supreme Court's caution, in

Staples v. United States, 511 U.S. 600, 610, 114 S.Ct. 1793,

1799, 128 L.Ed.2d 608 (1994), that "there is a long tradition of

lawful gun ownership by private individuals in this country," and

the attendant presumption against criminalizing gun possession

without the requisite illegal intent. We note, however, that the

statute here requires the government to show scienter in order to

convict a person for possessing a firearm, unlike the statute at

issue in Staples. Although McArthur's reading of the statute

would increase the likelihood that no one would be prosecuted

under the statute absent a "vicious will," see id. at 617, 114

S.Ct. at 1803, Congress has the authority to define the mens rea

it deems appropriate for a given crime. Id. at 603-06, 114 S.Ct.

at 1796-97. 

 9

Thus, this is not a situation where the language chosen by

Congress would "criminalize otherwise innocent conduct." United

States v. X-Citement Video, Inc., 513 U.S. 64, ----, 115 S.Ct.

464, 469, 130 L.Ed.2d 372 (1994). See also United States v.

Wells, --- U.S. ----, ----, 117 S.Ct. 921, 931, --- L.Ed.2d ----

(1997) (following plain meaning of text where "an unqualified

reading ... poses no risk of criminalizing so much conduct as to

suggest that Congress meant something short of the

straightforward reading"). 

 10See, e.g., 4 C.F.R. § 25.14 (possession of firearms

prohibited in GAO Building, except for "official purposes"); 32

C.F.R. § 234.10 (possession of firearms prohibited at Pentagon

without authorization from Defense Protective Service); 32

C.F.R. § 1903.7 (possession of firearms prohibited on CIA

protected property without authorization from Director of

(subsection (c))—without excepting prosecutions where notice is

deficient. This statute is not the "rare instance[ ]" where an

exception is truly an element of the crime, raising the concerns we

highlighted in Outler. Section 930 does not conceal mens rea in an

exception; rather, subsection (a) requires the government to prove

that a defendant knowingly possessed a firearm in a federal

facility.8 Consequently, it ensures convictions based on more than

mere innocence—it requires that the defendant know he has a gun in

his possession and know that he is entering a federal facility. 9

In light of this requirement and the pervasive regulation of weapon

possession at federal facilities,10 due process is not offended by
Security); 44 C.F.R. § 15.14 (possession of firearms prohibited

at FEMA Special Facility without authorization from FEMA

Director). Cf. Downing v. Kunzig, 454 F.2d 1230, 1231 n. 1 &

1233 (6th Cir.1972) (taking judicial notice of nationwide

violence and hazard to government officials; noting that federal

officials have discretion to adopt reasonable rules to guard

against such dangers). 

 11An unenacted bill from the same Congress also has arguable

bearing on the matter. The Senate considered and

abandoned—likely in favor of the more expansive House provision

discussed above—a bill that only would have prohibited firearm

possession in federal court facilities. That bill expressly

declared that the absence of conspicuous notice was an

affirmative defense. Undetectable Firearms Act, S. 2327, 100th

Cong. § 5(b) (1988). We, however, decline to draw any inferences

from its non-enactment. The omission of the affirmative defense

language in the final bill "is not dispositive because it does

not tell us precisely where the compromise was struck" in

a prosecution without proof of adequate notice.

The legislative history of section 930, although sparse,

indicates that Congress viewed subsection (h) as an affirmative

defense. Part of the massive Anti-Drug Abuse Act of 1988, Pub.L.

100-690, 102 Stat. 4181 (1988), section 930 originated in the House

of Representatives and was enacted into law as passed by the House.

See H.R. 5210, 100th Cong. § 6215 (1988). Before the Senate voted

on the measure, the Senate Judiciary Committee reviewed the House

bill and Senator Biden, the committee chair, drafted a

section-by-section analysis. With regard to the provision before

us, he stated that "the absence of the required notice will be a

complete defense to the simple possession offense [subsection (a)

] unless the defendant had actual knowledge." 134 C ONG. REC.

S.17,360-02 (daily ed. Nov. 10, 1988) (statement of Sen. Biden)

(emphasis added). Although this history would not, by itself,

carry the day for the government, it supports our reading of the

statute.11
enacting section 930. See Landgraf v. USI Film Prods., 511 U.S.

244, 256, 114 S.Ct. 1483, 1492, 128 L.Ed.2d 229 (1994). 

 12See also Durrani, 835 F.2d at 421 (in prosecution for

illegal sales of military equipment, court rejects defendant's

claim that "official use" exception was element of crime, even

though government retained most records that would allow

defendant to prove applicability of exception; court noted that

regulations require that certain documents be publicly

available); Mayo, 705 F.2d at 76 (in prosecution for possession

of unregistered firearm, defendant in best position to show his

weapon fits within antique firearm exception). 

 13McArthur claimed in his reply brief that United States v.

Lunstedt, 997 F.2d 665 (9th Cir.1993), held that conspicuous

notice was an element of the offense in section 930. At oral

argument, however, counsel conceded that the court did not reach

the issue. In Lunstedt, the district court instructed the jury

to consider whether the notice was conspicuous. The only issue

Next, courts determining whether a statutory exception is an

element of the crime or an affirmative defense often consider

whether the government or the defendant is in the best position to

prove facts necessary to trigger the exception. Where defendants

are better equipped to prove facts that would allow them to take

advantage of a statutory exception, we ordinarily view that

exception as an affirmative defense. See, e.g., Jackson, 57 F.3d

at 1016 (in prosecution of felon in possession of firearm,

government need not prove prior felony conviction is still valid;

"[a] defendant ordinarily will be much better able to raise the

issue of whether his prior convictions have been expunged or set

aside").12 In the instant case, we do not view either party as

necessarily better able to prove whether notice was adequate.

Evidence relevant to the issue likely would not be difficult to

collect.

Finally, although the parties identify, and we find, no case

law relevant to the precise question before us,13 courts have
before the Ninth Circuit was whether the district court

adequately defined "conspicuous." 

 14GSA is "authorized to make all needful rules and

regulations for the government of the property under [its] charge

or control.... * * * Provided, That such rules and regulations

shall be posted and kept posted in a conspicuous place on such

property." 40 U.S.C.A. § 318a (1986). GSA promulgated

regulations which, inter alia, prohibited firearm possession on

federal property. 41 C.F.R. § 101-20.313 (1988). GSA amended

the regulations in 1989 when section 930 superseded the firearms

prohibition. 54 Fed.Reg. 15,757 (1989) (codified at 41 C.F.R. §

101-20.313 (1996)). 

 15Our characterization of the majority's implied holding is

strengthened by Judge Noonan's dissent. He objected to the

majority's refusal to address the claim that the lack of notice

was an element of the crime, saying that posting "constitute[d]

an essential element that the United States must prove in order

to prove crime in the violation of the regulation." 824 F.2d at

762. Further, as we noted above, see supra note 3, the Ninth

Circuit could not brush aside—even on plain error review—the

defendant's claim that the government failed to prove an element

of the offense. 

interpreted an analogous statute and its implementing regulations.

Under 40 U.S.C.A. § 318a, the General Services Administration

("GSA") is authorized to regulate government property and to make

violating such regulations a crime, so long as the rules it adopts

are posted conspicuously on site. Prior to the enactment of

section 930, a GSA regulation prohibited gun possession at federal

facilities.14 Two cases interpreting that regulation implicate the

question before us; unfortunately, their holdings conflict.

In United States v. Crow, 824 F.2d 761, 762 n. 2 (9th

Cir.1987), the Ninth Circuit refused to address a defendant's claim

that notice was lacking, raised for the first time on appeal.

Thus, the court impliedly held that absence of notice is an

affirmative defense that the defendant must raise at trial. 15 By

contrast, in United States v. Strakoff, 719 F.2d 1307 (5th
 16Were it not for this latter sentence, we would not read

the court to have concluded that absence of notice was an element

of the offense. We have stated previously that "an element is

not always an "essential element' simply because the prosecution

carries the burden of proof...." Outler, 659 F.2d at 1309; see

also Laroche, 723 F.2d at 1543 ("it is incumbent upon the

defendant to properly present the statutory exception, after

which point the government assumes the burden of disproving its

applicability"). But the Strakoff court not only placed the

burden on the government; it stated that the government could

not prove a violation of the regulation without demonstrating

absence of notice. 

Cir.1983), the court reversed a conviction under the GSA

regulations because it ruled that the posted notice was not

conspicuous. Although the court did not state outright that lack

of notice was an element of the firearm offense, it indicated that

it believed as much by holding that, in light of the inconspicuous

notice at the federal building at issue, the government failed to

prove the defendant's guilt beyond a reasonable doubt. Id. at

1309. Further, it stated that "for [the defendant] to have

violated [the regulation], the regulation must have been ... posted

and kept posted "in a conspicuous place' in the Courthouse." Id.16

Although these disparate holdings give us pause, we believe

that significant differences between the GSA regulation at issue in

those cases and section 930 counsel against following the Fifth

Circuit with regard to the statute before us. The notice provision

of section 930 is located in a subsection apart from the definition

of the offense, whereas the provision authorizing GSA to regulate

federal facilities contains the notice requirement. 40 U.S.C.A. §

318a. Further, section 930, unlike the GSA regulation, requires

the government to prove that a person knowingly possesses a firearm

on federal premises. As a result, it guarantees that prosecutions
founded on purely innocent conduct (carrying a firearm into a

building without knowing it is a federal facility, e.g.) will fail.

Were we interpreting the GSA regulation's strict liability regime

instead of section 930, we too might be inclined to view the notice

requirement as an element of the offense, because the GSA

regulation did not ensure that a defendant have any culpability to

be convicted. See, e.g., Outler, 659 F.2d at 1309 (where a

statutory provision "embodies the culpability of the offense," it

is likely to be an essential element of the crime). Given these

distinctions, the case law does not change our view that section

930 is an affirmative defense.

In sum, our analysis of the language and structure of the

statute favors treating subsection (h) as an affirmative defense.

Moreover, the legislative history also supports our view and our

position would not place an undue evidentiary burden on defendants.

We are buoyed in this interpretation by the Ninth Circuit's similar

holding, and believe that the Fifth Circuit's contrary position can

be attributed to differences between the provision it considered

and the one before us. Consequently, we hold that unless the

defendant introduces evidence that notice of the federal law is

lacking, the government, in a prosecution for the possession of

firearms at federal facilities, need not prove that notice of the

ban on such possession was posted conspicuously at the facility.

III.

 McArthur next argues that the district court erred in

imposing restitution based on conduct of which he was acquitted.

The government responds that a sentencing judge ordinarily is
 17At oral argument, the government also argued that McArthur

waived this argument by not making a sufficiently specific

objection to the district court. We need not evaluate the

adequacy of McArthur's argument, however, because his claim is

entitled to plain error review and we consider a district court's

misinterpretation of its authority to order restitution plain

error. United States v. Obasohan, 73 F.3d 309 (11th Cir.1996). 

 18"The court, when sentencing a defendant convicted of an

offense ... may order, in addition to or in lieu of any other

penalty authorized by law, that the defendant make restitution to

any victim of the offense." 18 U.S.C.A. § 3579(a)(1). 

allowed to consider relevant conduct, even if the jury has decided

that the prosecution failed to prove guilt beyond a reasonable

doubt.17

McArthur's position is more tenable. In Hughey v. United

States, 495 U.S. 411, 110 S.Ct. 1979, 109 L.Ed.2d 408 (1990), the

Supreme Court held that a restitution order pursuant to the Victim

and Witness Protection Act, 18 U.S.C.A. §§ 3579-3580, must not

consider the harm arising from conduct of which a defendant was

acquitted. Interpreting the statute's plain language,18 the Court

stated that Congress's intent in crafting the statute was to allow

restitution only for the crime of conviction. Thus, "the loss

caused by the conduct underlying the offense of conviction

establishes the outer limits of a restitution order." 495 U.S. at

420, 110 S.Ct. at 1984. Following Hughey, we have held that

restitution is inappropriate if based on charges of which the

defendant was acquitted, even if those charges relate to the crime

of conviction. United States v. Young, 953 F.2d 1288, 1289 (11th

Cir.1992).

 Applying this standard, we hold that the district court's

restitution order was improper. McArthur was convicted only of
possessing a firearm in a federal facility and his possession

occasioned no loss. Rather, his use of the firearm caused the

injuries and expenses for which the court awarded restitution.

Consequently, holding him responsible for the related costs was

error. See United States v. Cobbs, 967 F.2d 1555, 1558-59 (11th

Cir.1992) (where defendant pleaded guilty to possessing illegal

access devices to make fraudulent credit cards, but government

dismissed charges stemming from use of such devices, restitution

was improper because no loss resulted from mere possession).

The district court held, and the government argues here, that

the restitution award was proper in light of precedent establishing

the sentencing court's power to consider relevant conduct, even

where the defendant is acquitted of some charges. See United

States v. Watts, --- U.S. ----, 117 S.Ct. 633, 136 L.Ed.2d 554

(1997); United States v. Averi, 922 F.2d 765 (11th Cir.1991).

These cases are inapposite because they dealt broadly with a

sentencing court's power but did not address, as did Hughey, the

specific question before us—the statutory scope of the district

court's authority to impose restitution under the Victim and

Witness Protection Act.

We generally remand a case to the district court following our

conclusion that its restitution order was improper, so that the

district court may reevaluate its sentence in light of the vacated

restitution award and give effect to its "intent in creating a

sentencing plan." Young, 953 F.2d at 1290. In the instant case,

however, the district court did not trade restitution for leniency;

rather, McArthur received the maximum sentence and supervised
release available under the guidelines and was found incapable of

paying a fine. Thus, we see no purpose in a remand.

IV.

Accordingly, we AFFIRM McArthur's conviction and VACATE the

district court's restitution order.