United States of America v. Eric Holmes

Honorable Louis H. Pollak, Senior Judge of the United*
States District Court for the Eastern District of Pennsylvania,
sitting by designation.
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_________________
No. 09-2846
________________________________
UNITED STATES OF AMERICA
v.
ERIC HOLMES,
Appellant
________________________________
On Appeal of a Decision of the United States District Court
for the Western District of Pennsylvania (Crim. No. 07-13J)
District Judge: Kim R. Gibson
________________________________
Submitted under Third Circuit L.A.R. 34.1(a)
April 16, 2010
Before: SLOVITER and HARDIMAN, Circuit Judges,
and POLLAK, District Judge.*
(Filed: June 7, 2010)
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OPINION
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POLLAK, District Judge
I.
On April 10, 2007, prison officers searched defendant-
appellant Eric Holmes, an inmate serving time at the federal
correctional institute in Loretto, Pennsylvania, for possession of
a firearm in furtherance of a drug crime. The search revealed
that Holmes was carrying his prison identification card in his
pocket at the time. Secured with adhesive tape to the back of
Holmes’s identification was a folded playing card, which
contained the blade from a utility knife – a razor blade roughly
two-and-a-half inches in length. Based on this discovery,
Holmes was charged with one count of possessing a weapon in a
prison in violation of 18 U.S.C. § 1791. Holmes was convicted
of that charge by a jury, and on June 9, 2009, the district court
sentenced him to a term of twenty-four months in prison for the
offense.
On appeal, Holmes raises three challenges to his
conviction. First, he contends that the evidence at trial was
insufficient for the jury to conclude that the utility knife blade
was a weapon within the meaning of § 1791. Second, Holmes
argues that, properly construed, the statute requires the
government to prove that Holmes knew that the blade was a
weapon. By contrast, the district judge instructed the jury that
the government needed to prove only that (1) Holmes knowingly
possessed the utility knife blade, and (2) the blade was a
weapon. Finally, Holmes argues that the district judge
erroneously declined to charge him with misdemeanor
possession of a “prohibited object,” a crime that Holmes believes
is a lesser included offense of the charged felony. For the
reasons that follow, we will affirm Holmes’s conviction.
II.
18 U.S.C. § 1791 renders it unlawful for any “inmate of a
prison [to] make[], possess[], or obtain[], or attempt[] to make or
obtain, a prohibited object.” Id. § 1791(a)(2). The term
“prohibited object” includes six categories of items, and the

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18 U.S.C. § 1791 provides in relevant part as follows:1
(a) Whoever . . .(2) being an inmate of a prison, makes, possesses,
or obtains, or attempts to make or obtain, a prohibited object; shall
be punished as provided in subsection (b) of this section.
(b) The punishment for an offense under this section is a fine under
this title or . . . (3) imprisonment for not more than 5 years, or both,
if the object is specified in subsection (d)(1)(B) of this section; . .
. and (5) imprisonment for not more than 6 months, or both, if the
object is specified in subsection (d)(1)(F) of this section. . . .
(c) . . .
(d) As used in this section[,] (1) the term “prohibited object” means
. . . (B) . . . a weapon (other than a firearm or destructive device),
or an object that is designed or intended to be used as a weapon or
to facilitate escape from a prison; . . . and (F) any other object that
threatens the order, discipline, or security of a prison, or the life,
health, or safety of an individual . . . .
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severity of the punishment for a statutory violation is tied to the
category of prohibited object. Id. §§ 1791(b) & (d)(1). Holmes
was convicted for possessing an object prohibited by §
1791(d)(1)(B), which covers, among other things, “weapon[s]
(other than . . . firearm[s] or destructive device[s]).”1
Holmes’s sufficiency of the evidence argument on appeal
is based on two proposed definitions of the word “weapon” in §
1791. Holmes suggests that a weapon must be defined as either
(1) “an object whose primary use is in combat as in to harm or
threaten,” or (2) an object that is “inherently” a weapon, and not
something that merely becomes a weapon when employed in a
specific way. Holmes, however, proffered – and the district
court adopted – a very different definition of “weapon” for
purposes of instructing the jury. Pursuant to that instruction, the
jurors were told that “[w]hat is a weapon is a question of fact for
you alone to decide.” App’x 439. The jury was further
instructed that it could

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The instruction received by the jury differed from2
that proffered by Holmes in only one respect: The original
proposal included “any manner in which the item may have been
altered from the original condition or appearance” as an expressly
legitimate consideration. This phrase was deleted by the district
court, presumably because it concluded that the government had
provided insufficient evidence in support of the theory that the
blade was prohibited because it was “designed . . . to be used as a
weapon.” 18 U.S.C. § 1791(d)(1)(B).
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consider in reaching [its] determination any pertinent
aspect of the item, including the general purposes for
which the item can be used, whether the item had a
legitimate purpose or practical function, the manner in
which the item was carried, and other factors which [it]
believe[d] are important in reaching [its] conclusion.
Id. (emphasis added).
The definitions Holmes asserts on appeal ascribe much
narrower meanings to “weapon” than the jury instruction.
Because Holmes himself proposed the instruction given by the
district court, however, the invited error doctrine prevents him2
from challenging on appeal the definition that was provided to
the jury. See United States v. Ozcelik, 527 F.3d 88, 97 (3d Cir.
2008); United States v. W. Indies Transp., Inc., 127 F.3d 299,
310-11 (3d Cir. 1997). We accordingly decline to consider
whether the definitions Holmes now advances are correct.
We instead review the trial record to determine whether
the evidence was sufficient to sustain a conviction using the
definition of “weapon” provided to the jury. Our review is
plenary, and we view the evidence at trial in the light most
favorable to the prosecution, the verdict winner. United States v.
Miller, 527 F.3d 54, 60 (3d Cir. 2008). We will overturn a
conviction for insufficient evidence only if “no rational trier of
fact could have found [the defendant] guilty beyond a reasonable
doubt.” United States v. Johnson, 302 F.3d 139, 149 (3d Cir.
2002).

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The evidence at trial permitted the jury to draw five
conclusions which are collectively more than adequate to sustain
the conclusion that the utility knife blade was a weapon. First,
blades are restricted items in the prison; they are only given to
inmates upon presentation of a tool pass at the prison toolroom,
and then only as part of a complete utility knife. Second,
Holmes had no legitimate use for a utility knife – let alone a
utility knife blade – on the morning he was searched. He had not
presented a tool pass to the toolroom clerk, was not given a work
assignment that morning by his supervisor, and was sitting with
several other idle inmates at the time the prison officers arrived
to search him. Third, Holmes lied to the officers who searched
him, telling them that he had nothing in his pocket and was not
carrying anything sharp. Fourth, Holmes was carrying the blade
in a surreptitious manner, suggesting that it was for illicit
purposes and not for work. Finally, the officers who searched
Holmes expressed the belief that the blade, separated from a
utility knife handle, constituted a weapon. On the basis of this
evidence, a rational jury could have concluded that the blade was
a weapon and convicted Holmes. We accordingly reject his
challenge to the sufficiency of the evidence at trial.
III.
The text of § 1791(a)(2) includes no scienter requirement.
It simply provides that “[w]hoever[,] being an inmate of a
prison, makes, possesses, or obtains, or attempts to make or
obtain, a prohibited object[,] shall be punished as provided in [§
1791(b)].” Holmes and the government nevertheless agree that,
in keeping with the general common-law rule, a scienter
requirement should be implied. See Staples v. United States, 511
U.S. 600, 605 (1994). More specifically, the parties agree that
only knowing conduct will violate the statute. They part ways,
however, on what conduct must be knowing. The government
asserts, and the district court held, that under the circumstances
presented here, the statute only requires knowing possession of
an object, which object is prohibited under one of the prongs of
§ 1791(d)(1). Holmes, by contrast, argues that he could only
violate the statute if he knowingly possessed an object he knew
was a weapon. Our consideration of this question is guided by

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our “‘construction of the statute and . . . inference of the intent of
Congress,’” Staples, 511 U.S. at 605 (quoting United States v.
Balint, 258 U.S. 250, 253 (1922)), and because the issue is one
of statutory interpretation, our review is plenary. United States
v. Introcaso, 506 F.3d 260, 264 n.3 (3d Cir. 2007).
Section 1791(d)(1)(B) defines “prohibited object” to
mean, in part, “a weapon (other than a firearm or destructive
device), or an object that is designed or intended to be used as a
weapon.” There are, in other words, three categories of
prohibited weapon-like objects under the statute: (1) those that
are actual weapons, (2) those that may not be weapons, but are
designed to be used as weapons, and (3) those that may not be
weapons, but are intended to be used as weapons. Holmes’s
scienter theory thus reduces to the proposition that the
government was required to prove that he knew the utility knife
blade was an actual weapon within the meaning of § 1791.
We reject this argument for three interrelated reasons.
First, Holmes makes no attempt to find support for his argument
in the text or structure of § 1791(a) or § 1791(d). Second,
whether or not an inmate knows an item is a weapon is a
primarily linguistic matter disconnected from any conceivable
congressional concerns related to the presence of weapons in
correctional institutions. And third, we cannot ignore the fact
that § 1791 applies only to federal prisons: As the Fourth Circuit
has held in the context of a prior version of § 1791, “[a] federal
penal institution has particular needs, and statutes designed to
regulate articles being introduced into such institutions must be
scrutinized in light of those needs.” United States v. Chatman,
538 F.2d 567, 569 (4th Cir. 1976). “[P]rison safety and security”
are very high on that list of needs, id., and prison security is
threatened each time an inmate possesses an object like a razor
blade, whether or not the inmate knows the blade fits within the
dictionary definition of the word “weapon.”
This is not, of course, to say that any inmate in possession
of a weapon has automatically violated § 1791. As Holmes
rightly points out, application of the statute to every inmate who
is found with a weapon could criminalize innocent conduct. To

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use an example provided by Holmes, if one inmate hides a shank
in the pocket of a coat being worn by a second inmate, who
believes that his pockets are empty, the second inmate (1)
possessed a weapon, but (2) should not be seen as in violation of
§ 1791. The government’s reading of the statute, however, is
entirely consistent with this conclusion. The government
concedes that it must demonstrate that the inmate knowingly
possessed the object that is a weapon, and it is precisely knowing
possession that is missing in the hypothetical case of the coat-
wearing prisoner.
The difference between the government’s position and
Holmes’s position is better illustrated by positing a prisoner who
is handed a shank by an inmate and believes, quite sincerely, that
the shank is not a weapon. Despite this prisoner’s sincerity, such
conduct is, in light of the need for safety and security, not at all
innocent in the prison setting. Accordingly, while we agree that
a mens rea requirement should be implied where the failure to
do so would criminalize innocent conduct, see Staples, 511 U.S.
at 610, the government’s interpretation of § 1791 does not
violate that rule of construction.
The Supreme Court decisions relied on by Holmes also do
not compel acceptance of his view of § 1791. Four of those
cases concerned statutes that contained the word “knowingly.”
Because the scienter requirement in § 1791 is, by contrast,
implied, the cases Holmes cites are inapposite insofar as they
rest on textual analysis of the statute. See Flores-Figueroa v.
United States, 129 S. Ct. 1886 (2009); United States v. X-
Citement Video, Inc., 513 U.S. 64 (1994); Liparota v. United
States, 471 U.S. 419 (1985); Morissette v. United States, 342
U.S. 246 (1952). A closer analogy is provided by Staples v.
United States, 511 U.S. 600 (1994), which also interpreted a
statute that was silent as to mens rea. Many of the Court’s
concerns in Staples are, however, absent here. Staples, for
instance, rests in part on the Court’s unwillingness to criminalize
innocent conduct – a concern we have already found absent here.
See Staples, 511 U.S. at 614-15; see also X-Citement Video, 513
U.S. at 72; Liparota, 471 U.S. at 426. We further note that,
unlike the gun-owning petitioner in Staples, Holmes, as an

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The decisions of our sister circuits cited by Holmes3
are also consistent with our holding. United States v. Fox, 845
F.2d 152 (7th Cir. 1988) (en banc), held that a prior version of
§ 1791, which made it unlawful to possess a “weapon or object that
may be used as a weapon,” was violated when an inmate
“knowingly or intentionally possessed an object that could have
been used as a weapon.” Id. at 155. Applying that formulation to
an actual weapon results in the conclusion that a conviction is
proper if the inmate knowingly possessed an object that was a
weapon. Fox therefore supports the government’s position. In
contrast, the courts in United States v. Rodriguez, 45 F.3d 302, 306
(9th Cir. 1995), and United States v. Perceval, 803 F.2d 601 (10th
Cir. 1986), had no occasion to consider the argument proffered by
Holmes. Both simply stated that, as to possession of a weapon (or,
in the case of Perceval, a weapon-like object), knowledge and not
intentionality was the proper mens rea standard. See Rodriguez,
45 F.3d at 306; Perceval, 803 F.2d at 603; accord United States v.
Rojas-Flores, 384 F.3d 775, 779 (9th Cir. 2004).
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inmate, should have been aware that his possession of potential
weapons was “likel[y]” subject to “strict regulation.” 511 U.S.
at 611. And while the Staples Court did suggest that crimes
resulting in lengthy prison terms should generally be knowing
offenses, Staples itself recognizes that a knowing mens rea need
not apply to every element of every crime, even if that crime
results in imprisonment. See id. at 409 (“[D]ifferent elements of
the same offense can require different mental states.”); see also
United States v. Freed, 401 U.S. 601 (1971) (declining to attach
a scienter requirement to a different element of the statute at
issue in Staples). We conclude that, in this case, the potential
severity of the punishment for possessing a weapon in prison is
counterbalanced by the need for safety and security and, standing
alone, does not justify the mens rea requirement sought by
Holmes.3
For these reasons, we reject defendant’s argument that he
could only be convicted if the jury found that he knew the utility
knife blade was a weapon.

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IV.
Holmes’s last argument is that he should have been
charged with what Holmes sees as the lesser included offense of
possessing “any other object that threatens the order, discipline,
or security of a prison, or the life, health, or safety of an
individual.” 18 U.S.C. § 1791(d)(1)(F). A violation of that
provision is certainly a lesser offense than a violation of §
1791(d)(1)(B): The former results in a maximum prison term of
six months, whereas the latter can lead to up to five years in
prison. See id. §§ 1791(b)(3) & (5). To be a lesser included
offense, however, “the elements of the lesser offense” – a
violation of § 1791(d)(1)(F) – must be “a subset of the elements
of the charged offense” – a violation of § 1791(d)(1)(B).
Schmuck v. United States, 489 U.S. 705, 716 (1989). “This
standard involves a textual comparison, looking solely to the
elements of the two offenses; inferences arising from the
evidence and similarities as to the interests served by the statutes
are not relevant.” United States v. Mosley, 126 F.3d 200, 203-04
(3d Cir. 1997). Our review of this issue is again plenary. Id. at
201.
Holmes argues that a conviction for possessing a weapon
under § 1791(d)(1)(B) includes all of the elements for a
conviction under § 1791(d)(1)(F). His view is that a violation of
§ 1791(d)(1)(F) has three elements – (1) the defendant is an
inmate (2) possessing an object (3) that threatens prison security
or an individual. Similarly, Holmes sees three elements to a
violation of § 1791(d)(1)(B) – (1) an inmate (2) possessing an
object (3) that is a weapon. Because a weapon is an object that
may threaten the order, discipline, or security of a prison, or the
life, health, or safety of an individual, Holmes asserts that he
could not have violated § 1791(d)(1)(F) without also violating §
1791(d)(1)(B).
Holmes’s argument, however, omits a cardinal word from
§ 1791(d)(1)(F). That subsection, which is a catch-all provision
following five other enumerated categories of prohibited objects,
applies only to “any other object that threatens the order,
discipline, or security of a prison, or the life, health, or safety of

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Our decision in United States v. Burnett, 870 F.2d4
953 (3d Cir. 1989), is not to the contrary. Although the trial court
in Burnett had given a lesser-included-offense instruction in
circumstances similar to those at issue here, we remanded because
the verdict form used to convict the defendant was ambiguous. In
doing so, we expressly left it to the district court “to determine
anew . . . whether, if requested, a lesser included offense charge is
required.” Id. at 955.
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an individual.” 18 U.S.C. § 1791(d)(1)(F) (emphasis supplied).
We cannot ignore the use of the word “other,” which operates to
expressly exclude items discussed in the other subsections of §
1791(d)(1) from the ambit of (d)(1)(F). Among the items so
excluded, of course, are the weapons forbidden by (d)(1)(B). A
violation of § 1791(d)(1)(F) is, in other words, not a lesser
included offense of a § 1791(d)(1)(B) violation, but rather a
lesser crime involving a categorically distinct type of object.4
We therefore reject Holmes’s argument. Accordingly, we will
affirm the judgment of the district court.

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