United States v. Clinton Moss , 297 F. App'x 839 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-12957 OCT 20, 2008
Non-Argument Calendar THOMAS K. KAHN
CLERK
________________________
D. C. Docket No. 06-20330-CR-ASG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CLINTON MOSS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(October 20, 2008)
Before TJOFLAT, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Appellant Clinton Moss appeals his conviction for possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On appeal, Moss
argues that the district court abused its discretion by granting the government’s
motion in limine and thereby prohibiting him from testifying that he purchased a
firearm for protection from his neighbors, who were likely dealing in drugs and
guns. He argues that this testimony was relevant to his state of mind within the
context, in particular, of his entrapment defense to show his susceptibility to the
entreaties of the government agent to purchase a weapon. Moss also argues that
the district court abused its discretion by refusing to give his proposed jury
instruction on duress/justification, arguing that he meets the Deleveaux1 test
because he proffered testimony that he was in fear for his life. Lastly, Moss argues
that his trial was fundamentally unfair due to the prosecutor’s misstatement of the
law of entrapment during closing arguments.
I. Exclusion of testimony
We review de novo a district court’s ruling on the sufficiency of a
defendant’s proffer of a justification defense. See United States v. Dicks, 338 F.3d
1256, 1257 (11th Cir. 2003). “We review a district court’s evidentiary rulings for
abuse of discretion.” United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.
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United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000).
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1995).
“[A] valid entrapment defense has two related elements: government
inducement of the crime, and a lack of predisposition on the part of the defendant
to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63, 108
S. Ct. 883, 886, 99 L. Ed. 2d 54 (1988). Predisposition concerns whether the
defendant was an “unwary innocent” or, instead, an “‘unwary criminal’ who
readily availed himself of the opportunity to perpetrate the crime.” Id. (quoting
Sherman v. U.S., 356 U.S. 369, 376-78, 78 S. Ct. 819, 822-23, 2 L. Ed. 2d 848(1958)).
“In order to have the defense [of justification] submitted to a jury, a
defendant must first produce or proffer evidence sufficient to prove the essential
elements of the defense.” United States v. Montgomery, 772 F.2d 733, 736 (11th
Cir. 1985). A court may prohibit the presentation of evidence insufficient to
support a defense, where the defendant’s true intent is to improperly inspire a jury
to exercise nullification. See United States v. Funches, 135 F.3d 1405, 1408-09
(11th Cir. 1998).
In the seminal case of Deleveaux discussing the applicability of an
affirmative defense of justification for violating 18 U.S.C. § 922(g), we held that
the defense is available only in extraordinary circumstances. Deleveaux, 205 F.3d
3at 1297. Moreover, before being permitted to raise a justification defense, the
defendant must proffer evidence sufficient to establish:
(1) that [he] was under unlawful and present, imminent, and
impending threat of death or serious bodily injury; (2) that [he] did
not negligently or recklessly place himself in a situation where he
would be forced to engage in criminal conduct; (3) that [he] had no
reasonable legal alternative to violating the law; and (4) that there was
a direct causal relationship between the criminal action and the
avoidance of the threatened harm.
Id. at 1297 (quoting United States v. Wofford, 122 F.3d 787, 789-90 (9th Cir.
1997)).
To satisfy the first prong of the justification defense, the defendant must be
facing an “immediate emergency.” United States v. Rice, 214 F.3d, 1295, 1297
(11th Cir. 2000). We have held that there was no immediate emergency when a
defendant, who had been repeatedly threatened and attacked by a gang over a
period of months, retrieved a gun immediately after being threatened by members
of the same gang. Id. at 1297-98. Similarly, we have held that a defendant who
possessed a shotgun for three days after an attack on his home did not establish the
defense, because he was no longer under an imminent threat. United States v. Bell,
214 F.3d 1299, 1301 (11th Cir. 2000) (citing United States v. Parker, 566 F.2d
1304, 1306-07 (5th Cir. 1978), in which we concluded that a defendant who held a
shotgun for thirty minutes after being attacked at his home could not establish the
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defense). In addition, the defendant must show that the police were unwilling to
protect him. See Bell, 214 F.3d at 1302.
Since Moss did not proffer evidence sufficient to prove the essential
elements of a justification defense, and Moss’s testimony was irrelevant and
possibly detrimental to his entrapment defense, we conclude that the district court
properly found that his testimony was intended to inspire a jury to exercise
nullification. Accordingly, we affirm the court’s order granting the government’s
motion in limine and excluding Moss’s testimony on a justification defense.
II. Denial of jury instruction on justification
“We review a district court’s refusal to give a requested jury instruction for
abuse of discretion.” United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.
2004). We review de novo the issue of whether the defense produced sufficient
evidence to sustain a requested instruction. United States v. Calderon, 127 F.3d
1314, 1329 (11th Cir. 1997). “A district court’s refusal to give a requested
instruction is reversible error if (1) the requested instruction was a correct
statement of the law, (2) its subject matter was not substantially covered by other
instructions, and (3) its subject matter dealt with an issue in the trial court that was
so important that failure to give it seriously impaired the defendant's ability to
defend himself.” Carrasco, 381 F.3d at 1242 (quoting United States v. Paradies,
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98 F.3d 1266, 1286 (11th Cir. 1996)). A requested “theory of the defense”
instruction is not substantially correct unless it has both legal support and some
basis in the evidence. United States v. Hedges, 912 F.2d 1397, 1405-06 (11th
Cir.1990).
Because the record demonstrates that Moss did not produce sufficient
evidence to support a justification defense, we conclude that the district court did
not abuse its discretion in refusing to give an instruction on Moss’s justification
defense. Consequently, we affirm as to this issue.
III. Prosecutorial misconduct
“[We] review[] a prosecutorial misconduct claim de novo because it is a
mixed question of law and fact.” United States v. Eckhardt, 466 F.3d 938, 947
(11th Cir. 2006) (reviewing whether prosecutor’s comments during opening and
closing arguments amounted to misconduct), cert. denied, 127 S. Ct. 1305 (2007).
When evaluating claims of prosecutorial misconduct, we examine the context of
the entire trial to determine whether the prosecutor’s statements (1) were improper,
and (2) prejudicially affected the substantial rights of the defendant. United States
v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998).
Because we conclude from the record that the government’s remarks during
its closing argument were not improper, and moreover, that Moss’s substantial
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rights were not prejudicially affected, the district court did not err by allowing the
government’s closing statements about entrapment. Consequently, we affirm as to
this issue.
For the above-stated reasons, we affirm Moss’s conviction.
AFFIRMED.
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