United States v. Daniel Edwin Warwick

Case: 12-10792 Date Filed: 01/08/2013 Page: 1 of 4
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 12-10792
Non-Argument Calendar
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D.C. Docket No. 1:10-cr-00047-MCR-GRJ-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DANIEL EDWIN WARWICK,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Florida
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(January 8, 2013)
Before BARKETT, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Daniel Edwin Warwick appeals his conviction for being a felon in
possession of a .22 caliber handgun, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). Stipulations of the parties and evidence at trial established that Warwick, a
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convicted felon, had pawned the firearm in question at Cash Money Pawn Shop in
Chiefland, Florida, and that the firearm had traveled in interstate commerce. 1 At
trial and on appeal, Warwick argues that the district court deprived him of his only
opportunity to be acquitted when the district court declined to instruct the jury on
an “innocent transitory possession” defense, which Warwick asserts prevented him
from presenting an effective defense.
We review the district court’s denial of a requested jury instruction for an
abuse of discretion. United States v. Palma, 511 F.3d 1311, 1314–15 (11th Cir.
2008). We will reverse the denial of a requested jury instruction only if “(1) the
requested instruction correctly stated the law; (2) the actual charge to the jury did
not substantially cover the proposed instruction; and (3) the failure to give the
instruction substantially impaired the defendant’s ability to present an effective
defense.” Id. at 1315 (internal quotation marks omitted). Although a district court
has broad discretion in formulating the charge to the jury, “a defendant is entitled
to have presented instructions relating to a theory of defense for which there is any
foundation in the evidence, even though the evidence may be weak, insufficient,
inconsistent, or of doubtful credibility.” Id. (internal quotation marks omitted).
1
To prove that a defendant committed an offense under 18 U.S.C. § 922(g)(1), the government
must establish “(1) that the defendant was a convicted felon, (2) that the defendant was in
knowing possession of a firearm, and (3) that the firearm was in or affecting interstate
commerce.” United States v. Deleveaux, 205 F.3d 1292, 1297 (11th Cir. 2000). We have held
that § 922(g) is a strict liability offense that does not require the government to prove that the
defendant acted with specific criminal intent. Id. at 1298.
2
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We cannot say that the district court abused its discretion in denying
Warwick’s request for a jury instruction on an innocent transitory possession
defense. We are unaware of any Eleventh Circuit or Supreme Court precedent
which recognizes the availability of an innocent transitory possession defense in
general or to a § 922(g)(1) charge in particular. Indeed, in Palma, in affirming the
district court’s denial of the defendant’s request for an innocent transitory
possession defense, we noted that we had never recognized such a defense in a
firearm possession case and that the majority of circuits to consider this defense
had either declined to recognize it or expressly rejected it. 511 F.3d at 1316, n.3.
We went on to hold in Palma that, even assuming such a defense would be
theoretically available, the district court did not abuse its discretion in refusing to
instruct the jury because the defense was unsupported by the evidence in the case.
Id. at 1316–17.
Here, in considering Warwick’s proposed jury instructions on an innocent
transitory possession defense during its pretrial rulings, the district court noted that
the Eleventh Circuit has not recognized this defense and has suggested that, even if
it was to be a viable defense, it would be narrow and highly fact specific. The
district court went on to state that it was unaware of the facts of Warwick’s case
that would support such a defense but nonetheless, for the defense to be viable,
would have to be in the nature of a justification defense. See e.g., Deleveaux, 205
3
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F.3d at 1297 (holding that justification is an affirmative defense to a violation of §
922(g)(1)); United States v. Bell, 214 F.3d 1299, 1300 (11th Cir. 2000) (referring
to a defense based on an immediate emergency). Warwick never proffered the
specific evidence that he intended to introduce to support the innocent transitory
possession defense. Instead, when he stated generally that his evidence would be
in the nature of the length of time and circumstances that he was in possession of
the firearm, and not justification, the district court concluded that he could not
present an innocent transitory possession defense. During trial, Warwick presented
some evidence that he did not believe his possession of the firearm was wrong.
Here, as in Palma, even if we presume the existence of an innocent
transitory possession defense, Warwick never proffered any facts nor presented
evidence that would support a foundation for an innocent transitory possession
defense. Accordingly, we cannot say that the district court abused its discretion in
denying the proposed jury instruction.
AFFIRMED.
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