                    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                                                                       [DO NOT PUBLISH]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
                                     ________________________

                                             No. 12-10792
                                         Non-Argument Calendar
                                       ________________________

                           D.C. Docket No. 1:10-cr-00047-MCR-GRJ-1

UNITED STATES OF AMERICA,

                                                                           Plaintiff-Appellee,

                                                 versus

DANIEL EDWIN WARWICK,

llllllllllllllllllllllllllllllllllllllll                                Defendant-Appellant.

                                      ________________________

                            Appeal from the United States District Court
                                for the Northern District of Florida
                                  ________________________
                                         (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.

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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


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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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