                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                       March 5, 2007
                                 TENTH CIRCUIT                      Elisabeth A. Shumaker
                                                                        Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff-Appellee,                      No. 06-5124
          v.                                         (N.D. Oklahoma)
 TE’AIRE ELG IN CU RLS,                         (D.C. No. 05-CR-127-HDC)

               Defendant-Appellant.




                            OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges. **




      Te’Aire Curls was convicted, after a jury trial, of two counts of possession

of a firearm and ammunition by a felon, in violation of 18 U.S.C. § 922(g). The

district court sentenced him to two concurrent terms of 120 months’




      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1and 10th
Cir. R. 32.1.


      **
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(F) and 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
imprisonment, followed by two concurrent terms of thirty-six months’ supervised

release.

      In this appeal, M r. Curls argues that the district court erred in denying his

motions (1) to dismiss the superceding indictment on the grounds that the

indictment appearing in the public file w as not signed by the grand jury foreman;

(2) to dismiss the indictment because of multiplicity; (3) to suppress evidence;

and (4) to hold an evidentiary hearing regarding his allegation of juror

misconduct. M r. Curls also contends that the court erred in (5) refusing to

instruct the jury on the defense theory of innocent possession; and (6) imposing a

two-level increase in the offense level for obstruction of justice pursuant to §

3C1.1 of the United States Sentencing Guidelines. Finally, M r. Curls argues that

(7) his sentence is unreasonable.

      W e are not persuaded by M r. Curls’s arguments and therefore affirm his

convictions and sentences.



                                I. BACKGROUND

      On June 8, 2005, officers from the Fugitive W arrants Squad of the Tulsa

Police Department, assisted by an agent from the United States Bureau of

Alcohol, Tobacco, and Firearms and a Deputy United States M arshal, stopped a

car in which M r. Curls was riding. They mistakenly believed that the driver of

the car, Emmanuel Baxter, was Sean Ali W illiams, a gang member with an

                                          -2-
outstanding felony arrest warrant. According to the officers, M r. Baxter’s

appearance resembled a description that they had obtained for M r. W illiams.

      The officers approached the car w ith their weapons draw n, handcuffed M r.

Baxter and M r. Curls, and then holstered their weapons. The ATF agent asked

M r. Curls w ho owned the car and who the driver was. M r. Curls responded that it

was his mother’s car and that the driver was M r. Baxter, his cousin. The agent

then asked M r. Curls “if he had anything in the car he shouldn’t have.” Rec. vol

IX , at 12. M r. C urls said no, and the agent next asked him “did he mind if we

searched?” Id. M r. Curls said, “[N]o, go ahead.” Id. As one of the officers

began to enter the car, M r. Curls told the ATF agent that there was a gun in the

center console. The officer proceeded to search the car and discovered a .32

caliber revolver w ith an obliterated serial number.

      The officers transported M r. Curls and M r. Baxter to the Detective Division

of the Tulsa Police Department. M r. Curls signed a form waiving his M iranda

rights and then spoke to the A TF agent about his possession of the revolver. H e

stated that he had purchased the weapon from a friend in order to protect himself

because he had recently been robbed of $1,400 while leaving a casino. M r. Curls

also wrote a statement containing the same information.

      Police officers determined that M r. Baxter was not the man they were

searching for, and they released him from custody. The government charged M r.




                                         -3-
Curls in a one-count indictment with possession of a firearm and ammunition by a

felon, in violation of 18 U.S.C. § 922(g).

      Prior to trial, M r. Curls moved to suppress the firearm and ammunition

discovered in the car. He argued that the law enforcement officers lacked

reasonable suspicion to detain him on the grounds that they thought that M r.

Baxter was M r. W illiams.

      After conducting an evidentiary hearing, the district court denied the

motion to suppress. It noted the similarities in M r. W illiams’s and M r. Baxter’s

appearance:

              In looking at the photographs and the description of the
              characteristics of the individuals, it is apparent how their
              similarity w ould cause a trained officer to be of the
              reasonable belief . . . that the driver of the vehicle was in
              fact M r. W illiam s who was wanted from a felony warrant
              that w as outstanding at the time. And it’s the Court’s
              belief that w ith that, with reason to believe that and
              having the experience that Agent Petree has, that he acted
              reasonably in the stop. He actually was trying to get the
              other two officers, the backup officers[,] to also take a
              look to verify it to be careful. That show s in and of itself
              that he was not attempting to just willy-nilly . . . stop
              people. . . . And as is said, there’s no challenge to any
              other actions the officers made[,] and, therefore, the C ourt
              finds that it was a reasonable stop based upon a reasonable
              belief by the officer.

Rec. vol. III, at 49-50.

      The case w as tried to a jury in October 2005. M r. Curls testified in his ow n

defense. He stated that, on the day before his arrest, he had discovered the



                                           -4-
firearm on the floor in his mother’s apartment. According to M r. Curls, he

handed the firearm to Allan Dansby, a cousin w ho was living in M r. Curls’s

mother’s apartment, and told him to get it out of the house. The jury was unable

to reach a verdict, and the district court declared a mistrial.

      M r. Curls then filed a motion to dismiss the indictment. He argued that his

attorney “ha[d] been informed by a spectator, a member of this Court’s bar, that

at least one court guard, and possibly two, sitting directly across the courtroom, in

full view of the jury, was obviously laughing and scoffing during the closing

argument of the Defendant.” Rec. vol. I, doc. 53, at 1. M r. Curls asked for an

evidentiary hearing on the motion, but the district court denied the request.

      On November 10, 2005, a grand jury returned a superceding indictment

charging M r. Curls with the same § 922(g) offense that was tried to the jury and

an additional offense: a § 922(g) violation based on his possession of the .32

caliber revolver with the obliterated serial number at his mother’s apartment on

June 7, 2005. M r. Curls then moved to dismiss the additional charge, arguing that

his “momentary possession” of the firearm on June 7 did not constitute a separate

violation of § 922(g). Rec. vol. I, doc. 86, at 2. The district court denied that

motion.

      M r. Curls also filed a second motion to suppress. He observed that the law

enforcement officers had not given him the M iranda warnings before they asked

him about the contents of the car and requested permission to search, and he


                                           -5-
maintained that the failure to give the warnings violated his Fifth Amendment

rights. The court denied that motion as well.

      The district court held a second jury trial in January 2006. At this trial, M r.

Curls sought to defend the new § 922(g) charge by contending that he was an

innocent owner in that he possessed the firearm for no illicit purpose and “took

adequate measures to rid himself of possession of the firearm as promptly as

reasonably possible.” Rec. vol. I, doc. 102, at 1. The district court refused to

allow M r. Curls to present an innocent owner defense. Nevertheless, the second

jury trial, like the first one, ended in a mistrial when the jury was unable to reach

a verdict.

      In M arch 2006, the district court conducted a third jury trial. M r. Curls

filed two additional motions to suppress, adopting the arguments made in his

prior motions. See Rec. vol. I, doc. 88 (stating that “the Defendant wants to make

it clear that in his opinion the traffic stop was illegal, and/or the Defendant was

not M irandized prior to questioning”); doc. 125 (adopting the prior three motions

to suppress). The court denied the motions.

      Additionally, at the third trial, M r. Curls again sought to present an

innocent owner defense to the second § 922(g) charge, and the district court again

denied his request. As in the second trial, M r. Curls testified in his own defense,

stating that, on the morning of June 7, 2005, he had discovered the firearm and

some ammunition in a pile of clothes in the living room of his mother’s


                                          -6-
apartment. According to M r. Curls, his cousin M r. Dansby had been wearing the

clothes. M r. Curls reported that he looked at the gun for fifteen or twenty

seconds, picked it up, loaded it with the bullets lying next to it, proceeded to the

bathroom where M r. Dansby was, gave it to him, and told M r. Dansby to get it out

of the house.

      As to his arrest on June 8, 2005, M r. Curls asserted that he w as not aware

that there was a gun in the car until he saw the police officers approaching and

opened the console to look for a lighter. W hen asked about his prior verbal and

written statements at the Tulsa Police Department that the gun belonged to him,

M r. Curls asserted that they were not true. He maintained that the ATF agent had

told him what to include in the written statement.

      The third jury convicted M r. Curls on both counts. At sentencing, the

district court applied § 3C1.1 of the United States Sentencing Guidelines and

imposed a two-level increase in the offense level for an obstruction of justice.

The court found that M r. Curls had committed perjury in testifying at trial that his

written statement admitting knowing possession of the gun on June 8, 2006 was

not true. The court sentenced him to two concurrent terms of 120 months’

imprisonment, followed by two concurrent three-year terms of supervised release.




                                          -7-
                                  II. D ISC USSIO N

                  A. M issing Signature of the Grand Jury Foreman

      M r. Curls notes that the copy of the superceding indictment placed in the

public court file was signed only by an Assistant United States Attorney. In the

space designated for the grand jury foreperson’s signature, the following notation

appears: “/s/ Grand Jury Foreman.” Rec. vol. I doc. 79, at 3. M r. Curls maintains

that the failure of the indictment in the court file to contain the foreperson’s name

and signature violates Rule 6(c) of the Federal Rules of Criminal Procedure, his

Fifth Amendment right to be indicted by a grand jury, and his Sixth Amendment

right to a public trial. As a result, he argues, the indictment is nullity, and the

district court erred in denying his motion to dismiss.

      Significantly, M r. Curls does not contend that the original superceding

indictment was not signed by the foreperson or that the grand jury itself did not

vote to issue that indictment. Indeed, during a motions hearing before the district

court, M r. Curls’s attorney acknowledged that he had not attempted to examine

the original indictment and that “[t]here’s no doubt in my mind that it was signed

by a real person and their name is on there.” Rec. vol. III, at 4. He explained,

“The point I was making in the brief is that it’s not made public record who this

person is and, therefore, it violates the right to a public trial.” Id.

      M r. C urls’s challenge to the indictment raises a legal question that we

examine de novo. See United States v. Avery, 295 F.3d 1158, 1173-74 (10th Cir.


                                           -8-
2002). Having done so, we agree with the district court that dismissal of the

indictment is not warranted.

      In particular, M r. Curls has failed to establish a violation of Rule 6(c) of

the Federal Rules of Criminal Procedure. That rule provides that “[t]he court will

appoint one juror as the foreperson and another as the deputy foreperson” and that

“[t]he foreperson may administer oaths and affirmations and will sign all

indictments.” Rule 6(c) does not require the signature of the foreman to appear in

the copy of the indictment that is placed in the public file. M oreover, even if that

rule, or some other authority, did impose such a requirement, M r. Curls has

failed to establish that dismissal of the indictment would be an appropriate

remedy. See Hobby v. United States, 468 U.S. 339, 345 (1984). (“Even the

foreman’s duty to sign the indictment is a formality, for the absence of the

foreman’s signature is a mere technical irregularity that is not necessarily fatal to

the indictment.”).

      Similarly, the lack of the foreman’s signature in the public file does not

indicate that the grand jury itself failed to issue the indictment See Russell v.

United States, 369 U.S. 749, 771 (1962) (observing that the Fifth Amendment

“limit[s] [a defendant’s] jeopardy to offenses charged by a group of his fellow

citizens acting independently of either prosecuting attorney or judge”) (internal

quotation marks omitted). Thus, M r. Curls has failed to establish a violation of

the Fifth Amendment as well.


                                          -9-
      Finally, as to the alleged violation of M r. Curls’s Sixth Amendment right to

a public trial, we reiterate the view expressed in a prior decision in w hich M r.

Curls’s attorney raised the same argument:

      W hile the Sixth Amendment right to a public trial has been extended
      outside the actual presentation of evidence at trial, see, e.g., W aller v.
      Georgia, 467 U.S. 39, 47 (1984) (pretrial suppression hearing);
      Press-Enter. Co. v. Superior Court of Cal., Riverside County, 464 U.S.
      501, 505-08 (1984) (voir dire proceedings), we have uncovered no
      cases, and [M r. Curls] cites to none, in which the Sixth A m endment
      right to a public trial has been extended to require the grand jury
      foreperson’s identity or signature be made public.

United States v. Reed, 195 Fed. Appx. 815, 820 (10th Cir. 2006) (unpublished).


                               B. Alleged M ultiplicity

      M r. Curls argues that the two § 922(g) charges in the indictment cover the

same activity and are therefore multiplicitous. As a result, he maintains, the

district court erred in denying his motion to dismiss the second count of the

superceding indictment.

      W e review the district court’s decision de novo. United States v. Graham,

305 F.3d 1094, 1100 (10th Cir. 2002). “M ultiplicity refers to multiple counts of

an indictment which cover the same criminal behavior.” United States v.

Johnson, 130 F.3d 1420, 1424 (10th Cir. 1997). Although “multiplicity is not

fatal to an indictment,” id. (internal quotation marks omitted), multiplicitous

counts which may result in multiplicitous convictions are considered “improper

because they allow multiple punishments for a single criminal offense.” United


                                          -10-
States v. Jenkins, 313 F.3d 549, 557 (10th Cir. 2002). “[M ]ultiplicitous sentences

violate the Double Jeopardy Clause.” United States v. M orris, 247 F.3d 1080,

1083 n.2 (10th Cir. 2001).

      “The test [for multiplicity] is whether the individual acts [alleged in the

counts at issue] are prohibited, or the course of [conduct] which they constitute.”

Graham, 305 F.3d at 1100 (third alteration in original) (internal quotation marks

omitted). “If the former, then each act is punishable separately. If the latter, there

can be but one penalty.” Id. (internal quotation marks omitted). W here

multiplicitous convictions are found, “the only remedy . . . is . . . to vacate one of

the underlying convictions as well as the . . . sentence based upon it.” Rutledge

v. United States, 517 U.S. 292, 301-02 (1996) (internal quotation marks omitted).

      Generally speaking, “Congress intended the crime of possession to refer to

a course of conduct rather than individual acts of dominion.” United States v.

Jones, 403 F.3d 604, 606 (8th Cir. 2005). Thus, “the continuous possession of the

same firearm constitutes a single offense.” Id.; see also United States v. Fleischli,

305 F.3d 643, 658 (7th Cir. 2002) (“Possession of a firearm is a continuing

offense which ceases only when the possession stops.”); United States v. Finley,

245 F.3d 199, 207 (2d Cir.2001) (holding that “the possession of the shotgun . . .

was a continuing offense”).

      There is an exception to this general rule. “A felon may be charged and

convicted on two counts of possessing the same firearm if he first possesses a


                                          -11-
weapon, he is aware that his possession is interrupted, and he thereafter

reacquires possession of the weapon himself.” Jones 403 F.3d at 606. (internal

quotation marks omitted).

      M r. Curls maintains that this exception is inapplicable here. He asserts that

“[t]he record indicates that [he] was in possession of a stolen handgun on the

morning of the first day . . . and continued to possess the handgun, according to

the government’s theory, until caught with it the second day.” Aplt’s Br. at 54.

      W e disagree w ith M r. C urls’s reading of the record. According to his ow n

testimony, he found the .32 caliber revolver with an obliterated serial number in

his mother’s apartment on June 7, 2005, picked in up, loaded it, gave it to M r.

Dansby, and proceeded to leave the apartment without it. The government did not

seek to rebut that part of his testimony. Indeed, in her cross-examination of M r.

Curls, the prosecutor highlighted his statement that he had left the firearm in the

apartment. Thus, the government’s theory was that M r. Curls’s possession of the

firearm was interrupted and that he had reacquired it the following day, when law

enforcement officers discovered it in the center console of the car in which he

was riding. Accordingly, we conclude that the two counts of the superceding

indictment are not multiplicitous. See United States v. Conley, 291 F.3d 464,

470-71 (7th Cir. 2002) (concluding that “[b]ecause the Government was required

to convince the jury beyond a reasonable doubt of [the defendant’s] possession of

the shotgun on two separate dates, as two distinct courses of conduct, the


                                         -12-
Government established the elements of two separate crimes” and that “the

indictment is [thus] not multiplicitous”).



                               C. M otion to Suppress

      In the district court proceedings, M r. Curls argued that the firearm and

ammunition discovered on June 8, 2005 should be suppressed because the officers

(1) lacked the reasonable suspicion necessary to detain him and (2) failed to

administer M iranda warnings before asking him about the contents of the car and

whether they could search it. He repeats the second argument in his appellate

brief, and he also argues that suppression is warranted because his consent was

coerced. W e review the district court’s factual findings for clear error and its

legal conclusions de novo. United States v. Hishaw, 235 F.3d 565, 569 (10th Cir.

2000). W e view the record in the light most favorable to the government, as the

prevailing party. Id.

      Here, significantly, M r. Curls does not challenge the initial grounds for the

stop–that the officers reasonably believed that M r. Baxter, the driver of the car,

was a gang member with an outstanding felony warrant. See United States ex rel.

Kirby v. Sturges, 510 F.2d 397, 401 (7th Cir. 1975) (“[A]n arrest or stop based

upon a reasonable mistake as to identity is lawful.”) (citing Hill v. California, 401

U.S. 797 (1971)) (internal quotation marks omitted). Nor does M r. Curls

challenge the degree of force that the officers used in light of that belief,


                                          -13-
approaching the car with weapons drawn and placing M r. Curls and M r. Baxter in

handcuffs. United States. v. Perdue, 8 F.3d 1455, 1462 (10th Cir. 1993) (stating

that “[w]hile Terry stops generally must be fairly nonintrusive, officers may take

necessary steps to protect themselves if the circumstances reasonably warrant

such measures” and that “[t]he use of guns in connection with a stop is

permissible where the police reasonably believe [the weapons] are necessary for

their protection”) (third alteration in original) (internal quotation marks omitted).

W e therefore begin our analysis with the presumption that the officers’ initial stop

of the car, drawing of weapons, and the use of handcuffs were part of a lawful

investigative detention based on a reasonable (but mistaken) suspicion that there

was a felony arrest warrant for M r. Baxter.

      Nevertheless, we must still examine the officers’ questioning of M r. Curls.

M r. Curls maintains that, because they ordered him out of the car at gunpoint and

handcuffed him, the officers transformed an investigative detention into an arrest

and were therefore required to give him the M iranda warnings before they could

ask him about the contents of the car. As a general rule, two conditions must be

met before M iranda warnings are required: “the suspect must be in ‘custody,’ and

the questioning must meet the legal definition of ‘interrogation.’” Id. at 1463.

Under M iranda, the term “interrogation” “refers not only to express questioning,

but also to any words or actions on the part of the police . . . that the police




                                          -14-
should know are reasonably likely to elicit an incriminating response from the

suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980).

       “The traditional view . . . is that M iranda warnings are simply not

implicated in the context of a valid Terry stop.” Perdue, 8 F.3d at 1464.

However, law enforcement officials may create the custodial interrogation that

M iranda contemplates “by employing an amount of force that reache[s] the

boundary line between a permissible Terry stop and an unconstitutional arrest.”

Id.

       For example, in Perdue, officers forced the defendant out of his car and

onto the ground at gunpoint. W hile the defendant remained face down on the

ground with guns pointed at him, the officers asked him what he was doing on the

property. W hen the defendant responded that “he was there to check on his

stuff,” the officers asked, “W hat stuff?” Id. at 1459. The defendant responded,

“The marijuana that I know you guys found in the shed.” Id.

      W e held that the defendant was in custody. See id. at 1465 (explaining that

“[a]ny reasonable person in [the defendant’s] position would have felt completely

at the mercy of the police”) (internal quotation marks omitted). Additionally, the

officers’ questions constituted an interrogation. The officers were executing a

search warrant after obtaining information that marijuana was being grown on the

property. Their questions to the defendant were reasonably likely to elicit

incriminating responses. Therefore, the officers should have informed the


                                         -15-
defendant of his constitutional rights and their failure to do so violated M iranda.

Id.

      Here, M r. Curls has a colorable argument that, like the defendant in Perdue,

the officers’ drawing of weapons and use of handcuffs placed him in custody.

Nevertheless, our precedent establishes that the officers’ request for his consent to

search the car did not constitute an interrogation requiring the M iranda warnings.

See United States v. M cCurdy, 40 F.3d 1111, 1118 (10th Cir. 1994) (“An officer’s

request to search a defendant’s automobile does not constitute interrogation

invoking a defendant’s M iranda rights.”); United States v. Gay, 774 F.2d 368, 379

(10th Cir. 1985) (holding that the act of asking a suspect for consent to search did

not constitute an interrogation because “[s]uch a request generally cannot be said

to lead to an incriminating response”); 2 W ayne R. LaFave et al. C RIMINAL

P ROCEDURE § 6.7(b), at 553 (2d ed. 1999) (“[A] non-accusatory request that a

person consent to a search is likewise not interrogation under the Innis test.”).

      As a result, because M r. Curls told the officers that they could search the

car, the proper disposition of his motion to suppress turns on whether his consent

was knowing and voluntary. In his appellate brief, M r. Curls argues that the fact

that three officers ordered him out of the car at gunpoint and placed him in

handcuffs establishes that his consent to the search was coerced. However, as

noted by the government, M r. Curls did not make this argument in the district




                                          -16-
court proceedings, and the district court made no findings on this issue. 1

Accordingly, our review is only for plain error. See United States v. Brooks, 427

F.3d 1246, 1249 (10th Cir. 2005) (reviewing a challenge to the scope of a search

only for plain error because the defendant failed to advance it below ).

      W e discern no such error here. M r. Curls’s argument amounts to the

contention that the officers’ drawing of weapons and the use of handcuffs, even if

reasonable under the Fourth Amendment, renders any subsequent consent

involuntary. However, a number of decisions have rejected that view. See United

States v. G uiterrez, 92 F.3d 468, 471 (7th Cir. 1996) (stating that “while we

understand that the circumstances at the truck yard–law enforcement officers

brandishing weapons, handcuffing [the defendant], and ordering him up against a

wall–were unpleasant, there is nothing so inherently coercive about such tactics . .

. to render subsequent cooperation involuntary”) (internal quotation marks

omitted); United States v. Hidalgo, 7 F.3d 1566, 1571 (11th Cir. 1993) (concluding

that consent was voluntarily given even though the defendant had been “arrested

by SW AT team members who broke into his home in the early morning, woke him,

and forced him to the ground at gunpoint”); United States v. Espinosa-Orlando,



       1
         In his reply brief, M r. Curls argues that he “did not waive [t]he issue of
improper search and seizure.” Reply Br. at 12. He notes that he challenged the
validity of the initial stop and the failure to give the M iranda w arnings. However,
he does not argue that he challenged the validity of the consent to search the car
on any grounds other than that it was the fruit of an unlawful stop and
interrogation.

                                         -17-
704 F.2d 507, 510, 513 (11th Cir.1983) (concluding consent voluntarily given after

four officers had drawn their weapons, asked the defendant to step away from his

car, told him to lie on the grass, and asked for consent while he was on the ground

and one officer still had his weapon drawn). M oreover, we note that M r. Curls has

cited no case law supporting his contention that the circumstances here were

inherently coercive.

      W e therefore conclude that because M r. Curls consented to the search of the

car, the district court did not err in denying his motion to suppress. 2




       2
         As we have noted, M r. Curls sought to suppress not only the evidence
found in the car but also his statement prior to the search that there was a gun in
the center console. He contends that his Fifth Amendment rights were violated
because the police officers did not adm inister the M iranda w arnings before
eliciting this statement. The government responds that M r. Curls’s statement
about the gun was not the result of an interrogation but rather a spontaneous
utterance that did not trigger an obligation to administer the w arnings.
       W e need not resolve that issue here. Even assuming that M r. Curls’s
statement was made in response to a custodial interrogation to which M iranda
applies, we conclude that the admission of the statement was harmless beyond a
reasonable doubt. Even without the statement, the jury heard evidence that the
gun was in the car and that after receiving the M iranda warnings at the police
station, M r. Curls had admitted possessing it. M oreover, in his own trial
testimony, M r. Curls stated that, before the officers searched the car, he told the
officers that he had seen a gun in the center console. Rec. vol. X, at 148-150. See
United States v. Blackman, 897 F.2d 309, 315 (8th Cir. 1990) (“Although we tend
to agree with [the defendant] that the district court erred in refusing to suppress
the statements [made without the benefit of M iranda warnings], we hold that the
error was harmless in light of the overwhelming evidence submitted against [the
defendant].”).

                                           -18-
                             D. Alleged Juror M isconduct

      After the first jury trial, M r. Curls moved to dismiss the indictment on the

grounds that at least one security guard, and possibly two, had laughed and

scoffed during his closing argument. Rec. vol. I, doc. 53, at 1. The district court

based its denial of the motion on its own observations in the courtroom:

             In this instance, the trial proceeding[] w as at all times
             under the control of the court. During closing argument,
             the Court was aware of the atmosphere and conduct of the
             entire courtroom, with the main focus of attention on the
             jury and the law yers addressing the jury. Thirty-one years
             experience on the bench has taught me that if anything is
             distracting or attracting the attention of a juror, it is evident
             to the Court by a juror’s movement or reaction . . . .

             During closing argument, and at all other times, the Court
             did not perceive any misconduct by a spectator or others in
             the courtroom. The Court observed that all jurors were
             concentrating on the statements of the lawyers during each
             respective closing argument. The Court is confident that if
             any such purported improper conduct existed as alleged by
             the defendant, none of the empaneled jurors perceived it,
             was distracted, nor was influenced by it. M oreover, the
             defendant’s statement is merely speculative, with no
             supporting evidence of any juror being influenced by the
             purported improper conduct of the Tulsa police officer
             situated in the courtroom.

Rec. vol. I, doc. 69 at 3.

      W e review the district court’s decision for an abuse of discretion. See

United States v. Simpson, 950 F.2d 1519, 1521 (10th Cir. 1991). “W hether a

district court abused its discretion in denying the motion depends on whether there




                                           -19-
is a reasonable possibility the extraneous material may have affected the jury’s

verdict.” Id.

      W e discern no such reasonable possibility here. The district court had the

opportunity to observe the jurors first-hand, and M r. Curls has failed to

demonstrate that the court’s observations regarding the jurors’ disregard of the

alleged misconduct were incorrect.



                        E. Innocent Possession Theory of D efense

      During the third jury trial, M r. Curls requested the court to give the

following “innocent possession” instruction:

                It is a defense to the charge of unlawful possession of a
                firearm that the defendant’s possession of the firearm
                constituted innocent possession.

                Possession of a firearm constitutes innocent possession
                where:

                1. The firearm was obtained innocently and held with no
                illicit purpose; and

                2. Possession of the firearm was transitory, i.e., in light of
                the circumstances presented there is a good basis to find
                that the defendant took adequate measures to rid himself of
                possession of the firearm as prom ptly as reasonably
                possible.

                If you find that the defendant possessed a firearm specified
                in Count 1 and that possession constituted innocent
                possession, you should find the defendant not guilty.




                                             -20-
Rec. vol. I, doc. 102, at 1-2. M r. Curls’s requested instruction was given by the

district court in United States v. Herron, 432 F.3d 1127, 1135 (10th Cir. 2005).

Here, M r. Curls argued to the district court that, on June 7, 2005, when he

discovered the firearm in his mother’s apartment, he had possessed it with no

illicit purpose and had taken adequate measures to rid himself of it.

      The district court declined to give the instruction. At trial, the court

informed the jury that innocent possession was not a defense.

             You have heard evidence that the defendant claims he
             innocently possessed the firearm and ammunition. You are
             instructed that the court has determined in this case, as a
             m atter of law, there is no innocent possession defense.
             This of course does not mean that you must automatically
             find the defendant guilty. Rather, it simply means in your
             evaluation of the evidence in the case, you must not
             consider innocent possession as a defense to the crime
             charged.

Rec. vol I., doc. 146, at 23.

      M r. Curls now argues that the district court erred in failing to give his

requested instruction and in informing the jury that the innocent possession

defense was not applicable. He notes that an innocent possession instruction was

given in Herron and that, in United States v. M ason, 233 F.3d 619, 625 (D.C. Cir.

2000), the court reversed a conviction because the jury was not instructed on this

defense. He also cites several other courts that have recognized this defense. See

Aplt’s Br. at 22-23 (citing, inter alia, United States v. W olak, 923 F.2d 1193, 1198

(6th Cir. 1991); Bieder v. United States, 707 A.2d 781, 783-84 (D.C. 1998);


                                         -21-
People v. Hurtado, 54 Cal. Rptr. 2d 853, 858 (1996); and People v W illiams, 409

N.E.2d 1372, 1373 (N.Y. 1980)).

      W e engage in de novo review of the jury instructions a whole, asking

whether they accurately informed the jury of the issues and the governing law.

United States v. M cPhilomy, 270 F.3d 1302, 1310 (10th Cir. 2001). As part of

this de novo inquiry, we consider whether a defendant is entitled to a “theory of

defense instruction that is supported by the evidence and the law.” United States

v. W olny, 133 F.3d 758, 765 (10th Cir. 1998). “[A] ‘theory of the defense’

instruction is required only if, without the instruction, the district court’s

instructions were erroneous or inadequate.” Id. “However, a ‘theory of the

defense’ instruction is not required if it would simply give the jury a clearer

understanding of the issues.” Id.

      M r. Curls acknowledges that the Tenth Circuit has not yet addressed the

question of whether an innocent possession defense in available to firearms

charges such as those at issue here. However, he observes the defendant in Herron

sought and obtained such an instruction. See 432 F.3d at 1135. The evidence at

trial was that M r. Herron had helped his girlfriend purchase a firearm at a sporting

goods store and had accompanied her into the desert for target practice with it.

The girlfriend filled out the firearm transaction report at the store, and she stored

the gun at her apartment. A jury convicted M r. Herron of being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).


                                           -22-
      In affirming M r. Herron’s conviction, we did not address the circumstances,

if any, warranting an innocent possession instruction. Instead, we discussed the

instruction in the context of a claim of prosecutorial misconduct during closing

argument. M r. Herron contended that some of the prosecutor’s statements

improperly informed the jury that they could disregard the innocent possession

instruction. W e disagreed, reasoning that “most of the prosecutor’s comments

were proper argument based on the court’s instruction. The prosecutor was simply

arguing that the innocent possession defense did not apply to the facts of M r.

Herron’s case.” 432 F.3d at 1136.

      W e note that our decision in United States v. Al-Rekabi, 454 F.3d 1113,

1121 (10th Cir. 2006), addresses a somewhat similar defense–fleeting possession.

W e explained that, as set forth by other courts, the fleeting possession defense

requires the defendant to establish that he (a) “merely momentarily possessed [the]

contraband” and (b) “either lacked knowledge that he possessed the contraband or

had a legally justifiable reason to possess it temporarily.” Al-Rebaki, 545 F.3d at

1126 n.16 (quoting United States v. Atkins, 196 F.3d 1112, 1115 (10th Cir. 1999)).

W e concluded that the fleeting possession defense was redundant to the necessity

defense because “both defenses . . . require the defendant to prove that no




                                         -23-
reasonable alternative was available to him given the circumstances.” Al-Rebaki,

429 F.3d at 1126. 3

      W e have unearthed no other decisions from this court that have addressed

the innocent possession defense when the defendant asserts, as M r. Curls does

here, that he inadvertently discovered a firearm. How ever, as M r. Curls observes,

the D .C. Circuit has addressed the application of the defense in those

circumstances. In M ason, a defendant charged with a § 922(g)(1) offense, testified

that, as he was returning to his delivery truck, he found a gun and ammunition in a

brown paper bag lying on the ground. He picked up the bag, took out the gun, put

the ammunition in his pocket, and tucked the gun into his belt. He proceeded to

the Library of Congress, where, the defendant maintained, he intended to turn the

gun over to a Library of Congress police officer that he knew. Library of

Congress security officers saw the gun and arrested the defendant as he tried to

enter the building.

      In reversing M r. M ason’s conviction, the D.C. Circuit noted the

government’s concession that “although narrow, there must be an innocent

possession defense to a § 922(g)(1) charge.” M ason, 233 F.3d at 623. The court



       3
         W e further explained that the necessity defense, requires the defendant to
show that “(1) there is no legal alternative to violating the law; (2) the harm to be
prevented is imminent, and (3) a direct causal relationship is reasonably
anticipated to exist between the defendant’s action and the avoidance of the
harm.” Al-Rebaki, 429 F.3d at 1121 (internal quotation marks and citation
omitted).

                                        -24-
agreed, reasoning that to completely reject the defense would be to say that “a

felon-in-possession always will be guilty without regard to how or why he came

into possession or for how long possession was retained.” Id. “Thus, for

example, if M ason did indeed innocently pick up a bag containing a gun (not

knowing what was in the bag), he would be guilty the moment he was seen holding

the bag knowing of its contents, even if he had every intention of relinquishing

possession immediately. There is nothing to indicate that Congress intended such a

harsh and absurd result.” Id.

      The D.C. Circuit acknowledged that it had found no other circuit that had

allowed a defendant to present an innocent possession defense when the elements

of a justification offense w ere not present. How ever, the court held, the defense

would apply if “(1) the firearm was attained innocently and held with no illicit

purpose and (2) possession of the firearm was transitory— i.e., in light of the

circumstances presented, there is a good basis to find that the defendant took

adequate measures to rid himself of possession of the firearm as promptly as

reasonably possible.” Id. at 624. In order to be entitled to an innocent possession

instruction, the defendant must demonstrate both that he “intend[ed] to turn the

weapon over to the police and that ‘he was pursuing such an intent with

immediacy and through a reasonable course of conduct.’” Id. (quoting Logan v.

United States, 402 A.2d 822, 827 (D.C.1979)).




                                         -25-
      The D.C. Circuit provided an example in which the defense would clearly

apply. If a defendant returned to his truck and found that it had been broken into

and that a gun had been left on the driver’s seat, his picking up the gun, removing

the ammunition, immediately calling 911 to seek assistance, and turning over the

gun to officers when they arrived would justify a judgment of a acquittal on a §

922(g)(1) charge. In contrast, if a defendant who found a gun in his truck

proceeded to hide it, say nothing about it, take it home, and keep it in his

residence until the next day, he could not assert an innocent owner defense. Id.

In M ason, the D.C. Circuit said, there was a factual dispute about whether the

defendant “took the necessary steps to dispose of the gun with immediacy and

through a reasonable course of conduct.” Id. at 625. Thus, the court held that the

innocent possession defense should have been presented to the jury.

      Here, we need not decide whether to follow the D.C. Circuit in recognizing

the innocent possession defense w hen the elements of a justification defense are

not present. Even if the defense is available in certain circumstances, those

circumstances are not present here. As the government observes, M r. Curls

testified that, on June 7, 2005, he picked up the gun that he found in his mother’s

apartment, loaded it, knocked on the bathroom door, gave it to M r. Dansby, and

left the apartment. He made no attempt to contact law enforcement officials and,

when asked on cross-examination about the failure to do so, explained that did he

did not want to go to the penitentiary. Rec. vol. X, at 169. M oreover, M r. Curls


                                          -26-
acknowledged that at the time there were two young children in the apartment.

Finally, the fact that the officers discovered the gun in his mother’s car on the

following day further casts doubt on his assertion of innocent possession.

      Accordingly, the circumstances in this case are substantially different than

those considered by the D.C. Circuit in M ason and do not support a colorable

argument that M r. Curls “took adequate measures to rid himself of the firearm as

promptly as reasonably possible.” 233 F.3d at 624. W e appreciate the D.C.

Circuit’s observation that, in enacting § 922(g)(1), Congress did not intend harsh

and absurd results. Nevertheless, the district court’s application of the statute here

does not engender such a result. W e therefore discern no error in its refusal to

instruct the jury on an innocent possession defense.



                              F. Obstruction of Justice

      The district court imposed a two-level increase in M r. Curls’s offense level

for obstruction of justice under § 3C1.1 of the United States Sentencing

Guidelines. The court found that M r. Curls had committed perjury at trial by

asserting that his prior statements acknowledging ownership of the gun were not

true. M r. Curls now contends that the district court erred in increasing the offense

level because the government did not show that he “significantly or materially

impede[d] the official investigation or prosecution of the instant offense.” A plt’s

Br. at 59. He also maintains that the record does not support the district court’s


                                          -27-
conclusion that he committed perjury at trial. W e review de novo the district

court’s legal conclusions, and we examine for clear error its factual findings

supporting the application of a particular sentencing guidelines provision. United

States v. Chavez, 229 F.3d 946, 954 (10th Cir. 2000).

      Under § 3C1.1 of the Sentencing Guidelines, “[i]f . . . the defendant

willfully obstructed or impeded, or attempted to obstruct or impede the

administration of justice with respect to the investigation, prosecution, or

sentencing of the instant offense,” the offense level must be increased by two

levels. Section 3C1.1’s commentary explicitly includes perjury within its

prohibition. See USSG § 3C1.1 cmt. n.4; United States v. Dunnigan, 507 U.S. 87,

92-93 (1993). Thus, if a defendant commits perjury, the prosecution need not

prove that he obstructed the government’s investigation or prosecution in any

other way to support the enhancement. However, a “sentencing court must make a

specific finding-that is, one which is independent of the jury verdict-that the

defendant has perjured h[im]self.” United States v. Anderson, 189 F.3d 1201,

1213 (10th Cir. 1999) (internal quotation marks omitted). The required finding

must encompass all of the factual predicates of perjury, including falsity,

materiality, and willful intent. United States v. M assey, 48 F.3d 1560, 1574 (10th

Cir. 1995).

      Here, the presentence report concluded that “M r. Curls committed

obstruction of justice during the prosecution of this offense by committing perjury


                                         -28-
during his jury trials.” Rec. vol. II ¶ 13, at 6. The report explained that M r.

Curls’s recanting of his confession to possession of the firearm on June 8, 2005

was false and was “willful and intentional and was not given by mistake, faulty

memory or confusion.” Id. ¶ 15, at 7. At the sentencing hearing, the district

court agreed with the presentence report, finding as to M r. Curls’s statements

during his trial testimony denying possession of the gun, that “they were false,

they were incorrect, [and] knowingly so.” Rec. vol. XI, at 10.

      W e discern no clear error in the district court’s findings. The court had the

opportunity to assess M r. Curl’s trial testimony and to compare it to his prior

confession as well as other evidence supporting the government’s case (e.g.,

testimony from M r. Curls’s ex-girlfriend that he had said that he had been robbed

while leaving a casino and was going to get a gun). W e will not second-guess its

decision. See United States v. Litchfield, 959 F.2d 1514, 1523 (10th Cir. 1992)

(noting that “[o]ur deference to the district court is especially appropriate when

the issue concerns questions of a witness’[s] credibility”).



                           G. Reasonableness of Sentence

      Finally, M r. Curls contends that his sentences (concurrent terms of 120

m onths on each § 922(g)(1) conviction) were unreasonable. He invokes USSG §

2K2.1(b)(2), which provides a reduction in the offense level if a firearm was




                                          -29-
possessed “solely for lawful sporting purposes.” Although M r. Curls does not

contend that he possessed the firearm for sporting purposes, he maintains that

§ 2K2.1(b)(2) is applicable “by analogy.” Aplt’s Br. at 62. He further contends

that his possession of the firearm “was much less lethal or unlawful than the

‘[s]porting purpose’ exception.” Id.

      In reviewing a post-Booker sentence for reasonableness, we first determine

whether the district court considered the applicable Guideline range. United States

v. Kristl, 437 F.3d 1050, 1055 (10th Cir. 2006). If the court properly considered

the G uideline range and sentenced the defendant within that range, then we

presume the sentence to be reasonable. Id. The defendant may rebut this

presumption by demonstrating that the sentence is unreasonable in light of the

factors set forth in 18 U.S.C. § 3553(a). Id.

      Here, even without the benefit of that presumption, we conclude that M r.

Curls’s sentence was reasonable. The district court determined the Guideline

range to be 110 to 137 months. The sentence imposed for each count falls within

that range. M oreover, the court considered M r. Curls’s criminal history, which

included felony convictions for second-degree murder and possession of cocaine

with the intent to distribute— as well as the circumstances surrounding the instant

offense and his giving false testimony at trial. In light of this evidence, the factor

invoked by M r. Curls, that his possession was allegedly “less lethal or unlawful,”




                                          -30-
Aplt’s Br. at 62, than possessing a firearm for sporting purposes, does not

undermine the district court’s sentencing decision.



                                III. C ON CLU SIO N

      Accordingly, we AFFIRM M r. Curls’s convictions and sentences.



                                Entered for the Court,


                                Robert H. Henry
                                Circuit Judge




                                         -31-
