           Case: 17-12998   Date Filed: 05/06/2019   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-12998
                        Non-Argument Calendar
                      ________________________

               D.C. Docket No. 2:14-cr-00076-SPC-MRM-1



UNITED STATES OF AMERICA,

                                                              Plaintiff-Appellee,


                                  versus


MICHAEL TERRILL FAIRCLOTH,

                                                         Defendant-Appellant.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                              (May 6, 2019)

Before MARCUS, ROSENBAUM, and BRANCH, Circuit Judges.

PER CURIAM:
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          Michael Terrill Faircloth appeals his conviction for possession of a firearm

by a felon in violation of 18 U.S.C. § 922(g)(1). 1 On appeal, he argues that the

district court erred by rejecting his “innocent transitory possession” jury

instruction, relying on United States v. Mason, 233 F.3d 619, 624 (D.C. Cir. 2000)

(establishing an innocent possession defense to § 922(g)). Faircloth further argues

that he presented legally sufficient evidence in support of the innocent transitory

possession defense.

          At his trial, Faircloth testified in his defense to the following facts. He was at

a vacant house owned by his wife to prepare the property for them to live in and to

begin moving in their belongings. Among the items he moved into the house, he

discovered a purse containing a loaded firearm. Because his cell phone battery was

dead and he thought that the law required him to dispossess himself of the firearm

immediately, he decided to remove the gun from the house himself and give it to

someone who could turn it over to law enforcement. He put the weapon in his back

pocket and went over to his neighbor’s yard, ostensibly to give the firearm to his

neighbor. As he entered his neighbor’s property, where his neighbor was doing



1
    18 U.S.C. § 922(g)(1) states:
          It shall be unlawful for any person . . . who has been convicted in any court of[] a
          crime punishable by imprisonment for a term exceeding one year . . . to ship or
          transport in interstate or foreign commerce, or possess in or affecting commerce,
          any firearm or ammunition; or to receive any firearm or ammunition which has
          been shipped or transported in interstate or foreign commerce.

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yardwork, he noticed a truck with dark tinted windows parked behind the property,

which he thought was unusual for that location and time of the evening. He asked

his neighbor about the truck, and his neighbor responded that he had seen it there

for a while. At that point, law enforcement arrived and swarmed the yard, arresting

Faircloth.

      The jury convicted Faircloth as charged. He now appeals his conviction, and

asserts that “he was carrying out his intent to turn the firearm over to his neighbor

to turn over to law enforcement when he left his house and carried the gun over to

his neighbor, and but for the fortuitous circumstance of the fugitive task force at

that very moment arresting him, he would have consummated his intention.”

      We review for abuse of discretion the decision of a district court to deny a

request for a jury instruction. United States v. Palma, 511 F.3d 1311, 1314–15

(11th Cir. 2008). “We will find reversible error 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 (quoting United States v. Fulford, 267 F.3d 1241, 1245 (11th

Cir. 2001)). Although the district court is “vested with broad discretion in

formulating” jury charges, a defendant “is entitled to have presented instructions

relating to a theory of defense for which there is any foundation in the evidence,


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even though the evidence may be weak, insufficient, inconsistent, or of doubtful

credibility.” Id. (quoting United States v. Lively, 803 F.2d 1124, 1126 (11th Cir.

1986)). “In determining whether there is a proper evidentiary foundation for an

instruction, the evidence must be viewed in the light most favorable to the

accused.” Id. We review de novo whether the defense produced sufficient

evidence to sustain a particular jury instruction. United States v. Moore, 525 F.3d

1033, 1044 (11th Cir. 2008).

      To prove that a defendant committed an offense under 18 U.S.C.

§ 922(g)(1), the government must establish that: (1) he knowingly possessed a

firearm or ammunition; (2) he was previously convicted of an offense punishable

by a term of imprisonment exceeding one year; and (3) the firearm or ammunition

was in or affecting interstate commerce. Palma, 511 F.3d at 1315. We have

consistently held that § 922(g) is a strict liability offense without any required

specific criminal intent. Id.

      In Mason, the D.C. Circuit held that a defendant could successfully invoke

the “innocent transitory possession” defense so long as: (1) the defendant attained

the firearm innocently and held it with no illicit purpose; (2) the possession was

transitory; and (3) the defendant’s actions showed both that he had the intent to

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

immediacy and through a reasonable course of conduct. Mason, 233 F.3d at 624.


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Interpreting § 922(g), the D.C. Circuit reiterated that it was the retention of the

firearm, rather than the brief possession for disposal, that posed the danger

criminalized by felon-in-possession statutes. Id. at 625 (internal citations omitted).

      In Mason, the defendant allegedly found a gun and ammunition in a paper

bag near a school, placed the gun in his waistband and the ammunition in his

pocket, and took the gun with him to his next delivery stop—the Library of

Congress—where, he said, he intended to turn the gun over to a police officer with

whom he was acquainted. Id. at 621. He did not stop to give the gun to a police

officer at the entrance gate and was detained with the firearm by an officer

stationed inside when he was signing in. Id. The D.C. Circuit concluded that these

actions created a jury question regarding this defense. Id. at 625.

      This Court, however, has never recognized the innocent transitory

possession defense, and has recently outright rejected it. In Palma, which was

precedent of this Court when Faircloth made his request for the jury instruction, we

noted that we had never recognized the innocent transitory possession defense in a

firearm possession case, and held that the district court did not abuse its discretion

in refusing the proposed jury instruction because the defense—even if available—

was unsupported by the evidence in the case. Palma, 511 F.3d at 1316–17. More

recently, we have explicitly rejected the use of the defense in this Circuit. In

United States v. Vereen, No. 17-11147, _F.3d_, 2019 WL 1499149, at *1–2 (11th


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Cir. Apr. 5, 2019), we considered the case of a convicted felon who alleged he had

unexpectedly found a firearm in his mailbox and intended to take the gun and

report it to law enforcement but was immediately arrested. Id. After the jury found

the defendant guilting of possession of a firearm by a convicted felon, the

defendant challenged the district court’s denial of his requested jury instruction on

the innocent transitory possession defense. Id. at *3. This Court affirmed the

district court’s decision, noting that the facts of the D.C. Circuit’s decision in

Mason were “peculiar,” and that it is the only Court of Appeals “out of at least half

a dozen” to permit the use of the defense. Id. at *5.

      We declined to follow Mason because “we can find nothing in the text to

suggest the availability of an ITP defense to a § 922(g)(1) charge.” Id. at *3.

Specifically, this Court has held that § 922(g)(1) and § 924(a)(2) read together

created a mens rea requirement “only that a § 922(g) defendant ‘knowingly

possessed’ the firearm.” Id. (quoting United States v. Rehaif, 888 F.3d 1138, 1143

(11th Cir. 2018)). We concluded that because the offense “only requires that the

possession be knowing, it is a general intent crime.” Id. at *4.

      As we see it, the text of the statute answers the precise question
      presented by the facts of our case: willfulness has been omitted from
      § 922(g)(1) and we are not free to rewrite the statute and include it. Our
      position is consonant with the Supreme Court’s interpretation of the
      statute’s purpose: “Congress sought to keep guns out of the hands of
      those who have demonstrated that they may not be trusted to possess a
      firearm without becoming a threat to society.”


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Id. at *5 (citing Small v. United States, 544 U.S. 385, 393 (2005)).

       Accordingly, Faircloth’s “motive or purpose behind his possession is

irrelevant.” Id. 2 His requested jury instruction did not “correctly state the law” in

this Circuit because it included a defense which we had not adopted at the time,

and which we have subsequently rejected. Palma, 511 F.3d at 1315; Vereen, 2019

WL 1499149, at *5. Accordingly, the district court did not abuse its discretion

when it sustained the government’s objection to the instruction.

       AFFIRMED.




2
  We note—as we did in Vereen—that we continue to recognize a “necessity” defense to a felon-
in-possession charge, but that defense is only available in “extraordinary circumstances,” and
requires “nothing less than an immediate emergency.” Vereen, 2019 WL 1499149, at *6; United
States v. Flores, 572 F.3d 1254, 1266 (11th Cir. 2009). The necessity defense was not argued in
this case, and the facts do not support such a defense.
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