United States v. Darrio Marquez Giles , 343 F. App'x 479 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
Aug. 28, 2009
No. 09-10168 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00093-CR-CAP-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRIO MARQUEZ GILES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(August 28, 2009)
Before CARNES, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Darrio Giles appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). Giles argues that the district
court erred by refusing to provide the jury with instructions regarding the defense
of innocent transitory possession. Giles asserts that (1) this innocent transitory
possession is a valid defense to charges brought under § 922(g)(1); (2) he was
entitled to an instruction regarding that defense because the evidence was sufficient
to support innocent transitory possession; and (3) failure to give such an instruction
seriously impaired his defense.
Giles and his friend, Renaldo Whitman, were passengers in a stopped car
who were approached the police, having smelled marijuana emanating from the
open window. When Giles failed to respond to the police officer’s request to place
his hands on the headrest, she opened the door and discovered a gun under his
shirt. As a previously convicted felon, Giles was subsequently charged under
§ 922(g)(1). Giles claims that the evidence showed that he received possession of
the gun moments before he was stopped by the police, and that he was on his way
to return the gun to its owner when he was arrested. Thus, he asserts that an
instruction on innocent transitory possession was warranted.
“We review a district court’s refusal to give a requested jury instruction for
an abuse of discretion.” United States v. Palma, 511 F.3d 1311, 1314–15 (11th
Cir. 2008). For the denial of a requested jury instruction to constitute reversible
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error, a defendant must show that “(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. If the defendant
has made such a showing, the requested theory-of-defense instruction should be
given if it is “adequately supported by evidence from the record.” United States v.
Opdahl, 930 F.2d 1530, 1535 (11th Cir. 1991). A defendant is entitled to a jury
instruction even if the evidence to support it is “weak, insufficient, inconsistent, or
of doubtful credibility.” Palma, 511 F.3d at 1315. “In determining whether there
is a proper evidentiary foundation for the instruction, the evidence must be viewed
in the light most favorable to the accused.” Id.“To prove that a defendant committed an offense under 18 U.S.C.
§ 922(g)(1), the government must show that (1) he or she knowingly possessed a
firearm or ammunition, (2) he or she 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.” Id. Giles, who does not
dispute that the government has shown each element above, asserts that innocent
and transitory possession should be a defense to this charge. We have neither
recognized nor rejected the availability of an innocent-transitory-possession
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defense to § 922(g)(1). Id. at 1316. The majority of circuits that have considered
the theory of defense have declined to recognize it. Id. at 1316 n.3. (collecting
cases).1 Assuming that a defense of innocent transitory possession is theoretically
available, as noted above, the district court does not abuse its discretion in refusing
to instruct the jury where the defense is unsupported by the evidence in the case.
Palma, 511 F.3d at 1316–17.
Upon review of the record and consideration of the parties’ briefs, we do not
find that the district court abused its discretion. We find it unnecessary to
determine the availability of an innocent-transitory-possession defense to a
§ 922(g) charge. Assuming that such a defense is available, we find that Giles did
not provide a sufficient evidentiary basis in the record to support the instruction.
Giles argues in his brief that his possession was both innocent and transitory
because it could be inferred from the evidence that Whitman pushed the gun on
him at the last second, and he was covering for Whitman. However, taking the
facts in the light most favorable to Giles, the evidence shows otherwise. Based on
the record and the testimony at trial, it appears that he affirmatively chose to
retrieve the gun and that he was in possession of the firearm for two days before
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The one circuit that has permitted the defense has done so only when: (1) the firearm
was attained innocently and held with no illicit purpose; (2) the possession was transitory in light
of the circumstances; and (3) the defendant had the intent to turn the firearm over to the police.
United States v. Mason, 233 F.3d 619, 624 (D.C. Cir. 2000).
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allegedly attempting to return it to the owner. Giles made an initial recorded
statement to an ATF agent that the police found the gun on the back seat
floorboard, and he did not know that the gun was in the car. But after the agent
informed Giles that his statement was inconsistent with the police report, Giles
gave a new recorded statement, in which he admitted to possessing the gun in the
car and to holding the gun for two days while Whitman was out of town. This is
too long a period of time to qualify as “transitory.” The only evidence Giles cited
to support his “transitory” claim that the gun was pushed on him right before his
arrest was that Whitman had told a friend that Giles was “going down” for the gun
charge. Any inferential conclusions to be drawn from that statement does not
qualify as adequate support for an innocent-transitory-possession defense
instruction, particularly given his revised statement to the ATF agent.
Accordingly, we affirm Giles’s conviction and sentence.
AFFIRMED
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