United States v. Karim Moussaoui , 368 F. App'x 970 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14178 MAR 17, 2010
________________________ JOHN LEY
CLERK
D. C. Docket No. 08-00014-CR-T-27-MAP
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KARIM MOUSSAOUI,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(March 17, 2010)
Before EDMONDSON and MARCUS, Circuit Judges, and BARBOUR,* District
Judge.
PER CURIAM:
*
Honorable William Henry Barbour, Jr., United States District Judge for the Southern
District of Mississippi, sitting by designation.
Karim Moussaoui appeals his conviction for possessing a firearm while in
the United States on a nonimmigrant visa in violation of 18 U.S.C. §922(g)(5)(B).
The facts established at trial show that Moussaoui had a rifle in his possession for
some minutes at a shooting range.
Briefly stated, the appeal presents these issues: whether the district court
erred by refusing to give a jury instruction on the defense of innocent transitory
possession; whether the district court erred by failing to sua sponte grant a new
trial based on alleged prosecutorial misconduct at trial, post-trial bond hearings,
and sentencing; whether the district court erred in denying a motion for judgment
of acquittal based on conjunctive language in the indictment; whether the district
court erred in imposing sentence. None of these issues are a foundation for
reversible error; we affirm.
About the supposed innocent transitory possession defense, Moussaoui
requested the following jury instruction appearing in the opinion in United States
v. Herron, 432 F.3d 1127, 1135 (10th Cir. 2005):
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
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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.
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.
The Tenth Circuit in Herron did not actually decide about the legal validity
of the defense or the instruction. Instead, the Tenth just discussed the instruction,
which had been given by the district court, as background to the appeals court’s
decisions on a claim of prosecutorial misconduct during closing argument. Id. at
1135-37. The only circuit that appears to have decided to accept the defense is the
D.C. Circuit, United States v. Mason, 233 F.3d 619, 622-25 (D.C. Cir. 2000),
whose formulation of the defense appears to be the basis of the instruction set out
in the Herron opinion. We decline to decide whether such a defense exists in the
law. See United States v. Palma, 511 F.3d 1311, 1316 (11th Cir. 2008) (declining
to decide the same issue). Even if the defense may possibly exist in some
circumstances, it was not supported by the evidence in this case. See Mason, 233
F.3d at 624 (“When these requirements are met, possession is excused and justified
as stemming from an affirmative effort to aid and enhance social policy underlying
law enforcement.” (internal quotation marks omitted)).
AFFIRMED.
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