United States v. Michael Fuller , 436 F. App'x 167 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-4880
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MICHAEL GLENN FULLER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Catherine C. Blake, District Judge.
(1:08-cr-00599-CCB-1)
Submitted: June 17, 2011 Decided: June 28, 2011
Before SHEDD, AGEE, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Gary E. Proctor, LAW OFFICES OF GARY E. PROCTOR, LLC, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Clinton J. Fuchs, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Michael Glenn Fuller appeals his conviction for
possessing a firearm after a felony conviction, in violation of
18 U.S.C. § 922(g)(1) (2006). On appeal, Fuller argues that the
district court erred by excluding as irrelevant evidence of his
intoxication and by instructing the jury that voluntary
intoxication is not a defense to a § 922(g)(1) offense. He also
asserts that the firearm’s manufacture in another state did not
establish a sufficient interstate commerce nexus. We affirm.
Fuller first asserts that the district court erred by
excluding as irrelevant expert testimony regarding intoxication
because such testimony would have rebutted the knowing element
of the offense. Federal courts have recognized that possession
of a firearm after a felony conviction is a general intent
crime. See, e.g., United States v. Moran, 503 F.3d 1135, 1144
n.6 (10th Cir. 2007); United States v. Brown, 367 F.3d 549, 556
(6th Cir. 2004). Because voluntary intoxication is a defense
only to specific intent crimes, courts agree that the defense
does not apply to the general intent crime in § 922(g)(1).
United States v. Williams, 403 F.3d 1188, 1194 (10th Cir. 2005)
(citing cases).
Our review of the record leads us to conclude that the
proposed testimony from the defense expert regarding the effect
of intoxication on a defendant’s mental state was not relevant
2
to whether Fuller knowingly possessed the firearm. 1 See Fed. R.
Evid. 401 (defining relevant evidence). Thus, the district
court did not abuse its discretion by excluding that testimony.
See Fed. R. Evid. 402 (“Evidence which is not relevant is not
admissible.”); United States v. Myers, 589 F.3d 117, 123 (4th
Cir. 2010) (stating standard of review).
Next, Fuller claims that the district court’s
instruction regarding the unavailability of a voluntary
intoxication defense to a § 922(g)(1) offense was not a correct
statement of the law. 2
A refusal to give a requested theory of defense
instructions is reversible error only if the
instruction (1) was correct, (2) was not substantially
covered by the court’s charge to the jury, and (3)
dealt with some point in the trial so important that
the failure to give the requested instruction
seriously impaired the defendant’s ability to conduct
his defense.
1
Although Fuller claims that his extreme intoxication could
render physical possession unknowing so that a defense could
exist “if the defendant were comatose and the evidence indicated
someone dropped the gun in his lap,” United States v. Reed, 991
F.2d 399, 401 (7th Cir. 1993), the facts of his case do not fall
within that limited exception.
2
Fuller notes that one circuit court has held that proof of
constructive possession requires specific intent. See United
States v. Newsom, 452 F.3d 593, 606 (6th Cir. 2006). However,
no other circuit has adopted that approach. United States v.
King, 632 F.3d 646, 654 n.7 (10th Cir. 2011); see United States
v. Scott, 424 F.3d 431, 435 (4th Cir. 2005) (stating that there
is no “distinction between actual and constructive possession
insofar as the intent requirement is concerned”).
3
United States v. Green, 599 F.3d 360, 378 (4th Cir.), cert.
denied, 131 S. Ct. 271 (2010) (internal quotation marks
omitted). Because voluntary intoxication is no defense to
knowing possession of a firearm, Fuller’s proposed voluntary
intoxication instruction was not a correct statement of the law.
We therefore conclude that the district court did not abuse its
discretion in refusing to give the requested instruction. See
id. at 377 (stating standard of review).
Finally, Fuller asserts that, absent additional
evidence, the fact that the firearm had traveled in interstate
commerce at some point did not establish a sufficient nexus,
rendering the evidence insufficient on that element of the
offense. Fuller’s counsel admits, however, that this claim is
foreclosed by circuit precedent. See United States v.
Gallimore, 247 F.3d 134, 138 (4th Cir. 2001).
Accordingly, we affirm the district court’s judgment.
We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED
4