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[DO NOT PUBLISH]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: Case: 17-12998 Date Filed: 05/06/2019 Page: 2 of 7
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.
2 Case: 17-12998 Date Filed: 05/06/2019 Page: 3 of 7
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—
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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: Case: 17-12998 Date Filed: 05/06/2019 Page: 2 of 7
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.
2 Case: 17-12998 Date Filed: 05/06/2019 Page: 3 of 7
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,
3 Case: 17-12998 Date Filed: 05/06/2019 Page: 4 of 7
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.
4 Case: 17-12998 Date Filed: 05/06/2019 Page: 5 of 7
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
5 Case: 17-12998 Date Filed: 05/06/2019 Page: 6 of 7
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.”
6 Case: 17-12998 Date Filed: 05/06/2019 Page: 7 of 7
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. 7