[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
DEC 30, 2008
No. 07-15227 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-00001-CR-ORL-19-KRS
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
TROY NOLAN HARKNESS,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 30, 2008)
Before ANDERSON, MARCUS and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant Troy Nolan Harkness appeals his convictions and 210-month
sentence for possession of a firearm and ammunition as a convicted felon (Count
1), in violation of 18 U.S.C §§ 922(g)(1), 924(a)(2), and 924(e)(1), and possession
of body armor as a convicted felon who previously had been convicted of a crime
of violence (Count 2), in violation of 18 U.S.C. §§ 931(a)(1) and 924(a)(7).
I. Facts
Harkness, a convicted felon, worked as a security guard at a motel in
Orlando, Florida. Sergeant Arnold Alvarez learned that Harkness allegedly carried
a taser at work and decided to investigate because state law prohibits a convicted
felon from possessing a taser. Sergeant Alvarez and another officer drove to the
motel and Harkness approached the car and began speaking with the officers.
Harkness carried a pellet gun and taser on his belt. Alvarez seized these items and
asked if Harkness had any other weapons on him. Harkness indicated that he had a
knife in his front pocket, which he allowed Sergeant Alvarez to remove, and
minutes later he indicated that he had a knife on a chain around his neck, which
Alvarez also removed. Alvarez next obtained permission to search Harkness’s
nearby car where police uncovered two more knives and an extendable metal
baton. Harkness was then placed under arrest for possession of the taser. He was
not given Miranda1 warnings.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
Upon arrest, Harkness again was asked if he had any weapons on him, and
he indicated that he did not. A subsequent search uncovered no other weapons and
Harkness was placed in the patrol car. Shortly thereafter, Harkness’s girlfriend
arrived and the police officers permitted Harkness to step out of the car and speak
with her. Harkness asked an officer if he could give his girlfriend a package.
When told by the officer that “it depended on what it was,” Harkness admitted that
he had a gun in the crotch area of his pants and that he did not want Sergeant
Alvarez to know about it. Sergeant Alvarez was summoned and began to search
Harkness, who told the sergeant, “Be careful. It has a hair trigger on it.” The
search revealed that Harkness was wearing a bullet-proof vest and had a loaded
.380 caliber semi-automatic pistol concealed inside his jockstrap. Harkness was
then transported to the police station. On the way there, the police officer did not
ask Harkness any questions, but Harkness made several statements, including that
he found the gun the day before and was planning to turn it in to the police.
Harkness was indicted in federal court for his possession of a firearm,
ammunition, and body armor. Prior to trial, Harkness moved to dismiss the body
armor charge, on the grounds that 18 U.S.C. § 931 does not contain a jurisdictional
element, and therefore the statute was void under the Commerce Clause,2 and, in
2
U.S. Const. Art. I, § 8, cl. 3.
3
the alternative, the statute was unconstitutional as applied to him. Harkness also
moved to exclude statements made and physical evidence seized after the arrest on
the bases that the statements were given in violation of Miranda. All of the
aforementioned motions were denied.
Among the witnesses at trial was William Leggett. Leggett testified that on
September 19, 2006 he purchased a .22 caliber revolver for Harkness because
Harkness worked in a “less than desirable area of town.” Harkness later told
Leggett that this gun had an “exposed hammer” that could catch on his clothing, so
the two men met at a gun store on September 29, 2006 and Leggett purchased
another firearm for Harkness, later identified as the .380 handgun seized by police.3
Leggett testified that after Harkness was arrested, Harkness telephoned Leggett and
told him that he lied in his “daily log sheet” by writing that he found the gun on the
motel grounds. Harkness asked Leggett to report the gun “lost or stolen” in order
to corroborate his story. Leggett complied with this request and attempted to
bolster the story by stopping into several local stores and inquiring if they had
found a gun that he lost.
Angel Rivera, the property manager at the motel where Harkness worked,
3
Leggett acknowledged that he initially lied to federal agents and told them that he lost
the gun. He recanted this story five or six days before trial, at which time he admitted that he
purchased the gun for Harkness.
4
also testified at trial. Rivera indicated that following Harkness’s arrest on October
2, Harkness’s girlfriend turned over the security log, master key, and other motel
property. After Harkness’s release, Harkness delivered additional papers to add to
the security log, but Rivera could not recall which papers were added. An entry in
the security log dated October 1, 2006 corroborated Harkness’s statement that he
found the .380 handgun on motel property and planned to turn it in to the police
department. Rivera also testified that Harkness tried to convince him to write a
letter indicating that the motel approved the taser for Harkness’s use, even though
this was false. A resident of the motel similarly testified that although she had seen
Harkness with a gun, Harkness asked her to write a letter indicating that she had
never seen him with any weapons or guns.
At the conclusion of the evidence, Harkness asked that the court instruct the
jury on the defenses of justification and innocent possession. Both motions were
denied. The jury subsequently found Harkness guilty on both counts.
A Presentence Investigation Report (“PSI”) was prepared and presented at
sentencing. The charge with the highest offense level of the two counts, Count 1,
possession of a firearm and ammunition by a convicted felon, carried a base
offense level of 24. The PSI also suggested an upward adjustment of 2 levels for
obstruction of justice and a Chapter Four enhancement because Harkness qualified
5
as an “armed career criminal” (“ACC”).4 Harkness’s total offense level, therefore,
was 33. The corresponding criminal history category of V yielded a guideline
sentence of 210-262 months’ imprisonment. Harkness objected to the PSI, arguing
that: (1) the obstruction of justice increase was improper; (2) he did not have the
“predicate convictions” required for qualification as an ACC; and (3) he was
entitled for a 2-level reduction for acceptance of responsibility. The district court
overruled all objections and imposed a sentence of 210 months’.
On appeal, Harkness raises the following arguments: (1) 18 U.S.C. §
931(a)(1) is an unconstitutional use of Congress’s powers under the Commerce
Clause; and (2) the district court erred by (a) denying Harkness’s motion to
suppress his statements and physical evidence; (b) refusing to instruct the jury on
justification and innocent possession; (c) determining that Harkness should be
sentenced as an ACC; (d) applying the enhancement for obstruction of justice; and
(e) refusing to decrease Harkness’s offense level for acceptance of responsibility.
I. Discussion
18 U.S.C. § 931
Federal law prohibits felons convicted of crimes of violence from
purchasing, owning, or possessing body armor. 18 U.S.C. § 931(a)(1). Harkness
4
U.S.S.G. § 4B1.4(b)(3)(B).
6
argues that this section is unconstitutional on its face and as applied to him because
the statute contains no jurisdictional element and he did not cross state lines with
the body armor.
We review the constitutionality of a statute de novo. United States v. Scott,
263 F.3d 1270, 1271 (11th Cir. 2001). Congress may regulate three broad
categories of activity under the commerce power: (1) the channels of interstate
commerce; (2) the instrumentalities of interstate commerce, or persons or things in
interstate commerce; and (3) activities with a substantial relation to interstate
commerce. United States v. Lopez, 514 U.S. 549, 558-59 (1995). In Lopez, the
Court held that a statute that made it a federal offense to possess a firearm in a
school zone was unconstitutional because it did not fit within any of the three
above categories and did not contain an express jurisdictional provision. Id. at 562
(explaining that the statute contained “no express jurisdictional element which
might limit its reach to a discrete set of firearm possessions that additionally have
an explicit connection with or effect on interstate commerce”).
We need not decide whether this case fits into any of the above three
categories because this court has held that an express jurisdictional element to a
statute immunizes it from a facial constitutional attack. Scott, 263 F.3d at 1273.
Body armor is defined as, “any product sold or offered for sale, in interstate or
7
foreign commerce, as personal protective body covering intended to protect against
gunfire.” 18 U.S.C. § 921(a)(35) (emphasis added). Therefore, Harkness’s facial
challenge to § 931's body armor restriction must fail, as the statute contains an
express jurisdictional element.
Moreover, Harkness’s as applied challenge also fails because an employee
of the manufacturer of the body armor testified that the yarn of Harkness’s vest
was made in Virginia, woven into fabric in South Carolina, woven into a vest in
Florida, and then shipped to a distributor in New Jersey. The vest was thereafter
sold by the New Jersey distributor and ended up in Harkness’s hands in Florida.
There is therefore no doubt the body armor was “sold or offered for sale, in
interstate or foreign commerce.” 18 U.S.C. § 921(a)(35); see United States v.
McAllister, 77 F.3d 387, 390 (11th Cir. 1996) (“[b]ecause the government
demonstrated that the firearm possessed by McAllister previously had travelled in
interstate commerce, [18 U.S.C. § 922(g)(1)] is not unconstitutional as applied to
him”).
We conclude that 18 U.S.C. § 931(a)(1) is a constitutional use of
congressional power under the Commerce Clause
Motion to suppress statements and physical evidence
Harkness identifies several statements and pieces of evidence that he argues
8
the district court should have suppressed, including: (1) statements to the police
about the existence and location of the gun; (2) the fruit of these statements, i.e. the
gun itself; and (3) the inculpatory statements made on the way to the police station.
“We review a district court’s denial of a defendant’s motion to suppress
under a mixed standard of review, examining the district court’s findings of fact
for clear error and the district court’s application of law to those facts de novo.”
United States v. King, 509 F.3d 1338, 1341 (11th Cir. 2007). “Miranda forbids the
prosecution from using statements made by a defendant during a custodial
interrogation unless the defendant had first been advised of [his] constitutional
rights.” United States v. Paskett, 950 F.2d 705, 707 (11th Cir. 1992). A custodial
interrogation occurs when the police engage in express questioning or its
functional equivalent “that the police should know [is] reasonably likely to elicit an
incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291,
301 (1980).
Both parties agree that Harkness was in custody when he made the
inculpatory statements and that he had not been given Miranda warnings. The only
issue, therefore, is whether he was interrogated. Turning first to the statements to
the police about the existence and location of the gun, the district court accepted
that Harkness was interrogated, but concluded that this situation fit under the
9
public safety exception to the Miranda requirement, as articulated in New York v.
Quarles, 467 U.S. 649 (1984).
We need not address the district court’s consideration of exceptions to the
Miranda requirement because we conclude that Harkness was not interrogated.5
Harkness was given permission to speak to his girlfriend and then asked the officer
if he could give her a package, to which the officer responded that “it depend[s] on
what it [is].” Harkness then indicated that he had a gun in his crotch area. This
conversation does not implicate the concerns expressed by the Miranda Court. See
United States v. Castro, 723 F.2d 1527, 1532 (11th Cir. 1984) (“[t]he whole
purpose of Miranda, and thus of its rule, is to protect the privilege against
self-incrimination from coercive questioning by the police and to ensure that any
waiver of that right is made ‘voluntarily, knowingly and intelligently’”). Here, the
officer did not initiate the conversation, nor was there any objective evidence to
indicate that the officer should have expected Harkness to incriminate himself. “It
depend[s] on what it [is]” was a natural response by the officer to Harkness’s
unprompted question, and the officer had no reason to believe that his response
was “reasonably likely to elicit an incriminating response from the suspect.” Innis,
5
We may affirm on any adequate grounds, even if it is other than those the district court
relied upon in making its determination. Parks v. City of Warner Robins, Ga., 43 F.3d 609, 613
(11th Cir. 1995).
10
446 U.S. at 301; see Garcia v. Singletary, 13 F.3d 1487, 1491-92 (11th Cir. 1994)
(holding that a spontaneous reaction to a startling event, although “accusatorial in
tone . . . was not an interrogation within the meaning of Miranda”). Thus,
Harkness’s statements and the gun were not the product of an illegal interrogation
and were therefore properly admitted.
We similarly conclude that Harkness’s statements made on the way to the
police station were unprompted declarations and are therefore admissible because
they were not made in response to an interrogation or its functional equivalent.
See Miranda, 384 U.S. at 478 (“volunteered statements of any kind are not barred
by the Fifth Amendment”).
Requested jury instructions
Harkness next argues that the district court erred in its decision not to
instruct the jury on the defenses of innocent possession and justification. 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). “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 (quotations
11
omitted).
Turning first to justification, this court has held that the affirmative defense
of justification is available to felon-in-possession charges under § 922(g)(1), but
only in “extraordinary circumstances.” United States v. Deleveaux, 205 F.3d 1292,
1297 (11th Cir. 2000). A defendant must show the following four elements to
establish a justification defense in the context of § 922(g)(1):
(1) that the defendant was under unlawful and present, imminent, and
impending threat of death or serious bodily injury; (2) that the
defendant did not negligently or recklessly place himself in a situation
where he would be forced to engage in criminal conduct; (3) that the
defendant had no reasonable legal alternative to violating the law; and
(4) that there was a direct causal relationship between the criminal
action and the avoidance of the threatened harm.
Id. These elements “require[] nothing less than an immediate emergency,” United
States v. Rice, 214 F.3d 1295, 1297 (11th Cir. 2000), and “if there was a
reasonable, legal alternative to violating the law, a chance both to refuse to do the
criminal act and also to avoid the threatened harm, the defense[] will fail.” United
States v. Bailey, 444 U.S. 394, 410 (1980) (quotation marks omitted).
In this case, even if we ignore Leggett’s testimony and accept Harkness’s
description of events as true, it is undisputed that Harkness had a cellular telephone
on him at the time he allegedly found the firearm; therefore, he could have
immediately contacted law enforcement to report the gun. United States v.
12
Presley, 487 F.3d 1346, 1350 (11th Cir. 2007) (the district court did not err in a
felon-in-possession case in declining to instruct the jury on justification or
necessity because the defendant had two cellular telephones on him at the time he
allegedly found the gun). Accordingly, the district court properly refused to
instruct the jury on the defense of justification because Harkness had a reasonable
alternative to keeping the gun in his possession.
We also reject Harkness’s innocent possession argument. This court has
“never before recognized the availability of an ‘innocent transitory possession’
defense in a firearm possession case,” Palma, 511 F.3d at 1316, and we need not
decide today whether such a defense exists in this circuit. Where this defense is
recognized, it requires proof of the following:
(1) the firearm was attained innocently and held with no illicit purpose
and (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.
United States v. Mason, 233 F.3d 619, 624 (D.C. Cir. 2000). As noted above,
Harkness had a cellular telephone, so he clearly did not “rid himself of possession
of the firearm as promptly as reasonably possible.” Id. As such, even if we
recognized this defense, the district court did not err in declining to instruct the
jury on the defense of innocent possession.
13
Sentenced as an ACC
Harkness was sentenced under the Armed Career Criminal Act (“ACCA”),
which requires a minimum sentence of 15 years’ imprisonment for a violator of 18
U.S.C. § 922(g) that has three previous convictions for “a violent felony or serious
drug offense.” 18 U.S.C. § 924(e)(1). Harkness acknowledges that two of his
convictions are considered violent felonies under the ACCA, but contends that his
felony conviction for leaving the scene of an accident should not be considered
“violent.”
We review de novo whether a particular offense constitutes a violent felony
under the ACCA. United States v. Rainey, 362 F.3d 733, 734 (11th Cir. 2004). A
violent felony is any crime punishable by imprisonment for a term exceeding one
year that “(i) has as an element the use, attempted use, or threatened use of physical
force against the person of another; or (ii) is burglary, arson, or extortion, involves
use of explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). After Harkness was
sentenced, the Supreme Court interpreted § 924(e)(2)(B) in Begay v. United States,
__ U.S. __, 128 S. Ct. 1581 (2008). In holding that a conviction for a felony
offense of driving under the influence of alcohol (DUI) is not a violent felony
within meaning of the ACCA, the Court placed particular emphasis upon the fact
14
that the violent felonies listed in sub-section (ii) are all forms of “purposeful,
violent, and aggressive conduct.” Id. at 1586.
The government concedes that under this new precedent, the district court
erred in labeling Harkness’s felony conviction for fleeing the scene of an accident
a violent felony. Although purposeful, his actions were not “violent” or
“aggressive,” and are therefore unlike the felonies listed in sub-section (ii).
Harkness therefore does not have the requisite three violent felony convictions to
bring him within the ambit of § 924(e)(2)(B). Accordingly, we vacate Harkness’s
sentence under the ACCA and remand to the district court for re-sentencing.
Obstruction of Justice Enhancement
Harkness also argues that the district court erred in concluding that he
obstructed justice when, at the detention hearing, he told the magistrate judge that
he found the gun on motel property and had intended to turn it over to the police.
He contends that this was not obstruction because he admitted possessing the gun,
and in any event his misstatement was not material.
We review a district court’s factual findings regarding the imposition of an
enhancement for obstruction of justice for clear error, and the district court’s
application of the factual findings to the guidelines de novo. United States v.
Uscinski, 369 F.3d 1243, 1246 (11th Cir. 2004). An obstruction of justice
15
enhancement applies when the defendant provides “materially false information to
a judge or magistrate.” U.S.S.G. § 3C1.1, comment. (n.4(f)). Leggett’s testimony
at trial established that he purchased the gun for Harkness, and that Harkness’s
statements to the magistrate judge that he found the gun and planned to return it
were therefore false, notwithstanding the fact that he admitted possession.
Moreover, the false statements were material. See U.S.S.G. § 3C1.1, comment.
(n.6) (a material statement is one where, “if believed, [it] would tend to influence
or affect the issue under determination”). The issues of how Harkness acquired the
gun and whether he intended to promptly turn the gun over to the police were
certainly material to both his guilt and sentence. In fact, the defense’s theory at
trial was that Harkness found the gun. We therefore find that the district court did
not err in applying the obstruction of justice enhancement.
Acceptance of responsibility
Finally, Harkness argues that he was entitled to a sentencing reduction for
acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. He argues that he
acknowledged from the start that he was a felon and was not supposed to have a
gun, but merely went to trial to raise constitutional challenges.
A defendant bears the burden of showing that he is entitled to an acceptance
of responsibility reduction, and we review the district court’s findings for clear
16
error. United States v. Anderson, 23 F.3d 368, 369 (11th Cir. 1994). This court
has acknowledged that a defendant is not to be punished for exercising his
constitutional rights and “if a defendant has shown some sign of remorse but has
also exercised constitutional or statutory rights, the sentencing judge may not
balance the exercise of those rights against the defendant’s expression of remorse
to determine whether the ‘acceptance’ is adequate.” United States v. Rodriguez,
959 F.2d 193, 197 (11th Cir. 1992). Harkness’s argument, however, is belied by
the record. He did not simply argue that evidence obtained by the police should
have been excluded. Instead, his argument to the magistrate judge and his theory
at trial were that he found the gun and planned to return it to the police. At no time
did he admit to illegally obtaining the gun from Leggett or take responsibility for
his actions. As such, the district court did not commit clear error in declining to
assess a sentencing reduction for acceptance of responsibility.
For the foregoing reasons, we affirm the district court’s judgment as to all
issues except the determination that Harkness qualified as an Armed Career
Criminal under 18 U.S.C. § 924(e)(1). We therefore remand on that issue to the
district court for resentencing consistent with this opinion.
AFFIRMED IN PART, VACATED AND REMANDED IN PART.
17