USCA11 Case: 21-11625 Document: 60-1 Date Filed: 12/05/2023 Page: 1 of 9
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-11625
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
NADYA IVETTE DIAZ,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 4:17-cr-00038-MLB-WEJ-2
____________________
Before WILSON, JILL PRYOR, and BRASHER, Circuit Judges.
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2 Opinion of the Court 21-11625
WILSON, Circuit Judge:
Defendant-Appellant Nadya Diaz appeals her two convic-
tions: conspiracy to allow a convicted felon to illegally possess a
firearm and aiding and abetting a convicted felon to possess a fire-
arm. On appeal, Diaz only challenges the district court’s decision
to not give her requested jury instruction about the Second
Amendment. We find that the instructions the jury received ade-
quately outlined the elements of the crimes Diaz was charged with
and the decision to not give the instruction did not hinder Diaz’s
ability to mount a defense. Therefore, we affirm.
I. Background
Diaz lived with Michael Barr, who went by the aliases “Car-
los Fonseca” and “Mike Diaz.” 1 In the summer of 2017, an off-duty
police officer who shoed horses for Barr and Diaz realized that
“Carlos Fonseca” was Michael Barr—a convicted felon with an ac-
tive warrant for his arrest. When police came to Barr’s farm to
arrest him, they saw ammunition and firearms in plain view. Po-
lice obtained a valid search warrant and later searched the resi-
dence. The police seized nine firearms, which included six legally
purchased by Diaz. In October 2017, police executed a separate
search warrant on a storage unit where police found another gun
Diaz purchased.
1 This opinion refers to Michael Barr as “Barr” and Nadya Diaz as “Diaz.” It
does not use any of Barr’s aliases.
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21-11625 Opinion of the Court 3
Diaz has purchased about fifty guns throughout her life.
When purchasing guns, Diaz had to fill out an ATF Firearms Trans-
action Record, commonly known as the 4473 form. These forms
ask questions related to prohibitions on firearm ownership. Hav-
ing filled out numerous 4473 forms, Diaz knew that people who
have been convicted of felonies cannot possess firearms. Photos
and videos presented as evidence at trial showed Diaz with Barr
holding or using guns together, including a gun recovered by po-
lice.
A grand jury indicted Diaz and Barr in 2018. 2 Diaz was
charged with one count of conspiracy to commit an offense against
the United States for assisting a convicted felon to possess a firearm,
18 U.S.C. §§ 371, 922(g)(1) (Count 1); two counts of aiding and
abetting a felon to possess a firearm, 18 U.S.C. §§ 2, 922(g)(1)
(Counts 2 and 8); and one count of aiding and abetting use of iden-
tification of another person in connection with any unlawful activ-
ity that constitutes a felony under state law, 18 U.S.C. §§ 2,
1028(a)(7) (Count 9). Counts 2 and 9 were dismissed before and
during trial.
Before trial, the government moved to prevent Diaz from
bringing up the Second Amendment when arguing or questioning
2 Barr pled guilty to the following charges before Diaz’s trial: Count One (con-
spiracy to violate 18 U.S.C. § 922(g)(1)); Count Two (felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1) (aided and abetted by Diaz));
Count Three (felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1)); and Count Four (possession of a firearm silencer not identified by
a serial number in violation of 26 U.S.C. § 5861(i)).
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4 Opinion of the Court 21-11625
witnesses, which the district court granted. 3 Neither party con-
tested that Diaz could lawfully purchase and possess firearms. Diaz
asked for the following Second Amendment jury instruction at the
charge conference:
Under the Second Amendment to the United States
Constitution, a person has the right “to keep and bear
arms,” that is, to own, to possess, and to carry fire-
arms. This right is not without limit. Therefore, cer-
tain people, like felons, do not have the right to own,
possess, or carry firearms.
Because Ms. Diaz is not a felon, unlike Mr. Barr, she
is not legally prohibited from owning or possessing a
firearm. As such, under the Second Amendment to
the United States Constitution, she has the right to
own, possess, and to carry firearms, so long as it is not
unusual or dangerous. Thus, in determining whether
she purposefully aided and abetted Mr. Barr’s illegal
possession, it is not sufficient that she bought, main-
tained, kept, possessed, or carried firearms. In order
to find Ms. Diaz guilty of aiding and abetting Mr. Barr,
you must find beyond a reasonable doubt that she
3 Diaz’s attorneys, however, were allowed to and did mention that Diaz could
lawfully own guns during both opening and closing statements. Opening
statements noted that “[t]here’s no question that Nadya could lawfully possess
guns. She can buy them. She can have them in her home. She can carry them
on her person.” Closing statements reiterated that “[s]he’s allowed to have
guns.”
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21-11625 Opinion of the Court 5
committed some additional act beyond exercising her
Second Amendment rights and that she committed
that act for the purpose of aiding, assisting, encourag-
ing or facilitating Mr. Barr’s illegal possession.
Dist. Ct. Doc. 257 at 26. The district court denied the request be-
cause the Second Amendment was not relevant to her charges. In-
stead, the district court provided jury instructions regarding con-
spiracy, aiding and abetting, and 18 U.S.C. § 922(g)(1). The jury
convicted Diaz on the remaining counts.
After being convicted, Diaz moved for a new trial, arguing
that not giving the proposed Second Amendment instruction was
error. When denying the motion for a new trial, the district court
explained that the conduct Diaz was found guilty of—conspiracy
and aiding and abetting—was not protected by the Second Amend-
ment. The district court sentenced Diaz to 57 months in prison for
each count, which would run concurrently, 4 followed by three
years of supervised release.
On appeal, Diaz only challenges whether the district court
abused its discretion by not giving the Second Amendment jury in-
struction she requested.
II. Standard of Review
We review the district court’s refusal to give a proposed jury
instruction for an abuse of discretion. United States v. Hill, 643 F.3d
4 Diaz is set to be released from prison in December 2023.
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807, 850 (11th Cir. 2011). Generally, a refusal to give a requested
instruction is an abuse of discretion if: “‘(1) the requested instruc-
tion was a correct statement of the law, (2) its subject matter was
not substantially covered by other instructions, and (3) its subject
matter dealt with an issue in the trial court that was so important
that failure to give it seriously impaired the defendant’s ability to
defend [herself].’” Id. (quoting United States v. Jordan, 582 F.3d 1239,
1247–48 (11th Cir. 2009) (per curiam)).
III. Applicable Law
The Second Amendment states: “A well regulated Militia,
being necessary to the security of a free State, the right of the peo-
ple to keep and bear Arms, shall not be infringed.” U.S. Const.
amend. II. The Second and Fourteenth Amendments protect an
individual right to keep and bear arms in the home. New York State
Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2125–26 (2022). How-
ever, the right to bear arms is not unlimited. See id.; District of Co-
lumbia v. Heller, 554 U.S. 570, 595 (2008). Prohibitions on possession
of firearms by felons are constitutional. Heller, 554 U.S. at 626.
“[S]tatutes disqualifying felons from possessing a firearm under any
and all circumstances do not offend the Second Amendment.”
United States v. Rozier, 598 F.3d 768, 771 (11th Cir. 2010) (per cu-
riam).
Anyone “who has been convicted in any court of, a crime
punishable by imprisonment for a term exceeding one year” is pro-
hibited from possessing a firearm or ammunition. 18 U.S.C.
§ 922(g)(1). To violate this statute, the person must know they are
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21-11625 Opinion of the Court 7
barred from possessing a firearm or ammunition. See Rehaif v.
United States, 139 S. Ct. 2191, 2195–96 (2019).
People who aid or abet federal offenses can face the same
punishment as principals. See 18 U.S.C. § 2(a). A person who aids
and abets “(1) takes an affirmative act in furtherance of [the] of-
fense, (2) with the intent of facilitating the offense’s completion.”
Rosemond v. United States, 572 U.S. 65, 71 (2014). An individual’s
knowledge of the criminal circumstances is key to finding that per-
son guilty of aiding and abetting. Id. at 77. Similarly, knowledge is
a key element of a conspiracy conviction. To find a defendant
guilty of conspiracy requires the government to prove: (1) the ex-
istence of a conspiracy; (2) the defendant knew about the conspir-
acy; and (3) with knowledge, the defendant voluntarily joined the
conspiracy. United States v. Abovyan, 988 F.3d 1288, 1302 (11th Cir.
2021); see also 18 U.S.C. § 371.
IV. Analysis
The district court did not abuse its discretion when it denied
Diaz’s proposed Second Amendment jury instruction. Regardless
of whether this proposed instruction properly characterized the
Second Amendment, failing to give the proposed instruction did
not impact Diaz’s ability to defend herself.
First, the jury instructions provided at trial adequately iden-
tified the specific conduct required to convict Diaz. At trial, one
instruction explained the elements required to convict someone of
conspiracy. Another instruction explained the elements of aiding
and abetting. The instructions also included a definition of “overt
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8 Opinion of the Court 21-11625
act,” which described how “[a]n ‘overt act’ is any transaction or
event, even one that may be entirely innocent when viewed alone,
that a conspirator commits to accomplish some object of the con-
spiracy.” Diaz feared that the extent of her Second Amendment
rights would be unclear without her proposed instruction. Despite
her fears, the given instructions identified the exact elements nec-
essary for her actions to constitute conspiracy or aiding and abet-
ting and made it clear that mere lawful possession of firearms was
not enough to convict Diaz. The opening and closing statements
reiterated that there was no question as to Diaz’s lawful gun own-
ership. Here, the instructions provided at trial adequately ensured
the jury could draw the line between prohibited and protected con-
duct.
Further, failing to provide Diaz’s proposed instruction did
not impair her ability to defend herself. At trial, the legality of Diaz
purchasing or possessing guns was not at issue. Diaz’s defense fo-
cused on knowledge. Because Diaz had filled out so many 4473
forms, she could not say she lacked knowledge that felons cannot
have firearms. Instead, she took the stand to testify that she lacked
an awareness of Barr’s status as a felon. We must evaluate whether
the subject matter of the proposed instruction was so crucial that
failing to give the instruction seriously hindered Diaz’s ability to
defend herself. See Hill, 643 F.3d at 850. Not receiving a Second
Amendment jury instruction did not impact her ability to argue
that she was unaware of Barr’s status as a felon. Diaz’s proposed
instruction would not improve her defense or make it more
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compelling because the Second Amendment was not relevant to
any element of the charges against her under these facts.
Finally, Diaz’s circumstances were not analogous to a per-
son lawfully owning a gun and merely cohabitating with someone
convicted of a felony. Diaz references the “risk that felon dispos-
session statutes, when combined with laws regarding accomplice
liability, may be misused to subject law-abiding cohabitants to lia-
bility simply for possessing a weapon in the home.” United States
v. Huet, 665 F.3d 588, 601 (3d Cir. 2012), abrogated on other grounds
by United States v. De Castro, 49 F.4th 836, 845 (3d Cir. 2022). We
recognize this risk but emphasize that is not comparable to Diaz’s
situation. At trial, the government presented evidence—including
a video of Barr shooting one gun with Diaz’s voice in the back-
ground—supporting its argument that Diaz knew Barr was using
the guns. This decision does not suggest that mere cohabitation
with a person convicted of a felony can constitute conspiracy or
aiding and abetting.
Thus, the district court did not abuse its discretion by failing
to deliver Diaz’s proposed Second Amendment jury instruction.
AFFIRMED.