FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

JANUARY 4, 2008

THOMAS K. KAHN

CLERK

 The Honorable Richard W. Story, United States District Judge for the Northern District *

of Georgia, sitting by designation. 

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 06-14884

________________________

D. C. Docket No. 05-20730-CR-UUB

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

versus 

RAY PALMA, 

Defendant-Appellant. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

(January 4, 2008)

Before EDMONDSON, Chief Judge, DUBINA, Circuit Judge, and

STORY, District Judge. *

PER CURIAM:
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Appellant Ray Palma appeals his conviction and sentence for the possession

of a firearm and ammunition after being convicted of a felony, in violation of 18

U.S.C. § 922(g)(1). On appeal, he raises two issues: (1) whether the district court

erred in refusing to instruct the jury on a “temporary, innocent possession

defense,” and (2) whether Appellant is entitled to a new trial due to certain

allegedly prejudicial remarks that the trial judge directed at defense counsel. For

the reasons that follow, we affirm the conviction and sentence. 

I. BACKGROUND

Palma was convicted in 1996 of a felony offense for which he was

imprisoned from January 17, 1996, until May 21, 1999, and for which he remained

on supervised release from May 21, 1999, until December 17, 2001. On August 5,

2005, despite his status as a convicted felon, Palma accompanied his thengirlfriend Abril German to Ace’s Indoor Shooting Range and Pro Gun Shop in

Miami-Dade County, Florida. There, German approached an employee named

Patricio Jiron at the sales counter, and she expressed her interest in purchasing a

single-action .45 caliber firearm. Jiron showed German a Kimber .45 caliber

single-action firearm from his gun box priced at $1,200. German picked it up and

almost immediately declared that it was the firearm she wanted. She did not rack

the gun’s slide, remove the magazine, or ask any questions about the firearm. She
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did not seek to test fire the gun before purchasing it.

German, an alien residing in the state of Florida, provided Jiron with

appropriate identification and filled out Bureau of Alcohol, Tobacco, and Firearms

(“ATF”) Form 4473. She did not take the firearm with her on August 5, 2005,

because of the State of Florida’s five-day cooling-off period and because she did

not present a concealed-weapons permit. During the transaction on August 5,

2005, Palma did not join German at the sales counter, nor did he ask Jiron any

questions about the firearm. However, Jiron did testify that Palma was there with

German and that he noticed them speaking with one another during the purchase.

Palma and German returned to Ace’s on August 15, 2005. The employee

assisting them that day called in George Depina, the owner of Ace’s, to confirm

that German’s resident alien documentation and concealed-weapons permit were

sufficient. Depina determined that the documents were acceptable and told his

employees that the sale could proceed. Thereafter, Ace’s contacted the Florida

Department of Law Enforcement (“FDLE”) to conduct a criminal background

check. The FDLE approved German to take possession of the firearm the same

day. However, Palma mentioned that he wished to change the finish of the

firearm, and he asked how long it would take to refinish the gun. Ace’s employee

Andy Andrade showed them some finishes that were available. Palma made the
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selection, and the gun was sent out for refinishing.

On either August 15 or August 16, 2005, ATF Special Agent Jacqueline

Elbaum received a telephone call from Depina concerning a suspicious firearm

purchase. He told her he believed that German was making a straw purchase for

Palma. Agent Elbaum conducted an investigation and discovered that Palma was a

convicted felon.

Meanwhile, Palma telephoned Ace’s several times asking whether “my

gun’s back from refinishing.” (DE:129:335-38.) Each time he called, Palma

identified the gun as his. On August 26, 2005, the day after Hurricane Katrina

struck south Florida, he called Ace’s to ask whether he could come in and retrieve

his gun. Andrade recognized Palma’s voice on the phone and told him that he

could not pick it up due to a power outage and damage from the hurricane. 

Subsequently, Agent Elbaum learned that the firearm would be available for

pickup at Ace’s on September 1, 2005. She and other law enforcement agents

established surveillance outside Ace’s that afternoon. Palma called Ace’s that day

and was informed that the refinished firearm was ready. ATF agents observed a

silver Chrysler minivan arrive in the Ace’s parking lot at approximately 4:15 P.M. 

Palma was driving the van, and he was accompanied by German and her sister,
Almante testified at trial that she stood away from Palma and German during the 1

transaction and rejoined them when they left the store.

 German paid for the grips, upon Palma’s request. 2

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Rena Almonte. Palma, German, and Almonte exited the van and entered Ace’s. 

Inside, an employee brought the firearm out of the safe and placed it on the

counter in front of German and Palma. German picked up the firearm and handed 1

it to Palma, who said he liked the finish. Palma then took the gun in his hands,

lifted it up, and pointed it in front of him as though he were firing the weapon,

before finally putting it back down. He asked Depina for a specific brand of

hollow-point ammunition for the gun. Depina informed him that Ace’s did not

have the requested brand and showed him a box of regular Ball PMC ammunition,

which Palma agreed to purchase. While Andrade completed the sale of the

ammunition to Palma, Depina contacted Agent Elbaum. Then, Andrade asked

Palma and German whether they wanted to purchase pearl grips, and both said that

they were interested. Andrade placed a special order for the pearl grips, which

Palma and German planned to install later.

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Subsequently, Agent Elbaum and other law enforcement agents observed

and videotaped Palma, German, and Almonte leaving Ace’s and walking toward

the van in the parking lot. Palma was carrying the box of PCM .45 caliber

ammunition as he exited the store, and he had the receipt for the ammunition in his
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pocket. German was carrying her purse and the box containing the Kimber .45

caliber firearm. Agents arrested German and Palma, seizing the firearm, the

ammunition, and the receipt. The firearm and gun box were later submitted for

fingerprint analysis. No usable fingerprints were found on the firearm itself, but

experts identified two of Palma’s fingerprints on the inside of the gun box.

On September 19, 2005, a federal grand jury in the Southern District of

Florida returned an indictment against Appellant and German, charging them both

with making a false statement in connection with the attempted acquisition of a

firearm in violation of 18 U.S.C. § 922(g)(1). Appellant alone was charged with

possession of a firearm and ammunition after having been convicted of a crime

punishable for a term exceeding one year of imprisonment, in violation of 18 

U.S.C. § 922(g)(1).

After retaining separate counsel, appellant and German each pled not guilty,

and their trials were subsequently severed. German’s trial preceded Palma’s and

resulted in an acquittal. On March 22, 2006, five days after German’s acquittal,

Appellant moved to allow German’s attorney, Robert Simels, Esq., to act as his

counsel, and the district court granted the motion. An eight-day jury trial began on

April 20, 2006. On May 1, 2006, the jury returned a unanimous verdict finding

Appellant not guilty of making a false statement to obtain a firearm but guilty of
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unlawful possession of a firearm and ammunition. On August 31, 2006, the

district court sentenced Palma to a 40-month term of imprisonment to be followed

by a two-year period of supervised release. The court also ordered Palma to pay a

$100 special assessment. Palma timely filed a notice of appeal from his conviction

and sentence.

II. DISCUSSION

A. Jury Instructions

We review a district court’s refusal to give a requested jury instruction for an

abuse of discretion. United States v. Fulford, 267 F.3d 1241, 1245 (11th Cir.

2001). 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. (citing United

States v. Martinez, 83 F.3d 371, 376 (11th Cir. 1996)). While a district court judge

is “vested with broad discretion in formulating his charge to the jury so long as it

accurately reflects the law and the facts,” United States v. Silverman, 745 F.2d

1386, 1395 (11th Cir. 1984) (citing United States v. Borders, 693 F.2d 1318, 1329

(11th Cir. 1982)), a defendant “is entitled to have presented instructions relating to

a theory of defense for which there is any foundation in the evidence, even though
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the evidence may be weak, insufficient, inconsistent, or of doubtful credibility.” 

United States v. Lively, 803 F.2d 1124, 1126 (11th Cir. 1986) (emphasis in

original) (quoting United States v. Young, 464 F.2d 160, 164 (5th Cir. 1972)). In

determining whether there is a proper evidentiary foundation for the instruction,

the evidence must be viewed in the light most favorable to the accused. United

States v. Williams, 728 F.2d 1402, 1404 (11th Cir. 1984) (citing United States v.

Lewis, 592 F.2d 1282 (5th Cir. 1979)).

Appellant argues that the district court erred in refusing to instruct the jury

on the defense of transitory or temporary innocent possession of a weapon. More

specifically, he requested in writing the following charge:

Ladies and gentlemen, Mr. Palma would not be

guilty of the offense charged here if you find

that he lacked any criminal purpose in

possessing the ammunition and the possession

of the ammunition was transitory, in other

words, in light of the evidence herein you find

that the defendant took, or was taking, adequate

measures to rid himself of possession of the

ammunition as promptly as reasonably possible.

(Appellant’s Br. at A17 (citations omitted).) The district court did not allow the

instruction and did not allow argument on the issue during Appellant’s closing

argument. Appellant now claims that he was denied a fair trial because he was not

permitted to raise the theory of temporary, innocent possession. However, for the
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reasons discussed below, there was no abuse of discretion, because the facts

presented at trial did not provide the necessary foundation for a theory of

temporary, innocent possession.

To prove that a defendant committed an offense under 18 U.S.C. §

922(g)(1), the government must show that (1) he or she knowingly possessed a

firearm or ammunition, (2) he or she 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. United States v. Deleveaux,

205 F.3d 1292, 1297 (11th Cir. 2000). We have consistently held that § 922(g) is a

strict liability offense that “does not require the prosecution to prove that the

criminal acts were done with specific criminal intent.” Deleveaux, 204 F.3d at

1298 (citing United States v. Thompson, 25 F.3d 1558, 1563-64 & 1563 n.4 (11th

Cir. 1994)).

Here, Palma claims that he examined and held the unloaded firearm only at

his girlfriend’s request and claims that he touched it for a matter of mere seconds. 

He argues that he “obtained the firearm innocently and rid himself of it in just

seconds and that he helped his girlfriend carry her package to the car.” 

(Appellant’s Br. at 25.) Based on these claims, Appellant claims that he was

entitled to a jury charge on the theory of innocent, transitory possession and that he
 In the past, we have declined to entertain the theory of a “mere inspection” defense. 

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See United States v. Beverly, 194 Fed. Appx. 624, 628 (11th Cir. 2006) (unpublished) (holding

that a district court did not abuse its discretion in refusing to give a “mere inspection” instruction

in a firearm possession case). And while we have indicated that a “justification defense” may be

available, we have cautioned that the defense would be extremely limited, only applicable under

“extraordinary circumstances.” See Deleveaux, 205 F.3d at 1297 (agreeing with other circuits

that such a defense may be available but only in extremely limited circumstances).

While it is a question of first impression in this circuit, several of our sister circuits have

considered the theory of “temporary innocent possession,” and the majority have declined to

recognize it. Some circuits have expressly rejected the defense. See United States v. Johnson,

459 F.3d 990, 997-98 (9th Cir. 2006) (holding that such a defense would undermine the statutory

design of § 922(g)); United States v. Teemer, 394 F.3d 59, 62-65 (1st Cir. 2005) (rejecting

innocent possession defense and affirming district court’s refusal to give jury an instruction on

“fleeting” or “transitory” possession); United States v. Mercado, 412 F.3d 243, 250-52 (1st Cir.

2005) (rejecting innocent possession defense and holding that even momentary or fleeting

possession of a firearm is sufficient under the statute); United States v. Gilbert, 430 F.3d 214,

218 (4th Cir. 2005) (rejecting the proposal of an exception to § 922(g)(1) when the defendant

had no illicit motive and attempted to quickly rid himself of the firearm). Some have rejected

substantially similar defenses. See United States v. Hendricks, 319 F.3d 993, 1004-05 (7th Cir.

2003) (holding that only justification defenses would be recognized); United States v. Adkins,

196 F.3d 1112, 1115 (10th Cir. 1999) (holding that trial court acted properly in refusing to give

jury instruction on “fleeting possession” theory). The Second Circuit has held that the defense

would not apply to the cases that have been presented to them, based on the facts as developed at

trial. See United States v. Williams, 389 F.3d 402, 405 (2d Cir. 2004) (holding that the

defendant’s possession of the firearm was not so fleeting as to warrant an instruction on

temporary innocent possession); United States v. Paul, 110 F.3d 869, 872 (2d Cir. 1997)

(holding that possession was “not so fleeting as to extend the statute beyond its arguable limits”).

The District of Columbia Circuit is the only court that has held otherwise. See United

States v. Mason, 233 F.3d 619, 624-25 (D.C. Cir. 2000) (defining and applying the transitory

innocent possession defense). That court very narrowly defines the limits of the defense to

situations where the firearm was obtained by innocent means and for no illicit purpose and

where the possession was transitory in light of the circumstances. Id. at 624.

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should have been permitted to argue that his brief handling of the firearm and of

the ammunition did not constitute “possession” under 18 U.S.C. § 922(g)(1).

We have never before recognized the availability of an “innocent transitory

possession” defense in a firearm possession case, and we need not decide that 3

issue today. Even assuming arguendo that such a defense were available, it was
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not supported by the evidence in this case. At trial the government presented

uncontroverted evidence that Appellant entered the gun shop and shooting range

on two occasions, that he physically picked up the Kimber .45 caliber firearm, that

he repeatedly referred to the firearm as “my gun,” and that he requested,

purchased, and carried away ammunition for the firearm. Furthermore, the very

reason why Appellant’s possession of the ammunition did not extend for a longer

period of time was his arrest upon exiting Ace’s and the officers’ seizure of the box

of bullets. Indeed, Appellant presented no affirmative evidence whatsoever that he

attempted to rid himself of the ammunition. These facts simply do not support an

“innocent transitory possession” instruction. Moreover, the trial court’s

instructions defining “knowingly” and “possession” adequately and accurately

explained the level of conscious control over the firearm and the ammunition

required under the law. For these reasons, the district court did not abuse its

discretion in refusing to instruct the jury regarding a “temporary innocent

possession” defense to the possession of a firearm.

B. Conduct of Trial Judge

We review a district judge’s conduct during trial for an abuse of discretion

as well. See United States v. Verbitskaya, 406 F.3d 1324, 1337 (11th Cir. 2005)

(citing United States v. Cox, 664 F.2d 257, 259 (11th Cir. 1981)). “[I]n order to
 Indeed, the trial judge dismissed the jury on several occasions in order to maintain 4

proper control of the proceedings. While Appellant contends that one comment was made just

as the first juror was reentering the courtroom, the district court made a factual finding that the

juror had not yet entered the room. (See R. at 778 (“I was watching and no one was coming into

the courtroom.”).) The judge did not abuse her discretion in making this determination, nor did

she abuse her discretion in refusing to give a curative instruction.

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amount to reversible error, a judge’s remarks must demonstrate such pervasive bias

and unfairness that they prejudice one of the parties in the case.” United States v.

Ramirez-Chilel, 289 F.3d 744, 750 n.6 (11th Cir. 2002). 

Appellant argues that the district court judge made several negative remarks

about defense counsel which resulted in prejudice to his client. Appellant argues

that the “pervasively demeaning treatment” of defense counsel and the trial judge’s

refusal to give a curative instruction to the jury warrant a new trial. (Appellant’s

Br. at 17.) We disagree and conclude, instead, that the district court did not abuse

its discretion and that a new trial is unnecessary.

It is apparent from the record that on several occasions, the district court

admonished defense counsel and expressed its displeasure with his trial techniques. 

However, all of these instances occurred outside the presence of the jury. Because 4

a “clear effect on the jury is required to reverse for comment by the trial judge,” we

conclude that a new trial is not warranted. United States v. Rochan, 563 F.2d

1246, 1250 (5th Cir. 1977).
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III. CONCLUSION

We conclude that the district court did not abuse its discretion when it

refused to instruct the jury on Appellant’s theory of temporary innocent possession

of a firearm. Further, the district judge’s conduct in this case does not warrant a

new trial. Accordingly, we affirm Palma’s conviction and sentence.

AFFIRMED.