FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 20, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-12957

Non-Argument Calendar

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D. C. Docket No. 06-20330-CR-ASG

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

CLINTON MOSS,

Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Florida

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(October 20, 2008)

Before TJOFLAT, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
Appellant Clinton Moss appeals his conviction for possession of a firearm

by a convicted felon in violation of 18 U.S.C. § 922(g)(1). On appeal, Moss

argues that the district court abused its discretion by granting the government’s

motion in limine and thereby prohibiting him from testifying that he purchased a

firearm for protection from his neighbors, who were likely dealing in drugs and

guns. He argues that this testimony was relevant to his state of mind within the

context, in particular, of his entrapment defense to show his susceptibility to the

entreaties of the government agent to purchase a weapon. Moss also argues that

the district court abused its discretion by refusing to give his proposed jury

instruction on duress/justification, arguing that he meets the Deleveaux test

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because he proffered testimony that he was in fear for his life. Lastly, Moss argues

that his trial was fundamentally unfair due to the prosecutor’s misstatement of the

law of entrapment during closing arguments.

I. Exclusion of testimony

We review de novo a district court’s ruling on the sufficiency of a

defendant’s proffer of a justification defense. See United States v. Dicks, 338 F.3d

1256, 1257 (11th Cir. 2003). “We review a district court’s evidentiary rulings for

abuse of discretion.” United States v. Walker, 59 F.3d 1196, 1198 (11th Cir.

United States v. Deleveaux, 205 F.3d 1292 (11th Cir. 2000). 1

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1995).

“[A] valid entrapment defense has two related elements: government

inducement of the crime, and a lack of predisposition on the part of the defendant

to engage in the criminal conduct. Mathews v. United States, 485 U.S. 58, 63, 108

S. Ct. 883, 886, 99 L. Ed. 2d 54 (1988). Predisposition concerns whether the

defendant was an “unwary innocent” or, instead, an “‘unwary criminal’ who

readily availed himself of the opportunity to perpetrate the crime.” Id. (quoting

Sherman v. U.S., 356 U.S. 369, 376-78, 78 S. Ct. 819, 822-23, 2 L. Ed. 2d 848

(1958)).

“In order to have the defense [of justification] submitted to a jury, a

defendant must first produce or proffer evidence sufficient to prove the essential

elements of the defense.” United States v. Montgomery, 772 F.2d 733, 736 (11th

Cir. 1985). A court may prohibit the presentation of evidence insufficient to

support a defense, where the defendant’s true intent is to improperly inspire a jury

to exercise nullification. See United States v. Funches, 135 F.3d 1405, 1408-09

(11th Cir. 1998).

In the seminal case of Deleveaux discussing the applicability of an

affirmative defense of justification for violating 18 U.S.C. § 922(g), we held that

the defense is available only in extraordinary circumstances. Deleveaux, 205 F.3d

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at 1297. Moreover, before being permitted to raise a justification defense, the

defendant must proffer evidence sufficient to establish:

(1) that [he] was under unlawful and present, imminent, and

impending threat of death or serious bodily injury; (2) that [he] did

not negligently or recklessly place himself in a situation where he

would be forced to engage in criminal conduct; (3) that [he] 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. at 1297 (quoting United States v. Wofford, 122 F.3d 787, 789-90 (9th Cir.

1997)).

To satisfy the first prong of the justification defense, the defendant must be

facing an “immediate emergency.” United States v. Rice, 214 F.3d, 1295, 1297

(11th Cir. 2000). We have held that there was no immediate emergency when a

defendant, who had been repeatedly threatened and attacked by a gang over a

period of months, retrieved a gun immediately after being threatened by members

of the same gang. Id. at 1297-98. Similarly, we have held that a defendant who

possessed a shotgun for three days after an attack on his home did not establish the

defense, because he was no longer under an imminent threat. United States v. Bell,

214 F.3d 1299, 1301 (11th Cir. 2000) (citing United States v. Parker, 566 F.2d

1304, 1306-07 (5th Cir. 1978), in which we concluded that a defendant who held a

shotgun for thirty minutes after being attacked at his home could not establish the

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defense). In addition, the defendant must show that the police were unwilling to

protect him. See Bell, 214 F.3d at 1302.

Since Moss did not proffer evidence sufficient to prove the essential

elements of a justification defense, and Moss’s testimony was irrelevant and

possibly detrimental to his entrapment defense, we conclude that the district court

properly found that his testimony was intended to inspire a jury to exercise

nullification. Accordingly, we affirm the court’s order granting the government’s

motion in limine and excluding Moss’s testimony on a justification defense.

II. Denial of jury instruction on justification

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

abuse of discretion.” United States v. Carrasco, 381 F.3d 1237, 1242 (11th Cir.

2004). We review de novo the issue of whether the defense produced sufficient

evidence to sustain a requested instruction. United States v. Calderon, 127 F.3d

1314, 1329 (11th Cir. 1997). “A district court’s refusal to give a requested

instruction is reversible error if (1) the requested instruction 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 himself.” Carrasco, 381 F.3d at 1242 (quoting United States v. Paradies,

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98 F.3d 1266, 1286 (11th Cir. 1996)). A requested “theory of the defense”

instruction is not substantially correct unless it has both legal support and some

basis in the evidence. United States v. Hedges, 912 F.2d 1397, 1405-06 (11th

Cir.1990).

Because the record demonstrates that Moss did not produce sufficient

evidence to support a justification defense, we conclude that the district court did

not abuse its discretion in refusing to give an instruction on Moss’s justification

defense. Consequently, we affirm as to this issue.

III. Prosecutorial misconduct

“[We] review[] a prosecutorial misconduct claim de novo because it is a

mixed question of law and fact.” United States v. Eckhardt, 466 F.3d 938, 947

(11th Cir. 2006) (reviewing whether prosecutor’s comments during opening and

closing arguments amounted to misconduct), cert. denied, 127 S. Ct. 1305 (2007).

When evaluating claims of prosecutorial misconduct, we examine the context of

the entire trial to determine whether the prosecutor’s statements (1) were improper,

and (2) prejudicially affected the substantial rights of the defendant. United States

v. Wilson, 149 F.3d 1298, 1301 (11th Cir. 1998).

Because we conclude from the record that the government’s remarks during

its closing argument were not improper, and moreover, that Moss’s substantial

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rights were not prejudicially affected, the district court did not err by allowing the

government’s closing statements about entrapment. Consequently, we affirm as to

this issue.

For the above-stated reasons, we affirm Moss’s conviction.

AFFIRMED.

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