FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

OCT 15, 2008

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-13019

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D.C. Docket No. 06-00266-CR-E

UNITED STATES OF AMERICA,

Plaintiff–Appellee,

versus

PAUL EUGENE WEBSTER,

Defendant–Appellant.

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Appeal from the United States District Court

for the Middle District of Alabama

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(October 15, 2008)

Before BARKETT and WILSON, Circuit Judges, and GOLDBERG, Judge.

*

PER CURIAM:

 Honorable Richard W. Goldberg, Judge, United States Court of International Trade,

*

sitting by designation.
Paul Webster appeals his conviction for possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). Prior to trial, Webster

indicated his intention to present two theories of defense: justification for and

innocent possession of the firearm in question. The government argued that

neither defense was applicable under the circumstances of this case. All of the

issues raised by Webster on appeal essentially relate to whether these defenses

were applicable. We conclude that the district court did not err in finding that they

were not.

A justification defense is available to a felon-in-possession charge under

§ 922(g)(1) “in only extraordinary circumstances.” United States v. Deleveaux,

205 F.3d 1292, 1297 (11th Cir. 2000). To support a justification defense, a

defendant must show:

(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.

First, Webster failed to present any evidence of a “present, imminent, and

impending threat of death or serious bodily injury.” Webster claimed that he had

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been in possession of the firearm because he was taking it to give to a friend after

the attempted kidnaping of his friends’ daughter. However, the kidnaping attempt

occurred the day before he retrieved the rifle and the police were already

investigating the matter. These circumstances do not constitute a “present,

imminent, and impending threat of death or serious bodily injury” and also indicate

that there was a reasonable legal alternative to violating the law. Thus, there was

no basis for an instruction on the justification defense.

Similarly, the district court did not err in denying an innocent possession

defense because this Court has not recognized the availability of this defense to

§ 922(g)(1). United States v. Palma, 511 F.3d 1311, 1316 (11th Cir. 2008). The

majority of circuits that have considered it have declined to recognize it. Id. at n.3

(collecting cases). The only circuit that has permitted it has done so only when (1)

the firearm was attained innocently and held with no illicit purpose; (2) possession

was transitory in light of the circumstances; and (3) the defendant had the intent to

turn the firearm over to the police. United States v. Mason, 233 F.3d 619, 624

(D.C. Cir. 2000). Webster never proffered any evidence of intent to turn the gun

over to police. Thus, Webster’s proffer did not provide the necessary evidentiary

support for an instruction on innocent possession.

AFFIRMED.

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