Eleventh Circuit Court of Appeals - Published Opinions

Friday, April 05, 2019

Vereen: Innocent Transitory Possession Defense Unavailable for Felon in Possession Offense

In United States v. Vereen, No. 17-11147 (Apr. 5, 2019) (Marcus, Newsom, Anderson), the Court affirmed the defendant's felon in possession conviction and ACCA sentence.

The defendant's main argument on appeal was that the court erred by refusing to instruct the jury on the "innocent transitory possession defense" (ITP).  The Court concluded that this defense was unavailable because 922(g) did not invite any kind of inquiry into the purpose or timespan of the defendant's possession.  That holding was in line with that reached by the overwhelming majority of the circuits, though the Court observed that the D.C. Circuit had reached a contrary conclusion where the firearm was obtained by innocent means, for no illicit purpose, and for a transitory period of time.  Applying plain error, the Court also rejected the defendant's argument that 922(g) was unconstitutionally vague because the Court had not previously determined whether an ITP defense was available.

As for the ACCA sentence, the Court found that the defendant's Florida aggravated battery convictions qualified under the elements clause under Turner.  And it held that the defendant's Florida battery conviction also qualified under the elements clause because it involved the intentional causation of bodily harm.