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             IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                             DEC 30, 2008
                              No. 07-15227                 THOMAS K. KAHN
                          Non-Argument Calendar                CLERK
                        ________________________

                D. C. Docket No. 07-00001-CR-ORL-19-KRS

UNITED STATES OF AMERICA,


                                                                Plaintiff-Appellee,

                                   versus

TROY NOLAN HARKNESS,

                                                          Defendant-Appellant.


                        ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                            (December 30, 2008)

Before ANDERSON, MARCUS and KRAVITCH, Circuit Judges.

PER CURIAM:

     Appellant Troy Nolan Harkness appeals his convictions and 210-month
sentence for possession of a firearm and ammunition as a convicted felon (Count

1), in violation of 18 U.S.C §§ 922(g)(1), 924(a)(2), and 924(e)(1), and possession

of body armor as a convicted felon who previously had been convicted of a crime

of violence (Count 2), in violation of 18 U.S.C. §§ 931(a)(1) and 924(a)(7).

                                           I. Facts

      Harkness, a convicted felon, worked as a security guard at a motel in

Orlando, Florida. Sergeant Arnold Alvarez learned that Harkness allegedly carried

a taser at work and decided to investigate because state law prohibits a convicted

felon from possessing a taser. Sergeant Alvarez and another officer drove to the

motel and Harkness approached the car and began speaking with the officers.

Harkness carried a pellet gun and taser on his belt. Alvarez seized these items and

asked if Harkness had any other weapons on him. Harkness indicated that he had a

knife in his front pocket, which he allowed Sergeant Alvarez to remove, and

minutes later he indicated that he had a knife on a chain around his neck, which

Alvarez also removed. Alvarez next obtained permission to search Harkness’s

nearby car where police uncovered two more knives and an extendable metal

baton. Harkness was then placed under arrest for possession of the taser. He was

not given Miranda1 warnings.



      1
          Miranda v. Arizona, 

(1966).

                                               2
      Upon arrest, Harkness again was asked if he had any weapons on him, and

he indicated that he did not. A subsequent search uncovered no other weapons and

Harkness was placed in the patrol car. Shortly thereafter, Harkness’s girlfriend

arrived and the police officers permitted Harkness to step out of the car and speak

with her. Harkness asked an officer if he could give his girlfriend a package.

When told by the officer that “it depended on what it was,” Harkness admitted that

he had a gun in the crotch area of his pants and that he did not want Sergeant

Alvarez to know about it. Sergeant Alvarez was summoned and began to search

Harkness, who told the sergeant, “Be careful. It has a hair trigger on it.” The

search revealed that Harkness was wearing a bullet-proof vest and had a loaded

.380 caliber semi-automatic pistol concealed inside his jockstrap. Harkness was

then transported to the police station. On the way there, the police officer did not

ask Harkness any questions, but Harkness made several statements, including that

he found the gun the day before and was planning to turn it in to the police.

      Harkness was indicted in federal court for his possession of a firearm,

ammunition, and body armor. Prior to trial, Harkness moved to dismiss the body

armor charge, on the grounds that 18 U.S.C. § 931 does not contain a jurisdictional

element, and therefore the statute was void under the Commerce Clause,2 and, in



      2
          U.S. Const. Art. I, § 8, cl. 3.

                                            3
the alternative, the statute was unconstitutional as applied to him. Harkness also

moved to exclude statements made and physical evidence seized after the arrest on

the bases that the statements were given in violation of Miranda. All of the

aforementioned motions were denied.

       Among the witnesses at trial was William Leggett. Leggett testified that on

September 19, 2006 he purchased a .22 caliber revolver for Harkness because

Harkness worked in a “less than desirable area of town.” Harkness later told

Leggett that this gun had an “exposed hammer” that could catch on his clothing, so

the two men met at a gun store on September 29, 2006 and Leggett purchased

another firearm for Harkness, later identified as the .380 handgun seized by police.3

Leggett testified that after Harkness was arrested, Harkness telephoned Leggett and

told him that he lied in his “daily log sheet” by writing that he found the gun on the

motel grounds. Harkness asked Leggett to report the gun “lost or stolen” in order

to corroborate his story. Leggett complied with this request and attempted to

bolster the story by stopping into several local stores and inquiring if they had

found a gun that he lost.

       Angel Rivera, the property manager at the motel where Harkness worked,



       3
         Leggett acknowledged that he initially lied to federal agents and told them that he lost
the gun. He recanted this story five or six days before trial, at which time he admitted that he
purchased the gun for Harkness.

                                                 4
also testified at trial. Rivera indicated that following Harkness’s arrest on October

2, Harkness’s girlfriend turned over the security log, master key, and other motel

property. After Harkness’s release, Harkness delivered additional papers to add to

the security log, but Rivera could not recall which papers were added. An entry in

the security log dated October 1, 2006 corroborated Harkness’s statement that he

found the .380 handgun on motel property and planned to turn it in to the police

department. Rivera also testified that Harkness tried to convince him to write a

letter indicating that the motel approved the taser for Harkness’s use, even though

this was false. A resident of the motel similarly testified that although she had seen

Harkness with a gun, Harkness asked her to write a letter indicating that she had

never seen him with any weapons or guns.

      At the conclusion of the evidence, Harkness asked that the court instruct the

jury on the defenses of justification and innocent possession. Both motions were

denied. The jury subsequently found Harkness guilty on both counts.

      A Presentence Investigation Report (“PSI”) was prepared and presented at

sentencing. The charge with the highest offense level of the two counts, Count 1,

possession of a firearm and ammunition by a convicted felon, carried a base

offense level of 24. The PSI also suggested an upward adjustment of 2 levels for

obstruction of justice and a Chapter Four enhancement because Harkness qualified



                                          5
as an “armed career criminal” (“ACC”).4 Harkness’s total offense level, therefore,

was 33. The corresponding criminal history category of V yielded a guideline

sentence of 210-262 months’ imprisonment. Harkness objected to the PSI, arguing

that: (1) the obstruction of justice increase was improper; (2) he did not have the

“predicate convictions” required for qualification as an ACC; and (3) he was

entitled for a 2-level reduction for acceptance of responsibility. The district court

overruled all objections and imposed a sentence of 210 months’.

      On appeal, Harkness raises the following arguments: (1) 18 U.S.C. §

931(a)(1) is an unconstitutional use of Congress’s powers under the Commerce

Clause; and (2) the district court erred by (a) denying Harkness’s motion to

suppress his statements and physical evidence; (b) refusing to instruct the jury on

justification and innocent possession; (c) determining that Harkness should be

sentenced as an ACC; (d) applying the enhancement for obstruction of justice; and

(e) refusing to decrease Harkness’s offense level for acceptance of responsibility.

                                        I. Discussion

                                       18 U.S.C. § 931

      Federal law prohibits felons convicted of crimes of violence from

purchasing, owning, or possessing body armor. 18 U.S.C. § 931(a)(1). Harkness



      4
          U.S.S.G. § 4B1.4(b)(3)(B).

                                              6
argues that this section is unconstitutional on its face and as applied to him because

the statute contains no jurisdictional element and he did not cross state lines with

the body armor.

      We review the constitutionality of a statute de novo. United States v. Scott,

, 1271 (11th Cir. 2001). Congress may regulate three broad

categories of activity under the commerce power: (1) the channels of interstate

commerce; (2) the instrumentalities of interstate commerce, or persons or things in

interstate commerce; and (3) activities with a substantial relation to interstate

commerce. United States v. Lopez, 

, 558-59 (1995). In Lopez, the

Court held that a statute that made it a federal offense to possess a firearm in a

school zone was unconstitutional because it did not fit within any of the three

above categories and did not contain an express jurisdictional provision. 

(explaining that the statute contained “no express jurisdictional element which

might limit its reach to a discrete set of firearm possessions that additionally have

an explicit connection with or effect on interstate commerce”).

      We need not decide whether this case fits into any of the above three

categories because this court has held that an express jurisdictional element to a

statute immunizes it from a facial constitutional attack. 

.

Body armor is defined as, “any product sold or offered for sale, in interstate or



                                           7
foreign commerce, as personal protective body covering intended to protect against

gunfire.” 18 U.S.C. § 921(a)(35) (emphasis added). Therefore, Harkness’s facial

challenge to § 931's body armor restriction must fail, as the statute contains an

express jurisdictional element.

         Moreover, Harkness’s as applied challenge also fails because an employee

of the manufacturer of the body armor testified that the yarn of Harkness’s vest

was made in Virginia, woven into fabric in South Carolina, woven into a vest in

Florida, and then shipped to a distributor in New Jersey. The vest was thereafter

sold by the New Jersey distributor and ended up in Harkness’s hands in Florida.

There is therefore no doubt the body armor was “sold or offered for sale, in

interstate or foreign commerce.” 18 U.S.C. § 921(a)(35); see United States v.

McAllister, 

, 390 (11th Cir. 1996) (“[b]ecause the government

demonstrated that the firearm possessed by McAllister previously had travelled in

interstate commerce, [18 U.S.C. § 922(g)(1)] is not unconstitutional as applied to

him”).

         We conclude that 18 U.S.C. § 931(a)(1) is a constitutional use of

congressional power under the Commerce Clause

                  Motion to suppress statements and physical evidence

         Harkness identifies several statements and pieces of evidence that he argues



                                            8
the district court should have suppressed, including: (1) statements to the police

about the existence and location of the gun; (2) the fruit of these statements, i.e. the

gun itself; and (3) the inculpatory statements made on the way to the police station.

      “We review a district court’s denial of a defendant’s motion to suppress

under a mixed standard of review, examining the district court’s findings of fact

for clear error and the district court’s application of law to those facts de novo.”

United States v. King, 

, 1341 (11th Cir. 2007). “Miranda forbids the

prosecution from using statements made by a defendant during a custodial

interrogation unless the defendant had first been advised of [his] constitutional

rights.” United States v. Paskett, 

, 707 (11th Cir. 1992). A custodial

interrogation occurs when the police engage in express questioning or its

functional equivalent “that the police should know [is] reasonably likely to elicit an

incriminating response from the suspect.” Rhode Island v. Innis, 

,

301 (1980).

      Both parties agree that Harkness was in custody when he made the

inculpatory statements and that he had not been given Miranda warnings. The only

issue, therefore, is whether he was interrogated. Turning first to the statements to

the police about the existence and location of the gun, the district court accepted

that Harkness was interrogated, but concluded that this situation fit under the



                                            9
public safety exception to the Miranda requirement, as articulated in New York v.

Quarles, 

(1984).

       We need not address the district court’s consideration of exceptions to the

Miranda requirement because we conclude that Harkness was not interrogated.5

Harkness was given permission to speak to his girlfriend and then asked the officer

if he could give her a package, to which the officer responded that “it depend[s] on

what it [is].” Harkness then indicated that he had a gun in his crotch area. This

conversation does not implicate the concerns expressed by the Miranda Court. See

United States v. Castro, 

, 1532 (11th Cir. 1984) (“[t]he whole

purpose of Miranda, and thus of its rule, is to protect the privilege against

self-incrimination from coercive questioning by the police and to ensure that any

waiver of that right is made ‘voluntarily, knowingly and intelligently’”). Here, the

officer did not initiate the conversation, nor was there any objective evidence to

indicate that the officer should have expected Harkness to incriminate himself. “It

depend[s] on what it [is]” was a natural response by the officer to Harkness’s

unprompted question, and the officer had no reason to believe that his response

was “reasonably likely to elicit an incriminating response from the suspect.” Innis,



       5
         We may affirm on any adequate grounds, even if it is other than those the district court
relied upon in making its determination. Parks v. City of Warner Robins, Ga., 

, 613
(11th Cir. 1995).

                                                

; see Garcia v. Singletary, 

, 1491-92 (11th Cir. 1994)

(holding that a spontaneous reaction to a startling event, although “accusatorial in

tone . . . was not an interrogation within the meaning of Miranda”). Thus,

Harkness’s statements and the gun were not the product of an illegal interrogation

and were therefore properly admitted.

      We similarly conclude that Harkness’s statements made on the way to the

police station were unprompted declarations and are therefore admissible because

they were not made in response to an interrogation or its functional equivalent.

See 

(“volunteered statements of any kind are not barred

by the Fifth Amendment”).

                              Requested jury instructions

      Harkness next argues that the district court erred in its decision not to

instruct the jury on the defenses of innocent possession and justification. We

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

discretion. United States v. Palma, 

, 1314-15 (11th Cir. 2008). “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.” 

(quotations



                                           11
omitted).

      Turning first to justification, this court has held that the affirmative defense

of justification is available to felon-in-possession charges under § 922(g)(1), but

only in “extraordinary circumstances.” United States v. Deleveaux, 

,

1297 (11th Cir. 2000). A defendant must show the following four elements to

establish a justification defense in the context of § 922(g)(1):

      (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.

“require[] nothing less than an immediate emergency,” United

States v. Rice, 

, 1297 (11th Cir. 2000), and “if there was a

reasonable, legal alternative to violating the law, a chance both to refuse to do the

criminal act and also to avoid the threatened harm, the defense[] will fail.” United

States v. Bailey, 

, 410 (1980) (quotation marks omitted).

      In this case, even if we ignore Leggett’s testimony and accept Harkness’s

description of events as true, it is undisputed that Harkness had a cellular telephone

on him at the time he allegedly found the firearm; therefore, he could have

immediately contacted law enforcement to report the gun. United States v.



                                           12
Presley, 

, 1350 (11th Cir. 2007) (the district court did not err in a

felon-in-possession case in declining to instruct the jury on justification or

necessity because the defendant had two cellular telephones on him at the time he

allegedly found the gun). Accordingly, the district court properly refused to

instruct the jury on the defense of justification because Harkness had a reasonable

alternative to keeping the gun in his possession.

      We also reject Harkness’s innocent possession argument. This court has

“never before recognized the availability of an ‘innocent transitory possession’

defense in a firearm possession case,” 

, and we need not

decide today whether such a defense exists in this circuit. Where this defense is

recognized, it requires proof of the following:

      (1) the firearm was attained innocently and held with no illicit purpose
      and (2) possession of the firearm was transitory- i.e., in light of the
      circumstances presented, there is a good basis to find that the
      defendant took adequate measures to rid himself of possession of the
      firearm as promptly as reasonably possible.

United States v. Mason, 

, 624 (D.C. Cir. 2000). As noted above,

Harkness had a cellular telephone, so he clearly did not “rid himself of possession

of the firearm as promptly as reasonably possible.” 

even if we

recognized this defense, the district court did not err in declining to instruct the

jury on the defense of innocent possession.



                                           13
                                 Sentenced as an ACC

      Harkness was sentenced under the Armed Career Criminal Act (“ACCA”),

which requires a minimum sentence of 15 years’ imprisonment for a violator of 18

U.S.C. § 922(g) that has three previous convictions for “a violent felony or serious

drug offense.” 18 U.S.C. § 924(e)(1). Harkness acknowledges that two of his

convictions are considered violent felonies under the ACCA, but contends that his

felony conviction for leaving the scene of an accident should not be considered

“violent.”

      We review de novo whether a particular offense constitutes a violent felony

under the ACCA. United States v. Rainey, 

, 734 (11th Cir. 2004). A

violent felony is any crime punishable by imprisonment for a term exceeding one

year that “(i) has as an element the use, attempted use, or threatened use of physical

force against the person of another; or (ii) is burglary, arson, or extortion, involves

use of explosives, or otherwise involves conduct that presents a serious potential

risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). After Harkness was

sentenced, the Supreme Court interpreted § 924(e)(2)(B) in Begay v. United States,

__ U.S. __, 

(2008). In holding that a conviction for a felony

offense of driving under the influence of alcohol (DUI) is not a violent felony

within meaning of the ACCA, the Court placed particular emphasis upon the fact



                                           14
that the violent felonies listed in sub-section (ii) are all forms of “purposeful,

violent, and aggressive conduct.” 

      The government concedes that under this new precedent, the district court

erred in labeling Harkness’s felony conviction for fleeing the scene of an accident

a violent felony. Although purposeful, his actions were not “violent” or

“aggressive,” and are therefore unlike the felonies listed in sub-section (ii).

Harkness therefore does not have the requisite three violent felony convictions to

bring him within the ambit of § 924(e)(2)(B). Accordingly, we vacate Harkness’s

sentence under the ACCA and remand to the district court for re-sentencing.

                         Obstruction of Justice Enhancement

      Harkness also argues that the district court erred in concluding that he

obstructed justice when, at the detention hearing, he told the magistrate judge that

he found the gun on motel property and had intended to turn it over to the police.

He contends that this was not obstruction because he admitted possessing the gun,

and in any event his misstatement was not material.

      We review a district court’s factual findings regarding the imposition of an

enhancement for obstruction of justice for clear error, and the district court’s

application of the factual findings to the guidelines de novo. United States v.

Uscinski, 

, 1246 (11th Cir. 2004). An obstruction of justice



                                           15
enhancement applies when the defendant provides “materially false information to

a judge or magistrate.” U.S.S.G. § 3C1.1, comment. (n.4(f)). Leggett’s testimony

at trial established that he purchased the gun for Harkness, and that Harkness’s

statements to the magistrate judge that he found the gun and planned to return it

were therefore false, notwithstanding the fact that he admitted possession.

Moreover, the false statements were material. See U.S.S.G. § 3C1.1, comment.

(n.6) (a material statement is one where, “if believed, [it] would tend to influence

or affect the issue under determination”). The issues of how Harkness acquired the

gun and whether he intended to promptly turn the gun over to the police were

certainly material to both his guilt and sentence. In fact, the defense’s theory at

trial was that Harkness found the gun. We therefore find that the district court did

not err in applying the obstruction of justice enhancement.

                             Acceptance of responsibility

      Finally, Harkness argues that he was entitled to a sentencing reduction for

acceptance of responsibility, pursuant to U.S.S.G. § 3E1.1. He argues that he

acknowledged from the start that he was a felon and was not supposed to have a

gun, but merely went to trial to raise constitutional challenges.

      A defendant bears the burden of showing that he is entitled to an acceptance

of responsibility reduction, and we review the district court’s findings for clear



                                           16
error. United States v. Anderson, 

, 369 (11th Cir. 1994). This court

has acknowledged that a defendant is not to be punished for exercising his

constitutional rights and “if a defendant has shown some sign of remorse but has

also exercised constitutional or statutory rights, the sentencing judge may not

balance the exercise of those rights against the defendant’s expression of remorse

to determine whether the ‘acceptance’ is adequate.” United States v. Rodriguez,

, 197 (11th Cir. 1992). Harkness’s argument, however, is belied by

the record. He did not simply argue that evidence obtained by the police should

have been excluded. Instead, his argument to the magistrate judge and his theory

at trial were that he found the gun and planned to return it to the police. At no time

did he admit to illegally obtaining the gun from Leggett or take responsibility for

his actions. As such, the district court did not commit clear error in declining to

assess a sentencing reduction for acceptance of responsibility.

      For the foregoing reasons, we affirm the district court’s judgment as to all

issues except the determination that Harkness qualified as an Armed Career

Criminal under 18 U.S.C. § 924(e)(1). We therefore remand on that issue to the

district court for resentencing consistent with this opinion.

      AFFIRMED IN PART, VACATED AND REMANDED IN PART.




                                           17