UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 03-4169
CORNEIL LEON CARTER,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-02-463-A)
Submitted: August 29, 2003
Decided: September 16, 2003
Before LUTTIG and MOTZ, Circuit Judges, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
COUNSEL
David B. Smith, ENGLISH & SMITH, Alexandria, Virginia, for
Appellant. Paul J. McNulty, United States Attorney, Patrick F.
Stokes, Assistant United States Attorney, Alexandria, Virginia, for
Appellee.
2 UNITED STATES v. CARTER
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Corneil Leon Carter was convicted by a jury of possession of a
firearm and ammunition as a felon, 18 U.S.C. § 922(g) (2000), and
sentenced to 110 months’ imprisonment. He appeals, claiming that
the district court erred in instructing the jury on constructive posses-
sion of the firearm.
On December 14, 2001, Alexandria police officer Dara Small
responded to a call reporting that Carter—who was wanted on unre-
lated charges—had been seen at the Braddock Road metro station.
Small arrived at the station, along with Officer McMeans, and began
to search for Carter.
Small saw Carter emerge from behind an elevator shaft and board
a metro train; she got on as well and asked to speak with him. The
two then got off the train and were joined by Officer McMeans.
According to Small, Carter "began to look into the area of the trash
can here and began to slowly move in this direction." Small testified
that Carter gave permission for her to search his backpack, in which
she found a plastic bag containing multiple rounds of ammunition.
Carter was placed under arrest. Small then returned to the area where
Carter was seen just before boarding the train and found a .22 caliber
Ruger revolver in a trash can. Small stated that the trash can was
located in the area where Carter had been standing and that no other
person had been seen in that area. The ammunition found in Carter’s
backpack was later determined to match the gun found in the trash
can.
At trial, the district court instructed the jury on constructive posses-
sion as follows: "A person, although not in actual possession, [who]
knowingly has both the power and the intention at a given time to
exercise dominion and control over a thing, either directly or through
UNITED STATES v. CARTER 3
another person or persons, is then in constructive possession of it."
Carter appeals, claiming that the district court erred in instructing the
jury on constructive possession.
This court reviews a contested jury instruction for abuse of discre-
tion. United States v. Park, 421 U.S. 658, 675 (1975). The judgment
is not subject to reversal if, given the full context of the trial, "the
charge was not misleading and contained an adequate statement of the
law to guide the jury’s determination." United States v. United Med.
& Surgical Supply Corp., 989 F.2d 1390, 1406-07 (4th Cir. 1993)
(quoting United States v. Park, 421 U.S. at 675).
"Constructive possession exists when the defendant exercises or
has the power to exercise, dominion and control over the item[,]"
United States v. Laughman, 618 F.2d 1067, 1077 (4th Cir. 1980), and
has knowledge of the item’s presence. United States v. Bell, 954 F.2d
232, 235 (4th Cir. 1992). Both elements may be established by cir-
cumstantial evidence. United States v. Zandi, 769 F.2d 229, 234-35
(4th Cir. 1985).
The evidence establishing Carter’s constructive possession of the
weapon was compelling. The weapon was found in a trash can near
where Carter had been seen immediately prior to its retrieval; no one
else was seen in the area where the weapon was found; and the
ammunition in Carter’s backpack matched that of the weapon. There-
fore, we find that the district court did not err in instructing the jury
on constructive possession.
Accordingly, we affirm Carter’s conviction. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED