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United States v. Booth

Court: Court of Appeals for the First Circuit
Date filed: 1997-04-10
Citations: 111 F.3d 1
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14 Citing Cases

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 95-2221

                        UNITED STATES,

                          Appellee,

                              v.

              LAMAR R. BOOTH, A/K/A LAMAN BOOTH,
            A/K/A LAMAR COEVAN, A/K/A LAMAR GOVAN,
           A/K/A LAMAR BARTON, A/K/A LOMAR BARTON,

                    Defendant, Appellant.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

       [Hon. Edward F. Harrington, U.S. District Judge]
                                                                  

                                         

                            Before

                    Torruella, Chief Judge,
                                                      
               Campbell, Senior Circuit Judge,
                                                         
                  and Boudin, Circuit Judge.
                                                       

                                         

Diana  L.  Maldonado,  Federal  Defender  Office,  on  brief   for
                                
appellant.
Donald K.  Stern, United  States Attorney, and  Gary S.  Katzmann,
                                                                             
Assistant United States Attorney, on brief for appellee.

                                         

                        April 10, 1997
                                         


     Per Curiam.    Appellant appeals from his  conviction as
                           

a felon in possession of a firearm.  He now contends that the

jury instructions  defining constructive possession  may have

allowed the jury to convict him even if he did  not know that

a  gun was  present within  an area  over which  he exercised

dominion and control.   The instructions in this case  do not

warrant  reversal, but  we write  for the  benefit  of future

cases  to  pinpoint  a  correctable ambiguity  in  previously

approved language.

     Appellant,  a convicted  felon,  was  apprehended  while

driving alone in a stolen  car.  A knapsack was on  the front

passenger  seat,  and it  contained,  among  other things,  a

loaded gun and a  camera.  Appellant denied ownership  of the

knapsack  and its  contents,  but the  film  from the  camera

subsequently  revealed  photos of  appellant.   Appellant was

indicted on counts including felon in possession of a firearm

under 18 U.S.C.    922(g), and,  after a  jury trial, he  was

convicted on that count.

     The   district  court   instructed  the   jury   on  the

requirement of  "knowing" possession as follows.   First, the

jury  was told twice that "the government must prove beyond a

reasonable doubt . . . that the defendant knowingly possessed

a firearm . . . ."  Next, "knowingly" was defined as:

          An act  is done  knowingly if it  is done
          voluntarily  and  intentionally  and  not
          because of mistake or accident.  I'll say
          that again.  An  act is done knowingly if

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          it is done voluntarily  and intentionally
          and not  because of mistake  or accident.
          In  order for  the government  to satisfy
          this  element, it  must  prove  beyond  a
          reasonable doubt that the  defendant knew
          he was possessing a firearm . . . .

And then "possession" was defined as:

          The   law   recognizes   two   kinds   of
          possession,    actual   possession    and
          constructive possession. . . .  Even when
          a  person  does not  actually  possess an
          object,   he   may  be   in  constructive
          possession    of   it.       Constructive
          possession exists when a person knowingly
          has the  power  and the  intention  at  a
          given  time  of  exercising dominion  and
          control over  an object or  over the area
                                                               
          in which the object  is located.  The law
                                                     
          recognizes no  distinction between actual
          and constructive  possession, either form
          of possession is sufficient.   Possession
          of an object may be established by either
          direct  evidence   or  by  circumstantial
          evidence.   It is not  necessary to prove
          ownership  of  the  object,  but   it  is
          necessary  for  the  government to  prove
          beyond a reasonable  doubt [the]  knowing
          possession of [the] object. 

(emphasis added)  Finally, the  jury also was instructed that

"the  government must prove beyond  a reasonable doubt  . . .

that  the defendant's knowing possession of the firearm . . .

was in or affecting commerce." 

     Thus, in  instructing the jury, the  district court said

that  constructive possession exists when a person "knowingly

has the power and the intention at a given time of exercising

dominion and control over an object or over the area in which
                                                                         

the object is located."   Appellant complains belatedly about
                                 

the italicized portion  of the quoted language  on the ground

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that  it might  allow the  jury to  convict if  the defendant

controlled  the area  but did  not know  that the  weapon was

there.

     Although  the  language  in  question is  more  or  less

consistent with United  States v. Wight, 968  F.2d 1393, 1398
                                                   

(1st   Cir.  1992),   it   is  probably   susceptible  to   a

misinterpretation.  The underlying  thought, which is correct

but could be more precisely  conveyed, is that knowledge  can

be inferred in some  circumstances from control of the  area.

See  United States  v. Lochan,  674 F.2d  960, 966  (1st Cir.
                                         

1982).  Wight, despite its literal language, should no longer
                         

be  read as  an  endorsement of  the above-quoted  italicized

language  as  an   independent  definition  of   constructive

possession.    There is  nothing  wrong  with explaining  the

Lochan  inference where  appropriate, and  we do  not suggest
                  

that the Wight language where it has been used in the past is
                          

necessarily reversible error, taking the charge as a whole. 

     In  this case the jury was told several times that proof

of "knowing"  possession was  required; the evidence  linking

appellant  to the gun was substantial; and, given the absence

of a contemporaneous objection, the italicized phrase did not

constitute  plain  error,  creating  a  risk  of  fundamental

unfairness or miscarriage  of justice.  See  United States v.
                                                                      

Hallock, 941 F.2d 36, 42 (1st Cir. 1991).
                   

     Affirmed.  See 1st Cir. Loc. R. 27.1.
                               

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