United States Court of Appeals
For the First Circuit
No. 03-2543
UNITED STATES OF AMERICA,
Appellee,
v.
KENYA TEEMER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, Senior U.S. District Judge]
Before
Boudin, Chief Judge,
Selya, Circuit Judge,
and Schwarzer,* Senior District Judge.
Brett D. Baber, by appointment of the court, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, was on brief for appellee.
January 12, 2005
*
Of the Northern District of California, sitting by
designation.
BOUDIN, Chief Judge. On the afternoon of October 29,
2003, in Portland, Maine, police officer Gayle Petty pulled over a
Mitsubishi hatchback driven by Jason Stubbs. Stubbs' girlfriend,
Amanda Bailey, was sitting in the passenger seat. Kenya Teemer was
sitting in the rear seat immediately behind her. Behind him was
the hatchback's storage area, which arguably could be accessed by
reaching over the rear seats or by folding down either or both of
them.
Petty, who had halted Stubbs for running a stop sign,
took Stubbs' license and found from a radio call that the license
was no longer valid. After the arrival of a second officer (Robert
Hawkins), Petty arrested Stubbs for driving with a suspended
license and put him in her cruiser. At that point, Stubbs told
Petty that he had a gun in the trunk and ammunition in the glove
compartment.
Apparently at the same time, Hawkins asked Bailey and
Teemer to step out of the hatchback "so I can talk to you for a few
minutes, please." Asked whether either had a license (and
therefore could drive the car away), Bailey produced a permit, but
Teemer had no identification. Questioned about this, Teemer gave
his name and birth date and admitted (when asked) that he was on
probation in Georgia. Hawkins then contacted his dispatcher about
Teemer's probation status.
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In the meantime, Petty searched the car, finding an
unloaded AK-47 (a well-known brand of assault rifle) lying flat in
the storage area, a few inches behind the rear seats. Ammunition
was also found scattered about and in a bag in the back, but it was
for a different weapon; in the glove compartment were two loaded
magazines with ammunition for the AK-47. Hawkins then radioed for
a supervisor and, in due course, Sergeant Cady arrived.
Cady asked Teemer about his probation status and the gun
in the car, and Teemer said that Stubbs owned the gun. Cady then
asked Teemer "if his [Teemer's] fingerprints would be found on the
weapon." According to Cady, Teemer answered that "they definitely
would be[,] because he had moved this weapon in Westbrook a few
days earlier"; Hawkins later testified that he overheard Teemer
saying that "he had touched it a few days prior at a friend's house
and it was the seat [sic], and that he had just picked it up to
move it so he could watch a football game."
Cady then called the dispatcher to see whether Teemer's
probation status had yet been clarified and was told that he did
have a felony conviction. Cady testified later that this
information, coupled with Cady's own observation of the rear seats
and the storage area, persuaded him that a case for constructive
possession could be made against Teemer as a felon in possession.
He therefore ordered Teemer's arrest.
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Prior to trial, the district court granted a motion to
suppress statements that Teemer had made at the station house after
his arrest, ruling that they were made after Teemer had expressed
his desire to remain silent. The district court refused to
suppress Teemer's admission made at the scene of the car stop; the
court held that no Miranda warning had been required at the scene
because Teemer had not been subject to custodial interrogation.
About three weeks before trial, Teemer's counsel sought
to withdraw. The district judge questioned both Teemer and his
counsel, who had by then represented Teemer for six months. Based
on the answers given, the district court ruled that no adequate
basis existed to replace counsel and delay the trial; the court
noted that the trial counsel had provided "diligent" and "zealous"
representation (by then, counsel had partially won the motion to
suppress).
At trial, the government relied mainly on Teemer's
admission and on his proximity to the weapon in the car. Stubbs
testified that he had bought the AK-47 and had recently stored it
in the car and in Bailey's apartment in Westbrook, Maine, in which
he and Teemer were staying. He also testified that he himself
sometimes carried the weapon in a box and sometimes not, and that
reaching over the rear seats to access the gun in the back was
impractical because of other items in the storage area.
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Bailey also testified at trial. From the combination of
her trial and grand jury testimony, the jury could have found that
Stubbs and Teemer had gone target-shooting with the AK-47 on two
occasions (although Bailey did not see what role Teemer played) and
that, on one occasion, Teemer had carried the gun into the house.
However, her statements at trial were not wholly consistent with
her grand jury testimony.1
At the jury-instruction stage, Teemer sought an
instruction entitled "Transitory Possession as a Defense" stating:
Evidence may be presented to you regarding
transitory possession. The evidence may tend to show
that the Defendant was touching the firearm merely to
move it out of his way. You are instructed that if a
person has possession of a firearm under certain
circumstances which indicate that he did not have the
intent to do the acts which constitute the possession of
a firearm, that person would not be guilty of the offense
charged. If the actual possession of the firearm by the
Defendant was fleeting without the intent to exercise
control, then this defense is applicable. This defense
is based upon the definitions of actual and constructive
possession, which I gave you earlier. If you find beyond
a reasonable doubt that the Defendant did not have the
specific intent to have a possessory interest in the
firearm and that he did have a "transitory" possession of
the firearm, then you must find him not guilty.
1
Bailey's trial testimony was more qualified and less helpful
to the government than her grand jury testimony; for example, she
said at trial that she had seen Teemer carrying the box rather than
the gun. But her grand jury testimony was read to her at the trial
and, under the hearsay exception associated with the De Sisto case,
was admissible for its truth. Fed. R. Evid. 801(d)(1)(A); United
States v. De Sisto, 329 F.2d 929, 933 (2d Cir. 1964) (Friendly,
J.).
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The district court declined to give this instruction,
providing instead a standard instruction on "possession" which we
reprint in full in an attachment. The key language, following a
statement that possession must be done "voluntarily and
intentionally, and not because of any mistake or accident," was as
follows:
And I instruct you that the term
possess means to exercise authority, dominion,
or control over something. It is not
necessarily the same as legal ownership. The
law recognizes different kinds of possession.
Possession includes both actual and
constructive possession. A person who has
direct physical control of an object on or
around his or her person is then said to be in
actual possession of it.
And I instruct you that a person who is
not in actual possession, but who has both the
power and the intention to exercise control
over something or an object is in constructive
possession of it.
The jury convicted Teemer, who was then sentenced--at the
top of the guideline range--to 41 months' imprisonment. He has now
appealed, claiming that his admission should have been suppressed,
that the subsequent motion to replace his counsel was improperly
denied, and that his proposed instruction on "transitory"
possession should have been given. The last is the most difficult
issue and we begin with it, simplifying matters by assuming that
review is de novo.2
2
Whether an instruction should have been given can involve
abstract questions of law reviewed de novo, United States v.
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From the evidence, the jury had several different paths
that it could have taken to its conclusion that Teemer had
possessed the AK-47: importantly, his own admission that he had
moved the weapon in the apartment so he could sit down, his
proximity to it during the final car ride, a conclusion or
inference (from Bailey's testimony) that Teemer had carried it into
the apartment, and (perhaps) an inference that he had handled or
used it on an outing with Stubbs (again, Bailey's testimony).
Any one of these theories, except perhaps the last, would
be independently adequate; but the second (proximity in the car)
turned in part on ease of access, where the testimony was disputed,
and required an additional inference of intent; and the third
depended inter alia on Bailey's debatable credibility. So the jury
may well have relied upon the first theory (Teemer's admission),
and if there were error in refusing to give the proposed
instruction, we would not accept the government's suggestion that
it was harmless. See Chapman v. California, 386 U.S. 18, 24
(1967); see also Neder v. United States, 527 U.S. 1, 15-16 (1999).
The district court did instruct that intent is necessary
to possession, and that the requisite intent is to exercise
authority, dominion, or control. So, the real bite of the proposed
instruction is its creation of a "defense" that would require the
Woodward, 149 F.3d 46, 68-69 (1st Cir. 1998), and questions of
phrasing and emphasis that are very much judgment calls to be
reviewed with deference, id.
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jury to acquit if it found that the defendant's possession was
"fleeting" or "transitory" and that he did not intend in some more
permanent sense to retain authority over the weapon. This does
arguably fit Teemer's case and would have gone some distance to
negate the adverse impact of his admission.
The district court was correct not to give this proposed
instruction. It could easily exculpate a bank robber who, after
the robbery and on request, picked up another bank robber's gun
from the table and handed it to him. There are plenty of other
situations in which holding a weapon, even briefly and without an
intent to retain it, would nonetheless be unacceptable for a former
felon. Indeed, a number of our cases say, in the context of both
guns and drugs, that the briefest moment of possession may be
enough for a conviction.3
This does not mean that brevity or any other circumstance
must be ignored by a jury in gauging whether intentional possession
occurred--merely that brevity alone does not preclude conviction.
Teemer's approach, by contrast, aims to make brevity controlling,
at least where the defendant does not intend to keep the weapon
permanently. Because his proposed instruction was overbroad, and
3
See, e.g., United States v. Escobar-De Jesus, 187 F.3d 148,
176 (1st Cir. 1999) (guns); United States v. Zavala-Maldonado, 23
F.3d 4, 8 (1st Cir. 1994) (drugs); Santiago v. United States, 889
F.2d 371, 376 (1st Cir. 1989) (drugs).
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therefore incorrect, we could end our inquiry there. See United
States v. Meade, 110 F.3d 190, 202-03 & n.22 (1st Cir. 1997).
But if the conduct to which Teemer confessed were clearly
not a crime, we would be very uncomfortable letting matters stand.
The underlying problem of allegedly innocent possession recurs
intermittently in a variety of forms. See, e.g., United States v.
Kitchen, 57 F.3d 516, 521-25 (7th Cir. 1995); United States v.
Mason, 233 F.3d 619, 622-24 (D.C. Cir. 2000). Indeed, one other
circuit (in Mason) has crafted a defense conditioned on possession
that is both "innocent" and "transitory." 233 F.3d at 624. Thus,
more needs to be said about Teemer's theory than merely to point
out the overbreadth of his own proposal.
With this statute, as with many others, there are
circumstances that arguably come within the letter of the law but
in which conviction would be unjust--arguably so in some cases, and
clearly so in others. Consider if a schoolboy came home with a
loaded gun and his ex-felon father took it from him, put it in
drawer, and called the police; or if a mother--who need not be a
felon to be charged with drug possession--threw into the trash an
envelope of marijuana found in her daughter's bureau drawer.
The common law has created, and federal criminal law has
absorbed, "justification" defenses of necessity and duress, see
Mason, 233 F.3d at 622-23 (citing cases), but neither defense would
encompass the mother, and the father might well have problems with
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the necessity defense, especially if the facts were slightly less
menacing. Most prosecutors and--failing that--most juries would
show good sense in such situations. But sometimes both safeguards
fail. No legislature can draft a generally framed statute that
anticipates every untoward application and plausible exception.
Judges may and often do fill such gaps with glosses and
limitations conveyed in jury instructions, but every such gloss
imports potential problems of its own. We have already pointed out
how easily Teemer's proposed instruction could be misused; and in
an earlier case, this court rejected a general "good purpose"
defense advanced by an ex-felon (there, the felon had taken a gun
from a friend, allegedly to prevent a suicide, but had then stored
the weapon for several weeks). Meade, 110 F.3d at 201-03.
Even the defense adopted in Mason, combining requirements
of innocent acquisition and brevity of retention, could be misused.
It could be read to apply, for example, if Stubbs asked Teemer to
hold the gun for just a moment while Stubbs changed a target,
during an expedition to try out the weapon. If a jury wished to
acquit in such a situation, it could do so; but why should it be
told that it had to?
Neither the language of the felon-in-possession statute,
nor its evident purpose, encourage the court to develop defenses
that leave much room for benign transitory possession. The statute
bans possession outright without regard to how great a danger
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exists of misuse in the particular case. Indeed, one piece of
legislative history of an ancestor statute says that the aim was
"to prevent the crook and gangster, racketeer and fugitive from
justice from being able to purchase or in any way come in contact
with firearms of any kind."4
In this case, the instruction did not say that merely to
touch the AK-47 constituted a crime. The instruction said that
"possession" required the defendant to "exercise authority,
dominion, or control"--giving the jury latitude to employ its
judgment and to conclude that moving the weapon did not constitute
possession. The closing argument for the defense pressed just such
an argument, but the conviction is no surprise: riding around in
a car with an AK-47 is a risky business for an ex-felon.
By contrast, in Mason, the district judge had
affirmatively instructed the jury that "[w]ell meaning possession"
was not a defense, even though the defendant's story was that he
had found the gun in a bag near a school, taken it to protect the
children, and planned to deliver it to the police. One can
understand why the D.C. Circuit was unhappy, even though its
4
Barrett v. United States, 423 U.S. 212, 220 (1976) (quoting
S. Rep. No. 75-1189 at 33 (1937), expressing the intent of 1938
federal gun control law banning "receipt" of a firearm). The
successor 1968 statute, which "enlarged and extended" the earlier
law's scope to include "possession," aimed at "keeping firearms out
of the hands of . . . felons." Id.
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preferred solution (framing a general exception instead of just
reversing the instruction given) is not our own.
Relying upon the jury is reasonable, for common sense is
the touchstone in situations of innocent contact, and the occasions
that might warrant leniency are myriad and hard to cabin in
advance. Assuming that Teemer moved the gun to sit down and did
nothing else (i.e., had never carried it into the house or ridden
with it deliberately in reach), we think that the jury was still
entitled--but not required--to conclude that he had broken the law.
If we were to craft a mandatory safe harbor, it would not include
this case.
No record exists in this circuit of abusive indictments
for innocent contact, let alone convictions, that would warrant an
effort to craft a general limitation. And, so long as judges leave
juries the kind of latitude that the trial judge sensibly did in
this case, it is unlikely that juries will be foolish enough to
convict in cases like the schoolboy or bureau-drawer incidents set
forth above. If the worst happens, the courts are competent to
deal with such cases individually or in gross when they arrive.
Less need be said about the motion to exclude Teemer's
admission at the scene of the car stop. Teemer's position has been
that Cady extracted the admission through "custodial
interrogation," without giving Teemer a Miranda warning of his
right to remain silent and his right to counsel. See United States
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v. Ventura, 85 F.3d 708, 710 (1st Cir. 1996). The district judge
wrote a thoughtful opinion making findings and concluding that the
admission at the scene should not be suppressed.
Factual findings in such a situation are reviewed for
clear error. A district judge's application of a legal label to
the unique facts would ordinarily be reviewed with some deference,
see In re Special Proceedings, 373 F.3d 37, 42 (1st Cir. 2004);
Bergersen v. C.I.R., 109 F.3d 56, 61 (1st Cir. 1997); but in this
kind of case, the Supreme Court has arguably instructed that the
ultimate conclusion be reviewed de novo. See United States v.
Fernandez-Ventura, 132 F.3d 844, 846 (1st Cir. 1998) (citing
Thompson v. Keohane, 516 U.S. 99, 101-02, 114-16 (1995)). We do so
here, but affirm the district court's ruling.
The label "custodial interrogation," like many such
labels (including "possession"), is suggestive rather than precise;
and the purpose as well as the words inform our understanding. The
Miranda doctrine functionally aims to protect defendants in
situations where, in common experience, isolation and the potential
for coercive pressure have been found to exist. New York v.
Quarles, 467 U.S. 649, 654 (1984). The fearsome squad room
interview of an arrestee is the classic case.
Once a formal arrest occurs, Miranda ordinarily comes
into play. Stansbury v. California, 511 U.S. 318, 322 (1994).
Where there has been no formal arrest, this court and others have
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considered a range of factors including (without limitation) where
the questioning occurred, the number of officers, the degree of
physical restraint, and the duration and character of the
interrogation. United States v. Jones, 187 F.3d 210, 218 (1st Cir.
1999). Even pre-arrest questioning at a police station is not
automatically deemed custodial. California v. Beheler, 463 U.S.
1121, 1125 (1983).
Although any restriction on movement might as a literal
matter be labeled "custodial," the Supreme Court has flatly
rejected such an approach, holding that someone questioned at a
routine traffic stop in a non-coercive setting need not be given
the Miranda warning. Berkemer v. McCarty, 468 U.S. 420, 437-40
(1984). In fact, Terry stops, which may be made on reasonable
suspicion rather than probable cause, tend not to be treated as
custodial unless they become unduly prolonged or especially
restrictive. 33 Geo. L.J. Ann. Rev. Crim. Proc. 155-58 & nn.526-
28, 530 (2004) (collecting cases).
In the present case, both the circumstances and the
officers' testimony suggest that Teemer, although not told to
remain, would not have been allowed to leave the scene once
suspicion began to envelop him. But he was not handcuffed, placed
in the police car, or subject to direct physical constraint beyond
being asked not to approach or to communicate with Stubbs after the
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latter's arrest. Teemer and Bailey stood around in the vicinity of
the officers, but not under close guard or direct restraint.
The entire sequence, from car stop to Teemer's arrest,
took slightly over 30 minutes. This is longer than most traffic
stops, but well within the period in which Terry stops have been
treated as valid and not de facto arrests. See United States v.
Owens, 167 F.3d 739, 748-49 (1st Cir. 1999); United States v.
McCarthy, 77 F.3d 522, 530-31 (1st Cir. 1996) (citing cases). Nor
was Teemer subject to systematic interrogation: he was asked a
number of questions at different times on different subjects
(license, probation, the weapon) as the police continued to assess
his status.
We agree with Teemer's claim that a reasonable person in
his position would not have thought himself free to walk away; and,
certainly, once the weapon was discovered, something more than a
routine traffic stop was in progress. But on the broad spectrum
from a speeding ticket to a grilling in the squad room, the events
here were in the Terry stop range and short of any de facto arrest
or custodial interrogation; given this, and that the circumstances
were not inherently coercive, no Miranda warning was required.
Teemer's final claim--that his motion to replace trial
counsel should have been granted--is without merit. Nicholas
Mahoney was appointed as Teemer's attorney on November 1, 2002; at
Teemer's request, Mahoney filed a motion to withdraw on May 14,
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2003, a week after the trial list had set June 2, 2003, as the date
for trial. The district court held an immediate hearing,
conducting it ex parte with the government's consent.
In this meeting, Teemer aired a number of grievances
about his attorney's performance, and the judge considered
Mahoney's explanations for his actions. It is enough to say here
that Mahoney amply justified his actions, and nothing deserving any
serious criticism emerged. The district judge did more than enough
to discharge his duty to explore the situation. See United States
v. Allen, 789 F.2d 90, 92 (1st Cir. 1986); see also United States
v. Myers, 294 F.3d 203, 207 (1st Cir. 2002).
Having questioned both Teemer and his attorney, the
district judge found no irrevocable breakdown in communications
between them, see Myers, 294 F.3d at 208, nor any other cause to
replace the attorney. These are judgment calls that mingle factual
findings and law application; they are reviewed with deference to
the district judge's on-the-scene assessment, see id. at 206-07;
and nothing in this case remotely suggests that the trial judge
erred.
A defendant has no automatic right to replace counsel
and, as trial approaches, the balance of considerations shifts ever
more toward maintaining existing counsel and the trial schedule.
United States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990). On
appeal, Teemer's new counsel says that pro se representation should
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have been explored; but unlike in Proctor, no such request was
made. United States v. Proctor, 166 F.3d 396, 397, 401-02 (1st
Cir. 1999).
Affirmed.
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APPENDIX
Now I instruct you that the word knowingly as it is used
in the indictment means that the act was done voluntarily and
intentionally, and not because of any mistake or accident.
And I instruct you that the term possess means to
exercise authority, dominion, or control over something. It is not
necessarily the same as legal ownership. The law recognizes
different kinds of possession. Possession includes both actual and
constructive possession. A person who has direct physical control
of an object on or around his or her person is then said to be in
actual possession of it.
And I instruct you that a person who is not in actual
possession, but who has both the power and the intention to
exercise control over something or an object is in constructive
possession of it.
Whenever I use the term possession in these instructions,
I mean actual as well as constructive possession. I instruct you
that possession also includes both sole, that is singular, and
joint possession. If one person alone has actual or constructive
possession, the possession is sole. If two or more persons share
actual or constructive possession, possession is joint.
Whenever I have used the word possession in these
instructions, I mean joint as well as sole possession. Now you may
find that the element of possession as that term is used in these
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instructions is present. If you find beyond a reasonable doubt
that the defendant had actual or constructive possession, either
alone or jointly with others, the government I instruct you need
not prove possession by direct evidence. The government may
instead rely on the totality of the circumstances presented by the
evidence in this case.
If reason and common sense leads you to draw the
inference from the facts established that the defendant possessed
the firearm, you may draw such an inference, it's for you to
decide. You are, however, the sole judges of the facts and of the
inferences if any to be drawn from them, and I remind you of that.
An act is done knowingly if it is done voluntarily and
intentionally and not because of a mistake or accident or some
other innocent reason. The purpose of adding the word knowingly in
the indictment and in the statute under which the indictment is
returned is to insure that no one will be convicted for an act done
because of a mistake or an accident or for any other innocent
reason.
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