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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