              Case: 13-15404    Date Filed: 05/06/2014   Page: 1 of 8


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 13-15404
                            Non-Argument Calendar
                          ________________________

                     D.C. Docket No. 1:13-cr-20281-JEM-1

UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                      versus

OCTAVIOUS ANDREWS,

                                                             Defendant-Appellant.

                          ________________________

                   Appeal from the United States District Court
                       for the Southern District of Florida
                         ________________________

                                  (May 6, 2014)

Before TJOFLAT, WILSON and JORDAN, Circuit Judges.

PER CURIAM:

            Octavious Andrews appeals his conviction for possession of a firearm

and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1).
              Case: 13-15404    Date Filed: 05/06/2014   Page: 2 of 8


                                            I.



      In 2013, Andrews was charged with possession of a firearm and ammunition

by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The government

alleged that it had discovered two firearms and eight rounds of .22 caliber

ammunition pursuant to a consent search of the residence leased by Andrews’s

girlfriend, Taryn Young, while Andrews was present there. Prior to trial, the

government and Andrews jointly submitted the following proposed jury

instruction, based on the Eleventh Circuit Pattern Jury Instruction, regarding the

possession element of Andrews’s offense:

             The law recognizes several kinds of possession. A person may
      have actual possession, constructive possession, sole possession, or
      joint possession.
             ‘Actual possession’ of a thing occurs if a person knowingly has
      direct physical control of it.
             ‘Constructive possession’ of a thing occurs if a person doesn’t
      have actual possession of it, but has both the power and the intention
      to take control over it later . . . .
             Possession of a thing cannot be established, however, by a
      person’s mere presence near that thing.

      At trial, and before the jury was instructed, Andrews submitted the following

additional proposed jury instruction:

            Possession may be actual or constructive. Constructive
      possession exists when a person exercises dominion or control over
      the contraband itself, or the premises in which the contraband is
      concealed.


                                        2
               Case: 13-15404     Date Filed: 05/06/2014   Page: 3 of 8


            Dominion and control are not established by mere proximity to
      the contraband, mere presence on the property where it is located, or
      mere association with the person who controls the property.
      Furthermore, ambiguous and even suspicious circumstances cannot
      support a finding of possession unless those circumstances prove
      beyond a reasonable doubt that the defendant exercised dominion or
      control over the contraband.

The district court denied Andrews’s request to include the additional instruction,

noting that the existing constructive-possession instruction “accurately reflects the

law,” and instead provided the original instructions that Andrews and the

government had submitted.

      Following the instructions and during its deliberations, the jury submitted,

inter alia, the following question to the court:

      Please provide clarification on the language under “constructive
      possession” on power and the intention to take control over it later. It
      feels like “intention” is a hypothetical. Is this true? Or should we be
      thinking about this in another way?

Following this question, Andrews requested that instructions be given to clarify

that a defendant’s mere presence or “mere knowledge” of the existence of a

firearm on the property was not, by itself, sufficient to establish possession. Also,

he requested that the court respond to the jury’s question by providing the

instruction from his earlier submission. Andrews stated that this instruction was

based on this Court’s conclusion in United States v. Mieres-Borges, 919 F.2d 652,

658 (11th Cir. 1990), that the proximity of a defendant’s boat to drugs in issue was

not, by itself, sufficient to establish constructive possession. The district court
                                           3
                Case: 13-15404       Date Filed: 05/06/2014       Page: 4 of 8


denied Andrews’s request to include the additional instruction, reasoning that the

facts of Mieres-Borges were not analogous to Andrews’s returning to his

girlfriend’s residence, where he sometimes visited or resided. 1 The jury found

Andrews guilty on this count, and the court sentenced him to 96 months’

imprisonment.

       On appeal, Andrews challenges the district court’s refusal to give his

proposed jury instruction that a defendant’s “mere association” with a person

controlling a firearm is insufficient to establish constructive possession under

§ 922(g)(1). Andrews argues that the district court’s given jury charge on

possession, which included the Eleventh Circuit Pattern Jury Instruction and

contained a “mere presence” instruction, was inadequate to substantially cover the

substance of his proposed “mere association” instruction because the concepts of

presence and association are distinct, and the jury’s questions indicated that it

needed additional guidance on the meaning of possession.

                                                   II.



       1
           The government requested that the court provide the jury with examples of constructive
possession from the Eleventh Circuit criminal handbook and an instruction that the government
need not prove a defendant’s actual possession, both of which the court denied. Instead, the
district court responded to the jury’s questions as follows:
         While I am not sure I fully understand your two questions, I refer you to the
         Court’s instructions on page 10, while bearing in mind that you must consider all
         of the Court’s instructions as a whole and may not single out or disregard any of
         the Court’s instructions. If you want to clarify your questions, I would be happy
         to answer them.
                                               4
              Case: 13-15404      Date Filed: 05/06/2014   Page: 5 of 8


      “We review a district court’s refusal to submit a defendant’s requested jury

instruction for an abuse of discretion.” United States v. Dominguez, 661 F.3d

1051, 1071 (11th Cir. 2011). A district court’s decision will not be disturbed if it

falls within a range of possible conclusions that do not constitute a clear error of

judgment. United States v. Lopez, 649 F.3d 1222, 1236 (11th Cir. 2011) (citing

United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc)). In

determining whether the district court abused its discretion, we consider: “(1)

whether the requested instruction is a substantially correct statement of the law; (2)

whether the jury charge given addressed the requested instruction; and (3) whether

the failure to give the requested instruction seriously impaired the defendant’s

ability to present an effective defense.” Dominguez, 661 F.3d at 1071 (citation

omitted). Although a defendant is entitled to have instructions given relating to a

theory of his defense if there is a supportive foundation in the evidence, a district

court is afforded broad discretion in formulating its jury charge. United States v.

Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (per curiam). A theory-of-defense

charge is not warranted if “the charge given adequately covers the substance of the

requested instruction.” United States v. Ndiaye, 434 F.3d 1270, 1293 (11th Cir.

2006).

      Section 922(g)(1) requires that a defendant have been in knowing possession

of a firearm. 18 U.S.C. § 922(g)(1); see United States v. Beckles, 565 F.3d 832,


                                           5
              Case: 13-15404     Date Filed: 05/06/2014    Page: 6 of 8


841 (11th Cir. 2009). Possession may be either actual or constructive. United

States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011) (per curiam). The government

demonstrates constructive possession if it can show that the defendant “was aware

or knew of the firearm’s presence” and “had the ability and intent to later exercise

dominion and control over [the] firearm.” Id. However, a defendant’s “mere

association” with a person actually possessing the firearm at issue is insufficient,

by itself, to establish constructive possession under § 922(g). Id.

      We have held that it is not an abuse of discretion for a district court to give

the Pattern Instruction on constructive firearm possession, even if the district court

declines to include verbatim a specific instruction requested by a defendant in

support of his defense theory. See United States v. Woodard, 531 F.3d 1352,

1364–65 (11th Cir. 2008) (affirming the district court’s denial in part of a

defendant’s request for a “mere presence” instruction to support his defense theory,

as it was substantially covered by the pattern instruction requiring a defendant to

have “the power and the intention to later take control” over a firearm).

                                           III.

      Upon review, we find that the district court did not abuse its discretion in

declining to give Andrews’s proposed instruction that a defendant’s “mere

association” with a person controlling a firearm is insufficient to establish

constructive possession under § 922(g)(1). First, the jury charge that the district


                                          6
              Case: 13-15404     Date Filed: 05/06/2014    Page: 7 of 8


court gave—initially proposed by both parties— was a “substantially correct

statement of the law.” Dominguez, 661 F.3d at 1071. Second, the jointly

requested instruction was comprised of the Pattern Instruction regarding the

definition of possession in its entirety, and encompassed Andrews’s proposed

instruction regarding “mere association,” which the court was not required to

include. See Woodard, 531 F.3d at 1358, 1364. Andrews’s concern was ensuring

the jury understood that it could not convict him of possessing the rifle and

ammunition merely on the basis of his association with Young. However, the

court’s given instruction adequately covered the substance of Andrews’s proposed

instruction because the instruction expressly required that a person have both the

power to possess a firearm and the intention to take control over it later. See

Dominguez, 661 F.3d at 1071. Neither of these requirements would have been

satisfied by Andrews’s mere presence on the premises or association with its

occupants. This conclusion is consistent with our Court’s holding that a district

court did not abuse its discretion in declining to give a requested “mere presence”

instruction because it was substantially covered by the court’s pattern instruction

including the same power and intention prerequisites. See Woodard, 531 F.3d at

1364-65.

      Third, given that Andrews, as the lessee’s boyfriend, was present at the

residence at least every weekend as a houseguest, there is little functional


                                          7
                Case: 13-15404    Date Filed: 05/06/2014    Page: 8 of 8


distinction between Andrews’s “mere presence” at the residence, included in the

court’s instructions, and his “mere associations” with its occupants. Therefore, it is

clear that the court’s failure to give the requested instruction did not “seriously

impair[] the defendant’s ability to present an effective defense.” Dominguez, 661

F.3d at 1071.

      Finally, there is little basis for concluding, as Andrews contends, that the

jury was confused concerning his association with Young based on its question

submitted to the court during deliberations. If anything, the jury’s question

suggests that it was grappling with the issue of whether or not Andrews had

intended to later take possession of the revolver, rifle, or ammunition discovered at

Young’s residence. This was not conceptually related to inferring possession from

Andrews’s association with Young, nor could it have been clarified by Andrews’s

proposed instruction.

      For the aforementioned reasons, the district court did not abuse its discretion

by failing to give Andrews’s request jury instruction. Accordingly, we affirm.

      AFFIRMED.




                                           8
