                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 11a0232n.06

                                            No. 07-6014                                    FILED
                                                                                       Apr 14, 2011
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                                  )
                                                           )
       Plaintiff-Appellee,                                 )
                                                           )
v.                                                         )    ON APPEAL FROM THE UNITED
                                                           )    STATES DISTRICT COURT FOR
ALBERT SMITH,                                              )    THE WESTERN DISTRICT OF
                                                           )    TENNESSEE
       Defendant-Appellant.                                )
                                                           )
                                                           )



       Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.


       KETHLEDGE, Circuit Judge. A jury convicted Albert Smith of being a felon in possession

of a firearm, in violation of 18 U.S.C. § 922(g). Smith now argues that we should vacate the

conviction and remand for a new trial because the district court instructed the jury on theories of

constructive and joint possession, which were not supported by the evidence. Smith’s argument is

not supported by our caselaw, so we affirm.

       We review a district court’s choice of jury instructions for abuse of discretion. United States

v. Ross, 502 F.3d 521, 527 (6th Cir. 2007). We may reverse a judgment based on improper jury

instructions “only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.”

United States v. Svoboda, 633 F.3d 479, 483 (6th Cir. 2011). In reviewing the instructions, we
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United States v. Smith

consider whether they “adequately informed the jury of the relevant considerations and provided a

basis in law for aiding the jury in reaching its decision.” Id.

        At trial, the district court instructed the jury on actual, joint, and constructive possession. The

government’s only theory of the case was that Smith actually possessed a gun when he was arrested.

The government requested jury instructions on constructive and joint possession, however, because

Smith’s attorney suggested throughout trial that the gun in question was discovered at Smith’s

friend’s house after the arrest occurred. The district court ultimately instructed the jury, per Sixth

Circuit Pattern Jury Instruction 2.10, that constructive possession means “that the defendant had the

right to exercise physical control over the firearm and knew that he had that right, and that he

intended to exercise physical control of the firearm at some time, either directly or through other

persons.” With respect to joint possession, the court instructed the jury that “two or more people can

together share actual or constructive possession of property.”

        The court erred in giving these instructions. This court has stated that boilerplate instructions

“should not be used without careful consideration being given to their applicability to the facts and

theories of the specific case being tried.” United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir.

1991). Here, the government relied on an actual-possession theory and presented evidence that

Smith had the gun in his back pocket when police arrested him. None of the other facts at trial

supported the additional theories of possession. Smith testified that he had no gun in his pocket, that

police did not find a gun during the arrest, and that he believed the police returned to the house after

the arrest. But, even if we believe Smith, the testimony does not support constructive or joint

possession—it merely raises questions as to where and how officers found the gun. Smith’s attorney

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United States v. Smith

emphasized, during cross-examination of the government’s witnesses, that several other men lived

in the house where Smith was arrested and that Smith’s fingerprints were not found on the gun. The

attorney implied that arresting officers re-entered the house and found a gun—belonging to someone

else—after arresting Smith. This might support a finding that the gun did not belong to Smith and

was not in Smith’s possession. But it does not show that Smith had a “right to exercise physical

control” over a gun found in the house, “knew he had that right,” or “intended to exercise physical

control” over the gun, as required for constructive possession. Nor does it show that Smith jointly

possessed the gun with others.

        In addition, commentary for Instruction 2.10—which covers actual and constructive

possession—states that it is error to give that instruction if the government only presents a theory of

actual possession. Similarly, the note and commentary for Instruction 2.10A, covering actual

possession, state that Instruction 2.10A should be given if the government’s sole theory of possession

is actual because, in such cases, “there is no reason for the additional complexity injected by defining

constructive possession.” Here, the government exclusively relied on an actual-possession theory,

so it was error for the district court to give Instruction 2.10.

        The error, however, was harmless. When there is adequate evidence supporting one jury

instruction and inadequate evidence supporting another, and the only claimed error is the lack of

evidence to support the second theory, we have held that the error is “harmless as a matter of law.”

United States v. Mari, 47 F.3d 782, 786 (6th Cir. 1995) (citing Griffin v. United States, 502 U.S. 46

(1991)). This is because, as the Supreme Court explained in Griffin v. United States, courts assume

that jurors can analyze the evidence and discard factually inadequate theories. See 502 U.S. at 59;

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United States v. Smith

Mari, 47 F.3d at 786 (“[O]n these occasions, the jury will . . . consider the [inadequate] theory, and

then dismiss it for what it is—mere surplusage . . . insufficient to support the conviction”). Here,

the government only argued actual possession, and ample evidence supported that theory, so there

is no reason to think the jury based its conviction on the unsupported theories. See United States v.

Hughes, 134 F. App’x 72, 77 (6th Cir. 2005) (holding that it was harmless error for the district court

to give an unsupported constructive-possession instruction along with an adequately supported

actual-possession instruction).

       Smith relies on a pre-Griffin case, United States v. James, 819 F.2d 674 (6th Cir. 1987), to

argue that the unsupported instructions affected his verdict and thus were not harmless. His case is

distinguishable from James, however, so the argument is unavailing.

       In James, we found that an unsupported constructive-possession instruction prejudiced the

defendant. 819 F.2d at 677. In that case, the district court instructed the jury on actual possession

and the jury deliberated for several hours. Id. at 676. The jury then asked whether a person must

physically hold a gun to possess it. Id. At that point, the judge gave a constructive-possession

instruction and the jury convicted the defendant minutes later. Id. at 676. We held that the

defendant was prejudiced by the instruction, primarily because the circumstances—the jury’s

question and the quick conviction following the incorrect instruction—showed that the jury probably

relied on a theory of constructive possession. Id.

       Here, the record does not show that the jury was confused or that it convicted Smith on a

theory of constructive or joint possession. The government presented a clear actual-possession

argument. The jury arrived at its verdict in less than two hours without asking questions or

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expressing any uncertainty. And the defendant’s testimony did not make constructive or joint

possession particularly tempting (as opposed to the James defendant’s testimony that police found

a gun under his mattress, a situation that could easily involve constructive possession).

        Smith argues that, as in James, the circumstances of his trial show that he experienced actual

prejudice. First, he says that the jury in this case could have believed his plausible testimony that

police never found a gun on him. But the rationale of James was mostly based on the jury’s question

to the court and fast conviction, not James’s testimony. In any case, Smith’s version of the story is

not very plausible, and is contradicted by the testimony of everyone else present during the

arrest—two officers and Smith’s friend. Second, Smith says the erroneous instructions caused his

conviction because there was a hung jury in an earlier trial on this same gun-possession charge. But

the prior hung jury has no bearing on whether the instruction in this trial affected this jury’s verdict.

Third, Smith says his attorney’s arguments at trial confused the jury because they could be misread

as constructive-possession arguments. The record does not support this; the defense merely argued

that the gun did not come from Smith, and suggested that it may have belonged to someone else in

the house.

        In sum, the constructive- and joint-possession instructions were harmless errors under Mari

and Griffin. James is distinguishable from this case: unlike in James, the record here does not

suggest that the jury convicted Smith on the basis of the erroneous instructions, or that the jury

would not have convicted him absent those instructions. We affirm.




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