                           UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 02-4588
JAMES LINCOLN JOYCE,
              Defendant-Appellant.
                                       
            Appeal from the United States District Court
       for the Middle District of North Carolina, at Durham.
               Frank W. Bullock, Jr., District Judge.
                            (CR-00-283)

                       Argued: February 27, 2003

                      Decided: September 17, 2003

Before WIDENER, WILKINSON, and NIEMEYER, Circuit Judges.



Affirmed by unpublished per curiam opinion.


                              COUNSEL

ARGUED: William Carlton Ingram, Jr., OFFICE OF THE FED-
ERAL PUBLIC DEFENDER, Greensboro, North Carolina, for
Appellant. Lawrence Patrick Auld, OFFICE OF THE UNITED
STATES ATTORNEY, Greensboro, North Carolina, for Appellee.
ON BRIEF: Louis C. Allen, III, Federal Public Defender, Greens-
boro, North Carolina, for Appellant. Anna Mills Wagoner, United
States Attorney, Steven H. Levin, Assistant United States Attorney,
Rami S. Madan, Third Year Law Student, Greensboro, North Caro-
lina, for Appellee.
2                       UNITED STATES v. JOYCE
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                              OPINION

PER CURIAM:

   The defendant, James Joyce, appeals his conviction for possession
of firearms as a convicted felon in violation of 18 U.S.C. § 922(g)(1).
Joyce’s first trial ended in a mistrial. Joyce now contends that the dis-
trict court declared the mistrial in bad faith, thereby exposing Joyce
to double jeopardy. Joyce also challenges the jury instructions on con-
structive possession given during his second trial and further contends
that the government presented insufficient evidence regarding the ele-
ment of possession. We conclude that the district court did not abuse
its discretion by declaring a mistrial, which the defense had stated it
was prepared to request and to which it did not object. We also are
of opinion that the jury instructions in the second trial adequately
stated the controlling law on constructive possession and that the evi-
dence presented was sufficient to support the jury’s verdict that Joyce
possessed the firearms.

                                   I.

   On January 10, 2000, law enforcement officers executed a search
warrant on a home occupied by James Joyce, his girlfriend, Karen
Lanier, and Joyce’s son from a previous marriage. When officers
arrived they searched the home for marijuana and discovered two fire-
arms in a dresser containing only men’s clothing located in a bedroom
shared by Joyce and Miss Lanier. One firearm, a .38 caliber Taurus
revolver, was wrapped in a T-shirt; the other firearm, a .25 caliber
ACP handgun, was found in another drawer which contained either
socks or underwear.

   On August 28, 2000, a grand jury indicted Joyce with knowingly
possessing a firearm after having been convicted of a felony in viola-
tion of 18 U.S.C. § 922(g)(1). On September 25, 2000, a superseding
indictment was filed that added an additional count charging Joyce
                        UNITED STATES v. JOYCE                        3
with willfully, knowingly, and intentionally possessing with the intent
to distribute less than 50 kilograms of marijuana in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(D).1

   On November 14, 2000, Joyce pleaded guilty to Count Two (the
drug possession count) and went to trial on Count One (the firearms
possession count). The issue in dispute at the trial was whether Joyce
knowingly possessed the two firearms. On November 15, 2000, the
judge instructed the jury, including actual and constructive posses-
sion, and he released the jury to deliberate at 10:40 a.m.

   During deliberations, the jury submitted two questions to the court:
"Can we get a definition of ‘constructive possession’?" and "Do we
have to prove intent?" In response to the questions, the judge repeated
the instructions on constructive possession and intent and stated that
the jury should not give more emphasis to that portion of the charge
than the entire body of the charge. The jury went out again to deliber-
ate at 11:25 a.m.

   At 12:40 p.m., the jury submitted two more questions, one of
which asked whether they could go to lunch. The court allowed them
to go to lunch and told them that their second question would be
answered after they returned from lunch. After the jury was dismissed
for lunch, the court discussed the jury’s second question, "Is there a
legal definition of intent?" with the attorneys. The court examined
case law on constructive possession from the Fifth, Sixth, Eighth, and
Tenth Circuits and concluded that "[n]one of those cases speak of
intent to do anything at any particular time." The court further stated
that he could not find very much Fourth Circuit case law on the issue
of constructive possession and intent. When the jury returned from
lunch, the court answered the jury’s question by stating that there was
nothing more that it could say to answer their question on the defini-
tion of intent.
  1
   During the January 10, 2000 search, officers also had found two
pounds of marijuana outside the residence. In addition, officers discov-
ered a set of triple beam scales used to weigh contraband located in the
bathroom next to Joyce’s bedroom and six plastic bags containing mari-
juana residue in the kitchen of the residence.
4                       UNITED STATES v. JOYCE
   At 2:00 p.m., the jury again left to deliberate. While the jury was
deliberating, the court continued to discuss the jury’s question with
the parties. The jury then sent in a note stating, "We are dead-locked.
What are your suggestions?" The judge told the parties that he would
give the jury an Allen2 charge, ask them to deliberate further, and if
the jury was still deadlocked, he was inclined to discharge them. The
defense indicated that it was prepared to move for a mistrial based on
the jury’s inability to reach a decision. The government stated that its
only concern was that it would like to be able to retry the case at a
later date. The court indicated that he was "not interested in retrying"
the case and wanted a verdict. The court then gave the jury an Allen
charge, to the wording of which there was no objection.

   After the jury deliberated further, the court received a note stating
that the jury was still divided and that it did not appear that they were
going to be able to reach a verdict. The note apparently gave the divi-
sion of the jury, which fact was not related to the attorneys by the
judge. The court then declared a mistrial, to which neither party
objected.

   On December 4, 2000, a second jury trial was held. During the
trial, Billy Parker, Jr., a Sergeant with the Rockingham County Sher-
iff’s Department, testified that he and three other law enforcement
officers searched Joyce’s home on January 10, 2000. Parker testified
that during the search Joyce had told him that the rent for the home
was in his name and that his girlfriend and son also lived there. Parker
further stated that he discovered the .38 caliber Taurus revolver
wrapped in a T-shirt on a shelf in the bedroom dresser which con-
tained only men’s clothing.

   Phillip Smith, a member of the Rockingham County Sheriff’s
Department, who also searched Joyce’s home, testified that he had
found the .38 caliber Taurus revolver on the right side of the dresser
wrapped in a T-shirt. Smith also testified that another revolver was
found in a drawer on the left side of the same dresser. Smith further
stated that the dresser in which both firearms were discovered con-
tained only men’s clothing.
    2
   Allen v. United States, 164 U.S. 497 (1896), concerns a charge to a
jury unable to reach a decision.
                        UNITED STATES v. JOYCE                        5
   The government also called Ricky Navarro, a special agent in the
latent evidence section of the North Carolina State Bureau of Investi-
gations, who testified as an expert in the field of latent fingerprint
examination. Agent Navarro testified that he lifted a whorl type fin-
gerprint pattern from one of the guns but he was unable to identify
Joyce as being the contributor or eliminate Joyce as the contributor
of the fingerprint.

   The defense called Miss Lanier, who testified that she owned the
mobile home that had been searched. Miss Lanier also testified that
she had purchased the .38 caliber Taurus revolver from a man named
James Brooks who died in 1990 and that she had received the .25
automatic as gift from her fiance, a man named Jerry Merriman. Miss
Lanier further testified that she kept the two firearms between the
mattress and box spring of her bed when Joyce and she first began
living together. She stated that on December 24, 1999, she received
new bedroom furniture and placed both guns in the sock drawer of the
new bedroom dresser. On cross-examination, Miss Lanier testified
that she did not remember wrapping the .38 caliber in a T-shirt and
also testified that the T-shirt belonged to Joyce.

   Sergeant Parker testified that Miss Lanier told him that she had
received the .38 caliber from a man who had died but that she did not
have any paperwork to prove that she had purchased the gun. Parker
further stated that Miss Lanier told him that she had received a .25
caliber from a man named Merriman who had lived in Martinsville,
Virginia, but she could not tell Parker his address or phone number.
Parker testified that he had attempted to trace the information given
to him by Miss Lanier by running the names through a computer sys-
tem but Parker could not locate the individuals, nor could he find their
names in the computer system.

  On December 5, 2000, the jury returned a guilty verdict. On March
26, 2001, the district court imposed a 144 month term of imprison-
ment, which included 72 months on Count One and 72 months on
Count Two, to run consecutively. The court also imposed seven years
of supervised release and a $200 special assessment. On July 30,
2002, Joyce filed a notice of appeal.
6                       UNITED STATES v. JOYCE
   On February 27, 2003, this case was argued orally. After oral argu-
ment, on March 24, 2003, Joyce’s appellate counsel filed a motion to
withdraw as counsel.3 On April 9, 2003, we granted counsel’s motion
to withdraw and allowed Joyce to proceed pro se. We also directed
Joyce to file a supplemental brief on or before May 8, 2003, advising
the court which issues presented for appeal he wished this court to
consider. On April 28, 2003, Joyce filed a supplemental brief in
accordance with our instructions, asking us to address the issues of
double jeopardy, insufficiency of the evidence supporting his convic-
tion, and erroneous jury instructions, which he had raised in a pro se
brief filed on January 3, 2003.4

                                   II.

   On appeal, Joyce argues that the judge declared a mistrial in bad
faith, thereby exposing Joyce to double jeopardy during his second
trial. Joyce argues that the judge knew that he had incorrectly
instructed the jury on constructive possession and that he had held the
government to a more stringent standard than required by the Fourth
Circuit. Joyce further asserts that the judge also believed that there
was sufficient evidence upon which to convict Joyce and he knew that
a majority of the jurors wanted to acquit Joyce. As a result, Joyce
contends that the court declared a mistrial in order to "afford the pros-
ecution a more favorable opportunity to convict [him]." See Downum
v. United States, 372 U.S. 734, 736 (1963). We review the district
court’s decision to grant a mistrial for an abuse of discretion. See
United States v. West, 877 F.2d 281, 287-88 (4th Cir. 1989).

   As the Court has stated, the "general rule is that the defendant’s
motion for, or consent to, a mistrial removes any double jeopardy bar
to reprosecution." Oregon v. Kennedy, 456 U.S. 667, 683 (1982)
(Powell, J., concurring). An exception to this rule exists for prosecu-
torial or judicial conduct provoking a mistrial. See United States v.
Ham, 58 F.3d 78, 83 (4th Cir. 1995) (citing Kennedy, 456 U.S. at
  3
    Joyce also filed a motion to strike the supplemental brief filed on
March 3, 2003. We grant this motion.
  4
    If our statement of facts and the procedure followed may seem unduly
detailed, it has been because of the insistence of Joyce that the district
court acted in bad faith in declaring a mistrial in the first trial.
                         UNITED STATES v. JOYCE                           7
676). Therefore, the defense having stated that it was prepared to
move for a mistrial and not objecting once a mistrial was declared,
double jeopardy would not bar Joyce’s second trial unless the judge
acted in bad faith as Joyce claims.

   We are of opinion that the district judge did not act in bad faith.
After the jury indicated that it was deadlocked and the defense stated
that it was prepared to move for a mistrial, the judge stated that he
believed that a mistrial was not then necessary but the jury should be
given an Allen charge and be allowed to deliberate further. The judge
did not declare a mistrial until he had received another note from the
jury indicating that it was still divided and that it did not appear as
though they were going to reach a verdict. Thus, the judge’s decision
to declare a mistrial was not an abuse of discretion, nor did the mis-
trial bar reprosecution. There is simply no evidence of bad faith in the
decision of the district judge declaring a mistrial.

                                    III.

  Joyce also challenges the jury instructions given at his second trial.5
  5
    While the argument of Joyce is not altogether clear, it is clear that he
urges that the district court erred by not repeating the instructions given
at the first trial. It may be that the argument is that the case of United
States v. Blue, 957 F.2d 106 (4th Cir. 1992), is more favorable to his case
than the instructions given. Blue was set in facts entirely different from
those here, and in a case more factually similar to the case at hand,
United States v. Gallimore, 247 F.3d 134 (4th Cir. 2001), that same argu-
ment was specifically rejected by this circuit at 247 F.3d 134, n.1, which
case, incidentally, included language describing a § 922(g)(1) violation
almost letter for letter in the words of the instruction given in the second
trial of this case.
   If the real objection is the omission from the instructions in the second
trial of the words "power and intention at a given time," Br. of Jan. 3,
2003, p.23, that phrase was apparently picked up from the case of United
States v. Terry, 911 F.2d 272 (9th Cir. 1990), which is not the law in this
circuit. The district court did not err by omitting it from the instructions
in the second trial.
   In all events, because the instructions in the second trial were correct,
the district court did not err in declining to repeat the instructions given
in the first trial.
8                       UNITED STATES v. JOYCE
He contends that the court erred by failing to focus on his intent and
by failing to include an instruction on his intent to exercise dominion
or control over the firearms. Joyce further argues that the court should
have instructed the jury that it must find evidence that Joyce did, in
fact, exercise dominion and control over the firearms. Finally, Joyce
argues that the district court erred by not giving the instructions that
the court had given during Joyce’s first trial, which focused on intent.
In reviewing jury instructions, we "accord the district court much dis-
cretion and will not reverse provided that the instructions, taken as a
whole, adequately state the controlling law." Teague v. Bakker, 35
F.3d 978, 985 (4th Cir. 1994).

  The district court instructed the jury with regard to intention and
possession as follows:

    With respect to the second element, that the defendant
    knowingly possessed the firearm. The term "knowingly"
    means that the act was done voluntarily and intentionally
    and not because of mistake or accident.

                                 ***

       Now the law recognizes two kinds of possession, actual
    possession and constructive possession. The government
    relies on constructive possession in this case. Constructive
    possession exists when a person has the power to exercise
    dominion or control over a thing or the premises in which
    the thing is located and has knowledge of the things present.
    Mere presence of a thing without the right to exercise
    dominion or control over it is not sufficient to establish con-
    structive possession.

       The law also recognizes that possession may be sole or
    joint. If one person alone has constructive possession of a
    thing, possession is sole. If two or more persons share con-
    structive possession, as that term is used these instructions,
    is present if you find beyond a reasonable doubt that the
    defendant had constructive possession either alone or jointly
    with others.
                        UNITED STATES v. JOYCE                         9
   We are of opinion that the district court did not err by giving these
instructions. We have held that proof of actual or exclusive posses-
sion of a firearm is not necessary and that proof of constructive or
joint possession is sufficient to establish a violation of § 922(g)(1).
See United States v. Gallimore, 247 F.3d 134, 136-37 (4th Cir. 2001).
Furthermore, we held that the "[g]overnment may prove constructive
possession by demonstrating that the defendant exercised, or had the
power to exercise, dominion and control over the item." Gallimore,
247 F.3d at 137 (internal citations omitted); see also United States v.
Shorter, 328 F.3d 167, 172 (4th Cir. 2003). Thus, we are of opinion
that the district court’s jury instructions, taken as a whole, adequately
stated the controlling law on constructive possession under 18 U.S.C.
§ 922(g)(1).

                                  IV.

   Finally, Joyce argues that the government presented insufficient
evidence during the second trial to convict him of possession of a fire-
arm in violation of 18 U.S.C. § 922(g)(1). In reviewing a conviction
for sufficiency of the evidence "[t]he verdict of a jury must be sus-
tained if there is substantial evidence, taking the view most favorable
to the government to support it." Glasser v. United States, 310 U.S.
60, 80 (1942). To establish a violation of 18 U.S.C. § 922(g)(1), the
government must show, beyond a reasonable doubt, that (1) the
defendant was a convicted felon at the time of the offense; (2) the
defendant voluntarily and intentionally possessed a firearm; and (3)
the firearm traveled in interstate commerce at some point. See Galli-
more, 247 F.3d at 136. Joyce challenges only the sufficiency of the
evidence supporting the requirement that he voluntarily and intention-
ally possessed the two firearms.6

  The evidence presented at trial suggests that, although Joyce did
not own the mobile home in which the firearms were discovered,
Joyce was a regular occupant of the home. Joyce also slept in the bed-
room in which the weapons were found. The government also pre-
sented evidence that the firearms were located in a dresser containing
  6
    The parties stipulated that Joyce had been convicted of a felony on
June 2, 1995 in Rockingham County Superior Court. The parties also
stipulated that both firearms traveled in interstate commerce.
10                       UNITED STATES v. JOYCE
only men’s clothing. In addition, Miss Lanier testified that the T-shirt
in which the .38 caliber was wrapped belonged to Joyce and that she
did not remember wrapping the firearm in the T-shirt. Miss Lanier
also testified that she had placed both firearms in the same dresser
drawer, while both officers, who had discovered the firearms, testified
they found the firearms in two different areas of the dresser. Further-
more, although Agent Navarro could not conclusively say that a
whorl type fingerprint found on the .38 caliber came from Joyce,
Navarro also could not eliminate Joyce as the contributor of the fin-
gerprint. Finally, the evidence supports a jury determination that
Joyce had knowledge of the firearms because they were located in a
dresser containing his clothing, where he would have seen them. See
United States v. Kitchen, 57 F.3d 516, 519-21 (7th Cir. 1995) (finding
sufficient evidence of constructive possession where firearm was
found in bedroom dresser in home defendant shared).

   Thus, after viewing the evidence in the light most favorable to the
government, we are of opinion that the government presented sub-
stantial and sufficient evidence to support the verdict.

     Accordingly, the judgment of the district court is

                                                          AFFIRMED.
