In the
United States Court of Appeals
For the Seventh Circuit

No. 00-4180

United States of America,

Plaintiff-Appellee,

v.

Donald K. Lane,

Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00 CR 53--Barbara B. Crabb, Chief Judge.

Argued June 6, 2001--Decided October 3, 2001



  Before Fairchild, Bauer, and Posner,
Circuit Judges.

  Bauer, Circuit Judge. Donald Lane was
convicted of being a felon in possession
of a firearm in violation of 18 U.S.C.
sec. 922(g)(1). He appeals both his
conviction and his sentence. We affirm.

I.   Background

  Donald Lane knew that as a convicted
felon and a parolee he was not allowed to
possess firearms. But Lane enjoyed
hunting and wanted to accompany his
father and his girlfriend, Diane Stumph,
on a small game hunt for rabbits. On two
occasions, Lane discussed his wishes with
his parole officer and eventually
received permission to observe a hunt
provided that he avoid handling any
firearms.

  On March 18, 2000, Lane and Stumph went
to the Twin Oaks Tavern. While there,
Lane overheard Leroy Bowen discussing his
plans to sell a right-handed .22 caliber
10 shot Ruger. Lane expressed interest in
purchasing it, so Bowen retrieved the gun
from his nearby home. Back at the bar,
Lane removed the gun from its box, held
and inspected it, negotiated a price, and
bought it. Lane says that he bought the
gun for Stumph to use while hunting. He
corroborates this by explaining that the
right-handed gun was useless to Lane, a
left-handed man. Stumph never handled or
examined the gun herself, but did give
Lane money to buy it.

  The gun ended up in Stumph’s car,
although the parties disagree as to how
it got there and the jury made no
specific factual finding resolving the
difference in the stories. The government
presented Bowen’s testimony that Lane re
turned the gun to its box, picked it up
and carried it outside himself. Lane
insists that another man at the tavern,
Russ Swonger, asked Lane if he could look
at the gun. According to Lane, Swonger
picked up the box and both men walked out
of the tavern. Outside, Swonger examined
the gun, returned it to the box, and
without being asked, placed the box in
Stumph’s car. Swonger corroborated Lane’s
recollection. Lane points out that with a
general verdict, we cannot be sure
whether the jury concluded that he
carried the gun to the car, or whether it
based the felon in possession conviction
exclusively on Lane’s examination of the
gun.

  Roughly one month after Lane purchased
the gun, probation and police officers
arrested him for violating parole. Lane
allowed the officers to search the home
he shared with Stumph and officers found
the .22 Ruger in the garage. Lane was
charged with being a felon in possession
of a firearm in violation of 18 U.S.C.
sec. 922(g)(1) and was convicted by a
jury. Lane progressed to the sentencing
stage of his trial. Unfortunately for
Lane, the felon in possession conviction
was not his first brush with the law.
Lane had two prior state felony
convictions, one in January of 1996 and
the other in February of 1996. Realizing
that his prior felonies would lengthen
his sentence, Lane petitioned the court
to disregard his January 1996 conviction,
but the district judge denied his motion.
These prior crimes boosted Lane’s basic
offense level from 20 to 24, and his
criminal history from a Category III to a
Category VI which exposed him to a
sentence between 77 and 96 months rather
than a range of 41 to 51 months.

II.    Discussion

  A.    Possession Standard
  Lane first contends that the district
court misunderstood the legal standard of
possession and as a result, wrongly
instructed the jury and prevented Lane
from presenting a viable trial theory. To
prove that Lane was a felon in possession
of a firearm, the government was required
to show that Lane (1) had been convicted
of a crime punishable by a prison term
exceeding one year and (2) knowingly pos
sessed a firearm (3) that traveled in or
affected interstate commerce. See 18
U.S.C. sec.sec. 922(g)(1), 924(a)(2);
United States v. Phillips, 239 F.3d 829,
847 (7th Cir. 2001). We review Lane’s
legal challenge de novo. See United
States v. Stott, 245 F.3d 890, 904 (7th
Cir. 2001). At trial, the government
agreed to focus only on the incidents at
the Twin Oaks Tavern and not the gun’s
presence in Lane’s garage. We likewise
limit our inquiry.

  At trial, the judge held that
momentarily handling a gun satisfied the
legal definition of "possession" as a
matter of law. While possession can be
actual or constructive, see United States
v. Kitchen, 57 F.3d 516, 520 (7th Cir.
1995), the government has pressed the
actual possession theory. Actual
possession occurs when a defendant
"knowingly has direct physical control
over a thing at a given time." United
States v. Walls, 225 F.3d 858, 864 (7th
Cir. 2000) (citing Kitchen, 57 F.3d at
520). Lane contends that although it is
possible for physical contact to
constitute possession, it does not do so
as a matter of law. According to Lane, he
was entitled to argue that the gun was
not under his control when he held it
because he was merely inspecting a gun
owned by someone else. Lane relies
heavily on Kitchen, 57 F.3d at 518-23, a
drug case, to bolster his reasoning and
to provide an example of a situation when
momentarily holding contraband did not
prove control or possession.

  In Kitchen, the defendant appealed his
conviction for possession of cocaine with
intent to distribute. See 57 F.3d at 518-
19. Kitchen’s conviction stemmed from a
would-be drug transaction, when Kitchen,
a drug buyer, met undercover federal
agents to purchase cocaine from them. See
id. at 519. The agents showed Kitchen the
cocaine, which Kitchen picked up and
inspected for two or three seconds. See
id. However, before Kitchen could
complete the transaction, the federal
agents arrested him. See id. Kitchen
contested his conviction arguing that he
never possessed the drugs despite briefly
handling and inspecting them. We reversed
the conviction, reasoning that Kitchen’s
momentary handling of the cocaine did not
constitute possession in the context of
the 21 U.S.C. sec. 841(a)(1) charge
because Kitchen never exhibited assent to
the drug transaction and therefore never
demonstrated that he had the authority to
exercise control over the cocaine. See
id. at 523. We explained that "we require
. . . some factor indicating that [the
defendant] had the authority or the
ability to exercise control over the
contraband." Id. at 523.

  In Kitchen we also made clear that "[w]e
do not attempt to use the present case to
formulate a rule workable for all
circumstances." Id. We find Lane’s case
to be distinguishable. There is a marked
difference between the steps necessary to
exercise control over drugs and those
necessary to control a gun. To deal with
the "growing menace of drug abuse in the
United States," H.R. Rep. No. 91-1444, at
1 (1970), Congress made it illegal to
possess drugs with the intent to
distribute them. To obtain control over
drugs in this context, a defendant needs
more than just mere physical contact; he
must have the perceived right among the
criminals with whom he is interacting to
deal, use, transport, or otherwise
control what happens to the drugs. See
Kitchen, 57 F.3d at 524. Such control is
not a foregone conclusion when a
defendant’s sole physical contact with
drugs is momentary inspection of drugs he
does not own or over which he did not
have recognized authority. There is a
meaningful distinction between physical
contact and the ability or authority to
control the drugs, so we require proof of
a factor beyond mere physical contact to
show that the defendant exerted authority
or the ability to physically control the
drugs.

  In contrast to drugs, it is much easier
to obtain control and therefore
possession of a gun in the context of 18
U.S.C. sec. 922(g)(1). Congress
originally passed this law as the Federal
Firearms Act of 1938 "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.’" Barrett v.
United States, 423 U.S. 212, 220 (1975)
(quoting S. Rep. No. 1189, at 33 (1937)).
Throughout this Act’s subsequent history,
this purpose has remained constant. See
S. Rep. No. 90-1501, at 22 (1968); H.R. Rep.
No. 99-495, at 1-3. From the purpose of
the Act, it is reasonable to infer that
Congress intended to prohibit felons from
exercising any physical control over a
gun.

  Physical control over a gun is
remarkably easy to effect. Once the gun
is in the defendant’s hands he need only
pull the trigger, an act which can be
completed in a split second and which is
controlled and influenced by nothing more
than the defendant’s whim. Lane protests
that the circumstances surrounding his
inspection of the gun show that he did
not possess it. He points out that he was
merely inspecting the gun and that when
he held the gun it belonged to Bowen. But
none of these circumstances bear on
Lane’s ability to shoot the gun. Felons
handling guns, unlike defendants who have
touched drugs, do not need recognition of
their authority or any extra element to
obtain the ability to shoot the gun. Lane
had just as much control over the gun
when he inspected it while it belonged to
Bowen as he would have if he as the gun’s
owner took aim at a rabbit. Because a
defendant can shoot a gun so quickly and
easily once he holds it in his hands, we
conclude that evidence showing that a
felon held a gun is by itself a "factor
indicating that the defendant had the
ability to exercise direct control over
the [firearm]." The distinction between
holding a gun and obtaining control over
a gun as required to prove possession is
academic. We do not address whether
touching a gun as opposed to holding a
gun mandates the same result.

  Lane asserts that in United States v.
Wilson, 922 F.2d 1336, 1338-39 (7th Cir.
1991) we implicitly decided that
momentarily holding a gun does not
constitute possession as a matter of law.
In dicta, we offered as an example
of"innocent contact" between a felon and
a gun the scenario of a felon momentarily
handling a gun while taking it away from
children who were playing with it. We do
not decide whether this example is
correct because it may implicate a
defense not relevant to Lane’s case. But
as a general proposition of law, this
statement was dicta and put forth without
any reasoning to justify it and we
decline to proceed down this path.

  Our conclusion is further bolstered
because it is consistent with holdings of
two sister circuits. In United States v.
Adkins, 196 F.3d 1112, 1115, 1117-18
(10th Cir. 1999), the Tenth Circuit held
that a convicted felon violated 18 U.S.C.
sec. 922(g)(1) when, in his friend’s
presence, he carried the gun she had just
purchased from the gun store to her car.
Explaining the law, the court stated that
once it was established that a felon held
a gun even "for a mere second or two,"
the felon was guilty of possessing a
firearm unless he truly did not know that
the item was a firearm. See id. In United
States v. Scales, 599 F.2d 78, 80 (5th
Cir. 1979), the defendant was a convicted
felon who purchased a gun for his wife to
use to defend herself. The defendant
advanced the theory that he never
actually possessed the gun because he
never intended to exercise control over
it himself, but only to deliver it to his
wife for her use. See id. He requested
jury instructions stating that possession
required actual control, care, and
management of the gun, not passing
control, fleeting and shadowy in its
nature. The court held that the district
court correctly refused to issue this
instruction. See id. at 81. These cases
are virtually indistinguishable from
Lane’s.

  For the reasons above, we find that
holding a firearm establishes possession
as a matter of law in the context of a
charge under 18 U.S.C. sec. 922(g)(1) and
that neither of the district court’s
challenged rulings were erroneous. This
holding depends heavily on both the
purpose of the law in question and on the
physical nature of guns. For these
reasons, we do not intend to make a rule
that is applicable to other statutes or
physical situations without analysis spe
cific to both.


  B.   Motive Testimony

  The parties’ struggle over the
definition of possession spills into
Lane’s next argument, that the judge
abused her discretion by striking as
irrelevant testimony about Lane’s motive
for purchasing the gun. We review the
district court’s decision to exclude
evidence, such as the motive testimony at
issue here, for an abuse of discretion.
See United States v. Walton, 217 F.3d
443, 449 (7th Cir. 2000). Parties who
challenge a district court’s evidentiary
ruling face an uphill battle. See id.

  Lane offered the motive evidence to show
that he did not possess the gun because
he did not intend to exercise control and
dominion over it. As Lane points out, we
commonly admit evidence of the
defendant’s motive to prove possession in
actual and constructive gun possession
cases. See, e.g., United States v. Joy,
192 F.3d 761, 768 (7th Cir. 1999)
(finding no error when a district court
admitted evidence that the defendant
committed a burglary immediately before
his arrest, thereby providing a motive
for gun possession, making his possession
more likely); United States v. Butler, 71
F.3d 243, 250-51 (7th Cir. 1995) (finding
no error when the district judge admitted
evidence that defendant acted as security
in a gang because it provided a motive
for his gun possession, making it more
likely). These cases differ in one
important way from Lane’s--the motive
evidence was offered by the government to
make more likely the conclusion that the
defendant possessed a gun. Although at
face value, it seems fair to allow a
defendant to make use of the same type of
evidence as the government, a deeper
analysis taking into account the
evidentiary burdens of each party lead us
to the opposite conclusion.

  Because the government has the burden of
proving the elements of the crime beyond
a reasonable doubt, the relevance of its
evidence depends on the elements of the
crime. The defendant bears no such
burden, but if he wishes, a defendant may
rebut the government’s theories or
evidence. Therefore, the relevance of the
defendant’s evidence necessarily depends
in part on the evidence the government
has advanced. In this case, the
government endeavored to prove possession
by bringing direct evidence that Lane
held the .22 Ruger in his hands. Defense
evidence relevant to possession was
needed to rebut the government’s theory.
Had Lane used motive testimony to argue
that he never physically held the gun,
the evidence would have been relevant.
But Lane took a different approach. He
admitted that he knowingly held the gun
but wanted to use the motive testimony to
show that he did not intend to exert
control over the gun. But as we discussed
above, to prove possession, the
government need only establish that Lane
knowingly held the gun. Lane’s motive
evidence was not relevant to the question
of whether he held the gun and was
therefore appropriately refused.

  Lane protests that 18 U.S.C. sec.
922(g)(1) is not a strict liability crime
and that his motive is therefore relevant
to the element of possession. We
disagree. 18 U.S.C. sec. 924(a)(2)
incorporates a general intent
requirement, namely that a defendant must
have known that the object he possessed
was a gun. See Bryan v. United States,
524 U.S. 184, 193 (1998); United States
v. Dodd, 225 F.3d 340, 344 (3d Cir.
2000); United States v. Deleveaux, 205
F.3d 1292, 1298 (11th Cir. 2000); United
States v. Miller, 105 F.3d 552, 555 (10th
Cir. 1997). But this is the only intent
requirement imposed by the statute. See
United States v. Jones, 143 F.3d 1417,
1419 (11th Cir. 1998); Dodd, 225 F.3d at
347; United States v. Langley, 62 F.3d
602, 604-05 (4th Cir. 1995) (en banc).
Lane’s intent to purchase the gun for
Stumph had no bearing on the knowledge
requirement. Because Lane’s motive fails
to address either the possession element
or the knowledge requirement, it is
irrelevant, and the district judge did
not err in excluding it.


  C.   Uncounseled Conviction

  Last, Lane argues that the court erred
when it took his uncounseled prior felony
conviction into account when determining
his sentence. Lane petitioned the
district court to exclude from its
consideration for sentencing purposes his
January 1996 conviction. Lane’s January
1996 trial occurred after the case had
been pending for two years. On the
morning of the trial, Lane asked the
state district court for permission to
dismiss his attorneys. Lane’s counsel
warned him against the dismissal and the
prosecutor made clear that he wanted the
trial to proceed that day even if Lane
had to represent himself pro se because
the witnesses were present. Lane
persisted in his wish to dismiss his
counsel and the judge allowed him to do
so. Although Lane persistently and
clearly requested a delay in the trial so
he could hire new counsel, the state
judge forced Lane to proceed pro se. In
February of 1996, Lane was again in state
court as a defendant in another felony
case. Represented by counsel, Lane pled
guilty to this offense. As part of his
plea agreement, Lane agreed to withdraw
any appeals regarding the January 1996
conviction and to let the conviction
stand.

  Before the district court, Lane argued
that the January 1996 conviction was
obtained in violation of his Sixth
Amendment right to counsel and therefore
should not be considered part of his
criminal history for sentencing purposes.
The judge denied Lane’s petition for
three reasons: (1) Lane was not denied
his Sixth Amendment right to counsel at
his 1996 trial; (2) a defendant cannot
collaterally attack a prior state
conviction during sentencing; and (3)
Lane waived his right to challenge his
1996 conviction in a subsequent plea
agreement. Lane claims that all
threereasons are erroneous.

  We can dispose of this issue by
addressing only the waiver argument.
Because the judge essentially determined
that Lane procedurally defaulted on his
claim by agreeing to waive it in the
February 1996 plea agreement, we review
the issue de novo. See Braun v. Powell,
227 F.3d 908, 911 (7th Cir. 2000). In the
February 1996 plea agreement, Lane agreed
to withdraw "any appeal that has been
heretofore filed on the convictions that
were obtained following his jury trial in
January 25, 1996 . . . [and] to let those
convictions stand as part of his plea
agreement." The government correctly
contends that by the plain language of
the February 1996 plea agreement, Lane
waived his right to appeal directly or
collaterally attack his January 1996
conviction.

  Lane protests that while the plea
agreement waived his right to direct
appeal, he retained the ability to
collaterally attack the conviction. He
bolsters his argument by pointing to
several cases where plea agreements
explicitly waived both the right of
future direct and collateral appeal. But
such explicit language is not required to
waive the right to collaterally attack a
conviction. We settled long ago that
waiving or foregoing a direct appeal bars
collateral attack on the basis of most
issues, even many constitutional issues,
that could have been raised on direct
appeal. See Johnson v. United States, 838
F.2d 201, 202 (7th Cir. 1988) (holding
that a doctor who was convicted of
prescribing amphetamines and barbiturates
without a prescription, and who had filed
an appeal and withdrew it could not later
mount a collateral attack in the form of
a writ of corum nobis based on issues
that were available for direct appeal);
United States v. Behrman, 235 F.3d 1049,
1051-51 (7th Cir. 2000) (holding that a
defendant who signed a plea agreement
waiving his right to appeal also gave up
his right to collaterally attack his
sentence on constitutional grounds not
implicating the validity of the plea
agreement); Daniels v. United States, 54
F.3d 290, 292-93 (7th Cir. 1995) (holding
that a defendant who attempted to mount a
collateral attack on his guilty plea
because the judge purportedly failed to
conduct an adequate Rule 11(d) colloquy
waived his right to do so by failing to
pursue the issue on direct appeal). Lane
was aware of his Sixth Amendment issue
when he signed the plea agreement; thus
he had an opportunity to appeal and
freely waived it.

  We make an exception to the waiver rule
for parties who can show that they had
cause for failing to appeal directly and
that they suffered prejudice from this
omission. See Wainwright v. Sykes, 433
U.S. 72, 84-85 (1976); Johnson, 838 F.2d
at 202-05. Lane does not meet this
standard in part because he cannot show
cause. Lane knew about the purported
Sixth Amendment violation when he signed
the February 1996 plea agreement and
freely chose, on the advice of his
lawyer, to waive his right to appeal. We
routinely allow defendants to waive
constitutional rights in plea agreements,
see Behrman, 235 F.3d at 1052, so the
constitutional nature of Lane’s issue
gives us no particular pause.

AFFIRMED.
  FAIRCHILD, Circuit Judge, concurring.
With all respect, I do not agree with the
unqualified proposition that "holding a
firearm establishes possession as a
matter of law" in the context of sec.
922. I think we must recognize that there
may be circumstances in which a jury
should find that momentary holding would
not constitute forbidden possession.

  As we noted in United States v. Wilson,
922 F.3d 1336, 1338 (7th Cir. 1991), not
every instance of "holding" or "touching"
necessarily demonstrates "possession."
Suppose a felon looking for her keys
discovers them underneath her husband’s
handgun on the kitchen counter. In order
to get her keys, the woman lifts the gun,
pushes it aside, and grabs her keys. In
this scenario, even though she picked up
the gun, she was not asserting control--
momentarily holding the gun was merely
incidental to obtaining her keys. Should
this woman be guilty of possession under
sec. 922(g)? Or consider the hypothetical
considered by this court in Wilson in
which a felon snatches a gun from the
grasp of a child to protect the child.
See id. Should he be guilty of possession
under sec. 922(g)? Or suppose a disabled
person drops his gun and a felon
momentarily handles it while restoring it
to him? These examples, among an endless
array of instances of momentarily holding
a gun without asserting control, see id.,
demonstrate that the distinction between
"holding" a gun and "obtaining control"
over it to establish possession is hardly
"academic." Slip op. at 6.

  Under our precedents, forbidden
possession is demonstrated if a person
has physical control over an object.
United States v. Walls, 225 F.3d 858, 864
(7th Cir. 2000); United States v.
Kitchen, 57 F.3d 516, 520 (7th Cir. 1995)
[It seems to me that there must be an
assertion or exercise of control as well
as an ability]. Until today we have not
limited that standard to the possession
of drugs. Indeed, this circuit’s pattern
jury instructions defining "possession"
of drugs under 21 U.S.C. sec. 841(a)(1)
and "possession" of a firearm under sec.
922(g) are identical (stating that
possession is the ability to control) and
specifically cross-reference each other.
See Fed. Crim. Jury Instructions of the
Seventh Circuit, Nos. 841(a)(1), 922(g)
(1999).

  The court says we do not address whether
touching a gun mandates the same result
as holding one. Slip op. at 6. This
suggests a vague distinction, confusing
to apply. If a felon "inspects" or
"handles" or "moves" a gun, did he in
every circumstance "possess" it as a
matter of law? The court does not succeed
in stating a "bright-line" rule.

  I do, however, concur in the result
reached by the court. Lane’s holding the
gun to inspect it cannot be disassociated
from his negotiation and his decision to
make the purchase, albeit on behalf of
someone else. I can agree that his
handling of the gun was an incident of
his purchase and an assertion of physical
control. Lane argues that the district
court erred by refusing to instruct the
jury that momentarily holding the gun
does not necessarily constitute
possession. But under these
circumstances, the instructions
complained of were not prejudicial
because Lane asserted physical control
over the gun.
