                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                     FILED
                                                              U.S. COURT OF APPEALS
                                 No. 09-12686                   ELEVENTH CIRCUIT
                                                                    MAY 11, 2010
                             Non-Argument Calendar
                                                                     JOHN LEY
                           ________________________
                                                                      CLERK

                      D.C. Docket No. 07-00311-CR-RWS-1

UNITED STATES OF AMERICA,

                                                            Plaintiff-Appellee,

                                        versus

MARLANDOW JEFFRIES,

                                                            Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Georgia
                          ________________________
                                  (May 11, 2010)

Before CARNES, MARCUS and COX, Circuit Judges.

PER CURIAM:

      Marlandow Jeffries was convicted for: possession of cocaine with intent to

distribute, in violation of 21 U.S.C. 841(a)(1); possession of a firearm by a felon, in

violation of 18 U.S.C. § 922(g); assaulting, resisting, or impeding a deputy United
States Marshal, in violation of 18 U.S.C. § 111; and brandishing a firearm during a

crime of violence or a drug trafficking crime, in violation of 18 U.S.C.

924(c)(1)(A)(i). The district court sentenced Jeffries as a career offender to a 360-

month prison sentence.

      Jeffries presents a single issue on this appeal: he contends that the district court

erred by failing to give a jury instruction on “mere presence” and “mere association”

because that was the defense theory of the case and there was an evidentiary

foundation for such an instruction.

      At the charge conference, Jeffries requested no instructions, and did not object

to the instructions the court proposed to give. (R.9-124 at 230.) The court’s

instructions to the jury included the following:

      The law recognizes several kinds of possession. A person may have
      actual possession or constructive possession. A person may also have
      sole possession or joint possession. A person who has direct physical
      control of something on or around his person is then in actual possession
      of it. A person who is not in actual possession, but who has both the
      power and the intention to later take control over something either alone
      or together with someone else, is in constructive possession of it. If one
      person alone has possession of something, possession is sole. If two or
      more persons share possession, possession is joint. Whenever the word
      “possession” has been used in these instructions it includes actual as
      well as constructive possession, and also sole as well as joint possession.




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(R.2-91 at 12-13.) The jury was told that the word “knowingly” meant “that the act

charged in the indictment was done voluntarily and intentionally and not because of

mistake or accident.” (Id. at 20.)

      The jury sent a question to the judge during deliberations asking: “Is knowing

the gun is there, is that enough for knowingly possessed?” (R.10-125 at 242.) The

judge referred the jury to the pages of the jury instructions that defined “possession”

and “knowingly.” (Id. at 243.) Neither party objected. (Id.) The jury was told that

although the initial possession instruction was given after summarizing the law on

possession of drugs and possession of firearms, the definition of “possession” applied

to both charges. (Id. at 244.) The court told the jury to look over the definitions it

had given, and cautioned jurors to consider the definitions in the context of the entire

charge. (Id.)

      Jeffries argues that the district court committed plain error by failing to sua

sponte instruct the jury on the defense theory of the case. More specifically, Jeffries

argues that the court should have instructed the jury regarding “mere presence” and

“mere association” with respect to his presence at the crime scene and his proximity

to guns and drugs found there because evidence presented at trial established an

evidentiary foundation for this instruction. The standard of review is plain error.

United States v. Moore, 525 F.3d 1033, 1048 (11th Cir. 2008). To establish plain

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error, Jeffries’ must demonstrate: (1) there is an error; (2) which is plain; (3) that

seriously affects the substantial rights of the defendant; and (4) failure to correct the

error would seriously affect the fairness of the judicial proceeding. Id. (citation

omitted). We examine jury instructions to determine if, taken as a whole, the jury was

sufficiently instructed to understand the issues and was not misled. United States v.

Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (citation omitted). “If the charge to

the jury adequately and correctly covers the substance of the requested instruction,

there is no reversible error.” United States v. Lively, 803 F.2d 1124, 1128 (11th Cir.

1986). And, a jury is presumed to follow instructions. United States v. Ramirez, 426

F.3d 1344, 1352 (11th Cir. 2005) (citation omitted).

      Under § 922(g), it is unlawful for a convicted felon to “possess . . . any firearm

or ammunition.” Section 841(a)(1) makes it unlawful to “knowingly or intentionally

. . . possess with intent to manufacture, distribute, or dispense, a controlled

substance.” Mere presence in the area in which contraband is found, without more,

is insufficient to establish unlawful possession. United States v. Rackley, 742 F.2d

1266, 1271 (11th Cir. 1984) (citation omitted). Constructive possession, however,

is sufficient to support a conviction for unlawful possession of a firearm under §

922(g). United States v. Pedro, 999 F.2d 497, 500 (11th Cir. 1993) (citation omitted).

Similarly, in order to support a conviction for possession of a controlled substance,

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the Government may satisfy the “possession” prong by showing either actual or

constructive possession. United States v. Leonard, 138 F.3d 906, 909 (11th Cir.

1998).

       In United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008), the

defendant requested a “mere presence” instruction in a case involving convictions for

possession of drugs and firearms. The proposed instruction would have supported

his defense that he was merely present when the drugs were delivered, rather than an

active participant in a drug conspiracy. Id. We held that the district court’s given

instruction substantially covered the one he requested. Id. The given instruction

included a definition of “knowingly” that was the same as the one given in this case.

See id. at 1365; (R.2-91 at 20.) Further, we have held in a drug possession case that

a defendant’s rejected proposed instruction on mere presence was covered by a given

instruction that included definitions of “constructive possession” and “actual

possession” that were substantially similar to the definitions given in this case.

United States v. Rojas, 537 F.2d 216, 219-20 n.1, 2 (5th Cir. 1976).1

       None of the authorities cited by Jeffries in support of his argument were cases

where no theory of defense instruction was requested. This court’s holdings in


       1
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October
1, 1981.

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Woodard and Rojas indicate that “mere presence” and “mere association” were

substantially covered by the instructions given. The instructions given included

defining constructive possession as when someone “has both the power and the

intention to later take control over something,” and defining “knowingly” to mean

“voluntarily and intentionally and not because of mistake or accident.” (R.2-91 at 13,

20.) Since jurors are presumed to have followed the district court’s instructions, they

must not have believed that Jeffries was “merely present” because this instruction

would have required them to conclude that he lacked the intent to take control over

the drugs or firearms, and that he did not “voluntarily and intentionally” engage in

unlawful activity. The absence of an instruction on “mere presence” and “mere

association” was not error, much less plain error.

      AFFIRMED.




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