                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                 JUN 13 1997
                                       TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                       Clerk

 UNITED STATES OF AMERICA,

                 Plaintiff-Appellee,
                                                              No. 96-4120
            v.                                            (D.C. No. 95-CR-241)
                                                                (D. Utah)
 ARTHUR A. GONZALES,

                 Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before BRISCOE, LOGAN, and LUCERO, Circuit Judges.


        Defendant Arthur A. Gonzales appeals his conviction after a jury trial on one count

of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Defendant argues that: (1) application of 18 U.S.C. § 922(g) to the instant case was

unconstitutional; (2) there was insufficient evidence that he possessed the handgun;

(3) the jury was not properly instructed on the standard for finding whether he possessed

the gun; and (4) the racial composition of the jury violated his Sixth Amendment right to

a jury trial.


        *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
                                               I

       Defendant was on probation at the time of his arrest and was not allowed to

possess a firearm or alcoholic beverages. Defendant’s probation officer, Tracy Smith,

and her partner, Kevin Pepper, went to defendant’s apartment to conduct a home visit.

Erica Somsen, defendant’s live-in girlfriend, answered the door. After the probation

officers entered the apartment they noticed bottles of alcohol. When defendant came into

the living room area, officer Smith asked to look around the apartment and defendant

agreed.

       Officer Pepper checked the closet in the master bedroom and found women’s

clothes on one side and men’s clothes on the other side. He patted down the men’s

clothes and found something hard in a dark jacket. He removed the jacket, reached inside

the pocket and found a pistol and an ammunition clip between the lining and the outer

material. Pepper took the gun and the jacket to the living room area and asked defendant

to whom the gun and jacket belonged.

       Pepper testified that defendant said he did not know who the gun belonged to and

that it was not his jacket; defendant then said the jacket belonged to Erica’s brother,

Brent. Officer Smith testified that defendant said that he sometimes wore Brent’s clothes.

Smith also testified that when defendant visited her office he often wore a black leather

jacket very similar to the one in the closet, and that she had a picture of him in that jacket.




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       Erica Somsen testified that she told officer Pepper that she did not know who

owned the jacket. She testified that Brent and other members of her family, as well as

defendant’s friends, frequently stayed overnight in the apartment. Somsen also testified

that defendant used to wear a leather jacket but it was stolen before the incident at issue.

She identified photos of defendant wearing that jacket and said it was not the jacket the

officers seized. She testified she did not know how the leather jacket got in the closet.

       Defendant testified that the leather jacket in the closet was not his and that he had

never worn it. He assumed it was Brent’s, although he also had several friends from work

who might have stayed over and left clothes in his apartment. He testified, however, that

he asked everyone who had been in the apartment, including Brent, whether it was their

jacket and no one claimed it. He testified that he had seen Brent shortly before the trial

and could not explain why he would not testify that the coat and gun were his even

though it was not unlawful for Brent to possess a firearm.

       An agent of the Bureau of Alcohol, Tobacco and Firearms examined the gun and

testified that it was manufactured in Belgium and had originally been imported to

Missouri by a Utah company. He testified that the Bureau could not trace the firearm to

its last owner.




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                                              II

       Defendant contends that 18 U.S.C. § 922(g) is unconstitutional as applied to the

instant case. First, he asserts there was insufficient evidence that his possession of the

firearm had an effect upon interstate commerce as required by the Supreme Court’s

decision in United States v. Lopez, 514 U.S. 549 (1995).

       In United States v. Bolton, 68 F.3d 396 (10th Cir. 1995), cert. denied, 116 S. Ct.

966 (1996), we stated that in order to meet the Commerce Clause jurisdictional

requirement under Lopez, “all the government need show is a de minimis effect on

interstate commerce.” Bolton, 68 F.3d at 399 (rejecting a facial challenge to the Hobbs

Act). In United States v. Farnsworth, 92 F.3d 1001, 1006 (10th Cir. 1996), cert. denied,

117 S. Ct. 596 (1996), we held that evidence that a firearm was manufactured in another

state, and thus had crossed state lines, established the required de minimis effect on

interstate commerce. Defendant acknowledges these cases; however, he argues that

because the gun in the instant case may not have moved across state lines after it was

imported more than fifty years ago the effect of his possession on interstate commerce

was somehow less than de minimis. But “‘[s]ection 922(g)’s requirement that the firearm

have been, at some time, in interstate commerce is sufficient to establish its

constitutionality under the Commerce Clause,’ Bolton, 68 F.3d at 400 (citation omitted),

and the de minimis effect of [defendant’s] own actions on interstate commerce does not

invalidate his conviction.” Farnsworth, 92 F.3d at 1006 (emphasis added).


                                             -4-
       Defendant makes a second argument that § 922(g) is unconstitutional because it

did not give him adequate notice that possessing the imported firearm would be

considered to affect interstate commerce. This vagueness argument also fails. The

phrase “possess[ing] in or affecting commerce” in § 922(g) has consistently been

construed to include importation into a state as an “indispensable element.” International

Text-book Co. v. Pigg, 217 U.S. 91, 107 (1910). The statute gives “fair warning” that

being a felon in possession of a weapon that had been imported into a state constitutes

criminal conduct. See United States v. Bass, 404 U.S. 336 (1971).



                                             III

       Defendant argues that the government presented insufficient evidence that he

possessed the handgun. Defendant points out that officer Pepper found the gun in a

jacket in an apartment defendant jointly occupied with his girlfriend. He relies on our

holding in United States v. Mills, 29 F.3d 545, 550 (10th Cir. 1994), that “the mere

control or dominion” over the place in which contraband or an illegal item is found was

not enough to establish constructive possession in a joint occupancy situation. In Mills,

we held that constructive possession could not be inferred when defendant’s joint

occupant testified she placed guns in a compartment without defendant’s knowledge.

Here, however, more than mere joint occupancy occurred: defendant was the only male

residing in the apartment; the jacket was in his side of the closet; and he had worn a


                                            -5-
similar black jacket to probation meetings.1 There was sufficient evidence for a jury to

find that defendant was in possession of the gun.

                                             IV



       Defendant also argues that he was entitled to a specific instruction, based on Mills,

that when there is dual occupancy mere dominion and control of the area where the

weapon was found are not enough. We review jury instructions de novo to ascertain

whether the instructions as a whole correctly state the applicable law and provide the jury

an adequate understanding of the issues. We reverse only if failure to give a proffered

instruction was prejudicial in light of the entire record. United States v. Cecil, 96 F.3d

1344, 1347 (10th Cir. 1996), cert. denied, 117 S. Ct. 987 (1997).

       The jury here was correctly instructed on the statutory elements, including that the

firearm must be “knowingly possessed.” I R. doc. 43, Instr. Nos. 11 and 12.

“Knowingly” was defined in a separate instruction as follows:

              An act is done “knowingly” if done voluntarily and intentionally, and
       not because of mistake or accident or other innocent reason.




       1
         We have reviewed defendant’s supplemental record including pictures of the
jacket he wore to the probation meetings (Defendant’s Ex. D). Unfortunately, the actual
jacket seized (Gov’t Ex. 6) apparently has been destroyed; thus we are not able to
compare the jackets. But even if defendant correctly asserts that the jacket in which he
was photographed was different than the jacket containing the gun, this does not compel
the conclusion that defendant did not own or use the jacket containing the gun.

                                            -6-
              The purpose of adding the word “knowingly” is to insure that no one
       will be convicted for an act done because of mistake, or accident, or other
       innocent reason.

Id. Instr. 18. The jury was also instructed that

              To possess means to have something within your control. This does
       not necessarily mean that you must hold it physically, that is, have actual
       physical possession of it. As long as the firearm is within your control, you
       possess it. If you find that the defendant either had actual possession or had
       the power and ability to control the firearm, even though it may not have
       been in the physical possession of the defendant, you may find that the
       government has proved possession.

              Proof of ownership is not required. Nor is the government required
       to prove that at the time of the possession the defendant knew that he was
       breaking the law. It is sufficient if you find that the defendant possessed the
       firearm voluntarily and not by accident or mistake. You also must find that
       the defendant knew he was possessing a firearm.

Id. Instr. No. 14 (emphasis added). The instructions as a whole correctly set forth the law,

see United States v. Capps, 77 F.3d 350, 352 (10th Cir.), cert. denied, 116 S. Ct. 2568

(1996); the district court did not err in refusing to give a more specific instruction.



                                              V

       Finally, defendant raised the possibility that he was denied his Sixth Amendment

right to a trial by a jury of his peers because there were no members of minority races on

the jury. In his brief and at oral argument, however, defendant acknowledged that no




                                             -7-
factual or legal basis existed to challenge the racial composition of the jury. Even

assuming that defendant did not waive that argument, we agree that there was no basis for

him to challenge the racial composition of the jury.

       AFFIRMED.

                                                  Entered for the Court

                                                  James K. Logan
                                                  Circuit Judge




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