
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2221                                    UNITED STATES,                                      Appellee,                                          v.                          LAMAR R. BOOTH, A/K/A LAMAN BOOTH,                        A/K/A LAMAR COEVAN, A/K/A LAMAR GOVAN,                       A/K/A LAMAR BARTON, A/K/A LOMAR BARTON,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Edward F. Harrington, U.S. District Judge]                                               ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Diana  L.  Maldonado,  Federal  Defender  Office,  on  brief   for            ____________________        appellant.            Donald K.  Stern, United  States Attorney, and  Gary S.  Katzmann,            ________________                                _________________        Assistant United States Attorney, on brief for appellee.                                 ____________________                                    April 10, 1997                                 ____________________                 Per Curiam.    Appellant appeals from his  conviction as                 __________            a felon in possession of a firearm.  He now contends that the            jury instructions  defining constructive possession  may have            allowed the jury to convict him even if he did  not know that            a  gun was  present within  an area  over which  he exercised            dominion and control.   The instructions in this case  do not            warrant  reversal, but  we write  for the  benefit  of future            cases  to  pinpoint  a  correctable ambiguity  in  previously            approved language.                 Appellant,  a convicted  felon,  was  apprehended  while            driving alone in a stolen  car.  A knapsack was on  the front            passenger  seat,  and it  contained,  among  other things,  a            loaded gun and a  camera.  Appellant denied ownership  of the            knapsack  and its  contents,  but the  film  from the  camera            subsequently  revealed  photos of  appellant.   Appellant was            indicted on counts including felon in possession of a firearm            under 18 U.S.C.    922(g), and,  after a  jury trial, he  was            convicted on that count.                 The   district  court   instructed  the   jury   on  the            requirement of  "knowing" possession as follows.   First, the            jury  was told twice that "the government must prove beyond a            reasonable doubt . . . that the defendant knowingly possessed            a firearm . . . ."  Next, "knowingly" was defined as:                      An act  is done  knowingly if it  is done                      voluntarily  and  intentionally  and  not                      because of mistake or accident.  I'll say                      that again.  An  act is done knowingly if                                         -2-                      it is done voluntarily  and intentionally                      and not  because of mistake  or accident.                      In  order for  the government  to satisfy                      this  element, it  must  prove  beyond  a                      reasonable doubt that the  defendant knew                      he was possessing a firearm . . . .            And then "possession" was defined as:                      The   law   recognizes   two   kinds   of                      possession,    actual   possession    and                      constructive possession. . . .  Even when                      a  person  does not  actually  possess an                      object,   he   may  be   in  constructive                      possession    of   it.       Constructive                      possession exists when a person knowingly                      has the  power  and the  intention  at  a                      given  time  of  exercising dominion  and                      control over  an object or  over the area                                              _________________                      in which the object  is located.  The law                      _______________________________                      recognizes no  distinction between actual                      and constructive  possession, either form                      of possession is sufficient.   Possession                      of an object may be established by either                      direct  evidence   or  by  circumstantial                      evidence.   It is not  necessary to prove                      ownership  of  the  object,  but   it  is                      necessary  for  the  government to  prove                      beyond a reasonable  doubt [the]  knowing                      possession of [the] object.             (emphasis added)  Finally, the  jury also was instructed that            "the  government must prove beyond  a reasonable doubt  . . .            that  the defendant's knowing possession of the firearm . . .            was in or affecting commerce."                  Thus, in  instructing the jury, the  district court said            that  constructive possession exists when a person "knowingly            has the power and the intention at a given time of exercising            dominion and control over an object or over the area in which                                                _________________________            the object is located."   Appellant complains belatedly about            _____________________            the italicized portion  of the quoted language  on the ground                                         -3-            that  it might  allow the  jury to  convict if  the defendant            controlled  the area  but did  not know  that the  weapon was            there.                 Although  the  language  in  question is  more  or  less            consistent with United  States v. Wight, 968  F.2d 1393, 1398                            ______________    _____            (1st   Cir.  1992),   it   is  probably   susceptible  to   a            misinterpretation.  The underlying  thought, which is correct            but could be more precisely  conveyed, is that knowledge  can            be inferred in some  circumstances from control of the  area.            See  United States  v. Lochan,  674 F.2d  960, 966  (1st Cir.            ___  _____________     ______            1982).  Wight, despite its literal language, should no longer                    _____            be  read as  an  endorsement of  the above-quoted  italicized            language  as  an   independent  definition  of   constructive            possession.    There is  nothing  wrong  with explaining  the            Lochan  inference where  appropriate, and  we do  not suggest            ______            that the Wight language where it has been used in the past is                     _____            necessarily reversible error, taking the charge as a whole.                  In  this case the jury was told several times that proof            of "knowing"  possession was  required; the evidence  linking            appellant  to the gun was substantial; and, given the absence            of a contemporaneous objection, the italicized phrase did not            constitute  plain  error,  creating  a  risk  of  fundamental            unfairness or miscarriage  of justice.  See  United States v.                                                    ___  _____________            Hallock, 941 F.2d 36, 42 (1st Cir. 1991).            _______                 Affirmed.  See 1st Cir. Loc. R. 27.1.                 ________   ___                                         -4-
