                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-4174
                                     ___________

United States of America,              *
                                       *
            Plaintiff - Appellee,      *
                                       * Appeal from the United States
       v.                              * District Court for the Eastern
                                       * District of Arkansas.
Jairo G. Montgomery,                   *
                                       *
            Defendant - Appellant.     *
                                  ___________

                               Submitted: April 18, 2006
                                  Filed: April 24, 2006

                                     ___________

Before MURPHY, MELLOY, and GRUENDER, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       A jury convicted Jairo G. Montgomery of conspiracy to make a false statement
to acquire a firearm and of being a felon in possession, and the district court1
sentenced him to 24 months. Montgomery appeals, challenging the sufficiency of the
evidence, the district court's rejection of his proposed jury instructions, and the court's
denial of a mistrial. We affirm.



      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas.
       A federal grand jury indicted Montgomery on one count of conspiracy to make
a false and fictitious statement to a firearms dealer, in violation of 18 U.S.C. §§
922(a)(6) and 371, and one count of being a felon in possession, in violation of 18
U.S.C. § 922(g)(1).

       The government introduced evidence at trial that Montgomery and his father
James entered Pawn Express to purchase firearms on March 28, 2003. Montgomery
had been to the store earlier and told the owner that his father would be purchasing
handguns for him because he was underage. During the actual transaction,
Montgomery did not tell the store employee he was dealing with that he was underage
but told him that he and his father were gun collectors and the amount he had to
spend, selected six handguns and a rifle, filled out Form 4473 from the Bureau of
Alcohol, Tobacco, and Firearms (ATF), paid for the guns, and carried them out to his
father's car. James signed Form 4473 as the purchaser. Several weeks later the two
tried to purchase additional guns from Pawn Express but were turned down because
the owner was suspicious about the first sale. Montgomery then asked whether
someone else could buy firearms for them.

       After two of the purchased handguns were discovered in Chicago, an ATF
agent interviewed Montgomery. During the interview Montgomery declared that he
had helped his father with the ATF form because his father could not read or write
very well. Montgomery also stated that his father was a gun collector who wanted to
buy firearms and provided the funds for the purchase, that he had lived with his father
prior to September 2003, and that the guns found in Chicago had been stolen by
visiting relatives. The agent dictated a report of the interview after he returned to
Chicago. When the agent was asked about his report at trial and whether Montgomery
had had an opportunity to review it and affirm its accuracy, the agent testified that he




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could do so "[i]f he would like to take the stand."2 Defense counsel complained that
this was a comment on Montgomery's right to remain silent and that he would likely
request a mistrial if Montgomery did not testify. The court stated that it would
probably overrule such a motion because the agent's comment was invited, and it
offered to give a limiting instruction.

       The government introduced evidence that a number of Montgomery's
statements were false: James was not a gun collector, and Montgomery was not
underage and he was ineligible to purchase firearms because of an earlier felony
conviction. There was also evidence to show Montgomery's active role in the
conspiracy and his possession of the purchased firearms while carrying them out of
the store and riding with them in his father's car. Defense counsel requested a
conspiracy instruction based on factors cited in a Ninth Circuit case, United States v.
Moore, 109 F.3d 1456 (9th Cir. 1997), and also requested a transitory or innocent
possession instruction. The district court concluded that the Eighth Circuit
instructions on conspiracy were adequate and that no transitory or innocent possession
instruction was warranted. After the jury had already begun to deliberate,
Montgomery's counsel moved for a mistrial based on the statement by the ATF agent;
the motion was denied.

       Montgomery alleges that there is insufficient evidence to sustain the conspiracy
conviction because the evidence did not show an agreement to make a false statement
or demonstrate that Montgomery paid for or took possession of the guns, and he
claims that the possession conviction cannot stand because the evidence only showed
transitory possession. A judgment will be upheld where any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt. See


      2
       The precise question asked by defense counsel was: "He's not had an
opportunity to say whether that is true and correct, has he?" The agent answered: "If
he would like to take the stand."
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United States v. Barth, 424 F.3d 752, 761 (8th Cir. 2005). The testimony about
Montgomery's repeated visits to Express Pawn, his statement that both Montgomerys
were gun collectors, and his involvement in the purchase adequately support the
determination that Montgomery conspired to make a false statement. With regard to
the possession conviction, the evidence showed that Montgomery carried the guns to
the car and thus had actual possession of the firearms and that he had constructive
possession of the firearms while riding in the car. See United States v. Walker, 393
F.3d 842, 847 (8th Cir. 2005) ("Constructive possession of the firearm is established
if the person has dominion over the premises where the firearm is located") (internal
quotation omitted). Since Montgomery neither acquired the firearms innocently nor
intended to turn them over to law enforcement, see United States v. Mason, 233 F.3d
619, 624 (D.C. Cir. 2000), he is not eligible for an innocent or transitory possession
defense.

       Montgomery also challenges the district court's rejection of his proposed jury
instructions regarding the elements of conspiracy and his transitory possession
defense. The conspiracy instruction Montgomery requested was based on factors
discussed by the Ninth Circuit in Moore, but the Eighth Circuit pattern instruction
given by the district court adequately informed the jury of the elements of conspiracy.
Montgomery did not establish the factual predicate for an instruction on innocent or
transitory possession, and he has not shown that the district court abused its discretion
in respect to the jury instructions.

      Finally, Montgomery alleges that the district court erred by denying a mistrial
because the ATF agent unconstitutionally commented on his right to remain silent.
Since Montgomery did not make the motion for a mistrial when the evidence was
introduced but waited until after the jury had begun deliberating, we review his
objection for plain error only. Given all of the evidence of guilt, any error would not
have affected Montgomery's substantial rights. See United States v. Olano, 507 U.S.
725 (1993).

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Accordingly, we affirm the judgment of the district court.

                       ___________________




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