                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                   ___________

                                   No. 08-3523
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Western District of Missouri.
James Dooley,                           *
                                        *
             Appellant.                 *
                                   ___________

                             Submitted: April 14, 2009
                                Filed: September 1, 2009
                                 ___________

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

WOLLMAN, Circuit Judge.

       James Dooley was convicted of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). He appeals, arguing that the district court erred
in denying his motion to dismiss the indictment under the Interstate Agreement on
Detainers Act (IADA) and in submitting an improper jury instruction. He also
contends that the evidence was insufficient to support his conviction. We reverse.
                                           I.

       On the evening of February 4, 2007, Missouri State Highway Patrol Officer
Michael Greenan was parked in front of a police station in Mountain View, Missouri,
when he observed two individuals in a black Chevy Blazer driving across an adjacent
parking lot. Because the Blazer did not appear to have any license plates, Greenan
activated his traffic lights and followed the vehicle, which pulled into a nearby alley.
As Greenan neared the Blazer he recognized the driver as Dooley, whom he had
known for many years. The man sitting in the passenger seat was later identified as
Michael Hohenstein.

       As Greenan walked up to the Blazer, Dooley stepped out to meet him,
appearing cooperative and unconcerned about the stop. Greenan then shined his
flashlight into the rear window of the Blazer, where he noticed the butt of a .22 caliber
rifle behind the driver’s seat. At about that time, Officer Larry Burton of the
Mountain View Police Department arrived on the scene and began talking to
Hohenstein as Greenan and Dooley spoke about the gun. According to Greenan,
Dooley stated that he knew the gun was in the vehicle and that it belonged to his wife.
Dooley claims that his only remark was “man, you know I didn’t know that gun was
in the car.”

      Officer Greenan and Dooley’s probation officer, Charlotte Keeling, testified for
the government at trial. Greenan recounted the details of the traffic stop, including
Dooley’s statement that he knew about the gun. Keeling testified that she met with
Dooley approximately two weeks after the stop and that he admitted knowing that the
gun was in the vehicle. She stated that she later conducted a formal interview about
the incident, at which time Dooley refused to comment. On cross examination,
Keeling acknowledged that her formal report did not mention Dooley’s earlier
admission.



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       Dooley and Hohenstein both testified that they were in the Blazer very briefly
while traveling to and from a laundromat near Dooley’s house, which the evidence
indicated was across a parking lot from the laundromat and directly in front of the
alley where the Blazer was stopped. Dooley testified that his wife, who was in the
process of purchasing the Blazer, had been driving the vehicle for about a week, and
he stated that he had driven it on more than one occasion. He testified that he
recognized the .22 caliber rifle and that it was registered in his wife’s name. Dooley
maintained, however, that he was unaware that the firearm was in the Blazer and
denied telling Officer Greenan or Keeling differently. Hohenstein also testified that
he was unaware of the firearm and that Dooley had not mentioned it. Finally, Officer
Burton testified that he did not hear Dooley admit knowing about the gun.

       At the government’s request, and over Dooley’s objection, the district court
gave the jury Instruction No. 17, which modified the definition of constructive
possession found in Eighth Circuit Model Criminal Jury Instruction 8.02, which
provides, in relevant part, that “[a] person who, although not in actual possession, has
both the power and the intention at a given time to exercise dominion or control over
a thing, either directly or through another person or persons, is then in constructive
possession of it.” Instruction No. 17 stated that “[a] person who, although not in
actual possession, has both the power and the intention at a given time to exercise
dominion or control over a firearm, or over a vehicle in which the firearm is located,
is then in constructive possession of the firearm.” Dooley objected to the addition of
the phrase “or over a vehicle in which the firearm is located,” arguing that it allowed
the jury to find him in constructive possession even if he did not know the firearm was
in the vehicle. He proposed two additional instructions emphasizing that the jury
could not convict him without finding that he knew about the firearm. The district
court denied the proposed instructions.

       During its deliberations the jury requested to know to whom the firearm was
registered and asked to see the police and probation officers’ reports. The district

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court denied the requests because none of these items had been admitted into
evidence. The jury then asked, “[d]oes an individual have to have knowledge of the
firearm in the vehicle to be [in] constructive possession?” Dooley renewed his
objection to Instruction No. 17 and again asked that his proposed instructions be
given. The district court denied Dooley’s request, referred the jury to the relevant
instructions, and told the jury to use common sense and good judgment in applying
all of the instructions.

                                          II.

       Dooley argues that the district court erred in denying his motion to dismiss the
indictment under the IADA. We review de novo the district court’s denial of a motion
to dismiss an indictment under the IADA, United States v. Neal, 564 F.3d 1351, 1353
(8th Cir. 2009), and we review the factual findings that support that decision for clear
error. United States v. McKinney, 395 F.3d 837, 840 (8th Cir. 2005). The IADA
allows a prisoner to demand timely adjudication of an untried indictment pending in
another jurisdiction, provided that he gives the prosecutor and appropriate court
adequate notice of his desire for a speedy disposition of the pending matter. 18 U.S.C.
app. 2, § 2, art. III(a). Once the notice requirement has been fulfilled, the prisoner
must usually be brought to trial within 180 days, or the indictment must be dismissed.
Id. The Supreme Court has strictly interpreted the IADA’s notice requirement,
holding that “the 180-day time period [in the IADA] does not commence until the
prisoner’s request for final disposition of the charges against him has actually been
delivered to the court and prosecuting officer of the jurisdiction that lodged the
detainer against him.” Fex v. Michigan, 507 U.S. 43, 52 (1993). Thus, even where
a prisoner has made a good-faith effort to invoke his rights under the IADA, he is not
entitled to relief unless adequate notice was actually received. See id. at 49-50; see
also United States v. Daily, 488 F.3d 796, 801 (8th Cir. 2007) (following Fex and
rejecting a prisoner’s good-faith, constructive delivery argument).



                                          -4-
       The district court found that although Dooley mailed a detainer form, he failed
to indicate whether he was invoking his rights under the IADA. Specifically, the item
on the form stating “I (do) (do not) demand a speedy trial on the charge(s)” was not
marked. We cannot say that the district court’s finding was clearly erroneous, and
thus the district court did not err in denying Dooley’s motion to dismiss the
indictment.

                                         III.

       Dooley fares better with his second argument, which challenges the adequacy
of the jury instructions and the district court’s failure to provide supplemental
instruction. We review jury instructions for abuse of discretion, considering whether
the instructions, taken as a whole, adequately advised the jury of the essential
elements of the crime and the government’s burden of proof. United States v.
Pereyra-Gabino, 563 F.3d 322, 328 (8th Cir. 2009). Although district courts have
wide latitude in formulating the wording of instructions, we will reverse if an
instructional error has misled the jury or had a probable effect on the verdict. Id.

       Instruction No. 17 incorrectly stated that Dooley was in constructive possession
of the firearm if he had control over the vehicle in which it was located. We have long
held that knowledge is required to establish constructive possession. See, e.g., United
States v. Hutchinson, 488 F.2d 484, 488 (8th Cir. 1973) (explaining constructive
possession as “knowingly having both the power and intention at a given time to
exercise dominion or control” over the contraband); Bass v. United States, 326 F.2d
884, 886 (8th Cir. 1964) (requiring “knowledge of presence plus control”). Many of
our recent cases continue to emphasize this point. See, e.g., United States v. Smith,
508 F.3d 861, 866 (8th Cir. 2007); United States v. Piwowar, 492 F.3d 953, 955 (8th
Cir. 2007); United States v. Lee, 356 F.3d 831, 837 (8th Cir. 2003); see also Benjamin
C. McMurray, Hands Off the Gun! A Critique of United States v. Jameson and
Constructive Possession Law in the Tenth Circuit, 85 Denv. U. L. Rev. 531, 533

                                         -5-
(2008) (collecting cases from eleven circuits, including the Eighth, that require
knowledge to establish constructive possession). A defendant’s proximity to
contraband does not establish constructive possession when he is unaware of its
presence. See, e.g., United States v. Pace, 922 F.2d 451, 452 (8th Cir. 1990) (“While
[the defendant] was certainly caught driving a car full of drugs, he did not possess
them—in the sense of possession that the law recognizes—if he did not know what
he had.”).

       As the government observes, not all of our cases highlight the element of
knowledge in constructive possession; a number of them use language similar to that
in Instruction No. 17, stating that constructive possession is established if the
defendant has control over an area in which a firearm is found. See, e.g., United
States v. Maloney, 466 F.3d 663, 666-67 (8th Cir. 2006) (“A person may be in
constructive possession of a firearm when he has ‘dominion and control’ over the
firearm itself, or the premises in which the firearm was located.”). There are at least
two reasons for this particular phrasing. First, the opinions employing this locution
are invariably sufficiency-of-the-evidence cases. When the jury has been properly
instructed, our analysis focuses on whether a reasonable jury could have found the
defendant to be in possession of the firearm. One factor that routinely substantiates
the jury’s verdict is the defendant’s control over the area where the weapon was
found—which, in the usual case, gives rise to a strong inference of knowledge. See
United States v. Taylor, 113 F.3d 1136, 1145 (10th Cir. 1997) (“In most cases,
dominion, control, and knowledge may be inferred where a defendant has exclusive
possession of the premises.”). But this inference may be rebutted if other evidence
contradicts it. Thus, for example, “[i]f you give a lift to a policeman, you do not
possess his gun during the time in which he is in your car.” United States v.
Rawlings, 341 F.3d 657, 660 (7th Cir. 2003).

       Second, because knowledge is itself a separate element of the crime of being
a felon in possession of a firearm, it would be redundant to analyze knowledge as both

                                         -6-
a component of constructive possession and as a separate element of the offense. Cf.
Lee, 356 F.3d at 837 (observing that because intent is a separate element of possession
with intent to distribute, some of our cases have not found it necessary to point out
that intent to exercise control is also an element of constructive possession). Some
cases, like Maloney, avoid the redundancy by addressing the issue of knowledge
wholly apart from constructive possession. Conversely, other cases have stated that
proof of constructive possession establishes knowing possession. See, e.g., United
States v. Patterson, 886 F.2d 217, 219 (8th Cir. 1989). So long as the element of
knowledge is properly established, the semantic difference between these formulations
may be insignificant.

       For purposes of this appeal, the critical issue is whether the jury realized that
it could not convict Dooley unless it found that he was aware of the presence of the
firearm. Instruction No. 17 told the jury to find that Dooley was in constructive
possession if he was driving a vehicle in which the gun was found, a fact that was
undisputed. Instruction No. 15 stated that the jury had to find that Dooley “knowingly
possessed a firearm,” and Instruction No. 16 stated that “[a]n act is done knowingly
if the defendant is aware of the act and does not act through ignorance, mistake, or
accident.” We are thus left to determine how the jury applied the element of
knowledge to the faulty constructive possession instruction. One plausible reading
of the instructions is that the jury could convict Dooley if he acted knowingly in
driving the vehicle. Or the jury might have found such an interpretation at odds with
common sense and then concluded that “knowingly possessed” could refer only to
knowledge of the firearm.

      In resolving this question we find United States v. Booth, 111 F.3d 1 (1st Cir.
1997), to be instructive. In that case, the First Circuit considered a modified
constructive possession instruction nearly identical to the one here. The court
expressed concern that the instruction would cause confusion but nevertheless upheld
the defendant’s conviction because he had failed to object to the instruction, several

                                          -7-
other instructions provided clarification, and the evidence of guilt was overwhelming.1
See id. at 2.

       In this case, Dooley strenuously objected to the modification on the precise
ground that it was contrary to the law and would confuse the jury. As discussed
above, the additional instructions did not eliminate the ambiguity because they did not
specifically state that Dooley had to know that the firearm was in the vehicle.

       There was conflicting evidence on the issue of Dooley’s knowledge. Officer
Greenan and Probation Officer Keeling testified that Dooley admitted knowing about
the gun, but their version of events was contested. Keeling conceded that she did not
include Dooley’s admission of knowledge in the formal report that she prepared about
the incident. Dooley and Hohenstein both testified that they did not know a gun was
in the vehicle, and Officer Burton testified that he did not hear Dooley admit to
knowing about the firearm. Further, the undisputed evidence showed that Dooley did
not own the vehicle and that he and Hohenstein were in the car for only a short time
while they drove across a parking lot to the nearby laundromat. The stop took place
after dark and the gun was found in the back seat of the car. And Dooley’s
nonchalance when approached by Officer Greenan could also support the inference
that he did not know about the firearm. The jury clearly struggled with this
conflicting evidence, as is evidenced by its requests for the police and probation
officers’ reports and information about the firearm’s registration.

      Moreover, there is no doubt that the constructive possession instruction
confused the jury because it specifically requested additional instruction on whether
Dooley had to know the gun was in the vehicle, the correct answer to which would
have been “yes.” If the question before us were solely whether the evidence was

      1
       The defendant was apprehended while driving alone in a stolen car, and the
firearm was found in a knapsack on the front passenger seat, along with other items
confirmed to be the defendant’s. Id. at 1.
                                         -8-
sufficient, we would have little trouble affirming Dooley’s conviction. A rational jury
could have credited Greenan’s and Keeling’s testimony that Dooley admitted knowing
a firearm was in the vehicle. But where, as here, the evidence is in conflict and the
jury was obviously confused by a correctable error in the instructions, we cannot say
that the error was harmless.

      The judgment is reversed, and the case is remanded to the district court for a
new trial.
                     ______________________________




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