                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-4177
UNITED STATES OF AMERICA,
                                                Plaintiff-Appellee,
                                v.

ELISHA RAWLINGS,
                                            Defendant-Appellant.
                         ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, Hammond Division.
               No. 2:01 CR 180—Rudy Lozano, Judge.
                         ____________
     ARGUED MAY 14, 2003—DECIDED SEPTEMBER 3, 2003
                         ____________


  Before POSNER, RIPPLE, and MANION, Circuit Judges.
   POSNER, Circuit Judge. The defendant was convicted by
a jury of conspiracy to commit an armed bank robbery and
of being a felon in possession of a gun, but was acquitted
of bank robbery and of using or carrying a gun in the com-
mission of an offense. He received consecutive sentences
of 60 and 84 months, respectively, on the two counts of
which he was convicted. His appeal challenges one of the
convictions, that of being a felon in possession.
  He had driven his three coconspirators to an alley next
to the bank, and had parked and remained in the car
while they robbed the bank. Just before leaving the car, two
2                                                 No. 02-4177

of the coconspirators had drawn and displayed pistols
to each other, which the defendant saw. There is no evi-
dence that until then the defendant, who had no gun
himself, had been aware that any of his coconspirators
was armed. After robbing the bank they rejoined the de-
fendant in his car and he drove away. The police pursued
the car and either the defendant or the other unarmed
coconspirator urged the two armed coconspirators to toss
their guns out of the car, and they did so, though reluc-
tantly.
  This was the entire evidence that Rawlings possessed
a firearm. No instruction was given regarding the meaning
of “possession,” except that it had to be knowing. Both
parties had prepared and submitted to the judge instruc-
tions on constructive possession, but neither instruction
was given, apparently through inadvertence.
  “Possession,” a concept much elaborated since its intro-
duction into Western law by the Romans, has never just
meant clasping something in your hands. The owner of an
automobile possesses it even when it is parked in a garage
and he is miles away. A tenant possesses the apartment he
has rented even when he is away on a trip. A thief has
custody of the goods he steals, but the owner retains
possession. (That is, the thief does not have the rights of a
possessor; he still has the liabilities, for example as a felon
in possession under the test, set forth below, that the
courts use for determining guilt of that crime.) To decide
whether a person who has a felony record possesses a gun,
therefore, it is not enough to ask whether the gun is in his
hand or his pocket or even under his pillow or in his desk
drawer. Had Rawlings said to one of his coconspirators—
“You hold this gun that I’ve bought but never touched,
because I’m a felon and I don’t want to be charged with
being a felon in possession, if we are caught”—this would
not negate his possession of it.
No. 02-4177                                                    3

   To fix the outer limits of the concept of possession in
the criminal law, courts employ the notion of “construc-
tive possession,” accurately defined in the defendant’s
proposed instruction that was not given as one’s having
(and knowing one has) “the power and the intention at a
given time to exercise dominion and control over the
firearm, either directly or through others.” See, e.g., United
States v. Thomas, 321 F.3d 627, 636 (7th Cir. 2003); United
States v. Phillips, 239 F.3d 829, 847 (7th Cir. 2001); United
States v. Hardin, 248 F.3d 489, 498 (6th Cir. 2001). (What
“dominion” adds to “control,” especially indirect control,
is unclear; probably it adds nothing.) Thus a drug lord
who directs his enforcers to arm themselves is, if they do
so, a constructive possessor of the arms. United States v.
Lloyd, 71 F.3d 1256, 1267 (7th Cir. 1995); United States v.
McAnderson, 914 F.2d 934, 948 (7th Cir. 1990); United States
v. Dhinsa, 243 F.3d 635, 677 (2d Cir. 2001); cf. United States v.
Wight, 968 F.2d 1393, 1398 (1st Cir. 1992). He is acting
through agents, just as in the case we put of the felon who
asks his companion to hold his gun for him. We can tie
these cases to the underlying statutory purpose of felon-in-
possession laws by noticing that the felon is no less danger-
ous when he arms his associates in a criminal endeavor
than when he arms himself. Alternatively these could be
considered cases of joint possession, which is normal-
ly treated as a subset of constructive possession, United
States v. Tirrell, 120 F.3d 670, 675-76 (7th Cir. 1997); United
States v. Sianis, 275 F.3d 731, 733 (8th Cir. 2002), though it
would be actual rather than constructive if, for example,
two gangsters were acting as the crew of a machine gun
operated by a loader and a firer.
  The government asks us to take a step beyond the de-
cided cases. Rawlings was convicted of conspiracy to com-
mit armed bank robbery, which means that the jury found
(as the evidence showed) that he learned before the robbery
4                                                No. 02-4177

took place that it would be an armed robbery (because he
saw two of his coconspirators brandishing guns), yet he
made no effort to dissociate himself from the scheme. It
makes no difference whether, as he contends, he did not
know that his companions were going to rob the bank, or
use guns in the robbery, until he drove to the alley. That is,
it does not matter, so far as his guilt of conspiracy to com-
mit armed bank robbery is concerned, whether the use
of guns was either explicitly or foreseeably a part of the
original conspiracy that he joined, or whether he agreed
in effect to a “modification” of the original agreement
(to use the language of contract law—but a conspiracy is
an illegal contract, so contract analogies are appropri-
ate) to make it an armed rather than an unarmed rob-
bery. Cf. United States v. Gomez-Pabon, 911 F.2d 847, 860-61
(1st Cir. 1990) (finding that a single conspiracy existed
when the alleged second conspiracy was merely a modi-
fication of the first); compare United States v. Gonzales, 65
F.3d 814, 823 (10th Cir. 1995), vacated on other grounds, 520
U.S. 1 (1997) (holding that the defendant “should not be
held accountable when his co-conspirators substantially
altered the agreed-upon plan without his knowledge or
acquiescence”); United States v. Melton, 131 F.3d 1400, 1405
(7th Cir. 1997) (same).
   As the driver of the getaway car, Rawlings was a full-
fledged member of the conspiracy. United States v. Wilkins,
659 F.2d 769, 773 (7th Cir. 1981); United States v. James, 998
F.2d 74, 80 (2d Cir. 1993). But he was neither its leader nor
the supplier of the guns, and so his relation to the guns
does not satisfy the test for constructive possession, which
requires power to control. United States v. Moore, 936 F.2d
1508, 1512-13, 1525-26 (7th Cir. 1991), though similar, is
distinguishable. We held that the getaway driver in that
case constructively possessed a gun used in the armed
robbery of a post office and a liquor store—but he was much
No. 02-4177                                                   5

more than the getaway driver. He was in the post office
when the robbery of that facility took place, he jumped
over the counter and grabbed a postal money order, pro-
ceeds of both robberies were found in his car, he was
one of only two conspirators in the robberies, and he
gave a signal to his coconspirator that it was time to rob
the liquor store. It was an allowable stretch to treat him
as if he had directed the use of the gun. But it is as far
as the law will stretch, and that is not far enough to con-
vict the defendant in this case. Rawlings played no role
in procuring the guns and he had no authority, under the
informal rules or norms of his criminal partnership, to
prevent his coconspirators from carrying guns.
  The defendant’s success in persuading them to discard
their guns during the chase couldn’t fill the gap even if the
record weren’t insolubly ambiguous as to whether it was
Rawlings, rather than the other unarmed conspirator, who
told the other conspirators to discard the guns. A tenant
does not “persuade” an unwanted guest to leave his house;
he orders him to leave. Persuasion is how you try to influ-
ence people in matters that you do not have power over.
Even more far-fetched is the government’s argument that
by transporting his armed coconspirators and thus the
guns, the defendant possessed the guns. If you give a lift
to a policeman, you do not possess his gun during the
time in which he is in your car.
  If applicable, the Pinkerton doctrine, which makes a
conspirator liable for any foreseeable crimes committed
by his fellow conspirators during and in furtherance of
the conspiracy, would enable the government to tack the
coconspirators’ possession onto the defendant’s felony
record. Pinkerton v. United States, 328 U.S. 640, 647-48 (1946);
United States v. Edwards, 36 F.3d 639, 644 (7th Cir. 1994). But
as we explained in United States v. Walls, 225 F.3d 858, 864-
6                                                No. 02-4177

66 (7th Cir. 2000), Pinkerton ascribes the crimes of cocon-
spirators to each other, not a conspirator’s acts that when
combined with the acts of another conspirator might add
up to a crime. This would be obvious if the defendant’s
coconspirators had been charged with being felons in
possession on the basis of their possession and Rawlings’s
felony record. It is true that the armed coconspirators
probably were felons in possession; they were indicted for
that crime. But the charge was dropped when they pleaded
guilty to the more serious charge of armed bank robbery,
and the government made no effort to prove in our
case that they were felons in possession. Compare United
States v. Sandoval-Curiel, 50 F.3d 1389, 1392 (7th Cir. 1995);
United States v. Diaz, 864 F.2d 544, 545-49 (7th Cir. 1988).
  In closing, we wish to express our dismay that the jury
was asked to convict the defendant of being a felon in
possession of a gun without being told what “possession”
in the law means. The problem was not that the jurors
were not told that possession can be “constructive” as well
as actual; this usage of “constructive” is one that only a
lawyer would find intelligible, at least without a great
deal of explanation. The problem is that the jurors were
not told what the legal meaning of “possession” is, and
hence were not told that possession involves either physi-
cal control or the power to exercise physical control. They
were left to wander about in the dark. This doesn’t matter
to the appeal, however, since the judgment of conviction
of being a felon in possession must be reversed on the
distinct ground that it is not supported by the evidence. The
defendant is entitled to be resentenced on the other
charge, that of armed bank robbery, since that sentence
may have been influenced by the sentencing judge’s erro-
neous belief that the defendant was a felon in possession.
                                 REVERSED AND REMANDED.
No. 02-4177                                            7

A true Copy:
       Teste:

                      _____________________________
                      Clerk of the United States Court of
                        Appeals for the Seventh Circuit




                USCA-02-C-0072—9-3-03
