U.S.A. v. Lane

• Decision Date: 03 October 2001
• Docket Number: No. 00-4180,00-4180
• Citation: 267 F.3d 715
• Parties: (7th Cir. 2001) United States of America, Plaintiff-Appellee, v. Donald K. Lane, Defendant-Appellant
• Court: U.S. Court of Appeals — Seventh Circuit

Page 715

267 F.3d 715 (7th Cir. 2001)

United States of America, Plaintiff-Appellee, v. Donald K. Lane, Defendant-Appellant.

No. 00-4180

In the United States Court of Appeals For the Seventh Circuit

Argued June 6, 2001

Decided October 3, 2001

Appeal from the United States District Court for the Western District of Wisconsin. No. 00 CR 53--Barbara B. Crabb, Chief Judge.

Before Fairchild, Bauer, and Posner, Circuit Judges.

Bauer, Circuit Judge.

Donald Lane was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1). He appeals both his conviction and his sentence. We affirm.

I. Background

Donald Lane knew that as a convicted felon and a parolee he was not allowed to possess firearms. But Lane enjoyed hunting and wanted to accompany his father and his girlfriend, Diane Stumph, on a small game hunt for rabbits. On two occasions, Lane discussed his wishes with his parole officer and eventually received permission to observe a hunt provided that he avoid handling any firearms.

On March 18, 2000, Lane and Stumph went to the Twin Oaks Tavern. While there, Lane overheard Leroy Bowen discussing his plans to sell a right-handed .22 caliber 10 shot Ruger. Lane expressed interest in purchasing it, so Bowen retrieved the gun from his nearby home. Back at the bar, Lane removed the gun from its box, held and inspected it, negotiated a price, and bought it. Lane says that he bought the gun for Stumph to use while hunting. He corroborates this by explaining that the right-handed gun was useless to Lane, a left-handed man. Stumph never handled or examined the gun herself, but did give Lane money to buy it.

The gun ended up in Stumph's car, although the parties disagree as to how it got there and the jury made no specific factual finding resolving the difference in the stories. The government presented Bowen's testimony that Lane re turned the gun to its box, picked it up and carried it outside himself. Lane insists that another man at the tavern, Russ Swonger, asked Lane if he could look at the gun. According to Lane, Swonger picked up the box and both men walked out of the tavern. Outside, Swonger examined the gun, returned it to the box, and without being asked, placed the box in Stumph's car. Swonger corroborated Lane's recollection. Lane points out that with a general verdict, we cannot be sure whether the jury concluded that he carried the gun to the car, or whether it based the felon in possession conviction exclusively on Lane's examination of the gun.

Roughly one month after Lane purchased the gun, probation and police officers arrested him for violating parole. Lane allowed the officers to search the home he shared with Stumph and officers found the .22 Ruger in the garage. Lane was charged with being a felon in possession of a firearm in violation of 18 U.S.C. sec. 922(g)(1) and was convicted by a jury. Lane progressed to the sentencing stage of his trial. Unfortunately for Lane, the felon in possession conviction was not his first brush with the law. Lane had two prior state felony convictions, one in January of 1996 and the other in February of 1996. Realizing that his prior felonies would lengthen his sentence, Lane petitioned the court to disregard his January 1996 conviction, but the district judge denied his motion. These prior crimes boosted Lane's basic offense level from 20 to 24, and his criminal history from a Category III to a Category VI which exposed him to a sentence between 77 and 96 months rather than a range of 41 to 51 months.

II. Discussion

A. Possession Standard

Lane first contends that the district court misunderstood the legal standard of possession and as a result, wrongly instructed the jury and prevented Lane from presenting a viable trial theory. To prove that Lane was a felon in possession of a firearm, the government was required to show that Lane (1) had been convicted of a crime punishable by a prison term exceeding one year and (2) knowingly possessed a firearm (3) that traveled in or affected interstate commerce. See 18 U.S.C. sec.sec. 922(g)(1), 924(a)(2); United States v. Phillips, 239 F.3d 829, 847 (7th Cir. 2001). We review Lane's legal challenge de novo. See United States v. Stott, 245 F.3d 890, 904 (7th Cir. 2001). At trial, the government agreed to focus only on the incidents at the Twin Oaks Tavern and not the gun's presence in Lane's garage. We likewise limit our inquiry.

At trial, the judge held that momentarily handling a gun satisfied the legal definition of "possession" as a matter of law. While possession can be actual or constructive, see United States v. Kitchen, 57 F.3d 516, 520 (7th Cir. 1995), the government has pressed the actual possession theory. Actual possession occurs when a defendant "knowingly has direct physical control over a thing at a given time." United States v. Walls, 225 F.3d 858, 864 (7th Cir. 2000) (citing Kitchen, 57 F.3d at 520). Lane contends that although it is possible for physical contact to constitute possession, it does not do so as a matter of law. According to Lane, he was entitled to argue that the gun was not under his control when he held it because he was merely inspecting a gun owned by someone else. Lane relies heavily on Kitchen, 57 F.3d at 518-23, a drug case, to bolster his reasoning and to provide an example of a situation when momentarily holding contraband did not prove control or possession.

In Kitchen, the defendant appealed his conviction for possession of cocaine with intent to distribute. See 57 F.3d at 518- 19. Kitchen's conviction stemmed from a would-be drug transaction, when Kitchen, a drug buyer, met undercover federal agents to purchase cocaine from them. See id. at 519. The agents showed Kitchen the cocaine, which Kitchen picked up and inspected for two or three seconds. See id. However, before Kitchen could complete the transaction, the federal agents arrested him. See id. Kitchen contested his conviction arguing that he never possessed the drugs despite briefly handling and inspecting them. We reversed the conviction, reasoning that Kitchen's momentary handling of the cocaine did not constitute possession in the context of the 21 U.S.C. sec. 841(a)(1) charge because Kitchen never exhibited assent to the drug transaction and therefore never demonstrated that he had the authority to exercise control over the cocaine. See id. at 523. We explained that "we require . . . some factor indicating that [the defendant] had the authority or the ability to exercise control over the contraband." Id. at 523.

In Kitchen we also made clear that "[w]e do not attempt to use the present case to formulate a rule workable for all circumstances." Id. We find Lane's case to be distinguishable. There is a marked difference between the steps necessary to exercise control over drugs and those necessary to control a gun. To deal with the "growing menace of drug abuse in the United States," H.R. Rep. No. 91-1444, at 1 (1970), Congress made it illegal to possess drugs with the intent to distribute them. To obtain control over drugs in this context, a defendant needs more than just mere physical contact; he must have the perceived right among the criminals with whom he is interacting to deal, use, transport, or otherwise control what happens to the drugs. See Kitchen, 57 F.3d at 524. Such control is not a foregone conclusion when a defendant's sole physical contact with drugs is momentary inspection of drugs he does not own or over which he did not have recognized authority. There is a meaningful distinction between physical contact and the ability or authority to control the drugs, so we require proof of a factor beyond mere physical contact to show that the defendant exerted authority or the ability to physically control the drugs.

In contrast to drugs, it is much easier to obtain control and therefore possession of a gun in the context of 18 U.S.C. sec. 922(g)(1). Congress originally passed this law as the Federal Firearms Act of 1938 "to 'prevent the crook and gangster, racketeer and fugitive from justice from being able to purchase or in any way come in contact with firearms of any kind.'" Barrett v. United States, 423 U.S. 212, 220 (1975) (quoting S. Rep. No. 1189, at 33 (1937)). Throughout this Act's subsequent history, this purpose has remained constant. See S. Rep. No. 90-1501, at 22 (1968); H.R. Rep. No. 99-495, at 1-3. From the purpose of the Act, it is reasonable to infer that Congress intended to prohibit felons from exercising any physical control over a gun.

Physical control over a gun is remarkably easy to effect. Once the gun is in the defendant's hands he need only pull the trigger, an act which can be completed in a split second and which is controlled and influenced by nothing more than the defendant's whim. Lane protests that the circumstances surrounding his inspection of the gun show that he did not possess it. He points out that he was merely inspecting the gun and that when he held the gun it belonged to Bowen. But none of these circumstances bear on Lane's ability to shoot the gun. Felons handling guns, unlike defendants who have touched drugs, do not need recognition of their authority or any extra element to obtain the ability to shoot the gun. Lane had just as much control over the gun when he inspected it while it belonged to Bowen as he would have if he as the gun's owner took aim at a rabbit. Because a defendant can shoot a gun so quickly and easily once he holds it in his hands, we conclude that evidence showing that a felon held a gun is by itself a "factor indicating that the defendant had the ability to exercise direct control over the [firearm]." The distinction between holding a gun and obtaining control over a gun as required to prove possession is academic. We do not address whether touching a gun as opposed to holding a gun mandates the same result.

Lane asserts that in United States v. Wilson, 922 F.2d 1336, 1338-39 (7th Cir. 1991) we...