U.S. v. Al-Rekabi

• Decision Date: 17 July 2006
• Docket Number: No. 03-4158.,03-4158.
• Citation: 454 F.3d 1113
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Haydar Hameed AL-REKABI, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

454 F.3d 1113

UNITED STATES of America, Plaintiff-Appellee, v. Haydar Hameed AL-REKABI, Defendant-Appellant.

No. 03-4158.

United States Court of Appeals, Tenth Circuit.

July 17, 2006.

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Michael S. Lee, Assistant United States Attorney (Paul M. Warner, United States Attorney on the briefs) Salt Lake City, UT, for Plaintiff-Appellee.

Scott Keith Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal Public Defender on the briefs), Salt Lake City, UT, for Defendant-Appellant.

Before BRISCOE, O'BRIEN, Circuit Judges, and HEATON, District Judge.^*

O'BRIEN, Circuit Judge.

A jury convicted Haydar Hameed Al-Rekabi of possession of a stolen firearm in violation of 18 U.S.C. § 922(j). The district court instructed on constructive possession but refused necessity and fleeting possession instructions. Al-Rekabi argues the trial court's use of constructive possession was too expansive and its view of justification defenses too restrictive. In affirming, we clarify the role of constructive possession and urge the parsimonious use of justification instructions.

Background

The preliminary facts are undisputed. On February 16, 2002, when Al-Rekabi's twelve year-old brother, Hussein, and a friend, Joey, were playing basketball they noticed a "clip" (actually a magazine) from a pistol in a parked vehicle. That led to the discovery of the pistol and another magazine. After stealing them, the boys hid them in an abandoned house, but retrieved them when they became worried the police were looking for the pistol. Hussein took the apparently unloaded pistol and headed home with it in his waistband, along with the magazines of ammunition. In transit, Al-Rekabi discovered his younger brother was carrying a weapon. From that point on the trial evidence varies dramatically.

According to Hussien, Al-Rekabi, who was a passenger in a car driven by his friend Kenny Whitfield, became angry when he learned Hussein was carrying a pistol and smacked him on the neck. He told Hussein to give the pistol to Whitfield, which Hussein did. Al-Rekabi testified he became angry when Hussein told him he had a pistol and jumped out of the car and started slapping and kicking his brother who still had the weapon. According to Al-Rekabi, Whitfield then left the vehicle, separated the brothers, took the pistol from Hussein and drove away. According to Whitfield, he was not in a vehicle with Al-Rekabi on February 16, 2003, and could not drive because he did not have a driver's license. Whitfield did testify, however, that during this period Al-Rekabi told him he had taken a pistol from his younger brother and, when Whitfield offered to buy it, said he would give it to him. According to Whitfield, Al-Rekabi then left to retrieve the weapon, but returned stating he could not find it. Whitfield never saw Al-Rekabi with a handgun.

That same day, the theft of a pistol was reported to the Salt Lake City Police Department. The owner's girlfriend told the police she believed some friends of her son might have it. On February 19, 2002, Hussein was interviewed at his school by Salt Lake City Police Officer Fred Ross. According to Officer Ross, Hussein admitted to stealing the pistol. On his way home with it, Al-Rekabi saw him, took the pistol from him and put it in a heater vent in their house so neither of them would get into trouble. Officer Ross took Hussein to the Al-Rekabi home. They were met there by Officer C.J. Johnson. Their search for the pistol was futile. According to Hussein, the police never entered his home.

It is uncontested that while Officers Ross and Johnson were at the house, another of Al-Rekabi's brothers, Mohammed, and his mother met them. A conversation among the Officers, Mohammed, and his mother ensued. According to both accounts, the mother and Mohammed called Al-Rekabi on his cell phone and told him the police were looking for the pistol. During the call, according to Mohammed, Al-Rekabi told Mohammed that Whitfield would call him with an address where Mohammed could meet Whitfield to retrieve the weapon. A short time later Whitfield called Mohammed with the address. Mohammed left, unaccompanied, to retrieve the weapon. Mohammed returned home and gave the pistol to Officer Johnson.¹ According to Officer Ross, Mohammed returned with the loaded pistol within seven to ten minutes. Officers Ross and Johnson then accompanied Mohammed to Joey's house to retrieve a second magazine.

Later that day, Al-Rekabi was interviewed by Utah Department of Corrections Officer David Olive. According to Officer Olive, Al-Rekabi admitted to taking a pistol from Hussein, but subsequently decided to get rid of it because he knew he could not possess it.

Some time later, Al-Rekabi contacted his probation officer, Julie Schirle, to notify her that he had taken a pistol away from his brother and given it to someone else. According to Schirle, Al-Rekabi told her the police had questioned him at his home and he did not think anything further would happen. Al-Rekabi told Schirle he had not called her earlier or given the pistol to her because he knew he was not allowed to possess a pistol under the terms of his probation.²

On August 14, 2002, Al-Rekabi was charged with possession of a stolen firearm.

Discussion

I. Jury Instructions

A. Constructive Possession

The doctrine of constructive possession is critical in contraband cases, particularly those involving controlled substances and weapons, because it allows the law to reach beyond puppets to puppeteers. Thus, "constructive possession exists where the defendant knowingly has the power to exercise control or dominion over the item." United States v. Lopez, 372 F.3d 1207, 1212 (10th Cir.2004); see also United States v. Ledford, 443 F.3d 702, 713-717 (10th Cir.2006) (discussing the "knowing" requirement). Or, as we have stated in the case of narcotics, "constructive possession [is] an appreciable ability to guide the destiny of the [contraband]." United States v. Verners, 53 F.3d 291, 294 (10th Cir.1995) (internal quotations and citations omitted). On at least three prior occasions we have upheld jury instructions permitting a jury to find constructive possession where one individual had the ability to control another person who actually possesses contraband.³ Constructive possession may be proved by circumstantial evidence. United States v. Mills, 29 F.3d 545, 549 (10th Cir.1994). But only when there is some evidence "supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband," will a conviction based upon constructive possession be upheld. Id. at 550.

"We examine jury instructions as a whole and review de novo the propriety of an individual jury instruction to which objection was made at trial." United States v. Cooper, 375 F.3d 1041, 1049 (10th Cir.2004). If an instructional error occurred, we must determine whether the conviction must be set aside because the "error had a substantial influence on the outcome of the trial or leaves us in grave doubt as to its influence on the verdict." If the error is harmless the conviction will stand. Id.; United States v. Cota-Meza, 367 F.3d 1218, 1221 (10th Cir.2004).

Al-Rekabi objected to any constructive possession instruction and now contends the trial court erred in giving such an instruction. He claims 1) the evidence did not support the instruction, and 2) if an instruction was justified, the one delivered to the jury was misleading and confusing. We consider those claims in turn.

This jury was presented with a factual smorgasbord; most versions involved Al-Rekabi's actual or constructive possession of the pistol: 1) Hussein complied with Al-Rekabi's directive to give the pistol to Whitfield (Hussein's trial version), 2) Al-Rekabi took the pistol from Hussein and stashed it (Whitfield's trial version based on statements Al-Rekabi made to him and Hussein's version as related to Officer Fred Ross), 3) Al-Rekabi took the pistol from Hussein and gave it to another person (Al-Rekabi's version as related to a Utah corrections officer and a probation officer), or 4) Whitfield took the pistol from Hussein and drove off with it (Al-Rekabi's trial version). There was evidence placing the pistol in Al-Rekabi's house and evidence that Al-Rekabi continued to control the destiny of the pistol for some time after the encounter with Hussein. When the police were looking for the pistol, Al-Rekabi spoke to Mohammed on the cell phone. Mohammed left and returned a short while later with the loaded pistol.

The evidence, while conflicting, was clearly sufficient to support a constructive possession instruction. The district court did not err in that respect. However, the instruction given is somewhat problematic.

The trial judge concluded that merely directing another to dispose of the pistol, even if the other complied, was insufficient for constructive possession. Therefore, she instructed the jury "[t]o establish constructive possession, the government must prove that the defendant had the right to exercise physical control over the firearm, and knew that he had this right, and that he intended to exercise physical control over the firearm at some time." (R. Suppl.Vol.I, Doc. 53.) The instruction was incorrect in several respects.

First, framing the issue as a "right to exercise physical control" was error and needlessly confused the jury, prompting it to inquire whether constructive possession includes "the ability to have [the pistol] moved by another person."⁴ Interestingly and in spite of the jury instruction, the jury put its finger on the issue. The bedrock of constructive possession—whether individual or joint, whether direct or through another person—is the ability to control the object. It has nothing to do with a right to control.

Also incorrect was the mention of physical control because it implied an...