U.S. v. Rogers, 90-1882

• Decision Date: 03 October 1994
• Docket Number: No. 90-1882,90-1882
• Citation: 41 F.3d 25
• Parties: UNITED STATES, Appellee, v. Scott N. ROGERS, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 25

41 F.3d 25

UNITED STATES, Appellee, v. Scott N. ROGERS, Defendant, Appellant.

No. 90-1882.

United States Court of Appeals First Circuit.

Heard Oct. 3, 1994.

Decided Dec. 8, 1994.

Gordon R. Blakeney, Jr., Concord, NH, for defendant, appellant.

Peter E. Papps, First Asst. U.S. Atty., with whom Paul M. Gagnon, U.S. Atty., Concord, NH, was on brief, for appellee.

Before TORRUELLA, Chief Judge, BOWNES, Senior Circuit Judge, and CYR, Circuit Judge.

BOWNES, Senior Circuit Judge.

Defendant-appellant Scott N. Rogers was convicted under 18 U.S.C. Sec. 922(g)(1) as a felon in possession of a firearm. He appeals his conviction on various grounds. We affirm.

I. FACTS

The evidence, taken in the light most favorable to the government, see United States v. Ford, 22 F.3d 374, 382 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 257, 130 L.Ed.2d 177 (1994), tended to show the following.

On April 4, 1989, four police officers arrived at an apartment on 5 Wheelock Street in Manchester, New Hampshire, where Rogers, who had escaped from prison, was believed to be hiding. Two of the officers entered the bedroom in the northeast corner of the apartment, where they found Rogers in the closet and took him into custody. A pat-down revealed a .32 caliber bullet in his right front pants pocket. Rogers announced that the officers were lucky they found him before he got to his gun, or he would have blown his brains out.

In the meantime, the third officer went to the bedroom in the northwest corner of the apartment, where he found a .32 caliber Smith and Wesson handgun in plain view on top of the dresser. The gun was fully loaded. The officer unloaded the gun and seized it as evidence. A fourth officer went into the center bedroom, where he found and briefly detained one Michael Glennon, a friend of the defendant.

Rogers was taken to the police station, where he was given Miranda warnings. Rogers indicated that he understood his rights and signed a waiver form. He stated that the gun seized at the apartment was a "throw-away" weapon that he had purchased for fifty dollars. He again stated that he had intended to use the gun to commit suicide if the police got close to him.

Rogers was questioned about several burglaries in Manchester. He admitted that he was involved in two burglaries at the Louisa's pizzeria, as well as a third at the Sub Hut.

A federal grand jury returned a one-count indictment charging Rogers as a convicted felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g). At trial, Rogers testified that the gun belonged to Michael Glennon, and denied making any statement about shooting himself, or being the owner of the gun. In fact, none of the fingerprints found on the gun belonged to Rogers. The bullet found in his pocket allegedly came from a box of fifty bullets that Glennon had bought. Glennon, Rogers testified, liked to flick bullets at him in horseplay. On the night he was arrested, Rogers allegedly stepped on a bullet as he walked barefoot in the living room of the apartment. He picked up the bullet and slipped it in his pocket, intending to place it in a jewelry box elsewhere in the apartment.

The other witness called by the defense was Joseph Perkins, the defendant's brother, who testified that Glennon pulled the gun out of his pocket to show it to him during one of his visits to the apartment.

Rogers was convicted on May 2, 1990. Because he had committed at least five previous felonies, the district court imposed the statutory mandatory minimum sentence of fifteen years. See 18 U.S.C. Sec. 924(e).

II. DISCUSSION

A. Constructive Possession

Rogers argues that the "possession" of a firearm under 18 U.S.C. Sec. 922(g) must be actual, not constructive. ¹ Constructive possession, however, is possession. See United States v. Zavala Maldonado, 23 F.3d 4, 6 (1st Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 451, 130 L.Ed.2d 360 (1994) ("Under settled law, 'possession' includes not merely the state of ... hands-on physical possession but also 'constructive' possession"). In United States v. Wight, 968 F.2d 1393, 1397-98 (1st Cir.1992), we "ma[de] explicit the obvious" and found that "the element of 'knowing possession' under section 922(g)(1) may be established by proving that the defendant was in constructive possession of a firearm." Wight adopted the prevailing (and only) rule in the other circuits. Id. at 1398 n. 6 (collecting cases). See also United States v. Lamare, 711 F.2d 3, 5 (1st Cir.1983) (under former Sec. 922(h)(1), "receipt" of the firearm may be shown by proving possession; possession can be actual or constructive).

Rogers argues that Sec. 922(g) is unconstitutional as applied to him because the government "neither alleged nor attempted to prove any fact concerning possession other than ownership of the firearm." It allegedly ignored the question of intent to control. In fact, the government offered Rogers' own statement that he intended to use his gun to commit suicide if the police were to find him.

Rogers also argues that 18 U.S.C. Sec. 922(g) is unconstitutionally vague to the extent that it proscribes constructive possession. He notes that some courts require proof of the defendant's "dominion and control" over the firearm, see, e.g., Wight, 968 F.2d at 1398; others, "dominion or control," see, e.g., United States v. McKnight, 953 F.2d 898, 901 (5th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 2975, 119 L.Ed.2d 594 (1992) (emphasis added). Still others consider ownership of the firearm either "irrelevant to possession," United States v. Boykin, 986 F.2d 270, 274 (8th Cir.), cert. denied, --- U.S. ----, 114 S.Ct. 241, 126 L.Ed.2d 195 (1993), or virtually conclusive, United States v. Barron-Rivera, 922 F.2d 549, 552 (9th Cir.1991). These inconsistencies, Rogers argues, leave him with insufficient notice of the conduct that is criminally proscribed.

Because "dominion," "control," and "ownership" are overlapping concepts, it is not surprising that some judicial glosses upon "possession" may seem facially inconsistent. These differences do not, however, make the language of 18 U.S.C. Sec. 922(g) unconstitutionally vague. We think that the term "possession" concretely describes the conduct proscribed by the statute. ² More than a few laws would be in jeopardy if absolute consistency of judicial interpretation were the measure of a law's constitutionality.

B. The Sufficiency of the Indictment

Rogers argues next that his indictment was insufficient because it failed to set forth "any facts (except for an 'on or about' date) ... as to the charge of having 'possessed' the weapon...." On the contrary, the indictment stated the date of the offense, the district in which it occurred, the make, type and serial number of the firearm, the felony conviction underlying the charge, and the citation of the statute. The indictment provided a "plain, concise and definite written statement of the essential facts constituting the offense charged." Fed.R.Crim.P. 7(c)(1). No more was required to "fairly inform[ ]" Rogers of the possession charge, "and [to] enable[ ] him to enter a plea without fear of double jeopardy." United States v. Yefsky, 994 F.2d 885, 893 (1st Cir.1993) (citing Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590 (1974)). ³

C. The Jury Instructions

Rogers argues that the jury instructions incorrectly defined "possession" in terms of ownership. Because defense counsel did not object on this basis, we review the instructions only for plain error. United States v. Burns, 15 F.3d 211, 217 (1st Cir.1994).

" 'Constructive' possession is commonly defined as the power and intention to exercise control, or dominion and control, over an object not in one's 'actual' possession." Zavala Maldonado, 23 F.3d at 7. The district court explained possession as follows:

The term "possess" as used in [Sec. 922(g) ] is not necessarily equated with legal ownership of the firearm here at issue. The law recognizes two kinds of possession, actual possession and constructive possession. A person who knowingly has direct physical control over a thing at a given time is then said to be in actual possession of that thing. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing, or to exercise dominion or control over the area in which that thing is found, whether directly or through another person, is then in constructive possession of the thing [emphasis added].

We discern no error in this explanation. The instructions correctly stated that ownership is relevant to the question of possession. To be sure, ownership alone does not establish possession, but it may be highly relevant where the authority to exercise control is disputed. Cf. United States v. Ocampo-Guarin, 968 F.2d 1406, 1410 (1st Cir.1992) (finding possession of cocaine where drug courier "carried baggage claim tickets that represented her legal right to reclaim [her] luggage"). ⁴

Rogers also complains that the district court used the conjunction "or" rather than "and"--"dominion or control." Dominion, however, is generally defined as "perfect control in right of ownership." Black's Law Dictionary 436 (5th ed. 1979) (emphasis added). Pursuant to the court's instruction, there could have been no conviction absent a finding of control. ⁵

Rogers argues next that the district court committed plain error by giving only a general unanimity instruction, and no specific unanimity instruction. During its deliberations, the jury sent a note to the district judge: "We would like clarification of the two types of possession." The court repeated its original instruction on possession, and this exchange took place:

THE COURT: Does that answer your question, ladies and gentlemen? It doesn't? That's the law on actual and constructive possession. You're shaking your head, sir. What's the problem?

MR....