U.S. v. Teemer

• Decision Date: 12 January 2005
• Docket Number: No. 03-2543.,03-2543.
• Citation: 394 F.3d 59
• Parties: UNITED STATES of America, Appellee, v. Kenya TEEMER, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

394 F.3d 59

UNITED STATES of America, Appellee, v. Kenya TEEMER, Defendant, Appellant.

No. 03-2543.

United States Court of Appeals, First Circuit.

Heard September 9, 2004.

Decided January 12, 2005.

Brett D. Baber, by appointment of the court, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D. Silsby, United States Attorney, was on brief for appellee.

Before BOUDIN, Chief Judge, SELYA, Circuit Judge, and SCHWARZER,^* Senior District Judge.

BOUDIN, Chief Judge.

On the afternoon of October 29, 2003, in Portland, Maine, police officer Gayle Petty pulled over a Mitsubishi hatchback driven by Jason Stubbs. Stubbs' girlfriend, Amanda Bailey, was sitting in the passenger seat. Kenya Teemer was sitting in the rear seat immediately behind her. Behind him was the hatchback's storage area, which arguably could be accessed by reaching over the rear seats or by folding down either or both of them.

Petty, who had halted Stubbs for running a stop sign, took Stubbs' license and found from a radio call that the license was no longer valid. After the arrival of a second officer (Robert Hawkins), Petty arrested Stubbs for driving with a suspended license and put him in her cruiser. At that point, Stubbs told Petty that he had a gun in the trunk and ammunition in the glove compartment.

Apparently at the same time, Hawkins asked Bailey and Teemer to step out of the hatchback "so I can talk to you for a few minutes, please." Asked whether either had a license (and therefore could drive the car away), Bailey produced a permit, but Teemer had no identification. Questioned about this, Teemer gave his name and birth date and admitted (when asked) that he was on probation in Georgia. Hawkins then contacted his dispatcher about Teemer's probation status.

In the meantime, Petty searched the car, finding an unloaded AK-47 (a well-known brand of assault rifle) lying flat in the storage area, a few inches behind the rear seats. Ammunition was also found scattered about and in a bag in the back, but it was for a different weapon; in the glove compartment were two loaded magazines with ammunition for the AK-47. Hawkins then radioed for a supervisor and, in due course, Sergeant Cady arrived.

Cady asked Teemer about his probation status and the gun in the car, and Teemer said that Stubbs owned the gun. Cady then asked Teemer "if his [Teemer's] fingerprints would be found on the weapon." According to Cady, Teemer answered that "they definitely would be[,] because he had moved this weapon in Westbrook a few days earlier"; Hawkins later testified that he overheard Teemer saying that "he had touched it a few days prior at a friend's house and it was the seat [sic], and that he had just picked it up to move it so he could watch a football game."

Cady then called the dispatcher to see whether Teemer's probation status had yet been clarified and was told that he did have a felony conviction. Cady testified later that this information, coupled with Cady's own observation of the rear seats and the storage area, persuaded him that a case for constructive possession could be made against Teemer as a felon in possession. He therefore ordered Teemer's arrest.

Prior to trial, the district court granted a motion to suppress statements that Teemer had made at the station house after his arrest, ruling that they were made after Teemer had expressed his desire to remain silent. The district court refused to suppress Teemer's admission made at the scene of the car stop; the court held that no Miranda warning had been required at the scene because Teemer had not been subject to custodial interrogation.

About three weeks before trial, Teemer's counsel sought to withdraw. The district judge questioned both Teemer and his counsel, who had by then represented Teemer for six months. Based on the answers given, the district court ruled that no adequate basis existed to replace counsel and delay the trial; the court noted that the trial counsel had provided "diligent" and "zealous" representation (by then, counsel had partially won the motion to suppress).

At trial, the government relied mainly on Teemer's admission and on his proximity to the weapon in the car. Stubbs testified that he had bought the AK-47 and had recently stored it in the car and in Bailey's apartment in Westbrook, Maine, in which he and Teemer were staying. He also testified that he himself sometimes carried the weapon in a box and sometimes not, and that reaching over the rear seats to access the gun in the back was impractical because of other items in the storage area.

Bailey also testified at trial. From the combination of her trial and grand jury testimony, the jury could have found that Stubbs and Teemer had gone target-shooting with the AK-47 on two occasions (although Bailey did not see what role Teemer played) and that, on one occasion, Teemer had carried the gun into the house. However, her statements at trial were not wholly consistent with her grand jury testimony.¹

At the jury-instruction stage, Teemer sought an instruction entitled "Transitory Possession as a Defense" stating:

Evidence may be presented to you regarding transitory possession. The evidence may tend to show that the Defendant was touching the firearm merely to move it out of his way. You are instructed that if a person has possession of a firearm under certain circumstances which indicate that he did not have the intent to do the acts which constitute the possession of a firearm, that person would not be guilty of the offense charged. If the actual possession of the firearm by the Defendant was fleeting without the intent to exercise control, then this defense is applicable. This defense is based upon the definitions of actual and constructive possession, which I gave you earlier. If you find beyond a reasonable doubt that the Defendant did not have the specific intent to have a possessory interest in the firearm and that he did have a "transitory" possession of the firearm, then you must find him not guilty.

The district court declined to give this instruction, providing instead a standard instruction on "possession" which we reprint in full in an attachment. The key language, following a statement that possession must be done "voluntarily and intentionally, and not because of any mistake or accident," was as follows:

And I instruct you that the term possess means to exercise authority, dominion, or control over something. It is not necessarily the same as legal ownership. The law recognizes different kinds of possession. Possession includes both actual and constructive possession. A person who has direct physical control of an object on or around his or her person is then said to be in actual possession of it.

And I instruct you that a person who is not in actual possession, but who has both the power and the intention to exercise control over something or an object is in constructive possession of it.

The jury convicted Teemer, who was then sentenced — at the top of the guideline range — to 41 months' imprisonment. He has now appealed, claiming that his admission should have been suppressed, that the subsequent motion to replace his counsel was improperly denied, and that his proposed instruction on "transitory" possession should have been given. The last is the most difficult issue and we begin with it, simplifying matters by assuming that review is de novo.²

From the evidence, the jury had several different paths that it could have taken to its conclusion that Teemer had possessed the AK-47: importantly, his own admission that he had moved the weapon in the apartment so he could sit down, his proximity to it during the final car ride, a conclusion or inference (from Bailey's testimony) that Teemer had carried it into the apartment, and (perhaps) an inference that he had handled or used it on an outing with Stubbs (again, Bailey's testimony).

Any one of these theories, except perhaps the last, would be independently adequate; but the second (proximity in the car) turned in part on ease of access, where the testimony was disputed, and required an additional inference of intent; and the third depended inter alia on Bailey's debatable credibility. So the jury may well have relied upon the first theory (Teemer's admission), and if there were error in refusing to give the proposed instruction, we would not accept the government's suggestion that it was harmless. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Neder v. United States, 527 U.S. 1, 15-16, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999).

The district court did instruct that intent is necessary to possession, and that the requisite intent is to exercise authority, dominion, or control. So, the real bite of the proposed instruction is its creation of a "defense" that would require the jury to acquit if it found that the defendant's possession was "fleeting" or "transitory" and that he did not intend in some more permanent sense to retain authority over the weapon. This does arguably fit Teemer's case and would have gone some distance to negate the adverse impact of his admission.

The district court was correct not to give this proposed instruction. It could easily exculpate a bank robber who, after the robbery and on request, picked up another bank robber's gun from the table and handed it to him. There are plenty of other situations in which holding a weapon, even briefly and without an intent to retain it, would nonetheless be unacceptable for a former felon. Indeed, a number of our cases say, in the context of both guns and drugs, that the briefest moment of possession may be enough for a conviction.³

This does not mean that brevity or any other circumstance must be ignored by a jury in gauging whether intentional possession occurred — merely that brevity alone does not preclude conviction. Teemer's approach, by contrast, aims to make brevity controlling, at least where the...