USA v. Gregory Miller

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-15247
Non-Argument Calendar
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D.C. Docket No. 8:10-cr-00322-VMC-MAP-1
UNITED STATES OF AMERICA,
lllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
GREGORY MILLER,
llllllllllllllllllllllllllllllllll Defendant-Appellant.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 8, 2012)
Before MARTIN, JORDAN and ANDERSON, Circuit Judges.
PER CURIAM:
Gregory Miller appeals his conviction for possession of a firearm by a
convicted felon, in violation of 18 U.S.C. § 922(g)(1). On appeal, Miller argues
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that the district court erred in refusing to give his proposed jury instruction on
constructive possession. After careful review, we affirm.
We review a district court’s decision to reject a proposed jury instruction for
abuse of discretion. United States v. Moore, 525 F.3d 1033, 1046 (11th Cir.
2008). Under that standard, we will reverse only if “(1) the requested instruction
correctly stated the law; (2) the actual charge to the jury did not substantially cover
the proposed instruction; and (3) the failure to give the instruction substantially
impaired the defendant’s ability to present an effective defense.” United States v.
Palma, 511 F.3d 1311, 1315 (11th Cir. 2008) (quotation marks omitted). We bear
in mind that “a district court judge is vested with broad discretion in formulating
[her] charge to the jury so long as it accurately reflects the law and the facts.” Id.
(quotation marks omitted).
The district court in this case relied on the Eleventh Circuit pattern jury
instruction for the element of possession. See generally Eleventh Circuit Pattern
Jury Instructions (Criminal Cases) Special Instruction 6 (2010). The court told the
jury that “[t]he law recognizes several kinds of possession,” including both “actual
possession” and “constructive possession.” The court explained that “[a]ctual
possession of a thing occurs if a person knowingly has direct physical control of
it.” The court also said that “[c]onstructive possession of a thing occurs if a
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person doesn’t have actual possession of it, but has both the power and the
intention to take control over it later.”
Miller requested the district court to provide an additional instruction
regarding constructive possession:
Also for possession to exist, the government must show that a
defendant “has knowledge of the thing possessed coupled with the
ability to maintain control over it or reduce it to his physical possession
even though he does not have actual personal dominion” or has
“ownership, dominion or control over the premises or the vehicle in
which the contraband was concealed.”
Mere presence near contraband, or awareness of its location, is
insufficient to establish possession.
The district court found the pattern jury instruction the appropriate one to give and
denied Miller’s request.
On appeal, Miller argues that the district court erred in rejecting his
proposed instruction. However, Miller has not met the standard required for a
reversal due to a jury charge. The instruction given by the district court
“substantially cover[ed]” Miller’s proposed charge. Palma, 511 F.3d at 1315
(quotation marks omitted). The district court’s instruction that the defendant must
have had the “power . . . to take control” of the firearm means, as the proposed
instruction put it, that the defendant must have had the “ability to maintain control
over it or reduce it to his physical possession”—for instance, by having
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“ownership, dominion or control over the premises . . . in which the [firearm] was
concealed.” We see no meaningful difference between the two, and Miller urges
none.
Likewise, the district court’s instruction that the defendant must have had an
“intention to take control” of the firearm necessarily includes the idea that the
defendant must have had “knowledge of the thing.” Further, the requirement that
there be an “intention to take control” precludes a finding of guilt based on
“[m]ere presence” or the mere “awareness of [the firearm’s] location.” See United
States v. Rojas, 537 F.2d 216, 220 (5th Cir. 1976) (holding that an instruction
requiring the jury to find that the defendant had “the power and intention to
exercise dominion and control over the cocaine” was adequate to convey the
principle that “mere presence or proximity” is not sufficient). Thus, the district1
court’s instruction substantially covered the requested charge.
Neither can we say that any failure on the part of the district court to give
the requested instruction “substantially impaired [Miller’s] ability to present an
effective defense.” Palma, 511 F.3d at 1315 (quotation marks omitted). Miller
raised the issue of whether he had the intention to take control of the firearm
In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), this Court1
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981. Id. at 1209.
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during both his opening and closing statements. Specifically, Miller argued to the
jury that he did not intend to take control of the firearm, despite his presence on
the premises. He thus conveyed the idea that he was merely present and that this
was not enough to support a conviction. In view of this, we cannot say that the
district court erred. See United States v. Freyre-Lazaro, 3 F.3d 1496, 1505 (11th
Cir. 1993) (holding that the district court’s failure to give the instruction was not
error given that the defendant’s theory was “fully explained . . . in [his] opening
and closing argument”).
For these reasons, we affirm the judgment of the district court.
AFFIRMED.
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