Possession of a Firearm by a Convicted Felon
The court could have modified the following portion of the recommended instruction for use in cases involving possession of a Firearm by a Convicted Felon (18 U.S.C. 922 (g)):
To "possess" means to have something within a person's control. This does not necessarily mean that the defendant must hold it physically, that is, have actual possession of it. As long as the firearm is within the defendant's control, he possesses it. If you find that the defendant either had actual possession of the firearm, or that he had the power and intention to exercise control over it, even though it was not in his physical possession, you may find that the government has proven possession.
The law also recognizes that possession may be sole or joint. If one person alone possess it, that is sole possession. However, it is possible that more than one person may have the power and intention to exercise control over the firearm. This is called joint possession. If you find that the defendant had such power and intention, then he possessed the firearm under this element even if he possessed it jointly with another. Proof of ownership of the firearm is not required.
To satisfy this element, you must also find that the defendant knowingly possessed the firearm. This means that he possessed the firearm purposely and voluntarily, and not by accident or mistake. It also means that he knew that the weapon was a firearm, as we commonly use the word. However, the government is not required to prove that the defendant knew that he was breaking the law.
Matthew Bender & Company, 2-35 Modern Federal Jury Instructions-Criminal P 35.07, Form Instruction 35-49 (2001). See also United States v. Martinez, 588 F.2d 495 (5th Cir. 1979), which expressly approved the following instruction:
Now, the law recognizes two kinds of possession: actual possession and constructive possession.
A person who knowingly has direct physical control of a thing at a given time is then in actual possession of it. I've got a pencil here. I'm in actual possession of this pencil.
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 either directly or through another person or persons is then in constructive possession of it.
I have pencils on my desk in my chambers. My law clerk will go get them for me if I want them. And that's possession, also. That's constructive possession.
The law recognizes, also, that possession may be sole or joint. If one person alone ha actual or constructive possession of a thing, possession is sole.
If two or more persons share actual or constructive possession of a thing, possession is joint.
You may find that the element of possession, as that term is used in these instructions, is present if you find beyond a reasonable doubt that the defendant had actual or constructive possession either alone or jointly with others. (588 F.2d at 498 n.3.)
In Muscarello v. United States, 524 U.S. 125, 118 S. Ct. 1911, 141 L. Ed. 2d 111 (1998), a majority of the United States Supreme Court concluded that (1) the phrase "carries a firearm" (as that term appears in 18 U.S.C.S. 924(c)(1), which proscribes carrying a firearm during and in relation to a drug trafficking offense) is not limited to carrying of firearms on the person, and (2) "'transport' is a broader category that includes 'carry' but also encompasses other activity. 524 U.S. at 135.
Thus, the correct "carrying" instructions would be based upon the principles of (actual, constructive, and joint) possession, 3 while the correct "transporting" instructions would make it clear that -- even if the jurors were not persuaded that appellant was in joint constructive possession of the handgun -- he should be found guilty of the "knowingly transporting" violation if the jurors were persuaded beyond a reasonable doubt that he drove the vehicle with knowledge that the handgun was in the trunk.