USA v. Albert Smith
OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Boyce F. Martin , Jr., Circuit Judge; Richard F. Suhrheinrich, Circuit Judge and Raymond M. Kethledge, Authoring Circuit Judge.
Case: 07-6014 Document: 006110927280 Filed: 04/14/2011 Page: 1
NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0232n.06
Apr 14, 2011
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
LEONARD GREEN, Clerk
ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE WESTERN DISTRICT OF
Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. A jury convicted Albert Smith of being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g). Smith now argues that we should vacate the
conviction and remand for a new trial because the district court instructed the jury on theories of
constructive and joint possession, which were not supported by the evidence. Smith’s argument is
not supported by our caselaw, so we affirm.
We review a district court’s choice of jury instructions for abuse of discretion. United States
v. Ross, 502 F.3d 521, 527 (6th Cir. 2007). We may reverse a judgment based on improper jury
instructions “only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial.”
United States v. Svoboda, 633 F.3d 479, 483 (6th Cir. 2011). In reviewing the instructions, we
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United States v. Smith
consider whether they “adequately informed the jury of the relevant considerations and provided a
basis in law for aiding the jury in reaching its decision.” Id.
At trial, the district court instructed the jury on actual, joint, and constructive possession. The
government’s only theory of the case was that Smith actually possessed a gun when he was arrested.
The government requested jury instructions on constructive and joint possession, however, because
Smith’s attorney suggested throughout trial that the gun in question was discovered at Smith’s
friend’s house after the arrest occurred. The district court ultimately instructed the jury, per Sixth
Circuit Pattern Jury Instruction 2.10, that constructive possession means “that the defendant had the
right to exercise physical control over the firearm and knew that he had that right, and that he
intended to exercise physical control of the firearm at some time, either directly or through other
persons.” With respect to joint possession, the court instructed the jury that “two or more people can
together share actual or constructive possession of property.”
The court erred in giving these instructions. This court has stated that boilerplate instructions
“should not be used without careful consideration being given to their applicability to the facts and
theories of the specific case being tried.” United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir.
1991). Here, the government relied on an actual-possession theory and presented evidence that
Smith had the gun in his back pocket when police arrested him. None of the other facts at trial
supported the additional theories of possession. Smith testified that he had no gun in his pocket, that
police did not find a gun during the arrest, and that he believed the police returned to the house after
the arrest. But, even if we believe Smith, the testimony does not support constructive or joint
possession—it merely raises questions as to where and how officers found the gun. Smith’s attorney
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United States v. Smith
emphasized, during cross-examination of the government’s witnesses, that several other men lived
in the house where Smith was arrested and that Smith’s fingerprints were not found on the gun. The
attorney implied that arresting officers re-entered the house and found a gun—belonging to someone
else—after arresting Smith. This might support a finding that the gun did not belong to Smith and
was not in Smith’s possession. But it does not show that Smith had a “right to exercise physical
control” over a gun found in the house, “knew he had that right,” or “intended to exercise physical
control” over the gun, as required for constructive possession. Nor does it show that Smith jointly
possessed the gun with others.
In addition, commentary for Instruction 2.10—which covers actual and constructive
possession—states that it is error to give that instruction if the government only presents a theory of
actual possession. Similarly, the note and commentary for Instruction 2.10A, covering actual
possession, state that Instruction 2.10A should be given if the government’s sole theory of possession
is actual because, in such cases, “there is no reason for the additional complexity injected by defining
constructive possession.” Here, the government exclusively relied on an actual-possession theory,
so it was error for the district court to give Instruction 2.10.
The error, however, was harmless. When there is adequate evidence supporting one jury
instruction and inadequate evidence supporting another, and the only claimed error is the lack of
evidence to support the second theory, we have held that the error is “harmless as a matter of law.”
United States v. Mari, 47 F.3d 782, 786 (6th Cir. 1995) (citing Griffin v. United States, 502 U.S. 46
(1991)). This is because, as the Supreme Court explained in Griffin v. United States, courts assume
that jurors can analyze the evidence and discard factually inadequate theories. See 502 U.S. at 59;
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United States v. Smith
Mari, 47 F.3d at 786 (“[O]n these occasions, the jury will . . . consider the [inadequate] theory, and
then dismiss it for what it is—mere surplusage . . . insufficient to support the conviction”). Here,
the government only argued actual possession, and ample evidence supported that theory, so there
is no reason to think the jury based its conviction on the unsupported theories. See United States v.
Hughes, 134 F. App’x 72, 77 (6th Cir. 2005) (holding that it was harmless error for the district court
to give an unsupported constructive-possession instruction along with an adequately supported
Smith relies on a pre-Griffin case, United States v. James, 819 F.2d 674 (6th Cir. 1987), to
argue that the unsupported instructions affected his verdict and thus were not harmless. His case is
distinguishable from James, however, so the argument is unavailing.
In James, we found that an unsupported constructive-possession instruction prejudiced the
defendant. 819 F.2d at 677. In that case, the district court instructed the jury on actual possession
and the jury deliberated for several hours. Id. at 676. The jury then asked whether a person must
physically hold a gun to possess it. Id. At that point, the judge gave a constructive-possession
instruction and the jury convicted the defendant minutes later. Id. at 676. We held that the
defendant was prejudiced by the instruction, primarily because the circumstances—the jury’s
question and the quick conviction following the incorrect instruction—showed that the jury probably
relied on a theory of constructive possession. Id.
Here, the record does not show that the jury was confused or that it convicted Smith on a
theory of constructive or joint possession. The government presented a clear actual-possession
argument. The jury arrived at its verdict in less than two hours without asking questions or
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United States v. Smith
expressing any uncertainty. And the defendant’s testimony did not make constructive or joint
possession particularly tempting (as opposed to the James defendant’s testimony that police found
a gun under his mattress, a situation that could easily involve constructive possession).
Smith argues that, as in James, the circumstances of his trial show that he experienced actual
prejudice. First, he says that the jury in this case could have believed his plausible testimony that
police never found a gun on him. But the rationale of James was mostly based on the jury’s question
to the court and fast conviction, not James’s testimony. In any case, Smith’s version of the story is
not very plausible, and is contradicted by the testimony of everyone else present during the
arrest—two officers and Smith’s friend. Second, Smith says the erroneous instructions caused his
conviction because there was a hung jury in an earlier trial on this same gun-possession charge. But
the prior hung jury has no bearing on whether the instruction in this trial affected this jury’s verdict.
Third, Smith says his attorney’s arguments at trial confused the jury because they could be misread
as constructive-possession arguments. The record does not support this; the defense merely argued
that the gun did not come from Smith, and suggested that it may have belonged to someone else in
In sum, the constructive- and joint-possession instructions were harmless errors under Mari
and Griffin. James is distinguishable from this case: unlike in James, the record here does not
suggest that the jury convicted Smith on the basis of the erroneous instructions, or that the jury
would not have convicted him absent those instructions. We affirm.
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