United States v. Matthews, Iron

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-3918
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
IRON MATTHEWS,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 05 CR 280—Matthew F. Kennelly, Judge.
____________
ARGUED NOVEMBER 9, 2007—DECIDED APRIL 1, 2008
____________
Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.
RIPPLE, Circuit Judge. Iron Matthews was convicted
on one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g). On appeal, Mr. Matthews
challenges his conviction on the ground that the district
court committed instructional error. For the reasons
set forth in this opinion, we affirm the judgment of the
district court.
2 No. 06-3918
I
BACKGROUND
A. Facts
In March 2005, Lamont Williams was arrested by local
police for possession of a rifle, which Williams had in-
tended to give to Mr. Matthews in exchange for cocaine.
Williams agreed to cooperate with the police and become
an informant for the Bureau of Alcohol, Tobacco, and
Firearms (“ATF”). At the behest of ATF agents, Williams
called Mr. Matthews to inform him that he (Williams)
had sold the rifle, but that he had three other firearms
to sell. Mr. Matthews indicated interest, but he wanted
more information about the firearms. After receiving
additional information, Mr. Matthews noted that the
firearms described by Williams could be useful “on the
block.” Tr. at 132.
Over the next two days, Williams made multiple tele-
phone calls to Mr. Matthews to facilitate the transaction,
all of which were recorded by the ATF. Williams agreed
to pick up Mr. Matthews and take him to a Walgreen’s
parking lot where the parties could make the exchange
of weapons for crack cocaine. An undercover ATF agent
was waiting in the Walgreen’s parking lot for Williams
and Mr. Matthews; in the trunk of the agent’s car was a
toolbox holding the three ATF-owned firearms that Wil-
liams had described to Mr. Matthews.
Mr. Matthews met with the agent. During this meeting,
the agent opened the trunk of his vehicle and told
Mr. Matthews that he should look at the firearms. At that
time, Mr. Matthews picked up each one of the three
firearms for a few seconds to inspect it. Mr. Matthews
then told the agent that “you will want three zips then,”
No. 06-3918 3
meaning three ounces of cocaine for the firearms. Tr. at 66.
Mr. Matthews did not take the firearms at that time; he
stated that the weapons were for his “guy” and that he
had nothing of value to trade for them at that point. Tr. at
82. After the conversation, agents arrested Mr. Matthews.
Following his arrest, Mr. Matthews gave a statement to the
police in which he admitted to picking up and handling
each of the firearms; his statement also included the
following acknowledgment: “I know I broke the law just
by touching the guns.” Tr. at 83.
B. District Court Proceedings
Mr. Matthews was charged in a single count indict-
ment for being a felon in possession of a firearm in viola-
tion of 18 U.S.C. § 922(g).1 At trial, the Government prof-
fered the following instruction:
Possession of an object is the ability to control it.
Possession exists when an individual holds an object,
in this case a firearm, even if the handling is only
momentary, as long as the individual does so know-
ingly and intends to handle the object. A person need
not own an object to possess it.
1
18 U.S.C. § 922(g) states in relevant part that it shall be
unlawful for any person “who has been convicted in any
court of[ ] a crime punishable by imprisonment for a term
exceeding one year . . . to ship or transport in interstate or
foreign commerce, or possess in or affecting commerce, any
firearm or ammunition; or to receive any firearm or ammuni-
tion which has been shipped or transported in interstate or
foreign commerce.”
4 No. 06-3918
R.21 at 23. The defendant proffered a different instruction
on “possession” that required that the firearm be “loaded
and operable.” Tr. at 165. The Government objected to
Mr. Matthews’ proposed instruction as inconsistent with
United States v. Lane, 267 F.3d 715 (7th Cir. 2001), in
which we upheld a defendant’s conviction under sec-
tion 922(g) based on the defendant’s possession of an
unloaded firearm.
The district court fashioned its own jury instruction as
follows:
Possession of an object is the ability to control it.
Possession exists when an individual holds an object
as long as the individual does so knowingly and
intends to handle the object. Possession may also exist
when a person is not in physical control of the object
but knowingly has the power and intention to exercise
direction or control over it either directly or through
others. A person can possess an object without
owning the object provided that the person has the
power and intention to control the object.
Tr. at 200. After hearing the evidence and the instruc-
tions, the jury returned a verdict against Mr. Matthews.
II
ANALYSIS
Mr. Matthews’ sole argument on appeal is that the
district court erred when it refused to give his proffered
instruction on possession. We review alleged instruc-
tional error for an abuse of discretion. United States v.
Kosth, 257 F.3d 712, 717 (7th Cir. 2001). In conducting
our review, we ask whether the instruction “fairly and
No. 06-3918 5
accurately summarize[s]” the law and has “support in the
record.” Id.
Mr. Matthews maintains that the district court abused
its discretion in refusing his proffered instruction. Accord-
ing to Mr. Matthews, this court’s case law, which holds
that momentary possession of a weapon violates section
922, presupposes a loaded and operable weapon. The
reason, continues Mr. Matthews, that the court has held
momentary possession to be sufficient is that so little
time is needed to fire a weapon. However, if the weapon
is not loaded, a momentary possession does not carry
with it the same threat of danger. Because the weapons
he held were not loaded, Mr. Matthews concludes, his
inspection of the weapons was not sufficient to establish
possession under the law. Mr. Matthews points to United
States v. Kitchen, 57 F.3d 516 (7th Cir. 1995), United States v.
Lane, 267 F.3d 715 (7th Cir. 2001), and United States v.
Hendricks, 319 F.3d 993 (7th Cir. 2003), as support for
his argument.
In Kitchen, the defendant had been convicted of posses-
sion of cocaine. The facts established that, during a
sting operation, Kitchen had agreed to purchase cocaine
from undercover officers. When he went to inspect the
cocaine, Kitchen picked up one of the kilos for two or
three seconds and then commented that he was con-
cerned about the purity of the cocaine. He then was
placed under arrest and later was convicted of possession
of the cocaine. On appeal, Kitchen challenged the suffi-
ciency of the evidence supporting his drug conviction. The
Government maintained that actual possession is estab-
lished if a defendant picks a controlled substance up for
a fleeting moment. We disagreed. We stated that, in
order to possess narcotics, the Government must establish
6 No. 06-3918
“some sort of unequivocal conduct or assent to the trans-
action,” which was missing in the present case. Kitchen,
57 F.3d at 523. However, in requiring this type of action
to establish possession of narcotics, we noted that we
were “not attempt[ing] to use the present case to formulate
a rule workable for all circumstances.” Id.
We later distinguished the circumstances in Kitchen
from the facts presented in United States v. Lane, 267
F.3d 715 (7th Cir. 2001). In Lane, the defendant, a con-
victed felon, purchased a gun for his girlfriend. Before
purchasing it, Lane removed the gun from its box, held
it and inspected it. Based on this action, Lane was con-
victed of being a felon in possession of a firearm. On
appeal, he maintained that he had not “possessed” the
gun and relied on Kitchen for the proposition that a mo-
mentary possession was not sufficient to establish posses-
sion under the law. We disagreed:
There is a marked difference between the steps neces-
sary to exercise control over drugs and those neces-
sary to control a gun. To deal with the “growing
menace of drug abuse in the United States,” H.R.Rep.
No. 91-1444, at 1 (1970), 1970 U.S.C.C.A.N. 4566,
Congress made it illegal to possess drugs with the
intent to distribute them. To obtain control over drugs
in this context, a defendant needs more than just mere
physical contact; he must have the perceived right
among the criminals with whom he is interacting
to deal, use, transport, or otherwise control what
happens to the drugs. See Kitchen, 57 F.3d at 524. Such
control is not a foregone conclusion when a defen-
dant’s sole physical contact with drugs is momentary
inspection of drugs he does not own or over which
he did not have recognized authority. . . .
No. 06-3918 7
In contrast to drugs, it is much easier to obtain
control and therefore possession of a gun in the con-
text of 18 U.S.C. § 922(g)(1). Congress originally passed
this law as the Federal Firearms Act of 1938 “to ‘pre-
vent the crook and gangster, racketeer and fugitive
from justice from being able to purchase or in any way
come in contact with firearms of any kind.’ ” Barrett v.
United States, 423 U.S. 212, 220 (1975) (quoting S.Rep.
No. 1189, at 33 (1937)). Throughout this Act’s subse-
quent history, this purpose has remained constant.
See S.Rep. No. 90-1501, at 22 (1968); H.R.Rep. No.
99-495, at 1-3. From the purpose of the Act, it is reasonable
to infer that Congress intended to prohibit felons from
exercising any physical control over a gun.
Physical control over a gun is remarkably easy to
effect. Once the gun is in the defendant’s hands he
need only pull the trigger, an act which can be com-
pleted in a split second and which is controlled and
influenced by nothing more than the defendant’s
whim. . . . Felons handling guns, unlike defendants
who have touched drugs, do not need recognition of
their authority or any extra element to obtain the
ability to shoot the gun. Lane had just as much con-
trol over the gun when he inspected it while it be-
longed to Bowen as he would have if he as the gun’s
owner took aim at a rabbit. Because a defendant can
shoot a gun so quickly and easily once he holds it in
his hands, we conclude that evidence showing that
a felon held a gun is by itself a “factor indicating
that the defendant had the ability to exercise direct
control over the [firearm].” The distinction between
holding a gun and obtaining control over a gun as
required to prove possession is academic.
8 No. 06-3918
267 F.3d at 718 (emphasis added; parallel citations omit-
ted). Consequently, we concluded that “holding a fire-
arm establishes possession as a matter of law in the con-
text of a charge under 18 U.S.C. § 922(g)(1).” Id. at 719.
We further explained that “[t]his holding depends heavily
on both the purpose of the law in question and on the
physical nature of guns.” Id.
Finally, in Hendricks, the defendant had been convicted
of violating section 922. The testimony at trial estab-
lished that Hendricks had discovered a gun in the car
that he and his girlfriend had stolen. Hendricks had found
the gun under the seat of the car, had held it momentarily
and then had placed it back under the seat. After his
conviction, he argued that, “although he held the firearm
momentarily, he did so only for an ‘academic’ period of
time, which is insufficient to establish guilt under
§ 922(g)(1).” Id. at 1005. We rejected this argument:
Mr. Hendricks relies primarily on United States v.
Conley, 291 F.3d 464 (7th Cir. 2002), to support his
argument. In Conley, we stated in dicta that “[o]ur case
law makes clear that an individual convicted of a
felony violates § 922(g)(1) whenever he is in possession
and physical control of a weapon for more than an
‘academic’ period of time, even if he lacks the
specific intent to use the weapon for criminal pur-
poses.” Id. at 473 (quoting United States v. Lane, 267
F.3d 715, 718 (7th Cir. 2001)). Mr. Hendricks’ reliance
on this statement is misplaced. Although we gave no
precise definition to the term “academic” in Conley, a
fair reading of the reference in the context of the
court’s discussion leaves no doubt that the court was
of the view that even a very brief possession of a
firearm is sufficient to convict under § 922(g)(1).
No. 06-3918 9
Furthermore, the court used the term “academic”
based on a passage from United States v. Lane, 267 F.3d
715 (7th Cir. 2001), which undermines, rather than
supports, Mr. Hendricks’ position.
In Lane, this court stated: “Because a defendant can
shoot a gun so quickly and easily once he holds it in
his hands, we conclude that evidence showing that
a felon held a gun is by itself ‘a factor indicating that
the defendant had the ability to exercise direct con-
trol over the [firearm].’ ” Id. at 718 (alteration in origi-
nal). The court then stated that “[t]he distinction
between holding a gun and obtaining control over a
gun as required to prove possession is academic.” Id.
Fairly read, this passage suggests that, when a felon
holds a firearm, he is in possession of the firearm,
and any distinction between the two would be purely
academic, in the sense of theoretical (existing only
in concept and not in reality).
319 F.3d at 1005.
As noted above, Mr. Matthews believes that these
cases establish that the “momentary” possession rule
evolved because of the ease with which weapons can be
discharged. He further contends that, when there is no
threat of imminent danger from the weapon—either
because it has not been loaded with ammunition or be-
cause it has been disabled in some manner—the rule
should not apply.
We cannot agree with Mr. Matthews’ reading of the
statute and the case law interpreting it. The above cases
make clear that the ability to fire a weapon is only one
rationale supporting the “momentary” possession rule.
We explained in Lane that the purpose of the Federal
10 No. 06-3918
Firearms Act was to prevent criminals “in any way from
com[ing] in contact with firearms of any kind.” 267 F.3d
at 718. When the Act was amended in 1968, Congress
reiterated that
[t]he principal purposes of this act are to make it
possible to keep firearms out of the hands of those
not legally entitled to posses them because of age,
criminal background or incompetency, and to assist
law enforcement authorities in the States and their
subdivisions in combating the increasing prevalence
of crime in the United States.
S.Rep. No. 90-1501, at 22 (1968). To this end, section 922
extensively regulates the purchase and sale of firearms. See,
e.g., 18 U.S.C. § 922(a) (prohibiting the import, manufac-
ture, sale or transport of firearms other than by those
specifically licensed to do so); id. § 922(c) (requiring a
purchaser of firearms to sign a sworn statement as to the
purchaser’s competency and legal right to purchase
firearms). It prohibits those who have been convicted of a
felony from “ship[ping] or transport[ing],” “possess[ing],”
or “receiv[ing]” any firearm. Id. § 922(g). Additionally, the
prohibitions not only apply to firearms, but also to ammu-
nition. See id. In short, Congress sought to divorce com-
pletely convicted felons from the use or possession of
weapons and from the weapons trade.
Here, Mr. Matthews’ conviction gives effect to this
statutory purpose. Mr. Matthews, a convicted felon,
willingly came into contact with the firearms, taking them
into his hands and inspecting them for the purpose of
arranging a sale. The conduct in which Mr. Matthews
engaged is precisely what section 922 was meant to pre-
vent.
No. 06-3918 11
Besides Kitchen, Lane and Hendricks, Mr. Matthews does
not come forward with any other case law from this
court—or any other court—to support his proffered
instruction that momentary possession of an unloaded
weapon does not violate section 922(g), and we have
located none. By contrast, the cases that we have found
strongly suggest that the other courts of appeals also
would reject Mr. Matthews’ arguments. See, e.g., United
States v. Johnson, 459 F.3d 990, 997-98 (9th Cir. 2006) (re-
jecting the proffered instruction on an innocent pos-
session defense as contrary to Congress’ purpose “to keep
guns out of the hands of those who have demonstrated
that they may not be trusted to possess a firearm without
becoming a threat to society” (internal citations and
quotation marks omitted)); United States v. Teemer, 394
F.3d 59, 63-64 (1st Cir. 2005) (rejecting a proffered instruc-
tion that would require the jury to acquit the defendant
if possession was “fleeting” or “transitory” and noting
that “[t]he statute bans possession outright without re-
gard to how great a danger exists of misuse in the particu-
lar case”).
Both Lane and Hendricks establish that merely holding
a firearm for a brief period of time is sufficient to con-
stitute possession within the meaning of section 922. This
rule prevents felons from coming into contact with fire-
arms, thus giving effect to one of the purposes of section
922. The district court’s refusal to add another require-
ment—that the firearm be loaded and operable—was
consistent with this court’s case law and the purpose
of section 922. Thus, the district court did not abuse its
discretion in rejecting Mr. Matthews’ proffered instruction.
12 No. 06-3918
Conclusion
For the reasons set forth above, we affirm the judg-
ment of the district court.
AFFIRMED
USCA-02-C-0072—4-1-08