United States v. Marlandow Jeffries , 378 F. App'x 961 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-12686 ELEVENTH CIRCUIT
MAY 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D.C. Docket No. 07-00311-CR-RWS-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MARLANDOW JEFFRIES,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(May 11, 2010)
Before CARNES, MARCUS and COX, Circuit Judges.
PER CURIAM:
Marlandow Jeffries was convicted for: possession of cocaine with intent to
distribute, in violation of 21 U.S.C. 841(a)(1); possession of a firearm by a felon, in
violation of 18 U.S.C. § 922(g); assaulting, resisting, or impeding a deputy United
States Marshal, in violation of 18 U.S.C. § 111; and brandishing a firearm during a
crime of violence or a drug trafficking crime, in violation of 18 U.S.C.
924(c)(1)(A)(i). The district court sentenced Jeffries as a career offender to a 360-
month prison sentence.
Jeffries presents a single issue on this appeal: he contends that the district court
erred by failing to give a jury instruction on “mere presence” and “mere association”
because that was the defense theory of the case and there was an evidentiary
foundation for such an instruction.
At the charge conference, Jeffries requested no instructions, and did not object
to the instructions the court proposed to give. (R.9-124 at 230.) The court’s
instructions to the jury included the following:
The law recognizes several kinds of possession. A person may have
actual possession or constructive possession. A person may also have
sole possession or joint possession. A person who has direct physical
control of something on or around his person is then in actual possession
of it. A person who is not in actual possession, but who has both the
power and the intention to later take control over something either alone
or together with someone else, is in constructive possession of it. If one
person alone has possession of something, possession is sole. If two or
more persons share possession, possession is joint. Whenever the word
“possession” has been used in these instructions it includes actual as
well as constructive possession, and also sole as well as joint possession.
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(R.2-91 at 12-13.) The jury was told that the word “knowingly” meant “that the act
charged in the indictment was done voluntarily and intentionally and not because of
mistake or accident.” (Id. at 20.)
The jury sent a question to the judge during deliberations asking: “Is knowing
the gun is there, is that enough for knowingly possessed?” (R.10-125 at 242.) The
judge referred the jury to the pages of the jury instructions that defined “possession”
and “knowingly.” (Id. at 243.) Neither party objected. (Id.) The jury was told that
although the initial possession instruction was given after summarizing the law on
possession of drugs and possession of firearms, the definition of “possession” applied
to both charges. (Id. at 244.) The court told the jury to look over the definitions it
had given, and cautioned jurors to consider the definitions in the context of the entire
charge. (Id.)
Jeffries argues that the district court committed plain error by failing to sua
sponte instruct the jury on the defense theory of the case. More specifically, Jeffries
argues that the court should have instructed the jury regarding “mere presence” and
“mere association” with respect to his presence at the crime scene and his proximity
to guns and drugs found there because evidence presented at trial established an
evidentiary foundation for this instruction. The standard of review is plain error.
United States v. Moore, 525 F.3d 1033, 1048 (11th Cir. 2008). To establish plain
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error, Jeffries’ must demonstrate: (1) there is an error; (2) which is plain; (3) that
seriously affects the substantial rights of the defendant; and (4) failure to correct the
error would seriously affect the fairness of the judicial proceeding. Id. (citation
omitted). We examine jury instructions to determine if, taken as a whole, the jury was
sufficiently instructed to understand the issues and was not misled. United States v.
Fulford, 267 F.3d 1241, 1245 (11th Cir. 2001) (citation omitted). “If the charge to
the jury adequately and correctly covers the substance of the requested instruction,
there is no reversible error.” United States v. Lively, 803 F.2d 1124, 1128 (11th Cir.
1986). And, a jury is presumed to follow instructions. United States v. Ramirez, 426
F.3d 1344, 1352 (11th Cir. 2005) (citation omitted).
Under § 922(g), it is unlawful for a convicted felon to “possess . . . any firearm
or ammunition.” Section 841(a)(1) makes it unlawful to “knowingly or intentionally
. . . possess with intent to manufacture, distribute, or dispense, a controlled
substance.” Mere presence in the area in which contraband is found, without more,
is insufficient to establish unlawful possession. United States v. Rackley, 742 F.2d
1266, 1271 (11th Cir. 1984) (citation omitted). Constructive possession, however,
is sufficient to support a conviction for unlawful possession of a firearm under §
922(g). United States v. Pedro, 999 F.2d 497, 500 (11th Cir. 1993) (citation omitted).
Similarly, in order to support a conviction for possession of a controlled substance,
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the Government may satisfy the “possession” prong by showing either actual or
constructive possession. United States v. Leonard, 138 F.3d 906, 909 (11th Cir.
1998).
In United States v. Woodard, 531 F.3d 1352, 1364 (11th Cir. 2008), the
defendant requested a “mere presence” instruction in a case involving convictions for
possession of drugs and firearms. The proposed instruction would have supported
his defense that he was merely present when the drugs were delivered, rather than an
active participant in a drug conspiracy. Id. We held that the district court’s given
instruction substantially covered the one he requested. Id. The given instruction
included a definition of “knowingly” that was the same as the one given in this case.
See id. at 1365; (R.2-91 at 20.) Further, we have held in a drug possession case that
a defendant’s rejected proposed instruction on mere presence was covered by a given
instruction that included definitions of “constructive possession” and “actual
possession” that were substantially similar to the definitions given in this case.
United States v. Rojas, 537 F.2d 216, 219-20 n.1, 2 (5th Cir. 1976).1
None of the authorities cited by Jeffries in support of his argument were cases
where no theory of defense instruction was requested. This court’s holdings in
1
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc),we adopted
as binding precedent all of the decisions of the former Fifth Circuit handed down prior to October
1, 1981.
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Woodard and Rojas indicate that “mere presence” and “mere association” were
substantially covered by the instructions given. The instructions given included
defining constructive possession as when someone “has both the power and the
intention to later take control over something,” and defining “knowingly” to mean
“voluntarily and intentionally and not because of mistake or accident.” (R.2-91 at 13,
20.) Since jurors are presumed to have followed the district court’s instructions, they
must not have believed that Jeffries was “merely present” because this instruction
would have required them to conclude that he lacked the intent to take control over
the drugs or firearms, and that he did not “voluntarily and intentionally” engage in
unlawful activity. The absence of an instruction on “mere presence” and “mere
association” was not error, much less plain error.
AFFIRMED.
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