A jury convicted Haydar Hameed Al-Rekabi of possession of a stolen firearm in violation of 18 U.S.C. § 922(j). The district court instructed on constructive possession but refused necessity and fleeting possession instructions. Al-Rekabi argues the trial court’s use of constructive possession was too expansive and its view of justification defenses too restrictive. In affirming, we clarify the role of constructive possession and urge the parsimonious use of justification instructions.
Background
The preliminary facts are undisputed. On February 16, 2002, when Al-Rekabi’s twelve year-old brother, Hussein, and a friend, Joey, were playing basketball they noticed a “clip” (actually a magazine) from a pistol in a parked vehicle. That led to the discovery of the pistol and another magazine. After stealing them, the boys hid them in an abandoned house, but retrieved them when they became worried the police were looking for the pistol. Hussein took the apparently unloaded pistol and headed home with it in his waistband, along with the magazines of ammunition. In transit, Al-Rekabi discovered his younger brother was carrying a weapon. From that point on the trial evidence varies dramatically.
According to Hussien, Al-Rekabi, who was a passenger in a car driven by his friend Kenny Whitfield, became angry when he learned Hussein was carrying a pistol and smacked him on the neck. He told Hussein to give the pistol to Whitfield, which Hussein did. Al-Rekabi testified he became angry when Hussein told him he had a pistol and jumped out of the car and started slapping and kicking his brother who still had the weapon. According to Al-Rekabi, Whitfield then left the vehicle, separated the brothers, took the pistol from Hussein and drove away. According to Whitfield, he was not in a vehicle with Al-Rekabi on February 16, 2003, and could not drive because he did not have a driver’s license. Whitfield did testify, however, that during this period Al-Rekabi told him he had taken a pistol from his younger brother and, when Whitfield offered to buy it, said he would give it to him. According to Whitfield, Al-Rekabi then left to retrieve the weapon, but returned stating he could not find it. Whitfield never saw Al-Rekabi with a handgun.
That same day, the theft of a pistol was reported to the Salt Lake City Police Department. The owner’s girlfriend told the police she believed some friends of her son might have it. On February 19, 2002, Hussein was interviewed at his school by Salt Lake City Police Officer Fred Ross. According to Officer Ross, Hussein admitted to stealing the pistol. On his way home with it, Al-Rekabi saw him, took the pistol from him and put it in a heater vent in them house so neither of them would get into trouble. Officer Ross took Hussein to the Al-Rekabi home. They were met there by Officer C.J. Johnson. Their search for the pistol was futile. According *1118 to Hussein, the police never entered his home.
It is uncontested that while Officers Ross and Johnson were at the house, another of Al-Rekabi’s brothers, Mohammed, and his mother met them. A conversation among the Officers, Mohammed, and his mother ensued. According to both accounts, the mother and Mohammed called Al-Rekabi on his cell phone and told him the police were looking for the pistol. During the call, according to Mohammed, Al-Rekabi told Mohammed that Whitfield would call him with an address where Mohammed could meet Whitfield to retrieve the weapon. A short time later Whitfield called Mohammed with the address. Mohammed left, unaccompanied, to retrieve the weapon. Mohammed returned home and gave the pistol to Officer Johnson. 1 According to Officer Ross, Mohammed returned with the loaded pistol within seven to ten minutes. Officers Ross and Johnson then accompanied Mohammed to Joey’s house to retrieve a second magazine.
Later that day, Al-Rekabi was interviewed by Utah Department of Corrections Officer David Olive. According to Officer Olive, Al-Rekabi admitted to taking a pistol from Hussein, but subsequently decided to get rid of it because he knew he could not possess it.
Some time later, Al-Rekabi contacted his probation officer, Julie Schirle, to notify her that he had taken a pistol away from his brother and given it to someone else. According to Schirle, Al-Rekabi told her the police had questioned him at his home and he did not think anything further would happen. Al-Rekabi told Schirle he had not called her earlier or given the pistol to her because he knew he was not allowed to possess a pistol under the terms of his probation. 2
On August 14, 2002, Al-Rekabi was charged with possession of a stolen firearm.
Discussion
I. Jury Instructions
A. Constructive Possession
The doctrine of constructive possession is critical in contraband cases, particularly those involving controlled substances and weapons, because it allows the law to reach beyond puppets to puppeteers. Thus, “constructive possession exists where the defendant knowingly has the power to exercise control or dominion over the item.”
United States v. Lopez,
“We examine jury instructions as a whole and review
de novo
the propriety of an individual jury instruction to which objection was made at trial.”
United States v. Cooper,
Al-Rekabi objected to any constructive possession instruction and now contends the trial court erred in giving such an instruction. He claims 1) the evidence did not support the instruction, and 2) if an instruction was justified, the one delivered to the jury was misleading and confusing. We consider those claims in turn.
This jury was presented with a factual smorgasbord; most versions involved Al-Rekabi’s actual or constructive possession of the pistol: 1) Hussein complied with Al-Rekabi’s directive to give the pistol to Whitfield (Hussein’s trial version), 2) Al-Rekabi took the pistol from Hussein and stashed it (Whitfield’s trial version based on statements Al-Rekabi made to him and Hussein’s version as related to Officer Fred Ross), 3) Al-Rekabi took the pistol from Hussein and gave it to another person (Al-Rekabi’s version as related to a Utah corrections officer and a probation officer), or 4) Whitfield took the pistol from Hussein and drove off with it (Al-Rekabi’s trial version). There was evidence placing the pistol in Al-Rekabi’s house and evidence that Al-Rekabi continued to control the destiny of the pistol for some time after the encounter with Hussein. When the police were looking for the pistol, Al-Rekabi spoke to Mohammed on the cell phone. Mohammed left and returned a short while later with the loaded pistol.
The evidence, while conflicting, was clearly sufficient to support a constructive possession instruction. The district court did not err in that respect. However, the instruction given is somewhat problematic.
The trial judge concluded that merely directing another to dispose of the pistol, even if the other complied, was insufficient for constructive possession. Therefore, she instructed the jury “[t]o establish constructive possession, the government must prove that the defendant had the right to exercise physical control over the firearm, and knew that he had this right, and that he intended to exercise physical control over the firearm at some time.” (R. Suppl.Vol.1, Doc. 53.) The instruction was incorrect in several respects.
First, framing the issue as a “right to exercise physical control” was error and needlessly confused the jury, prompting it to inquire whether constructive possession includes “the ability to have [the pistol] moved by another person.” 4 Interestingly *1120 and in spite of the jury instruction, the jury put its finger on the issue. The bedrock of constructive possession — whether individual or joint, whether direct or through another person — is the ability to control the object. It has nothing to do with a right to control.
Also incorrect was the mention of physical control because it implied an element of actual possession, which our cases do not require.
See United States v. Simpson,
Finally, it was error to include the additional requirement of an intent to control the pistol. As we recently explained, such intent is not required.
Ledford,
The district court appears to have been concerned that constructive possession could sweep innocent as well as criminal conduct into the net. That concern is theoretically possible but it does not warrant redefinition of constructive possession. 6 Assuming a vanishing point may exist does not suggest that point has been reached.
Al-Rekabi objected to the giving of a constructive possession instruction but (having lost that battle) approved the instruction finally proposed (and given) by the trial judge. Ignoring his failure to object, the instructional errors could not *1121 have redounded against Al-Rekabi. Because of the trial court’s concern that exercised fraternal influence might not be sufficient for constructive possession, the government’s burden was increased. The instructional error was harmless to Al-Re-kabi for that reason and because the evidence of at least constructive possession is overwhelming. Had the jury accepted Al-Rekabi’s version of events (Whitfield took the pistol) it would have been required to acquit under the instructions. Because it did not acquit, the jury could only have concluded Al-Rekabi actually or constructively possessed the pistol; the evidence admits no other possibility. Every version of events except Al-Rekabi’s has him either handling the pistol or directing its disposition. Thus, Al-Rekabi could avoid conviction only if his possession was somehow justified.
B. Justification Instructions
Claiming the evidence at most showed he only possessed the pistol briefly and for the sole purpose of taking it from his twelve year old brother, Al-Rekabi contends the trial court erred by refusing to instruct on his proposed necessity and fleeting (transitory) possession defenses. The district court concluded the evidence did not support either defense.
“ ‘A criminal defendant is entitled to an instruction on his theory of defense provided that theory is supported by some evidence and the law.’ ”
United States v. Alcorn,
1. Necessity Defense:
The necessity defense is a narrow exception to stringent federal firearms laws.
See United States v. Adkins,
Al-Rekabi must prove his claimed defenses by a preponderance of the evidence. The government is not required to disprove them.
Dixon,
The trial judge refused the necessity instruction. “I think the cases are to the point that there’s an imminent threat, and there had to be no other reasonable alternative courses of action. From what I’ve heard, he could have turned the boy around, marched him back, et cetera.” (R. Supp. Vol. I. at 3.) Even under a less deferential standard we would agree with the trial judge. While we view the evidence favorably to Al-Rekabi, we also recognize his burden of proof on the defense and his corresponding obligation to produce evidence on each element of that defense. He failed to do so.
First and foremost, Al-Rekabi must show he had no reasonable legal alternative to possession of the pistol, whether that possession is actual or constructive.
Seward,
Although some leeway needs be given to individuals responding to an emergency, they must still act in the most responsible manner available under the circumstances. Not only did Al-Rekabi fail to exhaust legal alternatives, the necessity he claims would not permit his cavalier response. In no version of the events did he report the stolen pistol to the police,
9
return it to the true owner, or attempt to leave it in a safe place where it could be found by the police, who were actively looking for it. Some attempt to place a stolen pistol into the hands of the police is an irreducible minimum in evaluating Al-Rekabi’s necessity defense, especially since it appears his possession (actual or constructive) and hence his crime was continuing.
10
By keeping or stashing the pistol, or by directing another to do so, Al-Rekabi continued to perpetuate the underlying crime—depriving the true owner of possession and maintaining control of it in violation of 18 U.S.C. § 922(j)—making the necessity defense unavailable. The justification of necessity lasts only as long as the circumstances giving rise to it. That is the
*1124
potent lesson of
Bailey.
Bailey critically informs any discussion of the necessity defense. There, inmates escaped from the District of Columbia jail. In their escape trial, the inmates claimed dangerous prison conditions prompted and necessitated their escape. The district court refused their evidence of poor prison conditions and refused to instruct the jury on necessity, foreclosing the claimed defense. It did so because in the one to three and one-half months they were on the lam the inmates made no credible attempt to surrender to authorities. The Supreme Court upheld the district court, saying:
We therefore hold that, where a criminal defendant is charged with escape and claims that he is entitled to an instruction on the theory of duress or necessity, he must proffer evidence of a bona fide effort to surrender or return to custody as soon as the claimed duress or necessity had lost its coercive force. We have reviewed the evidence examined elaborately in the majority and dissenting opinions below, and find the case not even close, even under respondents’ versions of the facts, as to whether they either surrendered or offered to surrender at their earliest possible opportunity. Since we have determined that this is an indispensable element of the defense of duress or necessity, respondents were not entitled to any instruction on such a theory.
Bailey,
Bailey is
congruent with this case and its reasoning is compelling. In the case against Bailey and the other escapees, the government was required “to prove (1) that they had been in the custody of the Attorney General, (2) as the result of a conviction, and (3) that they had escaped from that custody.”
Id.
at 407,
A claim of necessity may be little more than an
ex-post
attempt by defense counsel to exculpate a client. Such a claim is easily made and so must be factually justified. “Vague and necessarily self-serving statements of defendants or witnesses as to future good intentions or ambiguous conduct simply do not support a finding of this element of the defense.”
Id.
at 415,
The defendant must show an imminent danger — a real risk of death or serious bodily injury. A twelve year-old boy possessing a loaded pistol is potentially very dangerous, but the danger in this case was not clearly “imminent.” Hussein had already stolen the weapon, transported it to an abandoned house, hid it in a heater vent, later retrieved it and was carrying it in his waistband at the time he was accosted by Al-Rekabi. 11 There is no evidence Hussein was handling the weapon in a reckless manner by pointing it at someone or attempting to discharge it. The trial judge remarked: “There’s no evidence such as that he had it cocked to his head, that he was not able to understand the English language, et cetera.” (R. Supp. Vol. I at 4.) The evidence did not even establish the pistol was loaded. 12 That is not necessarily telling because Al-Rekabi was justified in considering it to be loaded. But his account of his response to the claimed emergency is telling. Upon discovering Hussein with the pistol he immediately started slapping and kicking his brother (who still had the pistol). He made no attempt to disarm Hussein (who, apparently, had the pistol and the two magazines in his waist band), to determine whether the pistol was loaded or to make the pistol safe by removing any magazine from it. His acts are simply not consistent with an imminent threat. 13 He stashed the pistol or had others do so. 14 That brings us to the final factor.
Even assuming Al-Rekabi presented sufficient evidence to establish he had no reasonable legal alternative to possessing the pistol and the danger was imminent, he failed to establish his actions were reasonably calculated to prevent the harm posed by the circumstances. Here again, Al-Rekabi’s failure to report or return the pistol haunts him. Among other problems with Al-Rekabi’s response to the crisis, the failure to report the pistol to the police undermines Al-Rekabi’s claim that he was simply acting in his brother’s best interest or the public’s. Of course, the nature of the appropriate corrective action will depend on the nature of the underlying offense. In our view, someone who takes it upon himself to knowingly possess a stolen weapon in violation of § 922(j), even if justified by the circumstances, is required to render it safe and turn the it over to the police or, if a convicted felon, report the incident to his parole officer. In any event he is required to act promptly. Removing the handgun from his
*1126
brother and then either keeping it or turning it over to Whitfield were not actions reasonably calculated to prevent the anticipated harm.
See United States v. Mason,
Because Al-Rekabi presented no such evidence, opportunity’s door did not open. If events actually transpired as Al-Rekabi described them and he had given up his control over the pistol by securing it and alerting the police, it is unlikely he would even have been charged. His post hoc claims of innocent possession are unavailing in light of his conduct
2. Fleeting Possession
As for Al-Rekabi’s other asserted defense, we have discussed but never applied a fleeting possession defense.
15
This is largely because it is redundant to the necessity defense.
16
Both defenses, as we have said, require the defendant to prove no reasonable legal alternative was available to him given the circumstances.
17
It is true that we have acknowledged the possibility of a fleeting possession defense on two occasions.
See Adkins,
II. Exclusion of Evidence:
Al-Rekabi sought to impeach Whitfield’s trial testimony by introducing evidence of Whitfield’s conviction for criminal mischief under Utah Code Ann. § 76-6-106. The conviction could be characterized as a “misdemeanor crime of domestic violence” under 18 U.S.C. § 922(g)(9), and thus, Whitfield could not legally possess a firearm.
18
Al-Rekabi argues Whitfield’s prior conviction gives him a motive to lie and testify he never took possession of the pistol. Because the state offense was not a misdemeanor crime of domestic violence under § 922(g)(9) the trial court refused the evidence. The district court’s decision to exclude evidence is reviewed for an abuse of discretion.
United States v. Howell,
The phrase “misdemeanor crime of domestic violence” in § 922(g)(9) is defined as a misdemeanor under state or federal law that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim.” 18 U.S.C. § 921 (a)(33)(A)(ii).
See United States v. Heckenliable,
Conclusion
For the foregoing reasons, the judgment of the district court is AFFIRMED.
Notes
. Al-Rekabi also testified that he spoke with Officer Ross and denied ever possessing the weapon. Officer Ross claims he never spoke with Al-Rekabi on the phone.
. According to Schirle, under the terms of his probation, Al-Rekabi was required to report the possession of the pistol "within 48 hours or it's a violation of his probation.” (R. Vol. IV. at 36.) Although Schirle could not remember the precise date of Al-Rekabi's report, Al-Rekabi told Schirle he had already spoken with the police, which did not occur until February 19, more than forty-eight hours after the incident with Hussein.
. See Lopez,
. The jury asked the following question during deliberations:
*1120 Under constructive possession it states the defendant had "the right to exercise physical control over the firearm." What is physical control? Does it mean the person has the ability to touch it, or does it mean he has the ability to have it moved by another person[?]
(R. Vol I., Doc. 49 at 3.)
. It is undisputed that Al-Rekabi exercised his ability to control the movement of the stolen pistol.
. There are general legal protections afforded to potential innocent actors. First, the statute at issue usually requires, as it does in this case, a defendant to know, or have reason to know, the item being possessed or controlled is contraband (i.e., drugs or stolen goods including firearms). This requirement immediately eliminates the largest class of innocent actors, those who are unaware they possess or are facilitating the transmission of contraband. Without some proof of knowledge, it is unlikely the criminal charges would get to trial let alone to the jury.
Second, within the doctrine of constructive possession itself, are threshold requirements to be met before a constructive possession charge may be given. A "sufficient nexus between the accused and the [contraband]" is required.
United States v. Culpepper,
. Al-Rekabi reported the incident to his probation officer, but more than forty-eight hours after the fact. See note 2, supra.
. In every version of events except the one rejected by the jury (Whitfield did it), Al-Rekabi either had the pistol or controlled its destiny. Moreover, his control was demonstrated by his ability to quickly have the pistol produced for the police when requested to do so. His actual or constructive possession continued until the pistol was finally placed in the hands of the police.
. The availability of a necessity defense was called into question in United States v. Oakland Cannabis Buyers’ Co-op.:
As an initial matter, we note that it is an open question whether federal courts ever have authority to recognize a necessity defense not provided by statute. A necessity defense traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Even at common law, the defense of necessity was somewhat controversial. And under our constitutional system, in which federal crimes are defined by statute rather than by common law, it is especially so. As we have stated: “Whether, as a policy matter, an exemption should be created is a question for legislative judgment, not judicial inference.” Nonetheless, we recognize that this Court has discussed the possibility of a necessity defense without altogether rejecting it.
. In Dixon the court said:
Congress can, if it chooses, enact a duress defense that places the burden on the Government to disprove duress beyond a reasonable doubt. In light of Congress' silence on the issue, however, it is up to the federal courts to effectuate the affirmative defense of duress as Congress “may have contemplated” it in an offense-specific context. In the context of the firearms offenses at issue-as will usually be the case, given the long-established common-law rule-we presume that Congress intended the petitioner to bear the burden of proving the defense of duress by a preponderance of the evidence.
Dixon dealt with a duress defense, but duress and necessity are two sides of the same coin. As Chief Justice Rehnquist writing for the Court in Bailey, put it:
While the defense of duress covered the situation where the coercion had its source in the actions of other human beings, the defense of necessity, or choice of evils, traditionally covered the situation where physical forces beyond the actor's control rendered illegal conduct the lesser of two evils. Thus, where A destroyed a dike because B threatened to kill him if he did not, A would argue that he acted under duress, whereas if A destroyed the dike in order to protect more valuable property from flooding, A could claim a defense of necessity.
. Hussein was no stranger to guns.
. “The court: The gun was not loaded; right?
Ms. Angelos [Al-Rekabi’s attorney]: But there was a readily accessible clip that he could have stuck in—
The Court: Right. But it’s not like all he has to do is pull the trigger?
Mr. Kouris [Al-Rekabi's attorney]: I think it may have been one that all he had to do is cock and the—
The Court: We haven't heard that. I haven't heard that from—
Mr. Kouris: Well, we could still bring that out if that's the case.
The Court: Well, I think in that case that I still don't think its justification.”
(R. Supp. Vol. I at 4.)
. Nor were they "reasonably anticipated” to avoid the harm presented by the child.
. Again, for this purpose we discount Al-Rekabi's version (Whitfield did it) because the jury did not credit his testimony.
. Some courts also refer to the "fleeting possession" defense as the "transitory possession” defense.
See United States v. Montgomery,
. As expressed in
Adkins,
the elements of the fleeting possession defense are met when the defendant establishes he (1) "merely momentarily possessed [the] contraband,” and (2) "either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporally.”
.While there may be some theoretical gap between the language of the two tests,
i.e.,
"legally justifiable reason” in
Adkins,
. Section 922(g) of Title 18, United States Code, provides in pertinent part:
(g) It shall be unlawful for any person—
(9) who has been convicted in any court of a misdemeanor crime of domestic violence, 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 ammunition which has been shipped or transported in interstate or foreign commerce.
18 U.S.C.A. § 922(g)(9).
. The statute provides:
A person commits criminal mischief if the person:
(a) under circumstances not amounting to arson, damages or destroys property with the intention of defrauding an insurer; (b) intentionally and unlawfully tampers with the property of another and as a result: (I) recklessly endangers: (A) human life; or (B) human health or safety; or (ii) recklessly causes or threatens a substantial interruption or impairment of any critical infrastructure; (c) intentionally damages, defaces, or destroys the property of another; or (d) recklessly or willfully shoots or propels a missile or other object at or against a [vehicle], whether moving or standing.
Utah Code Ann. § 76-6-106(2)(a)-(d). Contrary to Al-Rekabi’s assertion the district court did not exclude the evidence based on the absence of an element in § 76-6-106 requiring a domestic relationship. Such a requirement would have been error.
See Heckenliable,