*1 America, STATES of UNITED
Plaintiff-Appellee, LANE, Defendant-Appellant.
Donald K.
No. 00-4180. Appeals,
United States Court of
Seventh Circuit.
Argued June 2001.
Decided Oct. *2 his father accompany and wanted to
ing Stumph, Diane on girlfriend, and his hunt for two occa- game small rabbits. On sions, Lane discussed his wishes with his eventually per- officer and received parole that he provided to observe a hunt mission any firearms. handling avoid 18, 2000, Stumph March Lane and On Twin Tavern. While went to the Oaks there, dis- Leroy Lane overheard Bowen .22 to sell a cussing plans right-handed Ruger. expressed 10 shot Lane caliber it, in Bowen re- purchasing so interest nearby home. gun trieved the bar, Back at the Lane removed box, it, inspected negoti- from its held and says bought it. Lane price, ated Stumph for to use bought that he hunting. He corroborates this while gun was explaining right-handed that the Lane, a left-handed man. useless never. handled or examined the Stumph herself, money Lane give but did it. buy car, up Stumph’s al- The ended Peggy A. Lau- (argued), Ehlke Stephen though parties disagree as to how Attorney, Madi- of U.S.
tenschlager, Office jury specific and the made no got there son, WI, Plaintiff-Appellee. finding resolving factual the difference Mayer, (argued), B. Britton Guerrina government presented the stories. Platt, IL, Chicago, for Defen- Brown & testimony that Lane returned the Bowen’s dant-Appellant. box, picked upit and carried it gun to its that another outside himself. insists BAUER, FAIRCHILD, Before tavern, Swonger, man at the Russ asked POSNER, Judges. Circuit if Accord- he could look at the Lane, box ing Swonger picked up BAUER, Judge. Circuit men walked out of the tavern. and both being Donald Lane was convicted Outside, examined the re- Swonger in violation felon in firearm box, being without turned to the 922(g)(1). He both appeals of 18 U.S.C. asked, Stumph’s car. placed the box af- conviction and his sentence. We Swonger corroborated Lane’s recollection. firm. general out that with a ver- points dict, sure whether the we cannot be Background I. concluded that he carried the car, in pos- or whether it based the felon Lane knew that as a convicted Donald exclusively on ex- session conviction parolee felon and a he was not allowed enjoyed hunt- amination of possess firearms. pur- one month after Lane
Roughly agreed to only focus on gun, probation police offi- incidents at the Twin Oaks chased the Tavern and gun’s presence not the violating parole. cers arrested him for in Lane’s garage. We likewise limit our inquiry. the officers to search the Lane allowed *3 and Stumph home he shared with officers trial, At judge held that mo Ruger garage. .22 in the found the Lane mentarily handling a gun satisfied the le a charged being posses- was felon gal “possession” definition of as a matter firearm in of 18 sion of a violation U.S.C. of law. possession While can actual be by a 922(g)(1) jury. and was convicted constructive, Kitchen, see United States v. progressed sentencing stage 516, Cir.1995), 57 govern 520 Lane, Unfortunately trial. of his for pressed ment has possession the actual in possession felon conviction was not his theory. possession Actual occurs when a first with the law. Lane had brush two defendant “knowingly physical has direct convictions, prior felony state one in Janu- thing given control over a at a time.” ary February of 1996 and the other in Walls, 858, United v. States 225 F.3d 864 prior that Realizing his felonies (7th Cir.2000) Kitchen, (citing 57 F.3d at sentence, lengthen peti- would his 520). Lane contends that although it is disregard January tioned the court to his possible physical for contact to constitute conviction, judge 1996 but the district de- possession, it does not do so as a matter of nied motion. prior his These crimes Lane, According law. he was entitled to boosted Lane’s basic offense level from 20 argue that was not under his 24, history and his criminal from a control when he held it because he was III a Category Category VI which ex- merely inspecting owned some posed him to a 77 sentence between and 96 Kitchen, one heavily else. Lane relies on range months rather than a of 41 to 51 518-23, case, 57 drug F.3d at to bolster months. reasoning provide example and to an momentarily holding a situation when con
II. Discussion prove traband did not posses control or A. Possession Standard sion. Kitchen,
Lane first contends that
appealed
dis
the defendant
trict court
legal
possession
misunderstood the
stan
conviction for
of cocaine with
result,
possession
wrongly
dard of
and as a
intent to distribute. See
district 924(a)(2) gener- incorporates security gang in a be- 18 U.S.C. as fendant acted namely that a defen- requirement, for his al intent a motive provided cause it object he likely). that the These dant must have known making more possession, Bryan v. Unit- important way was a See possessed in one cases differ 193, States, 184, 118 was offered S.Ct. motive evidence ed 524 U.S. Lane’s—the (1998); likely 1939, make more 197 United 141 L.Ed.2d government (3d pos- Dodd, the defendant 344 225 F.3d the conclusion States v. value, Deleveaux, face Although Cir.2000); at 205 v. sessed United States (11th Cir.2000); to make defendant fair to allow a United seems F.3d 1298 Miller, as the type of evidence use of the same v. States analysis taking Cir.1997). into deeper only intent re- government, But this is the of each evidentiary burdens account the statute. See imposed by the quirement conclusion. opposite Jones, lead us to party (11th Cir.1998); Dodd, F.3d at has Because 347; Langley, States elements proving burden (en banc). (4th Cir.1995) 602, 604-05 doubt, the rele beyond a reasonable crime purchase intent Lane’s on the ele depends evidence vance of its knowledge bearing on the Stumph had no defendant bears crime. The ments of the motive fails requirement. Because wishes, burden, a defen but if he no such element address either the theories may government’s rebut the dant it is irrele- knowledge requirement, Therefore, relevance of or evidence. vant, did not err in judge district necessarily de the defendant’s evidence *6 excluding it. govern the the evidence pends part on case, gov In this the advanced. ment has Conviction C. Uncounseled prove to
ernment endeavored that Lane held by bringing direct evidence Last, that the court argues Lane erred Defense evi Ruger .22 in his hands. the prior felony his when it took uncounseled to was needed relevant to dence determining account when conviction into theory. Had Lane government’s rebut the the district petitioned Lane his sentence. that he testimony argue motive used for from its consideration court to exclude the evidence physically never held the January 1996 con- sentencing purposes his took Lane would have been relevant. January 1996 trial oc- viction. that he approach. He admitted a different pending for after the had been curred case the but wanted use knowingly held trial, morning of the years. the two On that he did testimony to show the motive court for the district Lane asked state not intend to exert control over attorneys. his permission to dismiss above, prove pos But as we discussed against him Lane’s counsel warned session, only estab need made clear and the prosecutor dismissal held the knowingly lish that Lane proceed trial to that that he wanted the not relevant to Lane’s motive evidence represent if himself day even Lane had he held the question of whether present. were pro se because witnesses refused. appropriately and was therefore his persisted in his wish to dismiss Lane allowed him to judge and the do 18 U.S.C. counsel protests Lane and clear- Although persistently liability crime so. 922(g)(1) is not strict delay in the trial so he could ly requested therefore relevant to and that his motive is counsel, judge appeal, the state forced hire new he retained the to collateral- proceed pro February Lane to se. ly attack the conviction. He bolsters his again Lane was state court as a argument by pointing to several cases felony in another Repre- defendant case. plea agreements where explicitly waived counsel, by pled guilty sented to this both right of future direct and collater- part plea agreement, offense. As of his al appeal. But explicit language such is agreed any appeals to withdraw re- required not to waive right to collater- garding January 1996 conviction and to ally attack a long conviction. We settled conviction let the stand. ago that waiving or foregoing ap- direct peal bars collateral attack on the court, basis of argued Before the district issues, most even many constitutional is- January 1996 conviction was ob- sues, that could have been raised on direct tained violation of his Sixth Amendment States, appeal. right to counsel See Johnson United and therefore should not Cir.1988) be part history considered of his criminal (holding that a sentencing purposes. judge de- doctor who was prescribing convicted of (1) petition nied Lane’s amphetamines for three reasons: and barbiturates without a Lane was not his denied Sixth Amendment prescription, and had appeal who filed an (2) trial; right to counsel at his and withdrew it could not later mount a collaterally defendant cannot prior attack a collateral attack in the form of a writ of (3) during sentencing; state conviction corum nobis on based issues that were Lane waived right challenge his 1996 appeal); available for direct subsequent conviction in a plea agreement. Behrman, 1051-51 Lane claims that all three Cir.2000) reasons are (holding a defendant who erroneous. signed a plea agreement waiving right appeal gave up right also to collater- dispose by We can of this issue ally attack his sentence on constitutional addressing only argument. the waiver Be grounds implicating validity judge essentially cause determined plea agreement); Daniels v. United procedurally that Lane defaulted on his States, Cir.1995) 292-93 claim agreeing to waive it in the Febru (holding that a attempted defendant who *7 ary plea agreement, 1996 we review the to mount a collateral attack guilty on his Powell, issue de novo. See Braun v. 227 plea because the judge purportedly failed 908, Cir.2000). F.3d 911 In the Feb 11(d) adequate to conduct an Rule colloquy ruary plea agreement, 1996 agreed Lane waived right by failing his to do so to “any to withdraw that appeal has been pursue appeal). the issue on direct heretofore filed on the that convictions was aware of his Sixth Amendment issue were obtained following jury trial in signed plea when he agreement; thus 25, January 1996 ... [and] to let those he had opportunity appeal freely an to and convictions part plea stand as of his agree waived it. ment.” government correctly con tends that the plain language of the exception make an to the February plea agreement, 1996 Lane waiver parties rule for who can that show his right appeal directly waived to or col they failing appeal had cause for to direct laterally January attack his 1996 convic ly they prejudice and that suffered tion. this Wainwright Sykes, omission. See v. 72, 84-85, that protests while' 433 U.S. 97 S.Ct. 53 plea agreement (1977); waived right Johnson, to direct L.Ed.2d 594 F.2d 838 at
722 as- momentarily holding a without of meet this standard does not 202-05. id., control, demonstrate that serting see cannot show cause. he part because in a “holding” the distinction between Sixth purported knew about it over to establish “obtaining control” signed when he violation Amendment Slip op. hardly is “academic.” possession freely agreement and February plea 1996 at 718-19. chose, lawyer, to waive advice of his on the routinely allow appeal. We right to posses- precedents, our forbidden Under in rights constitutional to waive defendants physi- has person if a sion is demonstrated Behrman, 235 F.3d see agreements, plea object. cal control over an nature the constitutional so Cir.2000); at Walls, v. 864 pause. no gives particular us Kitchen, Lane’s issue 516, States United Cir.1995) me that there [It seems Affirmed. of control or exercise must be an assertion FAIRCHILD, Judge, today Circuit we have ability]. well as an Until as concurring. not limited that standard Indeed, pattern this circuit’s drugs. agree respect, I do not With all “possession” of jury defining instructions “holding that proposition unqualified 841(a)(1) drugs under U.S.C. a matter possession as establishes firearm 922(g) of a firearm under “possession” § 922. I think we in the context of law” is (stating are identical may be circum- recognize there must control) cross- specifically should find in which stances See Fed.Crim. Jury reference each other. not constitute momentary holding would Circuit, Nos. Seventh Instructions possession. forbidden (1999). 841(a)(1), 922(g) Wilson, noted States As we says we do not The court address (7th Cir.1991), touching mandates the whether “holding” “touching” or every instance of holding Slip op. one. at same result as “possession.” necessarily demonstrates distinction, vague confus- suggests This keys dis- looking a felon for her Suppose “inspects” If a felon ing apply. her husband’s them underneath covers he in gun, did “handles” or “moves” In order the kitchen counter. handgun on it a mat- every “possess” as circumstance lifts the get keys, her woman law? The does not succeed ter of court aside, keys. her pushes grabs “bright-line” rule. stating a scenario, up though picked she even this do, however, I concur the result asserting was not control— gun, she holding by the merely reached court. momentarily holding be disassociated keys. inspect cannot her Should obtaining incidental *8 negotiation and his decision under from his guilty be of this woman albeit on behalf of purchase, make the 922(g)? hypothetical consider the Or agree else. I his han- in which someone can by this court Wilson considered dling of the an incident grasp of a snatches a felon physical the child. See id. Should purchase and an con- assertion protect child to that the district 922(g)? argues trol. Lane court under guilty he be refusing instruct the erred person drops a disabled suppose Or does not momentarily momentarily holding nec- a felon handles gun and essarily possession. constitute under it to him? These exam- restoring while circumstances, the instructions com- array these an of instances ples, among endless plained prejudicial of were not because physical
Lane asserted control over the
Tyrone GREER, Plaintiff-Appellant, J.
BOARD OF EDUCATION OF THE CHICAGO, ILLINOIS,
CITY OF
municipal corporation city
Chicago, formerly Chicago known as Trustees,
School Reform Board of De-
fendant-Appellee.
No. 00-4059.
United States Court of Appeals,
Seventh Circuit.
Argued April 2001.
Decided Oct.