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United States v. Sablan

filed*fn*: February 16, 1994.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSE C. SABLAN, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the District of Guam. D.C. No. CR-92-00121-JSU. John S. Unpingco, District Judge, Presiding

Before: Schroeder, Canby and Wiggins, Circuit Judges.

MEMORANDUM

Jose C. Sablan appeals his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g), 924(a)(2). Sablan contends the district court erred by (1) denying his request for a jury instruction on constructive possession, (2) rejecting his proposed jury instruction on reasonable doubt, and (3) admitting hearsay testimony. We have jurisdiction under 21 U.S.C. § 1291, and we affirm.

Sablan asserts the district court erred by denying his proposed jury instruction on constructive possession because his theory of defense was that he did not actually or constructively possess a shotgun. This argument lacks merit.

"Where the question to be resolved is whether other instructions adequately covered the defense theory of the case, our review is de novo." United States v. Garcia-Cruz, 978 F.2d 537, 540 (9th Cir. 1992), cert. denied, 124 L. Ed. 2d 669, 113 S. Ct. 2453 (1993); accord United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir. 1992).

While a criminal defendant is entitled to an instruction regarding his theory of the case, he is not entitled to the particular and specific language he proposes. United States v. Washington, 797 F.2d 1461, 1476 (9th Cir. 1986).

Here, the district court gave Ninth Circuit Model Jury Instruction No. 3.16, which states:

A person has possession of something if the person knows of its presence and has physical control of it, or has the power and intention to control it.

More than one person can be in possession of something if each knows of its presence and has the power and intention to control it.

Sablan requested that the jury further be instructed:

When premises are shared by more than one person, more than the mere proximity to the contraband, presence on the property where it is found, and association with the person or persons having control of it is required to establish constructive possession.

Nothing in Sablan's proposed instruction would have required the jury to find an element in addition to the district court's instruction in order to reach their verdict. Likewise, the district court's instruction did not allow the jury to reach a guilty verdict on the basis of Sablan's mere proximity to the shotguns.

The district court instructed the jury on every element of Section 922(g), including (1) "the defendant knowingly possessed a shotgun that had been shipped or transported from one state to another" and (2) "at the time the defendant possessed a shotgun, the defendant had been convicted of a felony." The district court instructed the jury that in order to find that Sablan possessed the shotgun, it must find that he knew of its presence and either had physical control of it or had the power and intention to control it. Accordingly, we hold the instructions adequately covered Sablan's defense theory. See Gomez-Garcia, 957 F.2d at 642-43.

Sablan also contends the district court erred by rejecting his proposed "double inference" instruction on reasonable ...


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