Incorrect Constructive Possession Instruction Held to be Harmless

U.S. v. Al-Rekabi, -- F.3d --, 2006 WL 1980203 (10th Cir. 7/17/06) - affirmance of conviction of possession of a stolen firearm. Mr. Al-Rekabi took a pistol from his 12 year-old brother, who had stolen it. The evidence was conflicting as to what occurred after that. The constructive possession instruction given by the trial court was wrongly framed in terms of the "right to exercise physical control." Constructive possession involves the ability, not the right, to control. Also, physical control, which implies actual possession, is not required. Nor is there a requirement of intent to control. Because there was overwhelming evidence of constructive possession and Al-Rekabi objected to the giving of any constructive possession instruction without specifically objecting to the terms of the instruction given, the erroneous instruction was deemed harmless error. The district court correctly refused to instruct the jury on necessity and fleeting possession. Al-Rekabi did not show that he had no reasonable legal alternative to possession of the pistol and did not report it to police or return it to the owner. While there was potential danger in a 12 year-old's possession of a pistol, Al-Rekabi did not show the danger was imminent. A fleeting possession defense is redundant to a necessity defense and both require the defendant to prove no reasonable legal alternative was available, which was not shown here.