*Of the Northern District of California, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 03-2543

UNITED STATES OF AMERICA,

Appellee,

v.

KENYA TEEMER,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, Senior U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Schwarzer,* Senior District Judge.

Brett D. Baber, by appointment of the court, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Paula D.

Silsby, United States Attorney, was on brief for appellee.

January 12, 2005
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 BOUDIN, Chief Judge. On the afternoon of October 29,

2003, in Portland, Maine, police officer Gayle Petty pulled over a

Mitsubishi hatchback driven by Jason Stubbs. Stubbs' girlfriend,

Amanda Bailey, was sitting in the passenger seat. Kenya Teemer was

sitting in the rear seat immediately behind her. Behind him was

the hatchback's storage area, which arguably could be accessed by

reaching over the rear seats or by folding down either or both of

them.

Petty, who had halted Stubbs for running a stop sign,

took Stubbs' license and found from a radio call that the license

was no longer valid. After the arrival of a second officer (Robert

Hawkins), Petty arrested Stubbs for driving with a suspended

license and put him in her cruiser. At that point, Stubbs told

Petty that he had a gun in the trunk and ammunition in the glove

compartment.

Apparently at the same time, Hawkins asked Bailey and

Teemer to step out of the hatchback "so I can talk to you for a few

minutes, please." Asked whether either had a license (and

therefore could drive the car away), Bailey produced a permit, but

Teemer had no identification. Questioned about this, Teemer gave

his name and birth date and admitted (when asked) that he was on

probation in Georgia. Hawkins then contacted his dispatcher about

Teemer's probation status.
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In the meantime, Petty searched the car, finding an

unloaded AK-47 (a well-known brand of assault rifle) lying flat in

the storage area, a few inches behind the rear seats. Ammunition

was also found scattered about and in a bag in the back, but it was

for a different weapon; in the glove compartment were two loaded

magazines with ammunition for the AK-47. Hawkins then radioed for

a supervisor and, in due course, Sergeant Cady arrived.

Cady asked Teemer about his probation status and the gun

in the car, and Teemer said that Stubbs owned the gun. Cady then

asked Teemer "if his [Teemer's] fingerprints would be found on the

weapon." According to Cady, Teemer answered that "they definitely

would be[,] because he had moved this weapon in Westbrook a few

days earlier"; Hawkins later testified that he overheard Teemer

saying that "he had touched it a few days prior at a friend's house

and it was the seat [sic], and that he had just picked it up to

move it so he could watch a football game."

Cady then called the dispatcher to see whether Teemer's

probation status had yet been clarified and was told that he did

have a felony conviction. Cady testified later that this

information, coupled with Cady's own observation of the rear seats

and the storage area, persuaded him that a case for constructive

possession could be made against Teemer as a felon in possession.

He therefore ordered Teemer's arrest.
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Prior to trial, the district court granted a motion to

suppress statements that Teemer had made at the station house after

his arrest, ruling that they were made after Teemer had expressed

his desire to remain silent. The district court refused to

suppress Teemer's admission made at the scene of the car stop; the

court held that no Miranda warning had been required at the scene

because Teemer had not been subject to custodial interrogation.

About three weeks before trial, Teemer's counsel sought

to withdraw. The district judge questioned both Teemer and his

counsel, who had by then represented Teemer for six months. Based

on the answers given, the district court ruled that no adequate

basis existed to replace counsel and delay the trial; the court

noted that the trial counsel had provided "diligent" and "zealous"

representation (by then, counsel had partially won the motion to

suppress).

At trial, the government relied mainly on Teemer's

admission and on his proximity to the weapon in the car. Stubbs

testified that he had bought the AK-47 and had recently stored it

in the car and in Bailey's apartment in Westbrook, Maine, in which

he and Teemer were staying. He also testified that he himself

sometimes carried the weapon in a box and sometimes not, and that

reaching over the rear seats to access the gun in the back was

impractical because of other items in the storage area.
1Bailey's trial testimony was more qualified and less helpful

to the government than her grand jury testimony; for example, she

said at trial that she had seen Teemer carrying the box rather than

the gun. But her grand jury testimony was read to her at the trial

and, under the hearsay exception associated with the De Sisto case,

was admissible for its truth. Fed. R. Evid. 801(d)(1)(A); United

States v. De Sisto, 329 F.2d 929, 933 (2d Cir. 1964) (Friendly,

J.).

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Bailey also testified at trial. From the combination of

her trial and grand jury testimony, the jury could have found that

Stubbs and Teemer had gone target-shooting with the AK-47 on two

occasions (although Bailey did not see what role Teemer played) and

that, on one occasion, Teemer had carried the gun into the house.

However, her statements at trial were not wholly consistent with

her grand jury testimony.1

At the jury-instruction stage, Teemer sought an

instruction entitled "Transitory Possession as a Defense" stating:

Evidence may be presented to you regarding

transitory possession. The evidence may tend to show

that the Defendant was touching the firearm merely to

move it out of his way. You are instructed that if a

person has possession of a firearm under certain

circumstances which indicate that he did not have the

intent to do the acts which constitute the possession of

a firearm, that person would not be guilty of the offense

charged. If the actual possession of the firearm by the

Defendant was fleeting without the intent to exercise

control, then this defense is applicable. This defense

is based upon the definitions of actual and constructive

possession, which I gave you earlier. If you find beyond

a reasonable doubt that the Defendant did not have the

specific intent to have a possessory interest in the

firearm and that he did have a "transitory" possession of

the firearm, then you must find him not guilty.
2Whether an instruction should have been given can involve

abstract questions of law reviewed de novo, United States v.

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 The district court declined to give this instruction,

providing instead a standard instruction on "possession" which we

reprint in full in an attachment. The key language, following a

statement that possession must be done "voluntarily and

intentionally, and not because of any mistake or accident," was as

follows:

And I instruct you that the term

possess means to exercise authority, dominion,

or control over something. It is not

necessarily the same as legal ownership. The

law recognizes different kinds of possession.

Possession includes both actual and

constructive possession. A person who has

direct physical control of an object on or

around his or her person is then said to be in

actual possession of it.

And I instruct you that a person who is

not in actual possession, but who has both the

power and the intention to exercise control

over something or an object is in constructive

possession of it.

The jury convicted Teemer, who was then sentenced--at the

top of the guideline range--to 41 months' imprisonment. He has now

appealed, claiming that his admission should have been suppressed,

that the subsequent motion to replace his counsel was improperly

denied, and that his proposed instruction on "transitory"

possession should have been given. The last is the most difficult

issue and we begin with it, simplifying matters by assuming that

review is de novo.

2
Woodward, 149 F.3d 46, 68-69 (1st Cir. 1998), and questions of

phrasing and emphasis that are very much judgment calls to be

reviewed with deference, id.

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From the evidence, the jury had several different paths

that it could have taken to its conclusion that Teemer had

possessed the AK-47: importantly, his own admission that he had

moved the weapon in the apartment so he could sit down, his

proximity to it during the final car ride, a conclusion or

inference (from Bailey's testimony) that Teemer had carried it into

the apartment, and (perhaps) an inference that he had handled or

used it on an outing with Stubbs (again, Bailey's testimony).

Any one of these theories, except perhaps the last, would

be independently adequate; but the second (proximity in the car)

turned in part on ease of access, where the testimony was disputed,

and required an additional inference of intent; and the third

depended inter alia on Bailey's debatable credibility. So the jury

may well have relied upon the first theory (Teemer's admission),

and if there were error in refusing to give the proposed

instruction, we would not accept the government's suggestion that

it was harmless. See Chapman v. California, 386 U.S. 18, 24

(1967); see also Neder v. United States, 527 U.S. 1, 15-16 (1999).

The district court did instruct that intent is necessary

to possession, and that the requisite intent is to exercise

authority, dominion, or control. So, the real bite of the proposed

instruction is its creation of a "defense" that would require the
3See, e.g., United States v. Escobar-De Jesus, 187 F.3d 148,

176 (1st Cir. 1999) (guns); United States v. Zavala-Maldonado, 23

F.3d 4, 8 (1st Cir. 1994) (drugs); Santiago v. United States, 889

F.2d 371, 376 (1st Cir. 1989) (drugs).

-8-

jury to acquit if it found that the defendant's possession was

"fleeting" or "transitory" and that he did not intend in some more

permanent sense to retain authority over the weapon. This does

arguably fit Teemer's case and would have gone some distance to

negate the adverse impact of his admission.

The district court was correct not to give this proposed

instruction. It could easily exculpate a bank robber who, after

the robbery and on request, picked up another bank robber's gun

from the table and handed it to him. There are plenty of other

situations in which holding a weapon, even briefly and without an

intent to retain it, would nonetheless be unacceptable for a former

felon. Indeed, a number of our cases say, in the context of both

guns and drugs, that the briefest moment of possession may be

enough for a conviction.3

This does not mean that brevity or any other circumstance

must be ignored by a jury in gauging whether intentional possession

occurred--merely that brevity alone does not preclude conviction.

Teemer's approach, by contrast, aims to make brevity controlling,

at least where the defendant does not intend to keep the weapon

permanently. Because his proposed instruction was overbroad, and
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therefore incorrect, we could end our inquiry there. See United

States v. Meade, 110 F.3d 190, 202-03 & n.22 (1st Cir. 1997).

But if the conduct to which Teemer confessed were clearly

not a crime, we would be very uncomfortable letting matters stand.

The underlying problem of allegedly innocent possession recurs

intermittently in a variety of forms. See, e.g., United States v.

Kitchen, 57 F.3d 516, 521-25 (7th Cir. 1995); United States v.

Mason, 233 F.3d 619, 622-24 (D.C. Cir. 2000). Indeed, one other

circuit (in Mason) has crafted a defense conditioned on possession

that is both "innocent" and "transitory." 233 F.3d at 624. Thus,

more needs to be said about Teemer's theory than merely to point

out the overbreadth of his own proposal.

With this statute, as with many others, there are

circumstances that arguably come within the letter of the law but

in which conviction would be unjust--arguably so in some cases, and

clearly so in others. Consider if a schoolboy came home with a

loaded gun and his ex-felon father took it from him, put it in

drawer, and called the police; or if a mother--who need not be a

felon to be charged with drug possession--threw into the trash an

envelope of marijuana found in her daughter's bureau drawer.

The common law has created, and federal criminal law has

absorbed, "justification" defenses of necessity and duress, see

Mason, 233 F.3d at 622-23 (citing cases), but neither defense would

encompass the mother, and the father might well have problems with
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the necessity defense, especially if the facts were slightly less

menacing. Most prosecutors and--failing that--most juries would

show good sense in such situations. But sometimes both safeguards

fail. No legislature can draft a generally framed statute that

anticipates every untoward application and plausible exception.

Judges may and often do fill such gaps with glosses and

limitations conveyed in jury instructions, but every such gloss

imports potential problems of its own. We have already pointed out

how easily Teemer's proposed instruction could be misused; and in

an earlier case, this court rejected a general "good purpose"

defense advanced by an ex-felon (there, the felon had taken a gun

from a friend, allegedly to prevent a suicide, but had then stored

the weapon for several weeks). Meade, 110 F.3d at 201-03.

Even the defense adopted in Mason, combining requirements

of innocent acquisition and brevity of retention, could be misused.

It could be read to apply, for example, if Stubbs asked Teemer to

hold the gun for just a moment while Stubbs changed a target,

during an expedition to try out the weapon. If a jury wished to

acquit in such a situation, it could do so; but why should it be

told that it had to?

Neither the language of the felon-in-possession statute,

nor its evident purpose, encourage the court to develop defenses

that leave much room for benign transitory possession. The statute

bans possession outright without regard to how great a danger
4Barrett v. United States, 423 U.S. 212, 220 (1976) (quoting

S. Rep. No. 75-1189 at 33 (1937), expressing the intent of 1938

federal gun control law banning "receipt" of a firearm). The

successor 1968 statute, which "enlarged and extended" the earlier

law's scope to include "possession," aimed at "keeping firearms out

of the hands of . . . felons." Id.

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exists of misuse in the particular case. Indeed, one piece of

legislative history of an ancestor statute says that the aim was

"to prevent the crook and gangster, racketeer and fugitive from

justice from being able to purchase or in any way come in contact

with firearms of any kind."4

In this case, the instruction did not say that merely to

touch the AK-47 constituted a crime. The instruction said that

"possession" required the defendant to "exercise authority,

dominion, or control"--giving the jury latitude to employ its

judgment and to conclude that moving the weapon did not constitute

possession. The closing argument for the defense pressed just such

an argument, but the conviction is no surprise: riding around in

a car with an AK-47 is a risky business for an ex-felon.

By contrast, in Mason, the district judge had

affirmatively instructed the jury that "[w]ell meaning possession"

was not a defense, even though the defendant's story was that he

had found the gun in a bag near a school, taken it to protect the

children, and planned to deliver it to the police. One can

understand why the D.C. Circuit was unhappy, even though its
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preferred solution (framing a general exception instead of just

reversing the instruction given) is not our own.

Relying upon the jury is reasonable, for common sense is

the touchstone in situations of innocent contact, and the occasions

that might warrant leniency are myriad and hard to cabin in

advance. Assuming that Teemer moved the gun to sit down and did

nothing else (i.e., had never carried it into the house or ridden

with it deliberately in reach), we think that the jury was still

entitled--but not required--to conclude that he had broken the law.

If we were to craft a mandatory safe harbor, it would not include

this case.

No record exists in this circuit of abusive indictments

for innocent contact, let alone convictions, that would warrant an

effort to craft a general limitation. And, so long as judges leave

juries the kind of latitude that the trial judge sensibly did in

this case, it is unlikely that juries will be foolish enough to

convict in cases like the schoolboy or bureau-drawer incidents set

forth above. If the worst happens, the courts are competent to

deal with such cases individually or in gross when they arrive.

Less need be said about the motion to exclude Teemer's

admission at the scene of the car stop. Teemer's position has been

that Cady extracted the admission through "custodial

interrogation," without giving Teemer a Miranda warning of his

right to remain silent and his right to counsel. See United States
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v. Ventura, 85 F.3d 708, 710 (1st Cir. 1996). The district judge

wrote a thoughtful opinion making findings and concluding that the

admission at the scene should not be suppressed.

Factual findings in such a situation are reviewed for

clear error. A district judge's application of a legal label to

the unique facts would ordinarily be reviewed with some deference,

see In re Special Proceedings, 373 F.3d 37, 42 (1st Cir. 2004);

Bergersen v. C.I.R., 109 F.3d 56, 61 (1st Cir. 1997); but in this

kind of case, the Supreme Court has arguably instructed that the

ultimate conclusion be reviewed de novo. See United States v.

Fernandez-Ventura, 132 F.3d 844, 846 (1st Cir. 1998) (citing

Thompson v. Keohane, 516 U.S. 99, 101-02, 114-16 (1995)). We do so

here, but affirm the district court's ruling.

The label "custodial interrogation," like many such

labels (including "possession"), is suggestive rather than precise;

and the purpose as well as the words inform our understanding. The

Miranda doctrine functionally aims to protect defendants in

situations where, in common experience, isolation and the potential

for coercive pressure have been found to exist. New York v.

Quarles, 467 U.S. 649, 654 (1984). The fearsome squad room

interview of an arrestee is the classic case.

Once a formal arrest occurs, Miranda ordinarily comes

into play. Stansbury v. California, 511 U.S. 318, 322 (1994).

Where there has been no formal arrest, this court and others have
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considered a range of factors including (without limitation) where

the questioning occurred, the number of officers, the degree of

physical restraint, and the duration and character of the

interrogation. United States v. Jones, 187 F.3d 210, 218 (1st Cir.

1999). Even pre-arrest questioning at a police station is not

automatically deemed custodial. California v. Beheler, 463 U.S.

1121, 1125 (1983).

Although any restriction on movement might as a literal

matter be labeled "custodial," the Supreme Court has flatly

rejected such an approach, holding that someone questioned at a

routine traffic stop in a non-coercive setting need not be given

the Miranda warning. Berkemer v. McCarty, 468 U.S. 420, 437-40

(1984). In fact, Terry stops, which may be made on reasonable

suspicion rather than probable cause, tend not to be treated as

custodial unless they become unduly prolonged or especially

restrictive. 33 Geo. L.J. Ann. Rev. Crim. Proc. 155-58 & nn.526-

28, 530 (2004) (collecting cases).

In the present case, both the circumstances and the

officers' testimony suggest that Teemer, although not told to

remain, would not have been allowed to leave the scene once

suspicion began to envelop him. But he was not handcuffed, placed

in the police car, or subject to direct physical constraint beyond

being asked not to approach or to communicate with Stubbs after the
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latter's arrest. Teemer and Bailey stood around in the vicinity of

the officers, but not under close guard or direct restraint.

The entire sequence, from car stop to Teemer's arrest,

took slightly over 30 minutes. This is longer than most traffic

stops, but well within the period in which Terry stops have been

treated as valid and not de facto arrests. See United States v.

Owens, 167 F.3d 739, 748-49 (1st Cir. 1999); United States v.

McCarthy, 77 F.3d 522, 530-31 (1st Cir. 1996) (citing cases). Nor

was Teemer subject to systematic interrogation: he was asked a

number of questions at different times on different subjects

(license, probation, the weapon) as the police continued to assess

his status.

We agree with Teemer's claim that a reasonable person in

his position would not have thought himself free to walk away; and,

certainly, once the weapon was discovered, something more than a

routine traffic stop was in progress. But on the broad spectrum

from a speeding ticket to a grilling in the squad room, the events

here were in the Terry stop range and short of any de facto arrest

or custodial interrogation; given this, and that the circumstances

were not inherently coercive, no Miranda warning was required.

Teemer's final claim--that his motion to replace trial

counsel should have been granted--is without merit. Nicholas

Mahoney was appointed as Teemer's attorney on November 1, 2002; at

Teemer's request, Mahoney filed a motion to withdraw on May 14,
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2003, a week after the trial list had set June 2, 2003, as the date

for trial. The district court held an immediate hearing,

conducting it ex parte with the government's consent.

In this meeting, Teemer aired a number of grievances

about his attorney's performance, and the judge considered

Mahoney's explanations for his actions. It is enough to say here

that Mahoney amply justified his actions, and nothing deserving any

serious criticism emerged. The district judge did more than enough

to discharge his duty to explore the situation. See United States

v. Allen, 789 F.2d 90, 92 (1st Cir. 1986); see also United States

v. Myers, 294 F.3d 203, 207 (1st Cir. 2002).

Having questioned both Teemer and his attorney, the

district judge found no irrevocable breakdown in communications

between them, see Myers, 294 F.3d at 208, nor any other cause to

replace the attorney. These are judgment calls that mingle factual

findings and law application; they are reviewed with deference to

the district judge's on-the-scene assessment, see id. at 206-07;

and nothing in this case remotely suggests that the trial judge

erred.

A defendant has no automatic right to replace counsel

and, as trial approaches, the balance of considerations shifts ever

more toward maintaining existing counsel and the trial schedule.

United States v. Richardson, 894 F.2d 492, 496 (1st Cir. 1990). On

appeal, Teemer's new counsel says that pro se representation should
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have been explored; but unlike in Proctor, no such request was

made. United States v. Proctor, 166 F.3d 396, 397, 401-02 (1st

Cir. 1999).

Affirmed.
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APPENDIX

Now I instruct you that the word knowingly as it is used

in the indictment means that the act was done voluntarily and

intentionally, and not because of any mistake or accident.

And I instruct you that the term possess means to

exercise authority, dominion, or control over something. It is not

necessarily the same as legal ownership. The law recognizes

different kinds of possession. Possession includes both actual and

constructive possession. A person who has direct physical control

of an object on or around his or her person is then said to be in

actual possession of it.

And I instruct you that a person who is not in actual

possession, but who has both the power and the intention to

exercise control over something or an object is in constructive

possession of it.

Whenever I use the term possession in these instructions,

I mean actual as well as constructive possession. I instruct you

that possession also includes both sole, that is singular, and

joint possession. If one person alone has actual or constructive

possession, the possession is sole. If two or more persons share

actual or constructive possession, possession is joint.

Whenever I have used the word possession in these

instructions, I mean joint as well as sole possession. Now you may

find that the element of possession as that term is used in these
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instructions is present. If you find beyond a reasonable doubt

that the defendant had actual or constructive possession, either

alone or jointly with others, the government I instruct you need

not prove possession by direct evidence. The government may

instead rely on the totality of the circumstances presented by the

evidence in this case.

If reason and common sense leads you to draw the

inference from the facts established that the defendant possessed

the firearm, you may draw such an inference, it's for you to

decide. You are, however, the sole judges of the facts and of the

inferences if any to be drawn from them, and I remind you of that.

An act is done knowingly if it is done voluntarily and

intentionally and not because of a mistake or accident or some

other innocent reason. The purpose of adding the word knowingly in

the indictment and in the statute under which the indictment is

returned is to insure that no one will be convicted for an act done

because of a mistake or an accident or for any other innocent

reason.