In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3918

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

IRON MATTHEWS,

Defendant-Appellant.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 05 CR 280—Matthew F. Kennelly, Judge.

____________

ARGUED NOVEMBER 9, 2007—DECIDED APRIL 1, 2008

____________

Before CUDAHY, RIPPLE and ROVNER, Circuit Judges.

RIPPLE, Circuit Judge. Iron Matthews was convicted

on one count of being a felon in possession of a firearm, in

violation of 18 U.S.C. § 922(g). On appeal, Mr. Matthews

challenges his conviction on the ground that the district

court committed instructional error. For the reasons

set forth in this opinion, we affirm the judgment of the

district court.
2 No. 06-3918

I

BACKGROUND

A. Facts

In March 2005, Lamont Williams was arrested by local

police for possession of a rifle, which Williams had intended to give to Mr. Matthews in exchange for cocaine.

Williams agreed to cooperate with the police and become

an informant for the Bureau of Alcohol, Tobacco, and

Firearms (“ATF”). At the behest of ATF agents, Williams

called Mr. Matthews to inform him that he (Williams)

had sold the rifle, but that he had three other firearms

to sell. Mr. Matthews indicated interest, but he wanted

more information about the firearms. After receiving

additional information, Mr. Matthews noted that the

firearms described by Williams could be useful “on the

block.” Tr. at 132.

Over the next two days, Williams made multiple telephone calls to Mr. Matthews to facilitate the transaction,

all of which were recorded by the ATF. Williams agreed

to pick up Mr. Matthews and take him to a Walgreen’s

parking lot where the parties could make the exchange

of weapons for crack cocaine. An undercover ATF agent

was waiting in the Walgreen’s parking lot for Williams

and Mr. Matthews; in the trunk of the agent’s car was a

toolbox holding the three ATF-owned firearms that Williams had described to Mr. Matthews.

Mr. Matthews met with the agent. During this meeting,

the agent opened the trunk of his vehicle and told

Mr. Matthews that he should look at the firearms. At that

time, Mr. Matthews picked up each one of the three

firearms for a few seconds to inspect it. Mr. Matthews

then told the agent that “you will want three zips then,”
No. 06-3918 3

1 18 U.S.C. § 922(g) states in relevant part that it shall be

unlawful for any person “who has been convicted in any

court of[ ] a crime punishable by imprisonment for a term

exceeding one year . . . 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.”

meaning three ounces of cocaine for the firearms. Tr. at 66.

Mr. Matthews did not take the firearms at that time; he

stated that the weapons were for his “guy” and that he

had nothing of value to trade for them at that point. Tr. at

82. After the conversation, agents arrested Mr. Matthews.

Following his arrest, Mr. Matthews gave a statement to the

police in which he admitted to picking up and handling

each of the firearms; his statement also included the

following acknowledgment: “I know I broke the law just

by touching the guns.” Tr. at 83.

B. District Court Proceedings

Mr. Matthews was charged in a single count indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g).1

 At trial, the Government proffered the following instruction:

Possession of an object is the ability to control it.

Possession exists when an individual holds an object,

in this case a firearm, even if the handling is only

momentary, as long as the individual does so knowingly and intends to handle the object. A person need

not own an object to possess it.
4 No. 06-3918

R.21 at 23. The defendant proffered a different instruction

on “possession” that required that the firearm be “loaded

and operable.” Tr. at 165. The Government objected to

Mr. Matthews’ proposed instruction as inconsistent with

United States v. Lane, 267 F.3d 715 (7th Cir. 2001), in

which we upheld a defendant’s conviction under section 922(g) based on the defendant’s possession of an

unloaded firearm.

The district court fashioned its own jury instruction as

follows:

Possession of an object is the ability to control it.

Possession exists when an individual holds an object

as long as the individual does so knowingly and

intends to handle the object. Possession may also exist

when a person is not in physical control of the object

but knowingly has the power and intention to exercise

direction or control over it either directly or through

others. A person can possess an object without

owning the object provided that the person has the

power and intention to control the object.

Tr. at 200. After hearing the evidence and the instructions, the jury returned a verdict against Mr. Matthews.

II

ANALYSIS

Mr. Matthews’ sole argument on appeal is that the

district court erred when it refused to give his proffered

instruction on possession. We review alleged instructional error for an abuse of discretion. United States v.

Kosth, 257 F.3d 712, 717 (7th Cir. 2001). In conducting

our review, we ask whether the instruction “fairly and
No. 06-3918 5

accurately summarize[s]” the law and has “support in the

record.” Id.

Mr. Matthews maintains that the district court abused

its discretion in refusing his proffered instruction. According to Mr. Matthews, this court’s case law, which holds

that momentary possession of a weapon violates section

922, presupposes a loaded and operable weapon. The

reason, continues Mr. Matthews, that the court has held

momentary possession to be sufficient is that so little

time is needed to fire a weapon. However, if the weapon

is not loaded, a momentary possession does not carry

with it the same threat of danger. Because the weapons

he held were not loaded, Mr. Matthews concludes, his

inspection of the weapons was not sufficient to establish

possession under the law. Mr. Matthews points to United

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

Lane, 267 F.3d 715 (7th Cir. 2001), and United States v.

Hendricks, 319 F.3d 993 (7th Cir. 2003), as support for

his argument.

In Kitchen, the defendant had been convicted of possession of cocaine. The facts established that, during a

sting operation, Kitchen had agreed to purchase cocaine

from undercover officers. When he went to inspect the

cocaine, Kitchen picked up one of the kilos for two or

three seconds and then commented that he was concerned about the purity of the cocaine. He then was

placed under arrest and later was convicted of possession

of the cocaine. On appeal, Kitchen challenged the sufficiency of the evidence supporting his drug conviction. The

Government maintained that actual possession is established if a defendant picks a controlled substance up for

a fleeting moment. We disagreed. We stated that, in

order to possess narcotics, the Government must establish
6 No. 06-3918

“some sort of unequivocal conduct or assent to the transaction,” which was missing in the present case. Kitchen,

57 F.3d at 523. However, in requiring this type of action

to establish possession of narcotics, we noted that we

were “not attempt[ing] to use the present case to formulate

a rule workable for all circumstances.” Id.

We later distinguished the circumstances in Kitchen

from the facts presented in United States v. Lane, 267

F.3d 715 (7th Cir. 2001). In Lane, the defendant, a convicted felon, purchased a gun for his girlfriend. Before

purchasing it, Lane removed the gun from its box, held

it and inspected it. Based on this action, Lane was convicted of being a felon in possession of a firearm. On

appeal, he maintained that he had not “possessed” the

gun and relied on Kitchen for the proposition that a momentary possession was not sufficient to establish possession under the law. We disagreed:

There is a marked difference between the steps necessary to exercise control over drugs and those necessary to control a gun. To deal with the “growing

menace of drug abuse in the United States,” H.R.Rep.

No. 91-1444, at 1 (1970), 1970 U.S.C.C.A.N. 4566,

Congress made it illegal to possess drugs with the

intent to distribute them. To obtain control over drugs

in this context, a defendant needs more than just mere

physical contact; he must have the perceived right

among the criminals with whom he is interacting

to deal, use, transport, or otherwise control what

happens to the drugs. See Kitchen, 57 F.3d at 524. Such

control is not a foregone conclusion when a defendant’s sole physical contact with drugs is momentary

inspection of drugs he does not own or over which

he did not have recognized authority. . . .
No. 06-3918 7

In contrast to drugs, it is much easier to obtain

control and therefore possession of a gun in the context of 18 U.S.C. § 922(g)(1). Congress originally passed

this law as the Federal Firearms Act of 1938 “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.’ ” Barrett v.

United States, 423 U.S. 212, 220 (1975) (quoting S.Rep.

No. 1189, at 33 (1937)). Throughout this Act’s subsequent history, this purpose has remained constant.

See S.Rep. No. 90-1501, at 22 (1968); H.R.Rep. No.

99-495, at 1-3. From the purpose of the Act, it is reasonable

to infer that Congress intended to prohibit felons from

exercising any physical control over a gun.

Physical control over a gun is remarkably easy to

effect. Once the gun is in the defendant’s hands he

need only pull the trigger, an act which can be completed in a split second and which is controlled and

influenced by nothing more than the defendant’s

whim. . . . Felons handling guns, unlike defendants

who have touched drugs, do not need recognition of

their authority or any extra element to obtain the

ability to shoot the gun. Lane had just as much control over the gun when he inspected it while it belonged to Bowen as he would have if he as the gun’s

owner took aim at a rabbit. Because a defendant can

shoot a gun so quickly and easily once he holds it in

his hands, we conclude that evidence showing that

a felon held a gun is by itself a “factor indicating

that the defendant had the ability to exercise direct

control over the [firearm].” The distinction between

holding a gun and obtaining control over a gun as

required to prove possession is academic.
8 No. 06-3918

267 F.3d at 718 (emphasis added; parallel citations omitted). Consequently, we concluded that “holding a firearm establishes possession as a matter of law in the context of a charge under 18 U.S.C. § 922(g)(1).” Id. at 719.

We further explained that “[t]his holding depends heavily

on both the purpose of the law in question and on the

physical nature of guns.” Id.

Finally, in Hendricks, the defendant had been convicted

of violating section 922. The testimony at trial established that Hendricks had discovered a gun in the car

that he and his girlfriend had stolen. Hendricks had found

the gun under the seat of the car, had held it momentarily

and then had placed it back under the seat. After his

conviction, he argued that, “although he held the firearm

momentarily, he did so only for an ‘academic’ period of

time, which is insufficient to establish guilt under

§ 922(g)(1).” Id. at 1005. We rejected this argument:

Mr. Hendricks relies primarily on United States v.

Conley, 291 F.3d 464 (7th Cir. 2002), to support his

argument. In Conley, we stated in dicta that “[o]ur case

law makes clear that an individual convicted of a

felony violates § 922(g)(1) whenever he is in possession

and physical control of a weapon for more than an

‘academic’ period of time, even if he lacks the

specific intent to use the weapon for criminal purposes.” Id. at 473 (quoting United States v. Lane, 267

F.3d 715, 718 (7th Cir. 2001)). Mr. Hendricks’ reliance

on this statement is misplaced. Although we gave no

precise definition to the term “academic” in Conley, a

fair reading of the reference in the context of the

court’s discussion leaves no doubt that the court was

of the view that even a very brief possession of a

firearm is sufficient to convict under § 922(g)(1).
No. 06-3918 9

Furthermore, the court used the term “academic”

based on a passage from United States v. Lane, 267 F.3d

715 (7th Cir. 2001), which undermines, rather than

supports, Mr. Hendricks’ position.

In Lane, this court stated: “Because a defendant can

shoot a gun so quickly and easily once he holds it in

his hands, we conclude that evidence showing that

a felon held a gun is by itself ‘a factor indicating that

the defendant had the ability to exercise direct control over the [firearm].’ ” Id. at 718 (alteration in original). The court then stated that “[t]he distinction

between holding a gun and obtaining control over a

gun as required to prove possession is academic.” Id.

Fairly read, this passage suggests that, when a felon

holds a firearm, he is in possession of the firearm,

and any distinction between the two would be purely

academic, in the sense of theoretical (existing only

in concept and not in reality).

319 F.3d at 1005.

As noted above, Mr. Matthews believes that these

cases establish that the “momentary” possession rule

evolved because of the ease with which weapons can be

discharged. He further contends that, when there is no

threat of imminent danger from the weapon—either

because it has not been loaded with ammunition or because it has been disabled in some manner—the rule

should not apply.

We cannot agree with Mr. Matthews’ reading of the

statute and the case law interpreting it. The above cases

make clear that the ability to fire a weapon is only one

rationale supporting the “momentary” possession rule.

We explained in Lane that the purpose of the Federal
10 No. 06-3918

Firearms Act was to prevent criminals “in any way from

com[ing] in contact with firearms of any kind.” 267 F.3d

at 718. When the Act was amended in 1968, Congress

reiterated that

[t]he principal purposes of this act are to make it

possible to keep firearms out of the hands of those

not legally entitled to posses them because of age,

criminal background or incompetency, and to assist

law enforcement authorities in the States and their

subdivisions in combating the increasing prevalence

of crime in the United States.

S.Rep. No. 90-1501, at 22 (1968). To this end, section 922

extensively regulates the purchase and sale of firearms. See,

e.g., 18 U.S.C. § 922(a) (prohibiting the import, manufacture, sale or transport of firearms other than by those

specifically licensed to do so); id. § 922(c) (requiring a

purchaser of firearms to sign a sworn statement as to the

purchaser’s competency and legal right to purchase

firearms). It prohibits those who have been convicted of a

felony from “ship[ping] or transport[ing],” “possess[ing],”

or “receiv[ing]” any firearm. Id. § 922(g). Additionally, the

prohibitions not only apply to firearms, but also to ammunition. See id. In short, Congress sought to divorce completely convicted felons from the use or possession of

weapons and from the weapons trade.

Here, Mr. Matthews’ conviction gives effect to this

statutory purpose. Mr. Matthews, a convicted felon,

willingly came into contact with the firearms, taking them

into his hands and inspecting them for the purpose of

arranging a sale. The conduct in which Mr. Matthews

engaged is precisely what section 922 was meant to prevent.
No. 06-3918 11

Besides Kitchen, Lane and Hendricks, Mr. Matthews does

not come forward with any other case law from this

court—or any other court—to support his proffered

instruction that momentary possession of an unloaded

weapon does not violate section 922(g), and we have

located none. By contrast, the cases that we have found

strongly suggest that the other courts of appeals also

would reject Mr. Matthews’ arguments. See, e.g., United

States v. Johnson, 459 F.3d 990, 997-98 (9th Cir. 2006) (rejecting the proffered instruction on an innocent possession defense as contrary to Congress’ purpose “to keep

guns out of the hands of those who have demonstrated

that they may not be trusted to possess a firearm without

becoming a threat to society” (internal citations and

quotation marks omitted)); United States v. Teemer, 394

F.3d 59, 63-64 (1st Cir. 2005) (rejecting a proffered instruction that would require the jury to acquit the defendant

if possession was “fleeting” or “transitory” and noting

that “[t]he statute bans possession outright without regard to how great a danger exists of misuse in the particular case”).

Both Lane and Hendricks establish that merely holding

a firearm for a brief period of time is sufficient to constitute possession within the meaning of section 922. This

rule prevents felons from coming into contact with firearms, thus giving effect to one of the purposes of section

922. The district court’s refusal to add another requirement—that the firearm be loaded and operable—was

consistent with this court’s case law and the purpose

of section 922. Thus, the district court did not abuse its

discretion in rejecting Mr. Matthews’ proffered instruction.
12 No. 06-3918

Conclusion

For the reasons set forth above, we affirm the judgment of the district court.

AFFIRMED

USCA-02-C-0072—4-1-08