Argued March 5, 2014
Appeal from the United States District Court for the Western District of Wisconsin. No. 12-cr-105-wmc -- William M. Conley, Chief Judge.
For United States of America, Plaintiff - Appellee: Rita M. Rumbelow, Attorney, Office of The United States Attorney, Madison, WI.
For James Newman, Defendant - Appellant: William R. Jones, Attorney, Jones Law Firm, Madison, WI.
Before EASTERBROOK, MANION, and HAMILTON, Circuit Judges.
Easterbrook, Circuit Judge
James Newman pleaded guilty to possessing a shotgun,
despite a record of convictions that made it illegal for him to possess
firearms. 18 U.S.C. § 922(g)(1). After changing lawyers, he moved to withdraw
the plea, asserting that the record does not establish a factual basis for it.
The district court denied that motion and sentenced him to 120 months'
Newman and James Misleveck escaped from Black River Correctional Center in Wisconsin. Misleveck soon stole a shotgun and ammunition. Newman and Misleveck then cooperatively stole a car and kidnapped its driver. Newman approached the driver and asked for a cigarette; while she was distracted, Misleveck approached her from behind, pointed the shotgun at her, and ordered her to get into the rear seat. Newman kept control of the victim for five hours while Misleveck drove. The pair released her and stole a pickup truck. Pursued by police, they abandoned both the truck and the shotgun before escaping on foot. They made it to Florida before being caught. We shall assume that Newman never touched the shotgun--although the kidnap victim once stated that Newman held the gun while Misleveck was driving, Newman maintains otherwise and the Rule 11 colloquy did not address this subject.
Newman and Misleveck were prosecuted in state court for escape, kidnapping, armed robbery, and other crimes. The sole federal charge was possessing the shotgun. Both pleaded guilty. Misleveck appealed his sentence, which we affirmed. United States v. Misleveck, 735 F.3d 983 (7th Cir. 2013). Newman appeals his conviction but does not contest his sentence.
He contends that the judge should have allowed him to withdraw the plea under Fed. R. Crim. P. 11(d)(2)(B), which provides that a " fair and just reason" supports withdrawal. Newman says that he is innocent--which if true is a compelling reason to withdraw a plea. United States v. Hodges, 259 F.3d 655, 661 (7th Cir. 2001). But the judge thought Newman's guilt established, and appellate review of a decision under Rule 11(d)(2)(B) is deferential.
See United States v. Alcala, 678 F.3d 574, 577 (7th Cir. 2012).
Reduced to its essentials, Newman's argument is that when entering the plea he believed erroneously that simply being in the presence of a person with a gun equals constructive possession of that gun. Newman asserts that the statements during the Rule 11 colloquy could not support the plea on any basis other than constructive possession. We grant his premise: Keeping company with someone who carries a gun does not automatically demonstrate possession. Actual possession means physical control, and constructive possession means the authority to exercise control.
See United States v. Rawlings, 341 F.3d 657 (7th Cir. 2003); United States v. Brown, 724 F.3d 801 (7th Cir. 2013). If Misleveck was holding the shotgun as Newman's delegate, or if they controlled it jointly and Misleveck would have handed it to Newman on request, then Newman had constructive possession; otherwise not. The prosecutor contends that the facts adduced during the Rule 11 colloquy support an inference that Newman and Misleveck jointly controlled the shotgun. Maybe so, but we need not decide.
The events that Newman related when pleading guilty show that he and Misleveck undertook joint criminal activity--carjacking and flight to avoid capture, among other crimes--and worked together from the moment of their escape (perhaps earlier) until their capture. In other words, they engaged in a conspiracy. Every conspirator is liable for acts of other conspirators within the scope of ...