United States v. Johnson
| Citation | 46 F.4th 1183 |
| Decision Date | 30 August 2022 |
| Docket Number | 21-3113 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Larry D. JOHNSON, Defendant - Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Candace Caruthers, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Michelle McFarlane, Special Assistant United States Attorney (Duston J. Slinkard, United States Attorney, and James A. Brown, Appellate Chief, with her on the brief), Office of the United States Attorney, District of Kansas, Kansas City, Kansas, for Plaintiff-Appellee.
Before TYMKOVICH, Chief Judge, BRISCOE and MATHESON, Circuit Judges.
Larry D. Johnson was convicted by a jury for possessing a firearm and possessing crack cocaine with the intent to distribute. He seeks to overturn his two firearms convictions because he claims the jury received an erroneous instruction on constructive possession.
Reviewing for plain error, we affirm. Had the jury been given the proper instruction, we find it would have nevertheless been compelled to conclude Johnson had both actual and constructive possession of the firearm. After officers pulled him over for driving the wrong way on a one-way street, they saw a black pistol laying on the driver's seat where he had been sitting. Because Johnson had been exerting physical control over the firearm by sitting on it, we find he actually possessed it. And we also conclude he was in constructive possession of the firearm based on physical contact; the fact the firearm was loaded; his previous statement admitting to possessing a firearm to aid in drug trafficking; and his simultaneous possession of drugs for distribution.
Johnson was arrested during a traffic stop after officers discovered drugs and a firearm. They found a pistol laying on the driver's seat, and on his person they found $411 in cash and a large plastic bag containing 28 smaller bags with cocaine base (crack).
After his arrest, Johnson was charged with (1) possessing cocaine base with the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ; (2) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) ; and (3) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A jury convicted him as charged.
To better understand the jury's verdict on firearms possession, it is useful to briefly review the testimony at trial.
At trial only the government proffered a number of fact witnesses. The jury heard from the officers who stopped and arrested Johnson, Johnson's girlfriend and owner of the Chevy Impala he was driving, the ATF special agent who testified about the significance of the evidence collected during the stop, a Kansas Bureau of Investigation DNA Analyst who performed DNA testing on the firearm, and a detective who testified about a previous statement Johnson had made about possessing firearms and selling drugs during an earlier case.
The arresting officers testified they stopped Johnson as he drove an Impala because he was driving the wrong way down a one-way street. As they approached him, the officers noticed that Johnson—the sole occupant—had a beer bottle in his hand. When an officer opened the driver's door, Johnson handed him the partially empty but capped bottle. They ordered Johnson to exit the car because he was being placed under arrest. Johnson refused to exit despite being told multiple times. But after one officer told him they would remove him forcefully, Johnson voluntarily got out of the car.
After Johnson exited the car, officers noticed a black pistol laying on the driver's seat where Johnson had just been sitting. To one officer, it appeared Johnson had either been sitting on it or had a large part of his leg on it.
Johnson's girlfriend and the owner of the Impala also testified. Although she initially denied knowing Johnson and was generally evasive and vague with the officer, by the time she testified she conceded she had a relationship with Johnson and that she had allowed him to drive her car that evening. But she denied knowledge or ownership of the firearm, the $411 in cash, and the drugs.
An expert witness on drug-trafficking and firearms testified that Johnson likely possessed the cocaine base for distribution and the firearm to aid him in his drug dealing. She testified that the cocaine base and its packaging indicated Johnson possessed it for sale; it is common for drug dealers to possess firearms to protect themselves and the drugs they are selling. Nonetheless, she testified that she found no testable fingerprints on the firearm.
Another government witness performed a DNA analysis on the firearm. The firearm had a mixture of DNA from four people, she said, and it could be separated into a partial major DNA profile and a partial mixed minor DNA profile. The partial major DNA profile was consistent with its source as an unknown female contributor, and the partial minor DNA profile was too low quality for analysis.
Finally, the government introduced into evidence an audio recording of a statement Johnson made in 2004 where he admitted to having a gun in connection with drug distribution in a previous case. The government presented the audio recording as Rule 404(b) evidence to demonstrate Johnson's intent or lack of mistake in possessing the firearm. Fed. R. Evid. 404(b).
The two firearm charges required the government to prove Johnson had actual or constructive possession of the firearm. 18 U.S.C. §§ 922(g)(1), 924(c)(1)(A), 924(a)(2). The district court provided the following jury instructions for actual and constructive possession:
Johnson challenges the firearm convictions, contending the district court provided the jury an erroneous instruction on constructive possession. Because he failed to object at trial, we review for plain error. United States v. Trujillo-Terrazas , 405 F.3d 814, 817 (10th Cir. 2005).
"Plain error occurs when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Alapizco-Valenzuela , 546 F.3d 1208, 1222 (10th Cir. 2008) (internal quotation marks omitted).
The government concedes the first two elements—that there was error that was plain. We agree because constructive possession has an element of intent, and the instruction given by the district court omitted that element. See United States v. Little , 829 F.3d 1177, 1182 (10th Cir. 2016) ; United States v. Xiong , 1 F.4th 848, 853 (10th Cir. 2021) ().
Johnson bears the burden of demonstrating the last two elements of the plain-error test are met. See United States v. Sorensen , 801 F.3d 1217, 1238 (10th Cir. 2015). In determining whether Johnson's substantial rights were affected, "our precedent instructs that ... we ask only whether there is a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Hasan , 526 F.3d 653, 664–65 (10th Cir. 2008) (internal quotation marks omitted). In other words, we ask whether there is a reasonable probability that, but for the erroneous instruction the jury would have concluded Johnson was not in possession of the firearm. Because he fails to surmount the hurdle imposed by this third prong of the plain-error test we end our analysis there. See United States v. Rosales-Miranda , 755 F.3d 1253, 1258 (10th Cir. 2014) .
At trial the jury was given two independent paths to find Johnson possessed the firearm: actual or constructive possession. "Actual possession exists when a person has direct physical control over a thing."
United States v. Benford , 875 F.3d 1007, 1020 (10th Cir. 2017) (internal quotation marks omitted). On the other hand, constructive possession exists when a person, "though lacking such physical custody, still has the power and intent to exercise control over the object." Id. (cleaned up).
When a defendant has exclusive control over the property where contraband is found, a jury can reasonably infer the defendant constructively possessed the contraband. Little , 829 F.3d at 1183. But where—as here—the defendant jointly occupies the premises (the car) on which the firearm is found, the government is required to show a nexus between the defendant and the firearm. Benford , 875 F.3d at 1015. That is, the government must demonstrate the defendant knew of, had access to, and intended to exercise dominion or control over the contraband. Id. at 1020. "[P]ossession of a weapon[ ] may be proved by circumstantial as well as direct evidence." United States v. Morales , 758 F.3d 1232, 1235 (10th Cir. 2014) (internal quotation marks omitted).
When the evidence of actual possession before a jury is sufficiently strong, we will not reverse a conviction merely because the jury was given an erroneous...
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