United States v. Veng Xiong

• Decision Date: 15 June 2021
• Docket Number: No. 19-5111,19-5111
• Citation: 1 F.4th 848
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. VENG XIONG, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

1 F.4th 848

UNITED STATES of America, Plaintiff-Appellee,

v.VENG XIONG, Defendant-Appellant.

No. 19-5111

United States Court of Appeals, Tenth Circuit.

FILED June 15, 2021

Leena Alam, Assistant United States Attorney (R. Trent Shores, United States Attorney, with her on the brief), Tulsa, Oklahoma, for Plaintiff-Appellee.

O. Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the brief), Denver, Colorado, for Defendant-Appellant.

Before TYMKOVICH, Chief Judge, and BALDOCK, and CARSON, Circuit Judges.

BALDOCK, Circuit Judge.

With two of his alleged co-conspirators testifying for the Government, a jury convicted Defendant Veng Xiong on one count of conspiring to possess with intent to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A)(viii), one count of possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(B)(i), and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Defendant on his first and third convictions (Counts 1 and 4 of a superseding indictment) to concurrent terms of 120 months’ imprisonment. On his second conviction (Count 3), the court sentenced Defendant to a consecutive term of 120 months’ imprisonment. Defendant now challenges his two firearm-related convictions based on what the Government admits was an erroneous constructive possession charge tendered to the jury. Constructive possession of a firearm is established only when a person lacking physical custody of the firearm "still has the power and intent to exercise control over the [firearm]." Henderson v. United States , 575 U.S. 622, 626, 135 S.Ct. 1780, 191 L.Ed.2d 874 (2015) (emphasis added). The district court failed to instruct the jury on constructive possession's intent requirement. Defendant says this violated his Sixth Amendment right to a jury trial. See Neder v. United States , 527 U.S. 1, 12, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) ("[A]n improper instruction on an element of the offense violates the Sixth Amendment's jury trial guarantee.").

Our jurisdiction arises under 28 U.S.C. § 1291. Because Defendant did not challenge the instruction in the district court, we review only for plain error. Fed. R. Crim. P. 52(b). Before an error that is plain or obvious may warrant reversal (assuming the claim of such error was not intentionally relinquished or abandoned), the error must have affected Defendant's substantial rights. This means Defendant "must show a reasonable probability that, but for the error, the outcome of the proceeding would have been different." Molina-Martinez v. United States , ––– U.S. ––––, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016) (internal quotations omitted). Because Defendant has not met his burden, we affirm.

I.

A confidential informant by the name of "Jimmy" worked with the Osage County Drug Task Force in and around Tulsa, Oklahoma. Jimmy had purchased small quantities of marijuana from an individual named Ken Lee on multiple occasions. At Defendant's trial, Lee testified that in early April 2018, Jimmy contacted him about purchasing 33 pounds of methamphetamine for half a million dollars. Lee had never sold methamphetamine, or any drug in such a large quantity, so he inquired within his local Hmong community about a possible source for the drugs. Lee was put in touch with an individual known as "Trigger." On the evening of April 8, 2018, Lee went to Lady Godiva's, a Tulsa strip club, to meet Trigger. Xiongkou Her, a friend living with Lee and his family, accompanied Lee to the club. Meanwhile, Defendant Xiong and another individual by the name of Kosh Lor accompanied Trigger. Lee spoke alone outside the club with Trigger, Defendant, and Lor. Lee left the club understanding Defendant would procure the methamphetamine from one of his connections.

Defendant texted Lee around this time: "This Trigs homeboy i talk to u earlier don't like to tex. Call me when you can." Lee testified he and Defendant met at Defendant's home, 8577 East 32nd Place, on the afternoon of April 9. Inside his garage, Defendant showed Lee a pound of methamphetamine. Lee sent Jimmy a picture of the drugs, and Jimmy sent Lee a picture of $100,000. Jimmy and Lee made plans to complete the transaction that night in a rural area about 70 miles north of Tulsa. While Lee and Defendant were still inside the garage, Defendant handed Lee two handguns that Lee saw Defendant retrieve from the backseat of his four-door silver Buick. In addition to the handguns, which Lee described as a "revolver" and "Glock 22," Lee saw an "AK-47" and "shotgun" in the backseat of Defendant's Buick. Lee took the two handguns from Defendant and departed.

Later that evening, Defendant texted Lee an unfamiliar address on Pine Street at which to meet him. Lee and Her took the two handguns and drove to the address in a two-door black Acura, where they met Defendant and Lor. Lee and Her followed Defendant and Lor, the latter driving Defendant in his Buick, to a nearby Chinese Restaurant. From a safe distance, Lee and Her saw a man exit the restaurant and get into Defendant's Buick. After five or ten minutes, the unidentified man got out of the car. Lee and Her then followed Defendant and Lor back to the Pine Street residence. Lee saw Defendant carry a Converse shoebox from his Buick into the house. Once the four men were inside, Defendant and Lee went alone into a "back room" where Defendant packed around five pounds of methamphetamine into five ziplock bags. Defendant then placed the drugs inside a black duffel bag. Lee took the bag and put it in the Acura. The four men departed for the delivery point with Her driving Lee in the Acura and Lor driving Defendant in the Buick. On the way, Lee texted Defendant to inquire about the remaining twenty-eight pounds of methamphetamine. Defendant called Lee and told him that if the five-pound transaction went smoothly he would have "his guys bring the rest."

At the planned delivery point, law enforcement set up a "bait car," an unoccupied parked vehicle left running with the lights on. The "take-down team" (TDT) positioned itself about a quarter mile to the east of the delivery point. A "sniper observation team" (SOT) was about sixty yards from the delivery point at the back side of the bait car. At approximately 10:30 p.m. on April 9, Her pulled the Acura off the highway facing north behind the bait car. Lor parked the Buick to the left side of the Acura a bit farther back from the two vehicles. At that point, Sergeant Denise Silva, a member of the SOT, gave the TDT the go-ahead to move in. A video of the takedown indicates that as the TDT rapidly approached in multiple vehicles, Lor, in response to the flashing lights, promptly exited Defendant's Buick and lay prostrate on the ground. When the Buick's dome light lit up, Sergeant Silva saw through her rifle scope what appeared to be the pistol grip or buttstock of a firearm positioned between the front passenger's seat and center console of the Buick. She alerted the TDT to a likely weapon. Officer Nick Silva, a member of the TDT, and numerous other officers advanced on the Buick that Lor had exited. Officer Silva shined his flashlight into the vehicle and made eye contact with Defendant, who was in the front passenger's seat of the Buick. After Defendant raised his hands above his head as ordered, Silva clearly observed the buttstock of what later was identified as a WASR-10 semi-automatic rifle, a Romanian knockoff of the AK-47. The TDT placed all four men in custody without incident.

Between the center console and front passenger's seat of Defendant's Buick, officers located the upside down WASR-10 with the pistol grip pointing upwards for ready access. Officers also recovered a fully-loaded, thirty-round magazine for the WASR-10 on the front passenger's seat floorboard. In the front passenger's door pocket, officers found a round of ammunition for the WASR-10 with damage to its polymer tips, as well as Defendant's cell phone on which he had been communicating with Lee and others. Officer Wilmott, commander of the TDT, testified "it appeared that someone had tried to charge the [WASR-10], the round got jammed, so they stripped the magazine as you would to clear the jam, [and] racked the round open causing it to eject to the right."

Behind the driver's seat of the Buick on the floorboard, officers located a loaded and chambered short-barreled Winchester 12-gauge shotgun with the handle positioned behind the center console facing the front passenger's seat as shown in Government's Trial Exhibit 9 attached hereto. FBI Special Agent Hewett testified the shotgun had one round in the chamber and four rounds in the magazine and was "ready to fire at the press of a trigger." Officer Wilmott testified Defendant had easier access to the shotgun from his front passenger's seat than Lor did from the driver's seat given the gun's placement behind the driver's seat: "It would be difficult for the driver to access [the shotgun] without exiting the vehicle." Unlike Lor, who would have had to turn the shotgun around to access it while seated in the driver's seat, Officer Silva testified Defendant could have reached behind the seat and pulled the shotgun up directly from his position in the passenger's seat.

Inside the Acura's rear hatch, officers uncovered approximately five pounds of methamphetamine consisting of five bundles, one inside a Converse shoebox. Two handguns were also recovered from or near the Acura. Just outside the passenger's door on the ground was a Taurus .38 revolver. Under the driver's seat was a Glock model 22, .40 caliber handgun. Lee testified these were the same handguns Defendant retrieved from the backseat of his Buick and handed Lee earlier that day. Her testified Lee gave him the Glock before they departed Lee's residence for the Pine Street address....