Lead Opinion
A jury convicted Kenroy Benford of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) based on his constructive possession of a loaded pistol that police seized from an apartment bedroom he shared with his girlfriend. On appeal, Benford argues the district court erred in three ways: (1) it abused its discretion by admitting evidence under Federal Rule of Evidence 404(b) about (i) his possession of a different firearm during a recent sidewalk confrontation, and (ii) text messages he had sent three months earlier suggesting he had firearms to trade; (2) it let the jury’s guilty verdict stand despite insufficient evidence that he had constructively possessed the pistol .in the apartment by knowingly having the power to exercise dominion or control over the pistol; and (3) it incompletely instructed the jury on constructive possession by not advising the jury that it could convict only if it also found that Benford intended to exercise dominion or control over the pistol. We affirm the district court’s evidentiary rulings and its denials of Benford’s motions for acquittal, but we reverse and remand for a new trial based on the erroneous jury instruction.
I.
. On May 21, 2014, Oklahoma City Police Department officers arrived at 5313 Willow Cliff Road, Apartment 232, Oklahoma City, to execute a search warrant. Benfprd lived in that apartment with his girlfriend, Adrian Galloway. Soon after arriving, the officers saw Benford leave the apartment and get into his and Ms. Galloway’s automobile. Before he could drive away, the officers detained him.
After detaining Benford, officers executed the search warrant at the apartment, where they encountered Ms. Galloway and a young child. Under the mattress in the master bedroom, officers found documents tying Benford to the apartment—a recent letter to him from a government agency, his W-2 statement, and his recent pharmacy receipt.
After Benford received 'a Miranda warning and waived his rights, he admitted that he lived' in Apartment 232 with Ms. Galloway. When Sergeant Harmon told Benford that the officers had found a small silver automatic firearm with pink grips in a bag in the bedroom, Benford registered no surprise, but said, “I guess I’ll have to take- the charge.” R. Vol. 3 at 74. The officers arrested Benford, and a grand jury later indicted him on a single count of being a felon in possession of a firearm' in- violation of 18 U.S.C. § 922(g)(1).
Shortly after the search at the Willow Creek apartments, officers executed a search warrant on the' cell phone seized from Benford the day he was arrested. In a text exchange from February 11, 2014, about three months before Benford’s arrest, Benford had texted someone about whether a motor was still for sale and asked what he could trade for it. The motor seller responded that he would trade for “[g]uns, tools, lathe and/or mill tooling. H-D stuff.” Supp. Vol. 1 at 29. Benford asked what kind of- guns, and the motor seller responded, “Concealed carry or a 12 ga.”
The government also learned about an incident at the Willow Cliff' apartments that occurred nineteen days before.Ben-ford’s arrest in which Benford possessed a different gun. On May 2, 2014, Misty Dibler, her husband, and her 12-year-old daughter were walking their dog by Ben-ford’s- apartment building when Benford’s unleashed dog attacked their dog. As Ms. Dibler and Benford argued about the dog attack, Benford told Ms. Galloway to “go get a gun.” R. Vol. 3 at 142. Ms. Galloway went upstairs into a second-floor apartment and then met Benford at a spot halfway up the stairs out of Ms. Dibler’s view. Benford then reapproached Ms. Dibler, voiced obscenities, and, from about five feet away, pointed a black handgun at her and waved it around. When Ms. Dibler dialed 911, Benford left in Ms. Galloway’s car.
Under Federal Rule of Evidence 404(b)(1), Benford moved in limine to exclude his text messages and Ms. Dibler’s testimony. Relying on Rule 404(b)(2), the government contended that the disputed evidence of prior weapon possession was admissible for a purpose other than to prove character or propensity—namely, to help prove that Benford knew the Lorcin pistol was in his apartment and that he constructively possessed it. The district court agreed with the government and ruled the evidence admissible.
At trial, the parties stipulated that Ben-ford had a prior felony conviction and that the Lorcin pistol had affected interstate commerce. The sole issue for the jury was whether Benford had knowingly possessed the pistol “[o]n or about May 21, 2014.” R. Vol. 1 at 108. To prove constructive possession, the government relied on the location and accessibility of the pistol in the bedroom; Benford’s statement and reaction when told that the police had found the pistol; Benford’s text messages; and Ben-ford’s and his girlfriend's knowledge of, and ability to retrieve, a different handgun three weeks earlier from the same apartment. After deliberating for one hour and twenty-five minutes, the jury found Ben-ford guilty of being a felon in possession of a firearm. Benford now appeals.
II.
Benford argues the district court erred in admitting the text messages from his cell phone from several months earlier indicating he had firearms to trade and Ms. Dibler’s testimony regarding a prior altercation during which Benford possessed a different firearm. We review the district court’s evidentiary rulings for an abuse of discretion. United States v. Mares,
“Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character,” but such evidence “may be admissible for another purpose, such as proving ... intent [or] knowledge....” Fed. R. Evid. 404(b)(1)-(2). To be admissible under Rule 404(b)(2), evidence of other crimes, wrongs, or acts must satisfy four conditions: (1) the government must offer the evidence for a proper purpose; (2) the evidence must be relevant; (3) the evidence’s potential for unfair prejudice must not substantially outweigh its probative value under Rule 403; and (4) the district court must give a proper limiting instruction, if requested by the defendant. Huddleston v. United States,
An often-cited case on the propriety of 404(b)(2) evidence to help prove constructive possession of firearms is United States v. Moran,
On appeal, we ruled that the district court acted within its discretion in admitting the Rule 404(b)(2) evidence. First, we explained that the government offered, and the district court admitted, the evidence for the proper purpose of showing Moran’s knowledge; that is, to show that he knowingly possessed the rifle. Id. The prior conviction, which demonstrated that Moran knowingly possessed a firearm at another point in time, was also relevant to show knowledge: “Because the prior conviction required the same knowledge, evidence of the conviction had a ‘tendency to make the existence of Mr. Moran’s knowledge of the rifle in the present case ‘more probable ... than it would be without the evidence.’ ” Id. (quoting Fed. R. Evid. 401 (2007)). While we acknowledged that the use of prior firearm possession to prove knowledge “involves a kind of propensity inference (i.e., because he knowingly possessed a firearm in the past, he knowingly possessed the firearm in the present ease),” we still approved its admission “as long as it tends to prove something other than criminal propensity.” Id. at 1145. Finally, in considering the admissibility of the evidence under Rule 403, we concluded that Moran’s earlier firearm possession “was sufficiently similar to have probative value in proving knowledge” and that the district court did not abuse its discretion in determining that the evidence’s potential for unfair prejudice did not substantially outweigh its probative value. Id. at 1145-46.
As in Moran, the government offered the text messages and Ms. Dibier’s testimony for the proper purpose of proving knowledge: that Benford knew the Lorcin pistol was inside the bedroom. And, like Moran, the evidence was relevant for that proper purpose. Benford indicated in his text messages that he had guns to trade for a motor, and Ms. Dibler testified that Benford actually held a firearm during an altercation. In the same way that Moran’s prior firearm possession supported the inference that he had the same knowledge in the context of the charged offense," so too does Benford’s past firearm possession suggest he knowingly possessed the Lorein pistol. See Moran,
We also reject' Benford’s argument that the" danger of unfair prejudice substantially outweighed the evidence’s probative value. The evidence admitted here is more probative of Benford’s- knowledge of the Lorein pistol than was the Rule 404(b) evidence admitted in Moran’s case to show his knowledge" of the riñe found on the back car seat. Approximately three months before Benford’s arrest, Benford strongly implied he had multiple guns to trade for a motor. And nineteen days before his arrest, Benford directed his girlfriend to retrieve a gun from the same apartment in which police found the Lorein pistol, and then proceeded to actually hold the firearm as he. waved it and pointed it at Ms. Dibler and her family. In contrast, Moran possessed a firearm in a different location eleven years earlier. Additionally, when a defendant is not the sole occupant of the premises where the gun was found, “the question of knowing possession [is] more debatable ..., which weighs in 'favor of admission despite the 'possibility of unfair prejudice.” United States v. Trent,
III.
Benford contends the evidence was insufficient to support his conviction for being a felon in possession of a firearm in violation of 18 U.S.C. §" 922(g)(1).' We review Benford’s insufficiency-of-the-evidence claim de novo. United States v. Morales,
To support a conviction under 18 U.S.C. § 922(g)(1), the government had the burden to prove beyond a reasonable doubt that (1) Benford was previously convicted of a felony; (2) he thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce. United States v. Colonna,
Possession under § 922(g)(1) may be either actual or constructive. Colonna,
Viewing the evidence in favor of the government, we believe a reasonable jury could easily conclude that Benford knew of and had access to the Lorcin pistol, and thus, a jury could infer he had -dominion and control of it. Officers searched the apartment shortly after seeing Benford leave it, and Benford admitted that he lived there with his girlfriend. Officers seized the pistol after finding it in the open front pouch of a computer bag within two- and-a-half feet of Benford and Ms. Galloway’s bed and in the same room as Benford’s personal belongings. See United States v. Ledford,
Further, Benford’s own words help prove that he knew the pistol was in the apartment. When told that police had found the pistol, Benford was unfazed, telling the officer, “I guess I’ll have to take the charge.” R. Vol. 3 at 74. Though Ben-ford could have meant different things by that statement, the jury could reasonably have viewed Benford’s statement as an admission that he knew the Lorcin pistol was in the apartment and that he had full access to it there. Based on Ms. Dibler’s testimony, the jury could likewise reasonably conclude that, since Benford directed his girlfriend to “go get a gun” from the apartment three weeks earlier, he also knew of and had access to the Lorcin firearm in the bedroom. Similarly, a jury could rely in part on Benford’s text messages from three months earlier indicating he had guns to trade for a motor to likewise bolster its conclusion .that Benford knew of and had access to the Lorcin pistol.
Viewing this evidence in favor of the government, we conclude that a reasonable jury could find beyond a reasonable doubt that Benford knew the pistol was in the apartment and that he had power to exercise dominion or control over it. Thus, under the law in effect at the time of trial, the government presented sufficient evidence to sustain the jury’s finding that at arrest Benford knowingly had constructive possession of the pistol.
IV.
Benford’s final argument is that the district court improperly instructed the jury on constructive possession when it failed to instruct that Benford must have intended to exercise control over the pistol. In United States v. Little,
Benford did not raise the jury-instruction error before the district court. We thus review for plain error.
A.
We agree with the parties that Benford has satisfied the first two prongs of the plain-error analysis. The district court instructed the jury that constructive possession exists when a person “knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons.” Vol. 1 at 125. Little is clear, however, that constructive possession also requires intent to exercise control.
B.
We turn to the third prong of the plain-error analysis: whether the instructional error affected Benford’s substantial rights. To make this showing, Benford has the burden to “ ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different.” Molina-Martinez,
In United States v. Little, we held that the district court’s error in omitting the intenb-to-exercise-control element of constructive possession was harmless error because the evidence at trial compelled the conclusion that Little intended to exercise control over the weapons.
At trial and again on appeal, Little argued the district court erred by failing to instruct the jury that it must find he intended to exercise dominion or control of the firearms and ammunition. Id. at 1182. Relying on Henderson, we agreed the district court erred in its constructive-possession instruction. Id. at 1183. We reviewed for harmless error since Little preserved his challenge, which required us to analyze “whether it appears beyond a reasonable doubt that the error complained of did not contribute’ to the verdict obtained.” Id. at 1183 (quoting United States v. Sorensen,
Although we review here for plain error rather than harmless error, we are not left with the same certainty that a jury would .be compelled to find Benford intended to exercise control over the Lorcin pistol. Instead, the comparatively weaker evidence on intent undermines our confidence in the outcome. The government contends the same evidence that convinced the jury that Benford knew of and had access to the Lorcin pistol also leads to the conclusion that he intended to exercise control of it, including (1) Benford’s “admission” that he possessed the firearm when he said, “I guess I’ll have to take the charge”; (2) the pistol’s presence in the open pouch of a computer bag in the jointly-occupied bedroom; and (3) during an altercation in the apartment complex nineteen days before Benford’s arrest, he told Ms. Galloway to “go get a gun” from the apartment, indicating he intended to control any firearms in the apartment. We agree that a reasonable jury could conclude from this evidence that Benford intended to exercise control, but we also think a reasonable jury could conclude that he did not. For example, Benford’s lack of, surprise upon hearing about the Lorcin pistol is a strong indication he knew the firearm was in the bedroom, but a jury might not make the additional step to conclude that he also intended to exercise control over it. And although the officer who heard Benford say, “I guess I’ll have to take the charge” viewed that statement as an admission that he possessed the firearm, he also acknowledged, that there are “infinite possibilities” for what Benford may have meant. R. Vol. 3 at 86. Benford’s statement leaves us with more questions about intent than Little’s surprise that officers found only two firearms during their search.
Casting even more doubt on Benford’s intent to exercise control over the pistol is the fact that he jointly occupied the bedroom, as compared to Little’s exclusive possession of the small well house. Even before Little, we distinguished between cases in which a defendant solely occupies a space where the firearm is found versus those in which he jointly occupies the space with others. A jury may infer knowledge, dominion, and control over the firearm in the former situation based on exclusive possession of the premises alone, but in the latter, the government must meet a higher burden and present some connection or nexus between the defendant and the firearm. Jameson,
Our decision is further bolstered following our decision in United States v. Simpson,
We find Simpson helpful to make the point that, in joint occupancy cases, sufficient evidence that the defendant knew of and had access to firearms may not be sufficient to also show he intended to exercise dominion and control of them." As Simpson and his wife jointly occupied the locations where police found the firearms and ammunition, so too Benford jointly occupied the bedroom where police found the Lorcin pistol. And the fact that we reversed for a new trial in Simpson even when there was evidence Simpson had previously handled the same firearms and ammunition as that charged in the indictment seriously undermines the probative value of evidence that Benford had handled a different firearm from the apartment approximately three weeks before Benford’s arrest. But on this point, we write with caution.
Constructive possession by definition is “not actual possession.” See Henderson,
C.
Finally, we consider whether we should exercise our discretion to notice Benford’s forfeited error, specifically, whether the error affected the fairness, integrity, or public reputation of the trial. “[A] district court’s failure to instruct the jury on an essential element of the crime charged won’t always satisfy the fourth prong of the plain-error test,” but we have before noted that reversal is appropriate when evidence supporting the omitted element is “neither overwhelming nor uncontroverted.” Wolfname,
V.
For these reasons, we affirm the district court’s admission of evidence under Rule 404(b) and its denial of Benford’s motions for acquittal, but reverse for a new trial based on the plainly erroneous jury instruction.
Notes
.All three documents were addressed to Ben-ford. The W-2 statement and the pharmacy receipt were addressed to Benford at 2600 SW 102nd Street, Oklahoma City, Oklahoma, Benford’s mother had lived at that address three years before. The Department of Human Services letter was addressed to Benford at 5304 Willow Cliff Road (the general address for the apartment complex), Apartment 232.
, At trial, an inspector with the police department testified that the reference to "12 ga.” indicated 12-gauge.
. At trial, Benford disputed whether the reference to toys meant guns. But defense witness Oteshia Butler, the .mother of one of Ben-ford’s sons, testified that in the context of the text messages, toys probably meant guns.
. In United States v. Trent,
. Here, the district court gave limiting instructions, advising the jury that it could consider the evidence "only as it bears on the defendant’s knowledge of possession of firearms and no other purpose.” R, Vol. 3 at 138. The district court also instructed that even if" Benford had committed similar acts, it "does not mean that [he] necessarily committed the act charged in this case.” Id. Before the jury deliberated, the district court again instructed the jury to consider the text messages and Ms, Dibler’s testimony "only as it bears on the defendant's knowledge,” R. Vol. 1 at -130,
. Because we decided Little after the parties' original briefing, Benford submitted a letter under Fed. R. App. P. 28(j) arguing that the government had presented insufficient evidence to prove intent to exercise dominion or control. After arguments, we requested supplemental briefing on the question whether any jury-instruction error would satisfy the plain-error standard.
Dissenting Opinion
dissenting.
I agree with the majority’s analysis until it reaches the third prong of plain-error review in section IV.B. At that stage, I would conclude that Benford has failed to meet his burden to show a reasonable probability that the jury would have acquitted him, if properly instructed on constructive possession. Nothing undermines my confidence in the outcome.
In resolving this issue, the first step should be to determine what it means for a person to intend to exercise control or dominion over a firearm.
Under each alternative way, I see a strong likelihood the jury would have found that Benford intended to exercise control over the Lorcin pistol. In analyzing the intent-to-control element, I rely primarily on the evidence supporting the jury’s finding that Benford knew about the pistol and had power to exercise control of it. I evaluate the evidence to see whether a jury might realistically believe that Ben-ford was merely cohabitating with a girlfriend who brought home a firearm in disregard of Benford’s desire never to be near another firearm. I consider whether Benford was merely a gun-leery felon tolerating the firearm’s presence while steering clear of it. Here, the evidence shows a strong unlikelihood that the jury would have believed that Benford fit that description.
The jury heard considerable evidence that bore on Benford’s intent to exercise control or dominion over firearms. It heard about his earlier felon-in-possession conviction for actually possessing a firearm.
I disagree with how the majority applies Little,
The majority errs in , attributing this same burden to the government here. Though acknowledging that Benford has the burden to show plain error, the majority declares in the same sentence that “we are not left with the same certainty that a jury would be compelled to find Benford intended to exercise control over the Lorcin pistol.”
In analyzing whether Benford has met his burden to show plain error, the majority then compares the facts in Little to those in Benford’s case. It finds that Little’s facts better show intent to exercise control of firearms, primarily relying on Little’s sole occupancy of the rented six-by-eight-foot well house where the firearms and ammunition, were found. It contrasts Little’s sole occupancy with Benford and his girlfriend’s joint occupancy of the apartment bedroom. From this joint occupancy, as I understand it, the majority concludes that Benford has shown a reasonable probability that the jury may have found that his girlfriend exclusively intended to control the firearm, not even jointly possessing it with Benford. If Benford and his girlfriend both intended to control the pistol, then I believe that the majority would have to affirm Benford’s conviction.
For the reasons given, I do not believe it at all likely that the jury would have found the girlfriend exclusively intended to exercise control 'over -the pistol. A cohabitant intending to exercise exclusive control, especially one who lives with a felon partial to using guns during sidewalk confrontations, would not- leave the pistol in plain view in the shared bédroom. And, as mentioned, 'Benford’s past actions showed the jury that he, not the girlfriend, was the household member who liked to control firearms. His bartering firearms and using a handgun to threaten a fataily walking its dog exceeds Little’s own actions. In short, the jury had no reason to believe that in nineteen days Benford had morphed from a violent, shrieking man into a shrinking-violet man. Nor did the jury have any reason to believe that Benford’s girlfriend had morphed from a submissive woman dutifully obeying Benford’s snapped orders get him the gun, into a dominant woman exclusively intending to exercise control of the Lorcin pistol.
But that does not end our work. In a Rule 28© letter, Benford points us to United States v. Simpson,
So Simpson says that a jury might well have believed that the defendant did not intend to exercise control of the firearms within the times charged in the indictment, unless the government offered evidence that he had actually possessed them (i.e., handled them) during that time. And because the government had shown only that the defendant had handled the firearms about two months before the arrest (when he was showing his wife how to shoot them), Simpson reversed those convictions. In Benford’s case, the government can’t show so much. Benford didn’t expressly admit ever handling the Lorcin pistol. Under Simpson, I can’t see how Benford would not prevail on plain-error’s prejudice prong.
In Little we affirmed a conviction beset with the same instructional error. And despite the government’s not having shown that the defendant actually possessed the firearms and ammunition during the time charged in the indictment, we affirmed Little’s conviction on constructive-possession grounds. See
For all reasons stated, I would affirm Benford’s conviction.
. Iam uncertain what standard the majority opinion uses to measure this element.
. In Little, the court gave a hypothetical to illustrate when a person with power to exercise control over a firearm would not have intent to do so. Under the court’s hypothetical, a neighbor gives a felon friend a house key to watch over the neighbor's home.
. Though I'm not sold on the reasoning of United States v. Moran,
.The majority finds it importafit that the pistol is "little” and has pink grips. Maj. Op, at 1020, Whether the pistol matched- a macho-man profile, it remained effective as.a means by which to threaten or harm others. In searching the apartment, police did not find the handgun that Benford had used nineteen days, earlier, so we don’t know whether it more matched the majority’s view .of what a pistol Benford would intend to exercise control over should look like. The evidence showed that Benford liked having a firearm in the apartment and that on the date of arrest the Lorcin pistol was the sole firearm there,
. Along the same line, the majority later says that "a properly instructed jury would not be compelled to also conclude Benford intended to exercise control over the firearm based on this evidence.” Maj. Op. at 1019.
. The majority believes it important that the girlfriend's purse was found in plain view on top of the bed, apparently reasoning that if Benford had power to exercise control over it but no intent to do so, that somehow bears on whether he intended to exercise control over the Lorcin pistol. Maj. Op. af 1019. I don’t follow the majority's logic on this. Plainly, the purse belonged to the girlfriend, and she would be free to carry it lawfully in public and be expected to do so.
. In my view, this analysis is mistaken. It ties actual possession (i.e., handling) of a firearm to constructive possession’s intent to exercise control of it (describing this as intent "to possess”). It fails to weigh the government’s evidence of intent to exercise control of the firearms in evaluating whether the defendant had met his burden to show a reasonable probability of a different outcome. It turns the proper analysis sideways, essentially requiring the government to show actual possession (handling) during the dates charged. Instead, the court should have required Simpson to show a reasonable probability of an acquittal on the intent-to-exercise-control element, fully considering the effect of his handling the firearms near the charged dates as well as having the firearms and ammunition strewn throughout his and his wife’s house.
. In fact, in cases like Little, Simpson, and this one (those with a constructive-possession instruction not including intent to exercise control as an element), I can't see any case that wouldn’t meet the first three prongs of the plain-error analysis. After all, if the government had shown actual possession of the firearms, the jury would have convicted on that basis, and the constructive-possession issue would never have arisen, especially on appeal.