UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VENG XIONG, Defendant-Appellant.
No. 19-5111
United States Court of Appeals, Tenth Circuit
June 15, 2021
BALDOCK, Circuit Judge.
PUBLISH
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
Our jurisdiction arises under
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
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
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
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
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. Her then placed the handgun under the driver‘s seat.
II.
In Count 1 of a superseding indictment, a grand jury charged Defendant and the other three men, Lee, Her, and Lor, with conspiring to possess with intent to distribute 500 or more grams of methamphetamine. Count 2 did not charge Defendant, but rather charged Lee and Her with possession in furtherance of a drug trafficking crime of the Taurus revolver and Glock handgun found in or about the Acura. Meanwhile, Count 3 charged Defendant and Lor with possession in furtherance of a drug trafficking crime of the short-barreled Winchester shotgun and WASR-10 semi-automatic rifle found in Defendant‘s Buick. Finally, Count 4
Everyone agrees that to convict Defendant under either
The law recognizes two kinds of possession: actual possession and constructive possession. A person who knowingly has direct physical control over an object or thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it.
More than one person can be in possession of an object [i.e., joint possession] if each knows of its presence and had the power and intention to control it.
The Government concedes that omission of the intent requirement from this instruction‘s second paragraph was an obvious error that satisfies the first two
A.
We begin our analysis by considering Defendant‘s conviction on Count 4 for being a felon in possession of a firearm in violation of
At closing, the Government‘s principal argument regarding Count 4 was that Defendant was in actual possession of the four firearms located in the Buick on April 9. Defendant posits, however, the jury likely did not convict him of actually possessing any of the guns, including the two handguns. Defendant tells us “the only witness who put the guns in [his] hands was Lee,” and Lee chose to forego trial and cooperate with the Government. To prove his point, Defendant says Lee incredulously testified on cross-examination that the Government offered him nothing in return for his testimony. But considering the record as a whole, the fact Lee was the only Government witness to testify about Defendant‘s handling of the handguns does not mean the jury was unlikely to have convicted him based on his actual possession of one or both of those firearms.
We have explained more than once that a conviction may stand on the uncorroborated testimony of an accomplice. E.g., United States v. Dewberry, 790 F.3d 1022, 1029 (10th Cir. 2015); United States v. Magallanez, 408 F.3d 672, 682 (10th Cir. 2005). This follows from the well-established precept that credibility challenges are generally disfavored on appeal because matters of credibility are within the exclusive province of the jury. Dewberry, 790 F.3d at 1029; Magallanez,
That the jury found Defendant guilty on Count 1, the drug conspiracy charge, demonstrates that, in all likelihood, the jury deemed Lee‘s trial testimony credible. Lee was the primary witness to testify about the details of the conspiracy and the only witness to testify about the source of the two handguns found in or near the Acura. Lee testified he met with Defendant, Lor, and Trigger on April 8 to seek assistance in obtaining the methamphetamine. Lee then testified that, the next day, Defendant gave him the Glock handgun and Taurus revolver before obtaining methamphetamine from one of his connections and providing the drugs to Lee so he could sell them to Jimmy.
Her‘s testimony regarding the conspiracy was consistent with Lee‘s testimony, but not nearly as detailed or damaging to Defendant. On direct examination, Her
On appeal, Defendant claims Her‘s testimony “substantially corroborated” Lee‘s testimony regarding the drug conspiracy. Thus, one cannot tell whether the jury found Lee‘s uncorroborated testimony regarding the handguns credible. On cross-examination, however, Her stated he never saw any drugs and had no idea where Lee had gotten the Glock. Nor did Her have any idea who Trigger was. Lee provided Her with no information about the methamphetamine, telling him “it was just a package.” Lee did show Her a picture of the $100,000, describing the situation as “my deal and my problem.” Based on Her‘s testimony, Defendant at trial argued directly the opposite of what he now argues on appeal. In his closing argument,
[T]he Government has to prove beyond a reasonable doubt that [Defendant] knew the objective of the conspiracy. That only comes from Ken Lee. If you reject Ken Lee, there‘s at least a reasonable doubt as to whether [Defendant] knew what was going on and that he knowingly and voluntarily involved himself in the conspiracy. Again, that only comes from Ken Lee. The other person we heard from is Mr. Her and he said, “I didn‘t see any guns, I didn‘t see any drugs. The only thing I got was from Ken Lee; Ken Lee said it was my deal and my problem.” Where‘s the evidence as to [Defendant]?”
[Defendant] also has . . . to agree with another person to knowingly and intentionally possess a controlled substance. That‘s the object of the conspiracy; there‘s got to be proof beyond a reasonable doubt that [Defendant] did that. All you‘ve got is Ken Lee. That‘s it.
Defendant‘s characterization of the evidence before the jury was more accurate than it is before us. See United States v. Bader, 678 F.3d 858, 869 (10th Cir. 2012) (examining on plain error review the “probable prejudicial impact” of a jury instruction “within the context of the entire trial,” including closing arguments).
Defendant cites United States v. Simpson, 845 F.3d 1039 (10th Cir. 2017), where we considered a similarly faulty constructive possession instruction, to bolster his attack on Lee‘s credibility. Defendant portrays Lee as an informant whose testimony should be discounted based on our observation in Simpson that “[t]he jury may or may not have decided to credit the testimony of the informant, considering that [defendant] had elicited evidence bearing on impeachment.” Id. at 1062. But Simpson is inapposite. In that case, the defendant, a convicted felon, was charged
Therefore, the jury in Simpson could have found both the informant‘s and police officer‘s testimonies credible and still have reasonably concluded that the defendant had not actually or constructively possessed the charged handguns on or about the date alleged in the indictment. Unlike the facts in Simpson, Lee was not a police informant testifying about a collateral, albeit relevant, matter, but an alleged co-conspirator providing direct evidence about clearly identified firearms readily available to facilitate an imminent drug deal. Lee‘s testimony about the details of the drug conspiracy was specific, including his testimony that Defendant handed him the two handguns at issue on April 9, the date alleged in the indictment.
Lee‘s testimony is entirely consistent with subsequent events, namely law enforcement‘s recovery of the Glock from underneath the driver‘s seat of the Acura where Her had been seated, and recovery of the Taurus on the ground just outside the passenger‘s door of the Acura where Lee had exited the vehicle upon his impending arrest. Lee‘s testimony is also consistent with recovery of the WASR-10 semi-automatic rifle and short-barreled Winchester shotgun inside Defendant‘s Buick, where Lee stated he saw Defendant leave them undisturbed earlier in the day. In sum, Defendant has not established a reasonable probability that the jury rejected Lee‘s testimony that he saw Defendant actually hold the two handguns inside Defendant‘s garage on April 9. Defendant therefore has not established a reasonable
B.
Next we consider Defendant‘s conviction on Count 3 for possessing a firearm in furtherance of a drug trafficking crime in violation of
Inexplicably then, the Government in its response brief focuses much (not all) of its Count 3 argument on the WASR-10, seemingly oblivious to two critical facts: (1) possession of the WASR-10 no longer qualifies Defendant for the enhanced sentence he received under subsection (c)(1)(B)(i), and (2) Count 3‘s verdict form tells us the jury‘s verdict was, at a minimum, based on Defendant‘s possession of
We therefore begin our analysis of Defendant‘s § 924 conviction with the short-barreled shotgun. Once again, Defendant has the burden of establishing a reasonable probability that the outcome would have been different had the jury been properly instructed on constructive possession. See Molina-Martinez, 136 S. Ct. at 1343. Defendant argues nothing in the record supports a finding that he had actual possession of the shotgun during the applicable time frame, and the Government makes no significant argument to the contrary. See Samora, 954 F.3d at 1295 (“To
According to Defendant, the record evidence to support a finding he intended to exercise control over the shotgun was lacking largely, if not exclusively, due to its location on the backseat floorboard of the Buick he jointly occupied with his driver, Lor. This joint occupation presents a problem for the Government, he says, because “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 over them.” United States v. Benford, 875 F.3d 1007, 1020 (10th Cir. 2017). Defendant notes that since the Supreme Court‘s decision in Henderson, we have published four decisions addressing whether a constructive possession instruction omitting the intent requirement constituted plain error. See Simpson, 845 F.3d at 1039; Benford, 875 F.3d at 1007; United States v. Giannukos, 908 F.3d 649 (10th Cir. 2018); Samora, 954 F.3d at 1286. Defendant is quick to point out that in all four cases “this Court [held] that the erroneous . . . instruction[] affected the defendant‘s substantial rights in large part because the defendant did not exclusively occupy the place where the contraband was found.”
This is true. What also is true is that we decided each of those cases on the
By comparison, Simpson involved the execution of a search warrant for a home that the defendant, a convicted felon, jointly occupied with his wife. 845 F.3d at 1061. Officers located one of the subject firearms in an unlocked safe in the basement of the home and the other underneath the driver‘s seat of a vehicle registered to the defendant‘s wife. In holding the defendant met his burden of establishing a reasonable probability of a different outcome with the proper instruction, we observed the defendant “jointly occupied each of these locations with
Similarly, Benford involved the execution of a search warrant for an apartment the defendant, also a convicted felon, occupied with his girlfriend. 875 F.3d at 1010–11. In the couple‘s bedroom, officers seized a firearm plainly visible inside a black computer bag resting next to a bedside night stand. The firearm was a small silver semiautomatic handgun with pink grips. Evidence of the defendant‘s possession included a three-month-old text message indicating he owned multiple firearms and testimony about an incident nineteen days before his arrest suggesting he possessed a different firearm. The most damaging evidence was the defendant‘s statement, “I guess I‘ll have to take the charge,” after an officer informed him of the
Take, for example, another item officers found plainly visible in the bedroom: Ms. Galloway‘s purse, which officers found on top of the bed. Given the fact the purse was plainly visible on the bed in a bedroom [the defendant] shared with Ms. Galloway, one could easily conclude [the defendant] knew of and had access to it, but it is harder to say that [the defendant] also intended to exercise control over it. A jury might likewise question whether [the defendant] intended to exercise control over the small silver pistol with pink grips.
The third published decision on which Defendant relies, Giannukos, involved the warrantless search of a residence occupied by the defendant-parolee, his girlfriend, and a roommate. 908 F.3d at 651. Officers found one of the firearms at issue inside the drawer of a blue hutch located in a living room accessible to all occupants of the home. While DNA evidence taken from the first firearm could not exclude the defendant as a male contributor, “‘almost 99 percent of the population would not be excluded.‘” Id. at 1053. Officers found the second firearm at issue in a drawer next to the bed in the bedroom the defendant occupied with his girlfriend. The major contributor of the DNA found on this firearm was female, with the defendant once again among “99 percent of the population” that could not be excluded as a minor contributor. Id. And while the defendant could have been
Lastly, the defendant in Samora was arrested pursuant to an outstanding warrant, but not before he attempted to flee on foot from a restaurant‘s parking lot. 954 F.3d at 1289. Officers searched the vehicle he had been driving and found a loaded firearm in the closed center console. Because the defendant had borrowed the car from his ex-girlfriend, we considered the case as one of joint occupancy. The ex-girlfriend testified she owned the firearm and had placed it in the center console of her vehicle. But she could not identify the firearm‘s make or model or explain why the firearm was in her vehicle when she had purchased it for home protection. DNA evidence demonstrated the defendant had handled the firearm at some point, but
We acknowledge that the four cases on which Defendant relies stand for two propositions applicable in this instance: Because Defendant and Lor jointly occupied the Buick for a substantial period of time until just seconds before their arrests, the Government (1) could not rely on Defendant‘s occupancy of the Buick alone to establish his intent to exercise control over the short-barreled shotgun, but (2) had to present additional evidence, beyond mere proximity, establishing a connection or nexus between Defendant and the shotgun.3 Id. But this is where the benefit of those cases to Defendant ends. Unlike each of those cases, this case involves the presence of firearms designed to ensure the execution of a drug transaction set to occur within moments if not seconds. The presence of a short-barreled shotgun
While inside Defendant‘s garage just hours before the drug sale was set to occur, Lee testified he viewed the shotgun along with two handguns and a semi-automatic rifle in the backseat of Defendant‘s Buick. This was at a time when Defendant had exclusive control of his vehicle and its contents, including the four firearms.4 Once Lee arranged to meet Jimmy that night, Defendant retrieved the two
The evidence uncovered after his arrest indicates Defendant, while seated in the passenger‘s seat of the Buick, may have been preoccupied with trying to load the semi-automatic rifle as he and Lor approached the delivery point. Unlike the rifle, the shotgun was already fully loaded, chambered, and ready to fire at the press of a trigger. As shown in the Government‘s Trial Exhibit 9, law enforcement located the shotgun on the Buick‘s backseat floorboard with its shortened barrel extending well behind the driver‘s seat. As the old adage goes, “a picture is worth a thousand words.” The shotgun‘s grip was positioned directly behind the front center console with its underside or trigger facing forward. Both Officers Wilmott and Silva
At closing, Defendant‘s exclusive possession of the shotgun and WASR-10 was the theory on which the Government presented Count 3 to the jury. While delivering a PowerPoint presentation to the jury, the Government displayed a highlighted slide properly defining constructive possession as requiring “both the power and the intention at a given time to exercise dominion and control over an object.” At the same time, the Government asked the jury to consider who intended to use the weapons recovered from Defendant‘s Buick:
Now, take a look again at the crime scene photos and ask yourself who intended to use these weapons? Their positioning, who was intending to use these? It‘s [Defendant] Mr. Xiong. He‘s sitting next to one, almost on virtually on top of it, and he‘s the only one that can reach the other.
(emphasis added). See Simpson, 845 F.3d at 1062 (citing Bader, 678 F.3d at 869, for the proposition that the Government‘s closing argument may bear on whether an erroneous jury instruction was prejudicial).
Given the evidence in this case and the Government‘s argument to the jury
* * *
The judgment of the district court is AFFIRMED in its entirety.
Notes
(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person . . . who, in furtherance of [any drug trafficking crime], possesses a firearm, shall, . . .
(i) be sentenced to a term of imprisonment of not less than 5 years; . . . .
(B) If the firearm possessed by a person convicted of a violation of this subsection–
(i) is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, the person sentenced shall be sentenced to a term of imprisonment of not less than 10 years; . . . .