United States v. Campbell ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT February 15, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee, No. 18-2033
(D.C. No. 5:15-CR-03947-RB-1)
v. (D. New Mexico)
MIA COY CAMPBELL,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.
_________________________________
A jury convicted Mia Coy Campbell of felony possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1), after police seized a revolver from the backyard
of his residence. On appeal, Mr. Campbell argued the trial court had plainly erred in
instructing the jury on constructive possession by failing to inform the jury that it
could convict only after finding Mr. Campbell intended to exercise dominion or
*
After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
control over the revolver. We affirm the district court’s ruling that the erroneous jury
instruction did not amount to reversible plain error.
I. BACKGROUND
A. Factual Background
In 2015, a team of Pecos Valley Drug Task Force (“PVDTF”) officers
executed an arrest warrant on Mr. Campbell. Officer Jorge Martinez located
Mr. Campbell in the backyard of his residence, ten to fifteen feet away from a
partially disassembled go-cart. Officer Martinez ordered Mr. Campbell to the ground,
Mr. Campbell complied, and Officer Martinez effectuated the arrest. In doing so,
Officer Martinez observed that Mr. Campbell’s hands were “greasy” as if “he was
working on a car.” Suppl. ROA, Vol. 3 at 120–21. Officer Martinez also found a
package of Marlboro Red cigarettes while conducting a pat-down search of Mr.
Campbell’s person.
Meanwhile, other officers performed a protective sweep of the backyard and
the residence. In the course of that sweep, Officer David Whitzel observed a
smoldering Marlboro Red cigarette near the go-cart. Also near the go-cart and
cigarette was a partially-open bag Officer Whitzel described as a “cloth-like
toolbox.” Id. at 144–45. When Officer Whitzel bent down to take a closer look at the
cigarette, he saw the butt end of a revolver in the bag. He retrieved the revolver from
the bag, which also contained various tools, and determined the gun was loaded.
Aware that Mr. Campbell was a convicted felon, officers then obtained a warrant to
search the premises.
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A more thorough search of the area around the go-cart revealed (1) a container
of nuts and bolts under an axle of the go-cart, and (2) several sockets and tools on the
ground behind the rear of the go-cart. An officer who observed the go-cart described
it as “disassembled.” Id. at 177. It further appeared that a coat of paint had recently
been applied to the go-cart, and a search of a trash can revealed an empty bottle of
spray paint, with drippings on the bottle’s lid. Finally, from the right rear tire of the
go-cart, officers recovered a cellphone, which was powered on.
A search of the residence revealed two relevant pieces of evidence. First,
between the cushions of a couch, officers discovered an empty holster, sized
appropriately for the revolver found in the tool bag. Second, officers found several
legal documents bearing Mr. Campbell’s name, including Mr. Campbell’s birth
certificate. While officers performed this search, Mr. Campbell’s girlfriend arrived at
the residence. Other than the girlfriend and Mr. Campbell, officers did not observe
anyone in the residence or on the property. Nor did officers observe anyone fleeing
the property when they surrounded the front of the residence prior to Mr. Campbell’s
arrest.
While inspecting the area outside the residence, officers noticed a Jeep with its
hood popped open. It did not appear to the officers that anyone had been working on
the Jeep that morning. And a photo taken two days before Mr. Campbell’s arrest also
showed the Jeep with its hood open at 2:00 a.m., suggesting the open hood did not
necessarily indicate someone was currently working on the car. Instead, based on
their observations and the evidence collected, PVDTF officers concluded
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Mr. Campbell had been working on the go-cart prior to his arrest, even though none
of them actually observed Mr. Campbell doing so.
B. Procedural Background
The government charged Mr. Campbell as a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). Prior to trial, both parties submitted proposed jury
instructions. Mr. Campbell proposed the following instruction on actual and
constructive possession, modeled after Tenth Circuit Criminal Pattern Jury
Instruction § 1.31 (2011):
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.
In the situation where the object is found in a place (such as a
room or car) occupied by more than one person, you may not infer
control over the object based solely on joint occupancy. Mere control
over the place in which the object is found is not sufficient to establish
constructive possession. Instead, in this situation, the government must
prove some connection between the particular defendant and the object.
In addition, momentary or transitory control of an object is not
possession. You should not find that the defendant possessed the object
if he possessed it only momentarily, or did not know that he possessed
it.
The district court issued Mr. Campbell’s proposed instruction on actual and
constructive possession to the jury, and the jury convicted Mr. Campbell of felony
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
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After Mr. Campbell’s trial, this court decided United States v. Little, 829 F.3d
1177 (10th Cir. 2016), relying on Henderson v. United States, 135 S. Ct. 1780(2015), and holding the government must prove intent to exercise dominion or
control over a firearm to establish constructive possession for purposes of
§ 922(g)(1). Little, 829 F.3d at 1182. Based on Little, Mr. Campbell moved for a new
trial, arguing his jury had not been properly instructed on constructive possession and
that this error satisfied the plain-error standard. In response, the government admitted
the error but argued it was not plain at the time of Mr. Campbell’s trial because
“Little overruled well-settled Tenth Circuit law and repudiated the widely used Tenth
Circuit Pattern Jury Instruction § 1.31 (2011).” Suppl. ROA, Vol. 1 at 176. The
government also contended Little had relied on “dicta” from Henderson and stated
that “the Supreme Court’s opinion in Henderson did not constitute a clear marker that
the law of constructive possession had changed in the Tenth Circuit.” Id. at 178.
The district court denied Mr. Campbell’s motion for a new trial. The court
concluded that although Mr. Campbell had satisfied the first two prongs of the
plain-error standard, he could not satisfy the third and fourth prongs—requiring a
showing that the error “affects his substantial rights” and “seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” Id. at 221. The
district court reasoned that where the trial record “overwhelmingly demonstrates that
[Mr. Campbell] constructively, if not actually, possessed the firearm” the instruction
could not “rise to the level of harmful error.” Id. at 220. Mr. Campbell timely
appealed.
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II. DISCUSSION
On appeal, Mr. Campbell contends the district court erred in finding harmless
the court’s failure to issue a Little- and Henderson-compliant instruction on the intent
element of constructive possession. We disagree.
As a preliminary matter, the government argues on appeal that Mr. Campbell
waived review of this issue by proposing the very instruction on actual and
constructive possession that he now challenges as erroneous.1 See United States v.
Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“The invited-error doctrine prevents
a party who induces an erroneous ruling from being able to have it set aside on
1
The government’s stance on this issue took a drastic turn between
Mr. Campbell’s post-trial motion and this appeal. As discussed above, in its response
to Mr. Campbell’s motion for a new trial, the government argued that Little, not
Henderson, changed the law on constructive possession. Therefore, the government
continued, Mr. Campbell (who was tried after Henderson but before Little) could not
establish that any error in his instructions was plain at the time of trial. Now, on
appeal, the government reverses course, arguing that Henderson changed the law, and
thus the instruction on actual and constructive possession that Mr. Campbell urged
the district court to adopt “did not comport with settled law” at the time. Gov’t. Br. at
9, 11.
Several opinions of this court, including the opinion in United States v.
Simpson, would have supported the government in its original position. See Simpson,
845 F.3d 1039, 1060 (10th Cir. 2017) (“[T]he law changed when our court [in Little]
held that constrictive possession contains an additional element: intent.”). Because
the defendant in Simpson was tried and convicted before the opinions in both
Henderson and Little, however, the court in Simpson had no reason to decide which
case had changed the law. Therefore, any such statements in Simpson were dicta. See
Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir.1995) (defining dicta as
“statements and comments in an opinion concerning some rule of law or legal
proposition not necessarily involved nor essential to determination of the case in
hand” (quoting Dicta, Black’s Law Dictionary 454 (6th ed. 1990)).
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appeal.” (internal quotation marks omitted)); United States v. Jereb, 882 F.3d 1325,
1339 (10th Cir. 2018) (finding invited error where defendant “meaningfully
participated in crafting the jury instruction actually given at trial, which reflected the
language [he] sought”). But we need not resolve this case on invited error, because
even assuming Mr. Campbell did not invite the error in his jury instructions, he has
not met the requirements for establishing plain error.
We review Mr. Campbell’s claim for plain error because he did not object to
the jury instruction on actual or constructive possession at trial. See United States v.
Knight, 659 F.3d 1285, 1287 (10th Cir. 2011). To meet the plain error standard, Mr.
Campbell must establish (1) error, (2) that is plain, (3) that affects substantial rights,
and (4) that “seriously affects the fairness, integrity, or public reputation of the
judicial proceedings.” Id. (quotation marks omitted). “[A]ll four requirements must
be met,” and “the failure of any one will foreclose relief and the others need not be
addressed.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). For the
reasons explained below, we conclude Mr. Campbell has not shown that the error in
his jury instructions “affect[ed] [his] substantial rights” and therefore he cannot
succeed on plain-error review. Knight, 659 F.3d at 1287 (quotation marks omitted).
Under the third prong of the plain-error test, Mr. Campbell must “‘show a
reasonable probability that, but for the error,’ the outcome of the proceeding would
have been different.” United States v. Benford, 875 F.3d 1007, 1017 (10th Cir. 2017)
(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). The
burden on the defendant under the “reasonable probability standard” is lower than a
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showing of “a preponderance of the evidence”; a defendant need only demonstrate “a
probability sufficient to undermine confidence in the outcome.” Id. (quotation marks
omitted).
Mr. Campbell has not carried the burden of showing a reasonable probability
that the outcome of his trial would have been different had the jury been properly
instructed. Based on the evidence presented at trial, a properly-instructed jury would
still have found Mr. Campbell had “the power and intent . . . to exercise dominion or
control” over the revolver and that he therefore constructively possessed that
revolver. Little, 829 F.3d at 1182. Indeed, the record contains overwhelming
evidence tying Mr. Campbell to the revolver.
Mr. Campbell’s birth certificate and other legal documents bearing his name
connected him to the same address where police found the revolver. He was the only
individual present at that address when officers executed the arrest warrant. When
Officer Martinez first encountered Mr. Campbell, Mr. Campbell was within ten to
fifteen feet of the revolver. More importantly, Mr. Campbell’s greasy hands and the
cellphone on the go-kart’s right rear tire strongly supported the conclusion that he
had been working on the go-cart that morning. In fact, the still-smoldering cigarette
on the ground beside the go-cart established Mr. Campbell’s likely proximity to the
go-kart and the tool bag containing the revolver only moments before his arrest. And
the disassembled state of the go-cart, combined with the partially-open bag and the
array of tools under and around the go-cart, established that he had used items from
the bag that morning.
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The jury also heard testimony that officers located within the residence a
holster appropriately sized for the revolver, supporting the inference that Mr.
Campbell had removed the revolver from that holster and carried the revolver
outside. Finally, the government presented evidence that an August 4, 2015, traffic
stop of Mr. Campbell resulted in the recovery of a handgun from a duffel bag that
one officer described as a tool bag, which evidence the trial court instructed the jury
to consider “as it bears on the defendant’s intent, knowledge, or absence of mistake
or accident.” Suppl. ROA, Vol. 3 at 345.
At trial, Mr. Campbell argued a second person may have been in the backyard
just prior to his arrest and that his greasy hands might be attributable to his working
on the Jeep rather than the go-cart. It is not apparent how the jury’s decision to credit
these arguments would have benefited Mr. Campbell, however, because the only
tools officers discovered were in the bag containing the revolver and scattered around
the go-cart. Thus, even if he had been working on the Jeep, Mr. Campbell must have
been using the tools in the tool bag, which also contained the revolver.
To be sure, the government has not provided substantial evidence that
Mr. Campbell exclusively possessed the premises where police found the revolver,
and thus the government may not rely on that exclusivity to infer Mr. Campbell’s
intent to control the revolver. See Little, 829 F.3d at 1182. But the government has
met its “higher burden [of] present[ing] some connection or nexus between the
defendant and the firearm.” United States v. Benford, 875 F.3d 1007, 1019 (10th Cir.
2017). Specifically, the government presented compelling evidence that
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(1) Mr. Campbell had been working on the go-cart that morning, (2) the tools he used
to work on the go-cart had been carried in a nearby bag or “cloth-like toolbox,” and
(3) the bag also contained a revolver. Considering this compelling evidence, a
properly-instructed jury would have concluded Mr. Campbell had intended to
exercise control over the bag and its contents, including the revolver.
Accordingly, Mr. Campbell has not shown a reasonable probability that, but
for the instructional error, the outcome of his trial would have been different.
Because he has not shown that the error “affected his substantial rights,” we need not
address the other prongs of plain-error analysis.
III. CONCLUSION
For the foregoing reasons, we AFFIRM Mr. Campbell’s conviction and
sentence.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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