United States v. Swan ( 2020 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT September 28, 2020
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 19-8068
v. (D.C. No. 2:19-CR-00009-SWS-1)
(D. Wyoming)
JONATHON RAY SWAN, a/k/a Jonothon
Swan, a/k/a Jonathon Swan,
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, MURPHY, and McHUGH, Circuit Judges.
_________________________________
Jonathon Ray Swan was convicted by a jury of knowingly, intentionally, and
unlawfully possessing with intent to distribute 500 grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) and
knowingly carrying a firearm during and in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A)(i). On appeal, Mr. Swan argues the jury was
*
After examining the briefs and appellate record, this panel has 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
improperly instructed on the carrying a firearm offense. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.
I. BACKGROUND
Mr. Swan drove from Cheyenne, Wyoming to Aurora, Colorado, for an eleven-
minute stop in front of an apartment building on December 16, 2018. Unbeknownst
to him, a DEA taskforce was surveilling his journey and reported seeing him enter
the apartment building and, shortly thereafter, exit while appearing to conceal
something in his front jacket pockets. Mr. Swan was stopped on his return trip and a
K-9 unit alerted on his vehicle. A search of the vehicle uncovered two pounds of
methamphetamine and a Charter Arms .38-caliber revolver called a “Lady Lavender”
in a “natural void” below the cup holders near the driver’s seat. Mr. Swan states the
firearm “was a woman’s revolver.” Appellant’s Opening Br. at 2. A search of
Mr. Swan’s phone revealed messages on the WhatsApp application indicating
Mr. Swan was engaged in narcotics trafficking.
Mr. Swan was charged in a two-count indictment with unlawfully possessing
with intent to distribute 500 grams or more of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A) and knowingly carrying a firearm during and in
relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). He
was tried in a jury trial. Mr. Swan’s defense was that he had purchased the vehicle
only eighteen days prior and was unaware there were drugs and a firearm concealed
in it.
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Mr. Swan’s proposed instruction on the carrying requirement included the
following language:
The phrase “carries a firearm” means having a firearm available to assist or
aid in commission of the [drug] crime . . . .
The Government is not required to show that Defendant actually displayed
or fired the weapon. The Government is required to prove beyond a
reasonable doubt, however, that the firearm was in the Defendant’s
possession or under the Defendant’s control at the time that the drug
trafficking crime was committed.
ROA, Vol. I at 308.
The district court’s proposed jury instructions on carrying a firearm included:
(2) A defendant knowingly “carries” a firearm when he (1) possesses the
firearm through the exercise of ownership or control, and (2) transports or
moves the firearm from one place to another.
(3) A firearm is carried “during and in relation to” the underlying crime
when the Defendant avails himself of the weapon and the weapon plays an
integral role in the underlying crime. A firearm plays an integral part in the
underlying crime when it furthers the purpose or effect of the crime and its
presence or involvement is not the result of coincidence. At a minimum, the
firearm must have the potential of facilitating (i.e., making it easier to
complete) the underlying crime.
The Government must prove a direct connection between the Defendant’s
carrying of the firearm and the underlying crime, but the crime need not be
the sole reason the Defendant carried the firearm. To establish this
connection, the evidence must show that the Defendant intended the firearm
to be available for use during the underlying offense. A defendant “carries”
a firearm if they knowingly possess and transport the firearm in a vehicle,
including in a separate compartment of the vehicle, while the defendant is
also in the vehicle.
Id. at 369.
Through counsel, Mr. Swan objected to the inclusion of the last sentence
quoted above of the instruction. Although conceding it was “modified by the
paragraph above,” he suggested the challenged sentence was “too confusing” and
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“contradictory,” stating “I think just having that ‘in the vehicle’ is not enough.”
ROA, Vol. III at 563. He asked the district court to instead use Defendant’s Proposed
Instruction Z “which is just pretty much your first paragraph of that definition.” Id.1
The district court moved the challenged portion to the definition of “carries” but
otherwise overruled the objection because the instruction correctly stated the law as
set forth in United States v. Zapata-Reyes, 536 F. App’x 804, 808 (10th Cir. 2013)
(unpublished).2
The jury found Mr. Swan guilty on both counts. The district court sentenced
him to 210 months’ imprisonment on the narcotics count and a consecutive 60
1
Defendant’s Proposed Instruction Z reads:
A firearm is carried “during and in relation to” the underlying crime when
[]the defendant avails himself of the weapon and the weapon plays an
integral role in the underlying offense. The “during and in relation to
standard requires” the Government to prove a direct nexus between the
defendant’s carrying of a firearm and the underlying drug crime. Thus, the
Government must prove that the defendant intended the firearm to be
available for use in the offense. There is no requirement, however, that the
drug trafficking crime be the sole reason for the possession of the gun.
ROA, Vol. I at 309.
2
As given, Jury Instruction no. 13 stated, in relevant part:
A defendant knowingly “carries” a firearm when he (1) possesses the
firearm through the exercise of ownership or control, and (2) transports or
moves the firearm from one place to another. It applies to a person who
knowingly possesses and transports a firearm in a vehicle, including in a
separate compartment of the vehicle, while the person is also in the vehicle.
ROA, Vol. I at 404. The remainder of the court’s proposed instruction quoted above was
moved down a paragraph to incorporate the definition of “drug trafficking crime” as
paragraph 3 and was altered further only in that “underlying crime” was changed to
“underlying drug trafficking crime.” ROA, Vol. I at 369, 404–05.
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months’ imprisonment on the firearm count. The court entered judgment on
November 5, 2019, and Mr. Swan filed a timely notice of appeal on November 8,
2019.
II. DISCUSSION
The gravamen of Mr. Swan’s argument on appeal is: By instructing the jury
that the “carries” element of 18 U.S.C. § 924(c)(1)(A)(i) “applies to a person who
knowingly possesses and transports a firearm in a vehicle, including in a separate
compartment of the vehicle, while the person is also in the vehicle,” the district court
improperly took the question of whether Mr. Swan exercised ownership or control
over the firearm from the jury. Appellant’s Opening Br. at 8 (quoting ROA, Vol. I at
404). Where, as here, the appellant properly preserved the issue, “[w]e review the
jury instructions de novo and view them in the context of the entire trial to determine
if they accurately state the governing law and provide the jury with an accurate
understanding of the relevant legal standards and factual issues in the case.” United
States v. Christy, 916 F.3d 814, 854 (10th Cir. 2019) (quotation marks omitted). “In
doing so, we consider whether the district court abused its discretion in shaping or
phrasing a particular jury instruction and deciding to give or refuse a particular
instruction.” Id. (quotation marks omitted).
We first considered the meaning of “carrying” as used in 18 U.S.C. § 924(c) in
United States v. Cardenas, 864 F.2d 1528 (10th Cir. 1989). There, we held
“possession was a requisite element of ‘carrying a weapon in a vehicle,’” in addition
to transportation. Id. at 1535. In the context of a motor vehicle, we explained that
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“[t]he means of carrying is the vehicle, itself, rather than the defendant’s hands or
pocket, and the requirement of possession, the exercise of dominion and control, [is]
consonant with the common legal definition of ‘carrying a weapon in a vehicle’ at the
time of the enactment of § 924(c).” Id. at 1535–36. This standard has been distilled
into the statement that “carry” under § 924(c)(1)(A) “has two elements: (1)
possession of the weapon through the exercise of dominion or control; and (2)
transportation of the weapon.” United States v. Lindsey, 389 F.3d 1334, 1338 (10th
Cir. 2004).
Taken as a whole, the jury instructions correctly conveyed this meaning. The
district court first instructed the jury on the meaning of the word “possession” in Jury
Instruction no. 10:
“Possession” can be one of two kinds: actual possession or 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 that object. 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, is then in constructive possession of that object.
. . . Mere control over the place in which the object is found is not sufficient
to establish constructive possession.
ROA, Vol. I at 400–01. Jury Instruction no. 13 then informed the jury, inter alia:
A defendant knowingly “carries” a firearm when he (1) possesses the
firearm through the exercise of ownership or control, and (2) transports or
moves the firearm from one place to another. It applies to a person who
knowingly possesses and transports a firearm in a vehicle, including in a
separate compartment of the vehicle, while the person is also in the vehicle.
Id. at 404.
Mr. Swan takes issue with the second sentence quoted from Jury Instruction
no. 13, arguing it allowed the jury to “skip” the requirement of exercise or control
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inherent in possession and “go straight to the application in the second sentence and
find the element proven by finding that [Mr.] Swan knowingly possessed and
transported a firearm in a vehicle.” Appellant’s Opening Br. at 10–11. And Mr. Swan
contends the deficiency in Instruction 13 is not cured by Instruction 10’s definition of
possession because that definition is overbroad due to its inclusion of “the power to
exercise dominion or control without actually exercising dominion or control.”
Appellant’s Reply Br. at 3.
The challenged sentence of Jury Instruction no. 13 states the law as set forth
by our prior caselaw and Muscarello v. United States, 524 U.S. 125, 126–27 (1998):
possession and transportation of a firearm in a vehicle suffices as “carrying” within
the meaning of the statute. Contrary to Mr. Swan’s suggestion, the district court did
not improperly decide the inherent question of fact: whether Mr. Swan did possess
the firearm.3 Nor do the instructions mislead the jury to think so. The jury was
instructed Mr. Swan would need to “possess[] the firearm through the exercise of
ownership or control.” ROA, Vol. I at 404. The second sentence merely—and
clearly—noted this possession could occur in a vehicle, or separate compartment
thereof while Mr. Swan was in the vehicle.
Additionally, the jury was instructed on the proper definition of possession,
including constructive possession. Mr. Swan suggests the difference in wording—
“the power to exercise dominion or control” rather than “the exercise of ownership or
3
Neither did the instruction improperly force the jury to conclude Mr. Swan
transported the weapon, but that is not at issue.
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control”—is significant. It is not. In United States v. McDonald, 933 F.2d 1519, 1526
(10th Cir. 1991), we held the carry prong was satisfied where the “[d]efendant knew
the weapon was there” and had “easy and quick access” to it. This is equivalent to the
power to exercise dominion or control. As we explained in McDonald, the central
point of Cardenas is that “constructive possession is sufficient to sustain a firearm
possession conviction.” Id.Mr. Swan relies heavily upon United States v. McKye, 734 F.3d 1104 (10th
Cir. 2013), but that case is inapposite. There, “the jury was erroneously instructed
that all notes are securities.” Id. at 1110. Whether a note is a security in that context
is a mixed question of law and fact which should have been left to the jury alone. Id.Here, the district court properly defined possession for the jury. It further instructed
the jury that the elements of the offense would be met if Mr. Swan knowingly
possessed and transported the firearm in a vehicle, even in a separate compartment.
But it left to the jury the factual determination of whether Mr. Swan knowingly
possessed and transported the firearm.
The instructions were correct statements of law and did not infringe upon the
province of the jury by deciding factual questions. In context, they provided the jury
with an accurate understanding of the legal standards to apply and the district court
did not abuse its discretion in fashioning the instructions.
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III. CONCLUSION
We AFFIRM the district court’s judgment.
Entered for the Court
Carolyn B. McHugh
Circuit Judge
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