Tenth Circuit: District Court Plainly Erred in Giving Erroneous Constructive Possession of Firearm Instruction, Conviction Reversed
The U.S. Court of Appeals for the Tenth Circuit reversed Fernando Miguel Samora’s conviction for being a felon in possession of a firearm because the U.S. District Court for the District of Utah gave the jury an erroneous instruction on constructive possession.
In May 2017, Samora borrowed Maria Hernandez’s car and drove it alone to a restaurant. When Samora exited the restaurant and approached the vehicle, officers converged to arrest him on an outstanding warrant. After Samora was arrested, they searched the vehicle and found a loaded firearm inside the center console.
The Government charged him with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
At the ensuing trial, the Government’s DNA expert testified that (1) Samora contributed most of the DNA on the firearm, (2) Samora’s DNA was the major profile on the firearm, and (3) because of Samora’s DNA being the major profile, it was likely he had handled the gun at some point.
Hernandez testified that the firearm belonged to her, and she had placed it in the center console a couple of days before Samora borrowed the car. She testified she kept the firearm for home security, but she could not identify the make or model of it.
The district court judge instructed the jury on both “actual” and “constructive” possession. As to the latter, the judge instructed: “Constructive possession exists when a person knowingly holds the power and ability to exercise dominion and control over a firearm.” Samora did not object to this instruction. The jury convicted Samora, and he appealed, arguing, inter alia, that the district court erred when it failed to instruct the jury that Samora must have intended to exercise control over the firearm in order to convict on a constructive possession theory.
Because Samora failed to object, the Tenth Circuit reviewed for plain error. To prevail, Samora had to show: (1) the district court erred, (2) the error is plain, and (3) the error affected his substantial rights. United States v. Benford, 875 F.3d 1007 (10th Cir. 2017). If Samora satisfies those three prongs, the Court explained it will exercise its “discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings.” Id. Because “an improper instruction on an element of the offense violates the Sixth Amendment’s jury trial guarantee,” it is a constitutional error. Neder v. United States, 527 U.S. 1 (1999). Courts apply plain error “less rigidly when reviewing a potential constitutional error.” United States v. James, 275 F.3d 1173 (10th Cir. 2001)
Samora easily established the first two prongs, the Court concluded. Constructive possession “requires both the power to control an object and intent to exercise that control.” Benford. The district court omitted the intent element. This failure to instruct the jury on the intent element was error, and the error was plain because it was “clearly contrary to the law at the time of appeal.” Johnson v. United States, 520 U.S. 461 (1997).
To satisfy the third prong, Samora had to “show a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Benford. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” United States v. Wolfname, 835 F.3d 1214 (10th Cir. 2016).
In United States v. Simpson, 845 F.3d 1039 (10th Cir. 2017), law enforcement located firearms in places the defendant jointly occupied with his wife. The government presented evidence that the defendant had brandished firearms in the past, and the defendant admitted to holding each of the handguns. Even so, the Simpson Court ruled “there is a reasonable probability that the outcome would have been different with a correct jury instruction.”
The Court likened Simpson to the current case and ruled that Samora satisfied the third prong. Because the error may have allowed the jury to convict without requiring the Government to prove all of the elements of the offense, Samora satisfied the fourth prong, the Court ruled.
Related legal case
United States v. Samora
|Cite||954 F.3d 1286 (10th Cir. 2020)|
|Level||Court of Appeals|
|Appeals Court Edition||F.3d|