United States v. Benford
875 F.3d 1007 (2017)
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Rule of Law:
For a conviction of felon in possession of a firearm based on constructive possession, the government must prove both the power to control an object and the intent to exercise that control. An erroneous jury instruction omitting the intent element, even if unobjected to, may constitute plain error requiring a new trial, particularly in joint occupancy cases where evidence of intent is not overwhelming.
Facts:
- On May 21, 2014, Kenroy Benford lived with his girlfriend, Adrian Galloway, in Apartment 232 at 5313 Willow Cliff Road, Oklahoma City.
- Oklahoma City Police Department officers, executing a search warrant, saw Benford leave the apartment and detained him.
- Inside the apartment's master bedroom, under the mattress, officers found documents linking Benford to the residence, including a W-2 statement and a pharmacy receipt.
- In the same master bedroom, officers discovered a loaded Lorcin .25 caliber semiautomatic handgun with pink grips in the open front pouch of a computer bag, located two-and-a-half feet from the side of the bed.
- After receiving a Miranda warning, Benford, when informed about the discovered firearm, stated, "I guess I'll have to take the charge."
- Approximately three months before his arrest, Benford exchanged text messages with someone about trading items for a motor, where he indicated he had "nice toys ;)" which a defense witness testified likely meant guns.
- Nineteen days before his arrest, during an altercation with Misty Dibler, Benford told Ms. Galloway to "go get a gun" from the apartment, and then brandished a different black handgun at Ms. Dibler.
Procedural Posture:
- A grand jury indicted Kenroy Benford on a single count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
- Benford filed a motion in limine in the district court to exclude evidence of his text messages and Misty Dibler's testimony under Federal Rule of Evidence 404(b).
- The district court denied Benford's motion, ruling the evidence admissible under Rule 404(b)(2) for the purpose of proving knowledge.
- A jury convicted Benford of being a felon in possession of a firearm.
- Benford appealed his conviction to the Tenth Circuit Court of Appeals, arguing three errors: improper admission of 404(b) evidence, insufficient evidence to prove constructive possession, and an incomplete jury instruction on constructive possession.
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Issue:
Does a district court commit plain error affecting a defendant's substantial rights by instructing a jury on constructive possession without including the element that the defendant intended to exercise dominion or control over the firearm, when the defendant jointly occupied the premises where the firearm was found and the evidence of intent is not overwhelming?
Opinions:
Majority - Baldock, Circuit Judge
Yes, a district court commits plain error affecting a defendant's substantial rights by instructing a jury on constructive possession without including the element of intent to exercise control over the firearm, especially in joint occupancy cases where evidence of such intent is not compelling. The Tenth Circuit affirmed the district court's admission of Rule 404(b) evidence (Benford's text messages and Ms. Dibler's testimony), finding it relevant for the proper purpose of proving Benford's knowledge of the Lorcin pistol, consistent with United States v. Moran, and that its probative value was not substantially outweighed by unfair prejudice. The court also found sufficient evidence for constructive possession under the law at the time of trial, which only required knowledge, dominion, and control. However, reviewing for plain error (since Benford did not object), the court found that the jury instruction omitting the 'intent to exercise control' element, as explicitly required by United States v. Little (which clarified Henderson v. United States), was a clear error 'plain' at the time of appeal. Given that Benford jointly occupied the apartment and the evidence for his intent to control the specific Lorcin pistol (his statement "I guess I'll have to take the charge," the gun's visibility, and the prior gun incident) was not overwhelming or "compelling," a reasonable probability existed that a properly instructed jury would not have convicted him. This instructional error affected Benford's substantial rights, and the court exercised its discretion to correct the error because it seriously affected the fairness, integrity, and public reputation of judicial proceedings, necessitating a new trial.
Dissenting - Phillips, Circuit Judge
No, Benford failed to meet his burden to show a reasonable probability that the jury would have acquitted him if properly instructed on constructive possession, and therefore the conviction should be affirmed. The dissent argued that intent to exercise control over a firearm can be shown by intending to actually possess it, directing another's use of it, or exercising command over its location (Henderson v. United States, United States v. Little). The dissent contended that the evidence — including Benford's earlier felon-in-possession conviction, text messages about trading guns, and particularly the incident nineteen days before his arrest where he ordered his girlfriend to retrieve a gun from the apartment and then brandished it — strongly indicated his intent to control firearms. The dissent criticized the majority for applying a stricter standard akin to harmless error (where the government bears the burden of proving certainty of harmlessness) rather than plain error (where the defendant bears the burden to show a reasonable probability of a different outcome). It also disagreed with the majority's reliance on Simpson, arguing that Little (which affirmed a conviction despite the same instructional error and without evidence of actual handling) should govern in this intra-circuit conflict, as Simpson appeared to create a split by conflating actual possession with constructive possession's intent element. The dissent concluded that it was highly unlikely the jury would have believed Benford was merely a "gun-leery felon tolerating the firearm's presence" given his consistent gun-related actions, thus undermining confidence in the majority's decision to reverse.
Analysis:
This case highlights the critical evolution of the constructive possession doctrine in the Tenth Circuit, particularly its incorporation of an explicit "intent to exercise control" element following the Supreme Court's guidance in Henderson v. United States and the Tenth Circuit's subsequent clarification in United States v. Little. The decision underscores the importance of precise jury instructions on all elements of an offense, especially when the legal definition changes through intervening case law. Furthermore, it clarifies how plain error review applies to such instructional errors, emphasizing that in joint occupancy situations, evidence of knowledge and access alone may not be sufficient to compel a finding of intent to control. This ruling sets a precedent for how appellate courts evaluate plain error when an intervening legal development alters a fundamental element of a crime, favoring new trials where the evidence of the omitted element is not overwhelming.
