United States v. Johnson
Citation not provided in text (Appellate Case: 21-3113 Document: 010110731614) (2022)
Rule of Law:
Under plain error review, an erroneous jury instruction on constructive possession that omits the element of intent does not warrant reversal of a firearm conviction if the government presents overwhelming and undisputed evidence of the defendant's actual possession or compelling evidence of the defendant's intent to exercise dominion and control, making it highly improbable the jury would have reached a different outcome with a proper instruction.
Facts:
- Larry D. Johnson was driving a Chevy Impala the wrong way on a one-way street.
- Officers stopped Johnson, who was the sole occupant, and observed a beer bottle in his hand.
- After Johnson exited the car, officers noticed a black pistol laying on the driver’s seat where Johnson had just been sitting, appearing as if he had been sitting on it or had a large part of his leg on it.
- Officers found $411 in cash and a large plastic bag containing 28 smaller bags of crack cocaine on Johnson's person.
- Johnson's girlfriend, the owner of the Impala, denied knowledge or ownership of the firearm, cash, or drugs, but conceded she allowed Johnson to drive her car that evening.
- In 2004, Johnson had made a statement admitting to having a gun in connection with drug distribution in a previous case.
- DNA analysis on the firearm showed a mixture of DNA from four people, with a partial major DNA profile consistent with an unknown female contributor.
Procedural Posture:
- Larry D. Johnson was charged in the United States District Court for the District of Kansas with possessing cocaine base with the intent to distribute, possessing a firearm in furtherance of a drug trafficking crime, and possession of a firearm by a convicted felon.
- A jury in the District Court convicted Johnson as charged on all counts.
- Johnson appealed his two firearms convictions to the United States Court of Appeals for the Tenth Circuit, contending the district court provided the jury an erroneous instruction on constructive possession.
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Issue:
Does a district court's erroneous jury instruction on constructive possession, which omits the element of intent, constitute plain error requiring reversal of firearm convictions when overwhelming evidence supports actual or constructive possession?
Opinions:
Majority - Chief Judge Tymkovich
No, the district court's erroneous jury instruction on constructive possession, which omitted the element of intent, does not constitute plain error requiring reversal because strong evidence demonstrates Johnson had both actual and constructive possession of the firearm, making it reasonably probable the jury would have reached the same conclusion even with a proper instruction. The court reviewed the case for plain error, acknowledging the government's concession that the jury instruction was plainly erroneous for omitting the element of intent in the definition of constructive possession. However, the court found that Johnson failed to demonstrate the error affected his substantial rights, meaning there was no reasonable probability that a proper instruction would have led to a different outcome. Regarding actual possession, the court concluded Johnson had 'direct physical control' of the firearm by knowingly sitting on it. This act constituted physical contact, exerted force, concealed the weapon, and prevented others from gaining control. The court clarified that while 'holding' a firearm for a brief moment is sufficient for actual possession, it is not always a necessary requirement, and knowingly sitting on an item represents a greater exertion of control than mere touching. This evidence of actual possession was deemed 'so strong that no reasonable jury would have acquitted Johnson.' Furthermore, the court determined that even if the jury relied on a theory of constructive possession, a properly instructed jury would still have been compelled to find Johnson constructively possessed the firearm. This was supported by Johnson knowingly sitting on the loaded gun, his simultaneous possession of crack cocaine packaged for distribution (which indicated the firearm's use in drug trafficking), and his prior 2004 statement admitting to possessing a firearm to aid in drug distribution. The court distinguished this case from Samora, where evidence of intent was weak, and aligned it with Xiong, which involved strong evidence linking a loaded, accessible firearm to drug dealing. The court concluded that the 'indicia of intent to control the firearm far outweigh the possibility Johnson knowingly sat on the gun with no intent to exercise dominion over it.'
Concurring - Circuit Judge Briscoe
No, the district court's erroneous jury instruction on constructive possession does not require reversal because the government presented strong and undisputed evidence that Johnson had actual possession of the gun, making the additional analysis of constructive possession unnecessary. Judge Briscoe concurred with the majority's conclusion that Johnson failed to meet the third prong of the plain error test (affecting substantial rights). The concurrence emphasized the robust evidence presented by the government supporting a finding of actual possession. This evidence included Officer Mitchell’s testimony that he observed the gun on the driver’s seat immediately after Johnson exited, positioned as if Johnson had been sitting on it or had a large part of his leg covering it. Other key facts were Johnson being the sole occupant, his initial refusal to exit the vehicle, and his girlfriend (the car owner) denying knowledge or ownership of the gun. The concurrence reasoned that Johnson, by sitting on the gun and covering it with his body, exercised 'direct physical control' over it, thereby fulfilling the definition of actual possession. The opinion dismissed Johnson's arguments regarding DNA evidence, the necessity of 'handling' the gun, or car ownership, stating that Johnson’s act of sitting on the gun was 'tantamount to 'holding' the gun' for actual possession purposes. Given the strength of the actual possession evidence and the government’s reliance on this theory at trial, the concurrence found no reasonable probability that a properly instructed jury would have reached a different outcome on the firearm charges.
Analysis:
This case clarifies the application of the plain error standard in the context of erroneous jury instructions concerning firearm possession. It reinforces that strong and undisputed evidence of a defendant's actual possession can render an instructional error on constructive possession harmless. The opinion also provides valuable guidance on what constitutes 'direct physical control' for actual possession (e.g., knowingly sitting on a firearm) and outlines factors that demonstrate intent for constructive possession, such as simultaneous drug trafficking, weapon accessibility, and prior admissions. By comparing and contrasting with previous Tenth Circuit precedents like Samora and Xiong, the court provides a framework for analyzing the sufficiency of evidence needed to uphold a conviction despite an instructional defect, particularly when alternative theories of possession are strongly supported.
