United States v. Little
2016 U.S. App. LEXIS 13172, 2016 WL 3902581, 829 F.3d 1177 (2016)
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Rule of Law:
Constructive possession of an object requires proof that a person not in actual physical possession knowingly has both the power and the intent to exercise dominion or control over that object, aligning with the Supreme Court's ruling in Henderson v. United States.
Facts:
- On October 24, 2011, seven firearms were stolen from Southwest Arms in Lovington, New Mexico.
- The store owner received an anonymous tip that Cody Little was the burglar and shared this information with law enforcement.
- Law enforcement learned Cody Little was residing in a small 'well house' he rented from Lacosta Blythe on her property.
- On November 1, 2011, law enforcement officials visited Blythe’s property and made eye contact with Little as he was exiting his well house.
- An officer observed assault rifle hand guards inside an open shed located on Blythe's property.
- After obtaining a search warrant, officers entered Little's well house and found two firearms matching those stolen (a loaded assault rifle in a duffel bag under a sleeping bag, and a shotgun under the bed) and two shotgun shells on a shelf.
- One day after the search, Blythe turned over a third stolen gun, found between two sheds on the property, which was missing its hand guard, matching the one found by officers.
- Blythe testified that Little installed a lock on the well house door about a week before the search and did not give her a key, and that when she showed Little the police inventory report, he responded, 'they only found two?'
Procedural Posture:
- Cody Little was initially indicted for being a felon in possession of a firearm and ammunition in federal court.
- Little's first trial in the federal district court resulted in a deadlocked jury, and a mistrial was declared.
- The government then filed a superseding indictment, adding a count for possession of stolen firearms and charging aiding and abetting as to both counts.
- Little proceeded to a second trial in the federal district court.
- The jury convicted Little on both counts.
- The district court calculated a total offense level of 28, based in part on Little’s prior convictions for crimes of violence, and imposed a within-Guidelines sentence of 150 months’ imprisonment.
- Little timely appealed his convictions and sentence to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does constructive possession of a firearm under 18 U.S.C. § 922 require proof that a defendant not only had the power to exercise dominion or control over the object, but also the intent to exercise that control?
Opinions:
Majority - Lucero, Circuit Judge
Yes, constructive possession does require proof that a defendant not only had the power to exercise dominion or control over an object, but also the intent to exercise that control. The Tenth Circuit previously held in United States v. Colonna that intent was not necessary for constructive possession. However, the Supreme Court's decision in Henderson v. United States squarely held that constructive possession requires both the power and the intent to exercise control, stating that 'the very hallmark of possession' is 'broad command over the gun’s location and use.' Therefore, Colonna's disavowal of an intent requirement is incompatible with Henderson, and that point of law is overruled. The court applies this new standard but finds the error in the jury instruction (which omitted the intent element) to be harmless beyond a reasonable doubt because the evidence presented at trial compelled the conclusion that Little intended to exercise control over the weapons. This included his exclusive control over the cramped well house, his placement of a lock on the door, and his statement, 'they only found two?' upon reviewing a police inventory report. The court also affirmed the district court's instructions regarding aiding and abetting and possible guilt of others, and found a deliberate indifference instruction to be harmless. However, the court vacated Little's sentence because the district court's reliance on the Sentencing Guidelines’ residual clause in calculating his offense level was unconstitutionally vague under Johnson v. United States and United States v. Madrid.
Dissenting - Holmes, Circuit Judge
No, while constructive possession does require proof of intent to exercise control, the district court's error in omitting this element from the jury instruction was not harmless, and therefore, Little's conviction should be reversed. The government failed to make a specific harmless-error argument regarding the constructive-possession instructional error, and the conditions that would ordinarily support sua sponte (on its own initiative) harmless-error review are not met here. Specifically, the harmlessness of the error is 'far from certain or readily apparent' and 'could be vigorously debated.' There was 'scant evidence' directly addressing Little’s intent to exercise control. For example, Blythe's testimony about Little placing a lock on the well house door was weakened by conflicting testimony from officers who did not recall seeing the lock, or testified that the door was unlocked during the search. The majority's reliance on 'exclusive control' to infer intent is also insufficient because prior cases only indicate that such an inference may be made, not that it must be made, and the evidence of Little's exclusive control over the well house was not 'rock solid' (e.g., Blythe still stored items there, and his use of the lock was disputed). Consequently, the instructional error was reversible, and the case should be remanded for further proceedings.
Analysis:
This case significantly clarifies the elements of constructive possession in the Tenth Circuit by explicitly incorporating an 'intent to exercise control' requirement, thereby aligning the circuit with Supreme Court precedent (Henderson v. United States) and most other federal circuits. This modification raises the bar for prosecutors, who must now affirmatively demonstrate a defendant's intent to control an object, not merely the power to do so. While the court found the error harmless in this specific instance due to compelling circumstantial evidence, future cases involving less clear-cut facts will necessitate a more robust presentation of evidence regarding a defendant's intent to control, potentially impacting the successful prosecution of individuals accused of possessing contraband not in their immediate physical custody. Additionally, the case reinforces the unconstitutionality of the Sentencing Guidelines' residual clause, underscoring the ongoing impact of Johnson v. United States on sentencing practices.
