United States v. Xiong
Unspecified in text, typically F.3d (2021)
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Rule of Law:
Under plain error review, an erroneous jury instruction that omits an element of constructive possession does not affect a defendant's substantial rights if, considering the totality of the evidence and trial context, there is no reasonable probability that the outcome would have been different, particularly when the record contains overwhelming direct evidence of actual possession for some charges and strong circumstantial evidence of intent to control for others, especially in a drug trafficking context.
Facts:
- A confidential informant named Jimmy contacted Ken Lee about purchasing 33 pounds of methamphetamine for $500,000.
- Lee was put in touch with an individual known as 'Trigger,' who was accompanied by Veng Xiong and Kosh Lor, and Lee spoke with them about procuring the methamphetamine.
- Veng Xiong texted Lee and later met him at Xiong's home, where Xiong showed Lee a pound of methamphetamine in his garage.
- While in the garage, Veng Xiong handed Ken Lee two handguns (a revolver and a Glock 22) that Xiong retrieved from the backseat of his silver Buick, where Lee also observed an AK-47 and a shotgun.
- Later that evening, Veng Xiong texted Lee an unfamiliar address where they met, and Lee and Xiongkou Her followed Xiong and Lor in Xiong's Buick to a Chinese restaurant, where they saw an unidentified man briefly exit the restaurant and get into Xiong's Buick.
- After returning to the Pine Street residence, Xiong carried a shoebox from his Buick into the house, and he and Lee went to a 'back room' where Xiong packed five pounds of methamphetamine into bags, placing them in a black duffel bag that Lee then took.
- Her drove Lee in an Acura, and Lor drove Xiong in the Buick, towards a planned delivery point, with Lee texting Xiong about the remaining 28 pounds of methamphetamine.
- At the delivery point, law enforcement moved in, and as the Buick's dome light illuminated, Sergeant Denise Silva observed what appeared to be a firearm (later identified as a WASR-10 semi-automatic rifle) between the front passenger's seat (where Xiong was) and the center console, while Officer Nick Silva later clearly observed the rifle's buttstock after Xiong raised his hands.
- Officers located the WASR-10 with a fully-loaded magazine and a damaged round on the front passenger's seat floorboard, Xiong’s cell phone, and a loaded, chambered short-barreled Winchester 12-gauge shotgun behind the driver's seat on the floorboard, with its handle positioned towards the front passenger's seat, more accessible to Xiong than to Lor.
Procedural Posture:
- A grand jury returned a superseding indictment charging Veng Xiong, Ken Lee, Xiongkou Her, and Kosh Lor.
- Count 1 of the indictment charged Xiong, Lee, Her, and Lor with conspiring to possess with intent to distribute 500 or more grams of methamphetamine.
- Count 3 charged Xiong and Lor with possession of a short-barreled Winchester shotgun and a WASR-10 semi-automatic rifle in furtherance of a drug trafficking crime.
- Count 4 charged Xiong alone with being a felon in possession of all four firearms.
- Only Veng Xiong proceeded to a jury trial in the United States District Court for the Northern District of Oklahoma.
- The jury convicted Veng Xiong on Count 1 (conspiracy), Count 3 (possession of a firearm in furtherance of drug trafficking), and Count 4 (felon in possession of a firearm).
- The district court sentenced Veng Xiong to concurrent terms of 120 months’ imprisonment for Count 1 and Count 4, and a consecutive term of 120 months’ imprisonment for Count 3.
- Veng Xiong appealed his two firearm-related convictions (Counts 3 and 4) to the United States Court of Appeals for the Tenth Circuit.
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Issue:
Does a district court's erroneous jury instruction that omits the intent requirement for constructive possession affect a defendant's substantial rights under plain error review when there is direct evidence of actual possession for some firearms and strong circumstantial evidence of intent to control for others in the context of an ongoing drug trafficking operation?
Opinions:
Majority - Baldock, Circuit Judge
No, the omission of the intent requirement from the constructive possession instruction did not affect Veng Xiong's substantial rights under plain error review because, for Count 4 (felon in possession), there was direct evidence of his actual possession of the handguns, and for Count 3 (possession in furtherance of drug trafficking), there was strong circumstantial evidence of his intent to control the shotgun. The government conceded the instructional error was plain or obvious, shifting the burden to Xiong to demonstrate a reasonable probability that, but for the error, the outcome would have been different. For Count 4, Ken Lee’s testimony that Xiong retrieved two handguns from his Buick and handed them to Lee constituted direct evidence of actual possession, which a jury could credit. The jury's conviction on the drug conspiracy charge (Count 1), for which Lee was the primary witness, strongly indicated they found Lee credible. Unlike cases where testimony about prior, unidentified firearms or joint occupancy created ambiguity, Lee's testimony specifically linked Xiong to the charged handguns on the indictment date, and this was consistent with their later recovery. Therefore, there was no reasonable probability that the jury would have rejected Lee’s testimony regarding actual possession of the handguns. For Count 3, concerning the short-barreled shotgun, while Xiong and Lor jointly occupied the Buick, the specific facts of a drug deal involving multiple firearms, Xiong's exclusive control of the vehicle and its contents (including the shotgun) hours before the arrest, his decision to travel with the shotgun and rifle, and the shotgun's placement making it readily accessible only to the passenger (Xiong), all overwhelmingly pointed to Xiong's intent to control it. The shotgun was loaded and ready to fire, consistent with its use to protect a significant drug investment. The government’s closing argument also directly focused on Xiong's intent based on the weapons' positioning. This detailed circumstantial evidence provided a sufficient nexus between Xiong and the shotgun beyond mere proximity in a joint occupancy scenario, distinguishing it from prior Tenth Circuit cases that found prejudice. Thus, there was no reasonable probability that the jury would have reached a different conclusion on Xiong's intent to control the shotgun.
Analysis:
This case clarifies the application of plain error review, particularly the 'substantial rights' prong, when a jury instruction omits an element like intent for constructive possession. It emphasizes that the specific factual context of the case, especially in drug trafficking where firearms are often present to facilitate transactions, can provide sufficient evidence of intent even in joint occupancy situations. The decision reinforces that direct evidence of actual possession (even if brief) can overcome instructional error for other charges and highlights the importance of compelling circumstantial evidence, such as weapon placement and prior control, in proving intent to control in complex scenarios. Future cases will likely rely on this framework when evaluating instructional errors in firearm possession charges, requiring defendants to demonstrate a truly reasonable probability of a different outcome, rather than mere theoretical prejudice, by considering the strength of the government's entire evidentiary presentation.
