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United States v. Benford

United States Court of Appeals, Tenth Circuit

November 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
KENROY LLOYD BENFORD, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:14-CR-00321-D-1)

          Kyle Edward Wackenheim, Research and Writing Attorney (Paul Antonio Lacy, Assistant Federal Public Defender, with him on the briefs), Office of the Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.

          David McCrary, Assistant United States Attorney (Mark A. Yancey, Acting United States Attorney, and Julia E. Barry, Assistant United States Attorney, with him on the brief), Office of the United States Attorney, Oklahoma City, Oklahoma, for Plaintiff - Appellee.

          Before PHILLIPS, BALDOCK, and McHUGH, Circuit Judges. [*]

          BALDOCK, Circuit Judge.

         A jury convicted Kenroy Benford of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) based on his constructive possession of a loaded pistol that police seized from an apartment bedroom he shared with his girlfriend. On appeal, Benford argues the district court erred in three ways: (1) it abused its discretion by admitting evidence under Federal Rule of Evidence 404(b) about (i) his possession of a different firearm during a recent sidewalk confrontation, and (ii) text messages he had sent three months earlier suggesting he had firearms to trade; (2) it let the jury's guilty verdict stand despite insufficient evidence that he had constructively possessed the pistol in the apartment by knowingly having the power to exercise dominion or control over the pistol; and (3) it incompletely instructed the jury on constructive possession by not advising the jury that it could convict only if it also found that Benford intended to exercise dominion or control over the pistol. We affirm the district court's evidentiary rulings and its denials of Benford's motions for acquittal, but we reverse and remand for a new trial based on the erroneous jury instruction.

         I.

         On May 21, 2014, Oklahoma City Police Department officers arrived at 5313 Willow Cliff Road, Apartment 232, Oklahoma City, to execute a search warrant. Benford lived in that apartment with his girlfriend, Adrian Galloway. Soon after arriving, the officers saw Benford leave the apartment and get into his and Ms. Galloway's automobile. Before he could drive away, the officers detained him.

         After detaining Benford, officers executed the search warrant at the apartment, where they encountered Ms. Galloway and a young child. Under the mattress in the master bedroom, officers found documents tying Benford to the apartment-a recent letter to him from a government agency, his W-2 statement, and his recent pharmacy receipt.[1] In the master bedroom's closet, officers saw an adult male's clothing consistent with Benford's size, but did not find evidence of any male besides Benford residing in the apartment. On the bedroom floor, officers saw a black computer bag next to a night stand, about two-and-a-half feet from the side of the bed. When standing over the bag and looking down inside the front open pouch, but without touching the bag, the officers could see a firearm. The officers seized the firearm, a loaded Lorcin .25 caliber semiautomatic handgun with pink grips. Officers did not find any documents or other items indicating whether Benford, Ms. Galloway, or someone else primarily used the bag.

         After Benford received a Miranda warning and waived his rights, he admitted that he lived in Apartment 232 with Ms. Galloway. When Sergeant Harmon told Benford that the officers had found a small silver automatic firearm with pink grips in a bag in the bedroom, Benford registered no surprise, but said, "I guess I'll have to take the charge." R. Vol. 3 at 74. The officers arrested Benford, and a grand jury later indicted him on a single count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

         Shortly after the search at the Willow Creek apartments, officers executed a search warrant on the cell phone seized from Benford the day he was arrested. In a text exchange from February 11, 2014, about three months before Benford's arrest, Benford had texted someone about whether a motor was still for sale and asked what he could trade for it. The motor seller responded that he would trade for "[g]uns, tools, lathe and/or mill tooling. H-D stuff." Supp. Vol. 1 at 29. Benford asked what kind of guns, and the motor seller responded, "Concealed carry or a 12 ga."[2] Id. Benford replied, "I got some nice toys;)" and promised to get back to the person the next day.[3] Id.

         The government also learned about an incident at the Willow Cliff apartments that occurred nineteen days before Benford's arrest in which Benford possessed a different gun. On May 2, 2014, Misty Dibler, her husband, and her 12-year-old daughter were walking their dog by Benford's apartment building when Benford's unleashed dog attacked their dog. As Ms. Dibler and Benford argued about the dog attack, Benford told Ms. Galloway to "go get a gun." R. Vol. 3 at 142. Ms. Galloway went upstairs into a second-floor apartment and then met Benford at a spot halfway up the stairs out of Ms. Dibler's view. Benford then reapproached Ms. Dibler, voiced obscenities, and, from about five feet away, pointed a black handgun at her and waved it around. When Ms. Dibler dialed 911, Benford left in Ms. Galloway's car.

         Under Federal Rule of Evidence 404(b)(1), Benford moved in limine to exclude his text messages and Ms. Dibler's testimony. Relying on Rule 404(b)(2), the government contended that the disputed evidence of prior weapon possession was admissible for a purpose other than to prove character or propensity-namely, to help prove that Benford knew the Lorcin pistol was in his apartment and that he constructively possessed it. The district court agreed with the government and ruled the evidence admissible.

         At trial, the parties stipulated that Benford had a prior felony conviction and that the Lorcin pistol had affected interstate commerce. The sole issue for the jury was whether Benford had knowingly possessed the pistol "[o]n or about May 21, 2014." R. Vol. 1 at 108. To prove constructive possession, the government relied on the location and accessibility of the pistol in the bedroom; Benford's statement and reaction when told that the police had found the pistol; Benford's text messages; and Benford's and his girlfriend's knowledge of, and ability to retrieve, a different handgun three weeks earlier from the same apartment. After deliberating for one hour and twenty-five minutes, the jury found Benford guilty of being a felon in possession of a firearm. Benford now appeals.

         II.

         Benford argues the district court erred in admitting the text messages from his cell phone from several months earlier indicating he had firearms to trade and Ms. Dibler's testimony regarding a prior altercation during which Benford possessed a different firearm. We review the district court's evidentiary rulings for an abuse of discretion. United States v. Mares, 441 F.3d 1152, 1156 (10th Cir. 2006). "We will not reverse a district court's ruling if 'it fall[s] within the bounds of permissible choice in the circumstances' and is not 'arbitrary, capricious or whimsical.'" Id. (alteration in original) (quoting United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997)).

         "Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character, " but such evidence "may be admissible for another purpose, such as proving . . . intent [or] knowledge . . . ." Fed.R.Evid. 404(b)(1)- (2). To be admissible under Rule 404(b)(2), evidence of other crimes, wrongs, or acts must satisfy four conditions: (1) the government must offer the evidence for a proper purpose; (2) the evidence must be relevant; (3) the evidence's potential for unfair prejudice must not substantially outweigh its probative value under Rule 403; and (4) the district court must give a proper limiting instruction, if requested by the defendant. Huddleston v. United States, 485 U.S. 681, 691-92 (1988). Benford argues that the government failed to satisfy the first three conditions. As explained below, we conclude the district court acted within its discretion in admitting evidence of Benford's text messages and in allowing Ms. Dibler's testimony about Benford's recent possession of a different handgun.

         An often-cited case on the propriety of 404(b)(2) evidence to help prove constructive possession of firearms is United States v. Moran, 503 F.3d 1135 (10th Cir. 2007). In that case, officers responded to complaints that Moran was trespassing on private property to reach a national forest for hunting. Id. at 1138. After officers stopped Moran, who was driving his girlfriend's SUV, they "saw the butt of a rifle stock sticking out of an unzipped rifle case on the back seat." Id. at 1139. One seat over, the officers saw a bow and arrows (it was bow-hunting season). Id. Moran said the rifle belonged to his girlfriend. Id. When an officer removed the rifle, he asked Moran whether the rifle was loaded, and Moran told him that it was. Id. When asked why he had the rifle, Moran said that "he always had a rifle in his vehicle." Id. The government charged Moran with being a felon in possession of a firearm. Id. At trial, Moran claimed that he had not known his girlfriend's rifle was in her car. Id. at 1144. To prove that Moran had knowingly possessed the rifle, the government relied in part on evidence that he had knowingly possessed a different firearm eleven years earlier (as shown by his felon-in-possession conviction).

         On appeal, we ruled that the district court acted within its discretion in admitting the Rule 404(b)(2) evidence. First, we explained that the government offered, and the district court admitted, the evidence for the proper purpose of showing Moran's knowledge; that is, to show that he knowingly possessed the rifle. Id. The prior conviction, which demonstrated that Moran knowingly possessed a firearm at another point in time, was also relevant to show knowledge: "Because the prior conviction required the same knowledge, evidence of the conviction had a 'tendency to make the existence of' Mr. Moran's knowledge of the rifle in the present case 'more probable . . . than it would be without the evidence.'" Id. (quoting Fed.R.Evid. 401 (2007)). While we acknowledged that the use of prior firearm possession to prove knowledge "involves a kind of propensity inference (i.e., because he knowingly possessed a firearm in the past, he knowingly possessed the firearm in the present case), " we still approved its admission "as long as it tends to prove something other than criminal propensity." Id. at 1145. Finally, in considering the admissibility of the evidence under Rule 403, we concluded that Moran's earlier firearm possession "was sufficiently similar to have probative value in proving knowledge" and that the district court did not abuse its discretion in determining that the evidence's potential for unfair prejudice did not substantially outweigh its probative value. Id. at 1145-46.[4]

         As in Moran, the government offered the text messages and Ms. Dibler's testimony for the proper purpose of proving knowledge: that Benford knew the Lorcin pistol was inside the bedroom. And, like Moran, the evidence was relevant for that proper purpose. Benford indicated in his text messages that he had guns to trade for a motor, and Ms. Dibler testified that Benford actually held a firearm during an altercation. In the same way that Moran's prior firearm possession supported the inference that he had the same knowledge in the context of the charged offense, so too does Benford's past firearm possession suggest he knowingly possessed the Lorcin pistol. See Moran, 503 F.3d at 1144; United States v. McGlothin, 705 F.3d 1254, 1263 (10th Cir. 2013) ("[D]efendant's prior acts of weapon possession are relevant for the proper purpose of demonstrating the charged act of firearm possession was knowingly undertaken.").

         We also reject Benford's argument that the danger of unfair prejudice substantially outweighed the evidence's probative value. The evidence admitted here is more probative of Benford's knowledge of the Lorcin pistol than was the Rule 404(b) evidence admitted in Moran's case to show his knowledge of the rifle found on the back car seat. Approximately three months before Benford's arrest, Benford strongly implied he had multiple guns to trade for a motor. And nineteen days before his arrest, Benford directed his girlfriend to retrieve a gun from the same apartment in which police found the Lorcin pistol, and then proceeded to actually hold the firearm as he waved it and pointed it at Ms. Dibler and her family. In contrast, Moran possessed a firearm in a different location eleven years earlier. Additionally, when a defendant is not the sole occupant of the premises where the gun was found, "the question of knowing possession [is] more debatable . . ., which weighs in favor of admission despite the possibility of unfair prejudice." United States v. Trent, 767 F.3d 1046, 1050 (10th Cir. 2014), abrogated on other grounds by Mathis v. United States, 136 S.Ct. 2243 (2016). Benford argues the evidence was unduly prejudicial in that it portrayed him as a black market guns trader and hostile neighbor, but he greatly downplays the probative value of the evidence in this ...


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