from the United States District Court for the Western
District of Oklahoma (D.C. No. 5:14-CR-00321-D-1)
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.
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.
PHILLIPS, BALDOCK, and McHUGH, Circuit Judges. [*]
BALDOCK, Circuit Judge.
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.
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.
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. 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.
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. §
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." Id. Benford replied, "I got
some nice toys;)" and promised to get back to the person
the next day. Id.
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.
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.
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.
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)).
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.
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).
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.
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.").
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 ...