News You Can Use: Tenth Circuit reaffirms constructive possession requires intent to exercise control over an object, in a published decision involving 18 U.S.C. § 924(c)

The Tenth Circuit just decided United States v. Giannukos, reaffirming that constructive possession requires intent to exercise control over an object, and not just knowledge and ability to exercise control over the object.

Recall, the Supreme Court recently held that “[c]onstructive possession is established when a person, though lacking such physical custody, still has the power and intent to exercise control over the object.” Henderson v. United States, 135 S. Ct. 1780, 1784 (2015). In United States v Little, the Tenth Circuit adopted this holding, and explained that both the power and intent to exercise dominion or control over the object are essential to establish constructive possession. In Giannukos, the Tenth Circuit held that the post-Little definition of constructive possession must apply to a 924(c) charge for possession in furtherance of a drug trafficking crime.

The defendant in Giannukos went to trial on drug and gun charges. The government alleged he was distributing drugs out of his residence, and that he possessed two firearms in furtherance of that crime. The two firearms were found in a house he shared with a friend and his girlfriend.  One gun was found in a hutch in a common area of the house, and the other was found next to a pink bag in the bedroom that the defendant and his girlfriend shared.  DNA testing of the first gun turned up DNA from three unspecified people, at least one of them male. The major DNA contributor to the second gun was female.  A holster fitting the second gun was found inside the pink bag.

The government’s theory of the case was the defendant possessed the guns in furtherance of a drug trafficking crime and charged him with a 924(c) offense. The judge instructed the jury that it could find constructive possession of the guns if it determined the defendant “knowingly had the power” to “exercise dominion and control over” them.  Op. at 6.  As the Tenth Circuit would later hold in Little, this instruction misstates the law.  The jury convicted on all counts, including the 924(c) count, which meant the jury found Mr. Giannukos possessed the firearms “in furtherance of” his drug trafficking crimes. Op. at 14.  The jury had been instructed that “in furtherance of” means “for the purpose of assisting in” the drug crimes.  The government argued that if the jury found (as it did) that Mr. Giannukos intended the guns to further his drug dealing, it necessarily – or at least quite likely – thought he also intended to exercise control over the guns, so the Little error was harmless.

The Tenth Circuit disagreed. It first held that the constructive possession instruction was erroneous and that the error was plain, satisfying the first and second prong of the plain error analysis. The Tenth Circuit also held that the error was prejudicial, even as to the 924(c) count. It reasoned the defendant could have known the guns were in the house and believed they would help fend off robberies to protect his stash (possession in furtherance) without intending to exercise control over the guns himself. In other words, the Tenth Circuit held that, under the third prong, there was a “reasonable probability” that a properly instructed jury (one that had been given the post-Little instruction) would not have convicted Mr. Giannukos of constructively possessing firearms. There is also some good fourth-prong plain error law in the opinion.  The Circuit holds that any prejudicial error in a jury instruction on the elements will meet the fourth prong in light of the “revered status of the beyond-a-reasonable-doubt standard in our criminal jurisprudence.”  Op. at 17.


TAKEAWAYS:

  1. There is a relatively new Tenth Circuit Pattern Jury Instruction that adopts the post-Little definition of constructive possession.
  2. The post-Little constructive possession instruction applies to any crime where possession is an element: constructive possession requires both the power and the intent to exercise dominion and control over an object
  3. Where there is prejudicial error in a jury instruction that affects one of the elements of the crime charged, the fourth prong of the plain error test will almost always be satisfied.

 

 

News You Can Use: Tenth Circuit issues first published decision on USSG § 2D1.1(b)(12) — the enhancement for maintaining a premises for drug distribution

In United States v. Murphy, No. 17-5118 (10th Cir. Aug. 24, 2018) the Tenth Circuit issued its first-ever published opinion on U.S.S.G. § 2D1.1(b)(12), the guideline adjustment for maintaining a premises for purposes of drug distribution.  Although the circuit affirmed the application of the adjustment, it made some useful law on how the adjustment applies when the premises at issue is the defendant’s own residence.  

Section 2D1.1(b)(12) provides for a two-level increase if “the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance.”   The commentary adds that while drug activity need not be the “sole purpose” of the premises, it must be a one of the “primary or principal uses” of the premises and not an “incidental or collateral” use.  § 2D1.1 cmt. n.17. 

In many cases, like this one, the premises at issue is the defendant’s own home.  And that situation raises the question of what it means for drug activity to be a “primary” use of a premises that is constantly used for legitimate activities too?  Mr. Murphy argued that drug activity must be “pervasive and persistent” to qualify for the adjustment.  Op. at 8.  The court rejected that test but ultimately adopted a very similar one: drug activity “must not only be frequent but also substantial.”  Op. at 10.

The court also set out a number of factors to consider: “(1) the frequency and number of drugs sales occurring at the home; (2) the quantities of drugs bought, sold, manufactured, or stored in the home; (3) whether drug proceeds, employees, customers, and tools of the drug trade (firearms, digital scales, laboratory equipment, and packaging materials) are present in the home, and (4) the significance of the premises to the drug venture.”

Takeaway: Mr. Murphy lost under this test because the evidence suggested that he had used his home to sell drugs for a long time.  But in general, this test should be hard to meet, and in most cases you can challenge the enhancement.