                                                              FILED
                                                  United States Court of Appeals
                     UNITED STATES COURT OF APPEALS       Tenth Circuit

                            FOR THE TENTH CIRCUIT                       October 30, 2014

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
UNITED STATES OF AMERICA,

             Plaintiff - Appellee,

v.                                                          No. 14-6033
                                                  (D.C. No. 5:13-CR-00084-HE-1)
JOHN MICHAEL PALMER, SR.,                                  (W.D. Okla.)

             Defendant - Appellant.


                            ORDER AND JUDGMENT*


Before KELLY, ANDERSON, and TYMKOVICH, Circuit Judges.


      Early in the morning on October 11, 2011, law enforcement officials executed

a search warrant at a rundown house on Kiowa allotment land in Oklahoma.

Ownership of the house runs in the family of John Michael Palmer, Sr., who was at

the house that morning. The search revealed a loaded .22-caliber rifle leaning against

a dresser in a bedroom and .22 ammunition on a table in the living room. Because

Mr. Palmer had several Oklahoma felony convictions, he was charged with being a

*
      After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
felon in possession of a firearm and ammunition in violation of 18 U.S.C.

§ 922(g)(1). After he unsuccessfully moved to suppress the evidence from the

search, a jury found him guilty. Mr. Palmer appeals from his conviction, arguing

(1) the district court erred in denying his motion to suppress, (2) the evidence was

insufficient for conviction, and (3) the district court erred in rejecting his requested

jury instruction regarding the mens rea elements of § 922(g)(1). Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

                                A. Motion to Suppress

      Mr. Palmer argues that evidence from the search should have been suppressed

because the warrant was issued without probable cause and was fatally overbroad.

But because he did not raise his overbreadth assertion before the district court, at best

that argument was forfeited and is reviewable only for plain error. See Fed. R. Crim.

P. 52(b); United States v. McGehee, 672 F.3d 860, 873 (10th Cir. 2012). On appeal,

he does not advocate for plain error, and “the failure to argue for plain error and its

application on appeal . . . surely marks the end of the road for an argument for

reversal not first presented to the district court.” Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1131 (10th Cir. 2011). We therefore examine only probable cause.

      “When a search is conducted pursuant to a warrant, . . . we look to ensure that

the judge had a substantial basis for concluding that the affidavit in support of the

warrant established probable cause.” United States v. Barajas, 710 F.3d 1102, 1108

(10th Cir.) (internal quotation marks omitted), cert. denied, 134 S. Ct. 230 (2013).


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“[P]robable cause exists where attending circumstances would lead a prudent person

to believe there is a fair probability that contraband or evidence of a crime will be

found in a particular place.” United States v. Cantu, 405 F.3d 1173, 1176 (10th Cir.

2005) (internal quotation marks omitted).

      The warrant was based on Mr. Palmer’s alleged sales of methamphetamine.

He argues that there was no probable cause to search the house because much of the

information in the supporting affidavit was stale: the affidavit described sales in

January and February 2011, while the warrant was not obtained and executed until

October. And although the affidavit also discussed events in September, he asserts

that such events did not involve the house.

       There was a substantial basis for concluding that the affidavit established

probable cause. “Whether information is too stale to establish probable cause

depends on the nature of the criminal activity, the length of the activity, and the

nature of the property to be seized.” United States v. Garcia, 707 F.3d 1190,

1194-95 (10th Cir.) (brackets and internal quotation marks omitted), cert. denied,

133 S. Ct. 2875 (2013). According to the affidavit, the majority of completed

methamphetamine sales occurred early in 2011. However, the affidavit went on to

describe two events in September indicating that he continued to sell

methamphetamine. “[W]hen the affidavit recites facts indicating ongoing,

continuous criminal activity, the passage of time becomes less critical.” Id. at 1195

(internal quotation marks omitted).


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       It is irrelevant that there was no completed sale at the house in September,

because the affidavit established that Mr. Palmer continued to sell methamphetamine

and that officials believed the house to be his residence. Although at trial he denied

residing there, the affidavit contained facts to support officials’ belief, and it also

established that, at a minimum, he spent a fair amount of time and had conducted

methamphetamine business there. The affidavit further discussed drug dealers’

propensity to keep evidence of their activities at their residences or other locations

under their control. Because there was a reasonable basis for believing that

Mr. Palmer resided in the house or otherwise had control of it, it also was reasonable

to believe there was a fair probability that additional evidence of crime would be

found there. See United States v. Sanchez, 555 F.3d 910, 914 (10th Cir. 2009);

United States v. Sparks, 291 F.3d 683, 689-90 (10th Cir. 2002)

                            B. Sufficiency of the Evidence

       Mr. Palmer next challenges the sufficiency of the evidence. This is “a legal

issue that we review de novo.” United States v. Jameson, 478 F.3d 1204, 1208

(10th Cir. 2007). The question is “whether taking the evidence—both direct and

circumstantial, together with the reasonable inferences to be drawn therefrom—in the

light most favorable to the government, a reasonable jury could find the defendant

guilty beyond a reasonable doubt.” Id. (internal quotation marks omitted). “[W]e do

not evaluate witness credibility or weigh conflicting evidence.” United States v.

Taylor, 592 F.3d 1104, 1108 (10th Cir. 2010).


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      The elements of a § 922(g)(1) violation are that: (1) Mr. Palmer was convicted

of a felony, (2) he later knowingly possessed a firearm or ammunition, and (3) such

possession was in or affected interstate commerce. See Jameson, 478 F.3d at

1208-09. Possession is the only element Mr. Palmer challenges. He asserts that

“[t]he evidence at trial showed that the house in which the items were found was

claimed by several parties, was frequently broken into and was frequently a

temporary home to transits [sic].” Aplt. Br. at 9. Given the evidence that he did not

have exclusive possession of the premises, he argues that the government failed to

establish his knowing possession of the firearm or ammunition.

      “As we have repeatedly held, possession can be actual or constructive.”

Jameson, 478 F.3d at 1209. The government pursued a theory of constructive

possession, which

      exists when a person knowingly holds the power and ability to exercise
      dominion and control over a firearm. When a defendant has exclusive
      possession of the premises on which a firearm is found, knowledge,
      dominion, and control can be properly inferred because of the exclusive
      possession alone. However, when two or more people occupy a given
      space[,] the government is required to meet a higher burden in proving
      constructive possession. In other words, in joint occupancy cases,
      knowledge, dominion, and control may not be inferred simply by the
      defendant’s proximity to a firearm. Instead, the government must
      present evidence to show some connection or nexus between the
      defendant and the firearm.

Id. (brackets, citations, and internal quotation marks omitted). For the sake of

argument, we assume the jury credited the testimony that many people besides

Mr. Palmer had access to the house, and we therefore analyze the sufficiency of the


                                         -5-
evidence under the more stringent joint-occupancy standards for constructive

possession, meaning that the government had to demonstrate a nexus between

Mr. Palmer and the firearm or ammunition. To uphold the conviction, it is sufficient

if there is a nexus with regard to either the firearm or the ammunition; the

government is not required to show both. See 18 U.S.C. § 922(g)(1) (prohibiting

possession of “any firearm or ammunition” (emphasis added)).

      At the least, there was sufficient evidence to demonstrate a nexus between

Mr. Palmer and the ammunition on the living room table. Law enforcement officials

testified that they expected to find Mr. Palmer at the house. When they executed the

warrant early in the morning, he was the only one there, wearing blue jeans but no

shirt. The house showed signs of occupancy, including a relatively fresh bowl of

pork and beans on the same table as the ammunition. Clothes associated with

Mr. Palmer and a briefcase with a paper addressed to him also were found in the

living room. As the government argued in closing, it was reasonable for the jury to

infer that Mr. Palmer was living at the house and had spent the night there. It also

was reasonable to infer that he would have known about the ammunition, which was

in plain sight on the table that he apparently was using. Although there was

testimony to the contrary, credibility determinations are the sole province of the jury.

See Taylor, 592 F.3d at 1108.




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                                 C. Jury Instructions

      Finally, Mr. Palmer argues that the district court should have instructed the

jury that the government must show that he knew that he was prohibited from

possessing a firearm and that he knew that the firearm and ammunition had a

substantial relation to interstate or foreign commerce. He recognizes that his

argument contradicts current Tenth Circuit law, which is that “the only knowledge

required for a § 922(g) conviction is knowledge that the instrument possessed is a

firearm.” United States v. Capps, 77 F.3d 350, 352 (10th Cir. 1996) (internal

quotation marks omitted). Although the mens rea requirements of § 922(g) have

recently been the subject of some debate in this circuit, see United States v.

Games-Perez, 695 F.3d 1104, 1116-25 (10th Cir. 2012) (Gorsuch, J., dissenting from

denial of rehearing en banc), cert. denied, 134 S. Ct. 54 (2013), “[w]e cannot

overrule the judgment of another panel of this court. We are bound by the precedent

of prior panels absent en banc reconsideration or a superseding contrary decision by

the Supreme Court,” United States v. Brown, 314 F.3d 1216, 1221 (10th Cir. 2003)

(internal quotation marks omitted).

      The judgment of the district court is affirmed.


                                                Entered for the Court


                                                Paul J. Kelly, Jr.
                                                Circuit Judge



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