                                                                                   FILED
                                                                       United States Court of Appeals
                                       PUBLISH                                 Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       November 14, 2017

                                                                           Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                             Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                           No. 15-6163

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.
                    _________________________________

      *
        The Honorable Neil. M. Gorsuch was an original member of the panel that
heard oral argument. He did not participate in the resolution of this case or the
preparation of this opinion due to his ascent to the United States Supreme Court. The
Honorable Carolyn B. McHugh replaced him on the panel.
       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.



                                           2
       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


       1
        All three documents were addressed to Benford. The W-2 statement and the
pharmacy receipt were addressed to Benford at 2600 SW 102nd Street, Oklahoma
City, Oklahoma. Benford’s mother had lived at that address three years before. The
Department of Human Services letter was addressed to Benford at 5304 Willow Cliff
Road (the general address for the apartment complex), Apartment 232.

                                           3
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

      2
        At trial, an inspector with the police department testified that the reference to
“12 ga.” indicated 12-gauge.
      3
        At trial, Benford disputed whether the reference to toys meant guns. But
defense witness Oteshia Butler, the mother of one of Benford’s sons, testified that in
the context of the text messages, toys probably meant guns.

                                           4
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.



                                         5
                                          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

                                          6
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

                                            7
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


      4
         In 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), we expressed
concern about Moran and the danger of unfair prejudice in allowing evidence of
earlier possession of firearms. We explained that courts should “be hesitant” to allow
this evidence because of its “great danger of unfair prejudice.” Id. We also noted
that other circuits have rejected evidence of possession of a different firearm because
that evidence served to establish only the defendant’s criminal disposition. Id.; see,
e.g., United States v. Moore, 709 F.3d 287, 295–96 (4th Cir. 2013) (“[E]vidence of
Moore’s possession of a different type of firearm, introduced via Rule 404(b), served
only to establish Moore’s criminal disposition and was therefore inadmissible.”).
While we expressed caution, we ultimately held the district court did not abuse its
discretion in admitting evidence of a prior conviction in Trent. 767 F.3d at 1050.
Moran remains the law of this circuit absent en banc reconsideration or a superseding

                                          8
      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

contrary Supreme Court decision. United States v. McGlothin, 705 F.3d 1254, 1263
n.13 (10th Cir. 2013).

                                          9
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 case.        In view of

Moran, we fail to see how the district court abused its discretion in admitting the

404(b) evidence.5 See Trent, 767 F.3d at 1049–50 (holding the “district court did not

abuse its discretion in admitting” evidence of earlier possession of a firearm to show

that the defendant had knowingly possessed firearm found in car).

                                         III.

      Benford contends the evidence was insufficient to support his conviction for

being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). We

review Benford’s insufficiency-of-the-evidence claim de novo.        United States v.

      5
         Here, the district court gave limiting instructions, advising the jury that it
could consider the evidence “only as it bears on the defendant’s knowledge of
possession of firearms and no other purpose.” R. Vol. 3 at 138. The district court
also instructed that even if Benford had committed similar acts, it “does not mean
that [he] necessarily committed the act charged in this case.” Id. Before the jury
deliberated, the district court again instructed the jury to consider the text messages
and Ms. Dibler’s testimony “only as it bears on the defendant’s knowledge.” R. Vol.
1 at 130.

                                          10
Morales, 758 F.3d 1232, 1235 (10th Cir. 2014). Evidence is sufficient to support a

conviction if, viewing the evidence and the reasonable inferences therefrom in the

light most favorable to the government, a reasonable jury could have found the

defendant guilty beyond a reasonable doubt. United States v. Gallant, 537 F.3d

1202, 1222 (10th Cir. 2008). We analyze the sufficiency of the evidence under the

law in effect at the time of trial. See United States v. Wacker, 72 F.3d 1453, 1465

(10th Cir. 1995) (concluding the evidence of “use” of a firearm under 18 U.S.C.

924(c) was sufficient under law governing at trial, but remanding for a new trial

because we were uncertain how a jury would decide the case if properly instructed

under the Supreme Court’s definition of “use” given after Wacker’s trial); see also

United States v. Houston, 792 F.3d 663, 669–70 (6th Cir. 2015) (measuring

sufficiency of evidence under the law and jury instruction given at trial, citing

Wacker among other circuit cases holding the same way).

      To support a conviction under 18 U.S.C. § 922(g)(1), the government had the

burden to prove beyond a reasonable doubt that (1) Benford was previously convicted

of a felony; (2) he thereafter knowingly possessed a firearm; and (3) the possession

was in or affecting interstate commerce. United States v. Colonna, 360 F.3d 1169,

1178 (10th Cir. 2004), overruled on other grounds by United States v. Little, 829

F.3d 1177 (10th Cir. 2016). The parties stipulated to the first and third elements, and

thus the only issue at trial was whether Benford knowingly possessed the Lorcin

firearm. Benford argues the evidence on this element was insufficient.



                                          11
      Possession under § 922(g)(1) may be either actual or constructive. Colonna,

360 F.3d at 1178. Because Benford did not actually possess the firearm at the time of

his arrest, the government argued he constructively possessed the firearm. At the

time of Benford’s trial, our controlling precedent declared that “[c]onstructive

possession exists when a person ‘knowingly holds the power and ability to exercise

dominion and control over [a firearm].’” United States v. Jameson, 478 F.3d 1204,

1209 (10th Cir. 2007) (second alteration in original) (quoting United States v. Lopez,

372 F.3d 1207, 1211 (10th Cir. 2004), abrogated by United States v. Little, 829 F.3d

1177 (10th Cir. 2016)). When a defendant has exclusive possession of the premises

on which a firearm is found, a jury may in most cases infer that a defendant has

knowledge, dominion, and control of a firearm based on that exclusive possession

alone. Jameson, 478 F.3d at 1209. But when, as here, a defendant jointly occupies

the premises on which the firearm is found, we have required the government to

show a nexus between the defendant and the firearm—specifically, that the defendant

had knowledge of and access to the firearm. Id.

      Viewing the evidence in favor of the government, we believe a reasonable jury

could easily conclude that Benford knew of and had access to the Lorcin pistol, and

thus, a jury could infer he had dominion and control of it. Officers searched the

apartment shortly after seeing Benford leave it, and Benford admitted that he lived

there with his girlfriend. Officers seized the pistol after finding it in the open front

pouch of a computer bag within two-and-a-half feet of Benford and Ms. Galloway’s

bed and in the same room as Benford’s personal belongings. See United States v.

                                          12
Ledford, 443 F.3d 702, 705, 714–17 (10th Cir. 2005) (affirming constructive

possession of a firearm found in a dresser in the bedroom Ledford occupied with his

wife, but the wife referred to the dresser as Ledford’s), abrogated by United States v.

Little, 829 F.3d 1177 (10th Cir. 2016); United States v. Hien Van Tieu, 279 F.3d 917,

922 (10th Cir. 2002) (affirming constructive-possession conviction where firearm

was found in bedroom in which defendant slept and stored his personal effects, even

though the door had no lock and other family members and friends lived in the

residence), abrogated by United States v. Little, 829 F.3d 1177 (10th Cir. 2016).

      Further, Benford’s own words help prove that he knew the pistol was in the

apartment. When told that police had found the pistol, Benford was unfazed, telling

the officer, “I guess I’ll have to take the charge.” R. Vol. 3 at 74. Though Benford

could have meant different things by that statement, the jury could reasonably have

viewed Benford’s statement as an admission that he knew the Lorcin pistol was in the

apartment and that he had full access to it there. Based on Ms. Dibler’s testimony,

the jury could likewise reasonably conclude that, since Benford directed his girlfriend

to “go get a gun” from the apartment three weeks earlier, he also knew of and had

access to the Lorcin firearm in the bedroom. Similarly, a jury could rely in part on

Benford’s text messages from three months earlier indicating he had guns to trade for

a motor to likewise bolster its conclusion that Benford knew of and had access to the

Lorcin pistol.

      Viewing this evidence in favor of the government, we conclude that a

reasonable jury could find beyond a reasonable doubt that Benford knew the pistol

                                          13
was in the apartment and that he had power to exercise dominion or control over it.

Thus, under the law in effect at the time of trial, the government presented sufficient

evidence to sustain the jury’s finding that at arrest Benford knowingly had

constructive possession of the pistol.

                                          IV.

      Benford’s final argument is that the district court improperly instructed the

jury on constructive possession when it failed to instruct that Benford must have

intended to exercise control over the pistol. In United States v. Little, 829 F.3d 1177

(10th Cir. 2016), we explained that the Supreme Court’s decision in Henderson v.

United States, 135 S. Ct. 1780 (2015), “change[d] the law of constructive possession

in our circuit” so that “constructive possession requires both the power to control an

object and intent to exercise that control.” 829 F.3d at 1182 (emphasis added).

Because Benford’s case is on direct appeal, Benford gets the benefit of Little’s ruling.

Griffith v. Kentucky, 479 U.S. 314, 328 (1987).

      Benford did not raise the jury-instruction error before the district court. We

thus review for plain error.6 United States v. Gonzalez-Huerta, 403 F.3d 727, 736

(10th Cir. 2005) (en banc) (rejecting in the criminal context the argument that an

intervening Supreme Court decision that alters well-settled law precludes plain-error


      6
          Because we decided Little after the parties’ original briefing, Benford
submitted a letter under Fed. R. App. P. 28(j) arguing that the government had
presented insufficient evidence to prove intent to exercise dominion or control. After
arguments, we requested supplemental briefing on the question whether any jury-
instruction error would satisfy the plain-error standard.

                                          14
review). Benford must establish that the district court committed error that is plain

and that the error affects his substantial rights. Molina-Martinez v. United States,

136 S. Ct. 1338, 1343 (2016). We may then exercise our “discretion to correct the

forfeited error if the error ‘seriously affects the fairness, integrity or public reputation

of judicial proceedings.’” Id. (quoting United States v. Olano, 507 U.S. 725, 736

(1993)). We apply plain error “less rigidly when reviewing a potential constitutional

error,” United States v. James, 257 F.3d 1173, 1182 (10th Cir. 2001), which is the

case here because “an improper instruction on an element of the offense violates the

Sixth Amendment’s jury trial guarantee,” Neder v. United States, 527 U.S. 1, 12

(1999).

                                            A.

       We agree with the parties that Benford has satisfied the first two prongs of the

plain-error analysis.     The district court instructed the jury that constructive

possession exists when a person “knowingly has the power at a given time to exercise

dominion or control over an object, either directly or through another person or

persons.” Vol. 1 at 125. Little is clear, however, that constructive possession also

requires intent to exercise control. 829 F.3d at 1182. The district court’s omission of

the intent element is error, and that error is “clearly contrary to the law at the time of

appeal.” Johnson v. United States, 520 U.S. 461, 468 (1997) (stating “where the law

at the time of trial was settled and clearly contrary to the law at the time of appeal[,]

it is enough that an error be ‘plain’ at the time of appellate consideration”).



                                            15
                                            B.

       We turn to the third prong of the plain-error analysis: whether the instructional

error affected Benford’s substantial rights. To make this showing, Benford has the

burden to “‘show a reasonable probability that, but for the error,’ the outcome of the

proceeding would have been different.”           Molina-Martinez, 136 S. Ct. at 1343

(quoting United States v. Dominguez Benitez, 542 U.S. 74, 76, 82 (2004)). This

reasonable probability standard does not require Benford to prove by a

preponderance of the evidence that, but for the error, the outcome would have been

different. Dominguez Benitez, 542 U.S. at 84. Instead, “[a] reasonable probability is

a probability sufficient to undermine confidence in the outcome.” United States v.

Wolfname, 835 F.3d 1214, 1222 (10th Cir. 2016) (quoting United States v. Rosales-

Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)). “When a district court gives a legally

incorrect jury instruction on the principal elements of the offense or a defense, we often

have concluded that the legal error affected the outcome of the trial proceedings.” United

States v. Duran, 133 F.3d 1324, 1333 (10th Cir. 1998). A comparison of our recent cases

addressing the new intent element with the strength of the evidence in this case leads us

to conclude a reasonable probability exists that, had the jury been instructed on the intent

element, it would not have convicted Benford.

       In United States v. Little, we held that the district court’s error in omitting the

intent-to-exercise-control element of constructive possession was harmless error because

the evidence at trial compelled the conclusion that Little intended to exercise control over

the weapons. 829 F.3d at 1179. Officers arrived at Little’s residence to investigate a tip

                                            16
that Little had stolen seven firearms from a local firearms shop. 829 F.3d at 1180. After

speaking with the owner of the property, and seven-and-a-half minutes after arriving on

the scene, an officer saw Little exit the six-by-eight foot well house he rented and in

which he resided. Id. When the officers executed a search warrant on the well house,

they saw shotgun shells on a shelf below eye level and two firearms that matched guns

stolen in the burglary, including a loaded assault rifle inside a duffel bag under or inside a

sleeping bag on the bed and a shotgun under the bed. Id. At trial, the property owner

testified that the last time she entered the well house was a week after Little moved in;

that she saw Little access the well house on a daily basis but never saw anyone else enter;

that Little installed a lock on the well house door about a week before the search and that

he did not give her a key; and that when she showed Little the police inventory report

after the search, he responded, “They only found two?” Id. at 1180–81. (alteration in

original omitted). But the officers did not recall seeing a lock on the well-house door,

and the door was unlocked when they searched it. Id. A jury convicted Little for

being a felon in possession of the firearms and ammunition from the well house. Id.

       At trial and again on appeal, Little argued the district court erred by failing to

instruct the jury that it must find he intended to exercise dominion or control of the

firearms and ammunition. Id. at 1182. Relying on Henderson, we agreed the district

court erred in its constructive-possession instruction. Id. at 1183. We reviewed for

harmless error since Little preserved his challenge, which required us to analyze

“whether it appears beyond a reasonable doubt that the error complained of did not

contribute to the verdict obtained.” Id. at 1183 (quoting United States v. Sorensen,

                                             17
801 F.3d 1217, 1229 (10th Cir. 2015)).         But because the government did not

“thoroughly develop[] its harmlessness argument,” we could affirm “only if the

harmlessness of the error [wa]s certain.” Id. at 1183 n.4. Still, we affirmed Little’s

conviction, concluding “a reasonable jury would be compelled to conclude that Little

intended to exercise control over the weapons” based on the following:

(1) substantial evidence that Little had exclusive possession of the well house and

was its sole occupant; (2) Little’s comment to the property owner indicating he was

surprised the officers found only two firearms after their search; (3) the officers’

seeing Little leave the small well house after being in it for seven-and-a-half minutes;

and (4) the plainly visible ammunition and the weapons on and under Little’s bed.

Id. at 1183. We explained that, generally, a jury may (but does not have to) infer

constructive possession when a defendant has exclusive control of the premises in

which the firearm is found, but in the specific circumstances in that case, we had no

doubt a jury would find Little intended to control the ammunition and firearms in the

well house. We concluded “there is no reasonable possibility that the jury would

have found that Little had knowledge of the weapons at issue but lacked intent to

exercise control over them.” Id.

      Although we review here for plain error rather than harmless error, we are not

left with the same certainty that a jury would be compelled to find Benford intended

to exercise control over the Lorcin pistol.       Instead, the comparatively weaker

evidence on intent undermines our confidence in the outcome.          The government

contends the same evidence that convinced the jury that Benford knew of and had

                                          18
access to the Lorcin pistol also leads to the conclusion that he intended to exercise

control of it, including (1) Benford’s “admission” that he possessed the firearm when

he said, “I guess I’ll have to take the charge”; (2) the pistol’s presence in the open

pouch of a computer bag in the jointly-occupied bedroom; and (3) during an

altercation in the apartment complex nineteen days before Benford’s arrest, he told

Ms. Galloway to “go get a gun” from the apartment, indicating he intended to control

any firearms in the apartment. We agree that a reasonable jury could conclude from

this evidence that Benford intended to exercise control, but we also think a

reasonable jury could conclude that he did not. For example, Benford’s lack of

surprise upon hearing about the Lorcin pistol is a strong indication he knew the

firearm was in the bedroom, but a jury might not make the additional step to

conclude that he also intended to exercise control over it. And although the officer

who heard Benford say, “I guess I’ll have to take the charge” viewed that statement

as an admission that he possessed the firearm, he also acknowledged that there are

“infinite possibilities” for what Benford may have meant. R. Vol. 3 at 86. Benford’s

statement leaves us with more questions about intent than Little’s surprise that

officers found only two firearms during their search.

      Casting even more doubt on Benford’s intent to exercise control over the pistol

is the fact that he jointly occupied the bedroom, as compared to Little’s exclusive

possession of the small well house. Even before Little, we distinguished between

cases in which a defendant solely occupies a space where the firearm is found versus

those in which he jointly occupies the space with others.         A jury may infer

                                          19
knowledge, dominion, and control over the firearm in the former situation based on

exclusive possession of the premises alone, but in the latter, the government must

meet a higher burden and present some connection or nexus between the defendant

and the firearm. Jameson, 478 F.3d at 1209. After Little, a jury may infer in sole

occupancy cases not only knowledge, dominion, and control, but also that a

defendant intends to control the firearm found there. 829 F.3d at 1183 (“Exclusive

control over the premises allows the jury to infer the knowledge and intent to control

objects within those premises . . . .” (quoting United States v. Griffin, 684 F.3d 691,

695 (3d Cir. 2012)). Because this case, unlike Little, involves joint occupancy, the

government could not rely on Benford’s occupancy of the bedroom alone to show

knowledge, dominion, control, or intent. See Jameson, 478 F.3d at 1209 (“[W]here

the defendant in a joint occupancy situation has knowledge of and access to the

weapons, there is a sufficient nexus to infer dominion and control.”).             The

government points to the fact that the computer bag was plainly visible in the

bedroom, near the bed, and that officers could see the gun inside the open front

pouch of the bag when standing over it. See id. at 1210 (noting that a pistol in plain

view and which the defendant could easily retrieve was evidence of his knowledge of

and access to the pistol). The jury could reasonably conclude from this evidence that

Benford knew of and had access to the firearm—and in fact the jury made just that

conclusion when it convicted Benford under our pre-Little standards—but a properly

instructed jury would not be compelled to also conclude Benford intended to exercise

control over the firearm based on this evidence. Take, for example, another item

                                          20
officers found plainly visible in the bedroom: Ms. Galloway’s purse, which officers

found on top of the bed. Given the fact that the purse was plainly visible on the bed

in a bedroom Benford shared with Ms. Galloway, one could easily conclude Benford

knew of and had access to it, but it is harder to say that Benford also intended to

exercise control over it. A jury might likewise question whether Benford intended to

exercise control over the small silver pistol with pink grips. Given the comparatively

weaker evidence of intent here than in Little, we conclude a reasonable probability

exists that a properly instructed jury would not convict Benford of constructively

possessing the Lorcin pistol, and thus, the jury instruction error affected Benford’s

substantial rights. See Duran, 133 F.3d at 1330 (“A plainly erroneous jury instruction

affects a defendant’s ‘substantial rights’ if the instruction concerns a principal element of

the defense or an element of the crime, thus suggesting that the error affected the

outcome of the case.”).

       Our decision is further bolstered following our decision in United States v.

Simpson, 845 F.3d 1039, 1060 (10th Cir. 2017).            In that case, a jury convicted

Simpson on numerous counts of being a felon in possession after police found a

variety of firearms and ammunition in Simpson’s house. 845 F.3d at 1043. On

appeal, Simpson challenged the omission of the intent element from the jury

instructions defining constructive possession.         Id. at 1059–60.       Simpson, like

Benford, failed to object before the district court, and we thus reviewed for plain

error, focusing primarily on whether Simpson carried his burden to show the

instructional error affected his substantial rights. Id. at 1060. On two counts related

                                             21
to unlawful possession of a loaded shotgun that police found inside Simpson’s

garage, we concluded “a properly instructed jury would probably have arrived at the

same result” because an officer testified that “Simpson had admittedly held the

shotgun and tried to sell it about a month prior to his arrest,” within the time period

charged in the indictment. Id. at 1061 & n.16. But we reversed on ten other counts

related to firearms and ammunition that police found in an unlocked safe and on a

desk in Simpson’s basement, in the kitchen cabinets and on top of the refrigerator,

and under the driver’s seat of a car registered to Simpson’s wife. Id. at 1061. We

first expressed doubt as to whether a properly instructed jury would have convicted

Simpson since he “jointly occupied each of these locations with his wife, and visitors

had access to these places.” Id. We went on to explain that, despite evidence that

Simpson admitted holding the handguns, there was “little evidence” regarding when

he did so except for an occasion two months before his arrest, and thus, the jury

could have concluded Simpson “handled the handguns at a time different than that

alleged in the indictment.” Id. at 1062. We concluded the failure to instruct the jury

not only affected Simpson’s substantial rights, but also affected the fairness,

integrity, or public reputation of the judicial proceedings “because the government’s

evidence on intent was not overwhelming.” Id. at 1062–63.

      We find Simpson helpful to make the point that, in joint occupancy cases,

sufficient evidence that the defendant knew of and had access to firearms may not be

sufficient to also show he intended to exercise dominion and control of them. As

Simpson and his wife jointly occupied the locations where police found the firearms

                                          22
and ammunition, so too Benford jointly occupied the bedroom where police found the

Lorcin pistol. And the fact that we reversed for a new trial in Simpson even when

there was evidence Simpson had previously handled the same firearms and

ammunition as that charged in the indictment seriously undermines the probative

value of evidence that Benford had handled a different firearm from the apartment

approximately three weeks before Benford’s arrest. But on this point, we write with

caution.

      Constructive possession by definition is “not actual possession.”           See

Henderson, 135 S. Ct. at 1784 (“Actual possession exists when a person has direct

physical control over a thing. Constructive possession is established when a person,

though lacking such physical custody, still has the power and intent to exercise

control over the object.” (emphasis added) (citations omitted)). Yet Simpson seemed

to require actual possession to prove constructive possession when it said a jury

could have concluded that Simpson “handled” or “held” the firearms and ammunition

“at a time different than that alleged in the indictment.” 845 F.3d at 1062. This

strikes us as a departure from Little, which never required or even mentioned the

defendant’s actual handling of the firearms or ammunition to prove he intended to

exercise control over them. And while evidence that the defendant actually handled a

firearm outside the indictment period does not suffice to show actual possession, it

may provide circumstantial evidence of the ability and intent to exercise control over

the firearm necessary to establish constructive possession. We are concerned that

Simpson may have conflated these concepts and thereby created an intra-circuit split

                                         23
regarding the evidence required to demonstrate intent to control. But we need not

resolve this tension because we conclude under Little that the failure to instruct the

jury on intent affected Benford’s substantial rights.

                                            C.

       Finally, we consider whether we should exercise our discretion to notice

Benford’s forfeited error, specifically, whether the error affected the fairness,

integrity, or public reputation of the trial. “[A] district court’s failure to instruct the

jury on an essential element of the crime charged won’t always satisfy the fourth

prong of the plain-error test,” but we have before noted that reversal is appropriate

when evidence supporting the omitted element is “neither overwhelming nor

uncontroverted.”     Wolfname, 835 F.3d at 1223.           The plainly erroneous jury

instruction here may have allowed the jury to convict without requiring the

government to prove all elements of the crime beyond a reasonable doubt. “In light

of the revered status of the beyond-a-reasonable-doubt standard in our criminal

jurisprudence, a jury instruction that allows a conviction where one important

element may not have been found against the defendant by such a standard cannot be

overlooked.” Duran, 133 F.3d at 1334. We will thus exercise our discretion to

notice the forfeited error and will remand for a new trial.

                                            V.

       For these reasons, we affirm the district court’s admission of evidence under

Rule 404(b) and its denial of Benford’s motions for acquittal, but reverse for a new

trial based on the plainly erroneous jury instruction.

                                            24
15-6163, United States v. Benford

PHILLIPS, Circuit Judge, dissenting.

         I agree with the majority’s analysis until it reaches the third prong of plain-error

review in section IV.B. At that stage, I would conclude that Benford has failed to meet

his burden to show a reasonable probability that the jury would have acquitted him, if

properly instructed on constructive possession. Nothing undermines my confidence in the

outcome.

         In resolving this issue, the first step should be to determine what it means for a

person to intend to exercise control or dominion over a firearm.1 I see three ways for a

person to have that intent. First, a person can intend to actually possess the firearm.

Second, a person can intend to direct another person’s use of the firearm. See Henderson

v. United States, 135 S. Ct. 1780, 1784–85 (2015) (observing that 18 U.S.C. § 922(g)

prevents a felon from actually possessing firearms, from maintaining control over those

firearms in the hands of others, and from directing the use of the firearms after

transferring them). And third, a person can intend to exercise command over the location

of the firearm. United States v. Little, 829 F.3d 1177, 1182 (10th Cir. 2016) (noting that

Henderson “observed that ‘the very hallmark of possession’ is that a defendant have

‘broad [ ] command over the gun’s location and use’” (alteration in original) (quoting

Henderson, 135 S. Ct. at 1785 n.3)).

         Under each alternative way, I see a strong likelihood the jury would have found

that Benford intended to exercise control over the Lorcin pistol. In analyzing the intent-

1
    I am uncertain what standard the majority opinion uses to measure this element.
to-control element, I rely primarily on the evidence supporting the jury’s finding that

Benford knew about the pistol and had power to exercise control of it. I evaluate the

evidence to see whether a jury might realistically believe that Benford was merely

cohabitating with a girlfriend who brought home a firearm in disregard of Benford’s

desire never to be near another firearm. I consider whether Benford was merely a gun-

leery felon tolerating the firearm’s presence while steering clear of it. Here, the evidence

shows a strong unlikelihood that the jury would have believed that Benford fit that

description.2

       The jury heard considerable evidence that bore on Benford’s intent to exercise

control or dominion over firearms. It heard about his earlier felon-in-possession

conviction for actually possessing a firearm.3 It read his recent cell-phone texts hinting

that he had firearms to barter for a motor. And it heard evidence that he had ordered the

same girlfriend to retrieve a different handgun from the same apartment just nineteen

days before his arrest—to better threaten a family walking its dog. During this pistol-

2
 In Little, the court gave a hypothetical to illustrate when a person with power to exercise
control over a firearm would not have intent to do so. Under the court’s hypothetical, a
neighbor gives a felon friend a house key to watch over the neighbor’s home. 829 F.3d at
1183. Even though the felon knows that the neighbor has a firearm in his house, the Little
court explained that the government would need to show more than that to prove an
intent to exercise control over the firearm. Id. The hypothetical differs greatly from
Benford’s situation.
3
  Though I’m not sold on the reasoning of United States v. Moran, 503 F.3d 1135 (10th
Cir. 2007), that the government may admit evidence of a felon’s relatively ancient felon-
in-possession conviction under Fed. R. Evid. 404(b) to help show the defendant’s
knowledge of a different firearm years later, I accept that the precedent binds us. But I
find it much easier to see the probative value of an earlier felon-in-possession conviction
to show that the felon intended to control a firearm in plain view on his shared bedroom
floor.
                                              2
pointing encounter, Benford hit an intent-to-exercise-control triple—he handled a

firearm; he directed his girlfriend to get the gun and carry it to him from the apartment;

and he exercised command over the gun’s location, the apartment where he obviously

had kept it for just such an occasion. Despite this potent evidence, the majority apparently

feels that the jury might have believed that within three weeks of this gun-wielding

behavior, Benford had reformed into a gentler soul, one no longer intending to exercise

control over a firearm, not even a pistol lying in an opened bag on his bedroom floor.4

       I disagree with how the majority applies Little, 829 F.3d 1177. That case is an

important one because it involved the same constructive-possession instructional error as

here. But Little came to us in a much different posture. Unlike Benford, Little objected to

the district court’s failing to instruct on intent to exercise control of the firearms. Id. at

1183. Thus, unlike here, the government bore the burden to prove that the resulting

constitutional error (failure to instruct on an element of an offense) was harmless beyond

a reasonable doubt. Id. And the government’s burden grew even more stringent after it

failed to argue harmless error on appeal. To affirm, the court in Little had to find to a

certainty that the error had been harmless, that is, that the error was harmless beyond any

doubt. Id. n.4. And Little did just that, reasoning that the evidence would have compelled



4
 The majority finds it important that the pistol is “little” and has pink grips. Maj. Op. at
21. Whether the pistol matched a macho-man profile, it remained effective as a means by
which to threaten or harm others. In searching the apartment, police did not find the
handgun that Benford had used nineteen days earlier, so we don’t know whether it more
matched the majority’s view of what a pistol Benford would intend to exercise control
over should look like. The evidence showed that Benford liked having a firearm in the
apartment and that on the date of arrest the Lorcin pistol was the sole firearm there.
                                                3
the jury to find that Little had intended to exercise control or dominion over the firearms.

Id.

       The majority errs in attributing this same burden to the government here. Though

acknowledging that Benford has the burden to show plain error, the majority declares in

the same sentence that “we are not left with the same certainty that a jury would be

compelled to find Benford intended to exercise control over the Lorcin pistol.”5 Maj. Op.

at 19. But the majority need not be convinced that the government would prevail under a

harmless-beyond-any-doubt standard to affirm Benford’s conviction on the plain-error

standard. Instead, the majority need be persuaded only that Benford has not met his

burden to show a reasonable probability that the jury would have acquitted if properly

instructed.

       In analyzing whether Benford has met his burden to show plain error, the majority

then compares the facts in Little to those in Benford’s case. It finds that Little’s facts

better show intent to exercise control of firearms, primarily relying on Little’s sole

occupancy of the rented six-by-eight-foot well house where the firearms and ammunition

were found. It contrasts Little’s sole occupancy with Benford and his girlfriend’s joint

occupancy of the apartment bedroom. From this joint occupancy, as I understand it, the

majority concludes that Benford has shown a reasonable probability that the jury may

have found that his girlfriend exclusively intended to control the firearm, not even jointly



5
 Along the same line, the majority later says that “a properly instructed jury would not
be compelled to also conclude Benford intended to exercise control over the firearm
based on this evidence.” Maj. Op. at 21.
                                               4
possessing it with Benford. If Benford and his girlfriend both intended to control the

pistol, then I believe that the majority would have to affirm Benford’s conviction.6

       For the reasons given, I do not believe it at all likely that the jury would have

found the girlfriend exclusively intended to exercise control over the pistol. A cohabitant

intending to exercise exclusive control, especially one who lives with a felon partial to

using guns during sidewalk confrontations, would not leave the pistol in plain view in the

shared bedroom. And, as mentioned, Benford’s past actions showed the jury that he, not

the girlfriend, was the household member who liked to control firearms. His bartering

firearms and using a handgun to threaten a family walking its dog exceeds Little’s own

actions. In short, the jury had no reason to believe that in nineteen days Benford had

morphed from a violent, shrieking man into a shrinking-violet man. Nor did the jury have

any reason to believe that Benford’s girlfriend had morphed from a submissive woman

dutifully obeying Benford’s snapped orders get him the gun, into a dominant woman

exclusively intending to exercise control of the Lorcin pistol.

       But that does not end our work. In a Rule 28(j) letter, Benford points us to United

States v. Simpson, 845 F.3d 1039 (10th Cir. 2017). In Simpson, we faced another case

where the district court had failed to instruct on the intent-to-exercise-control element of

constructive possession. Id. at 1045, 1059–60. At the third prong of the plain-error


6
  The majority believes it important that the girlfriend’s purse was found in plain view on
top of the bed, apparently reasoning that if Benford had power to exercise control over it
but no intent to do so, that somehow bears on whether he intended to exercise control
over the Lorcin pistol. Maj. Op. at 21. I don’t follow the majority’s logic on this. Plainly,
the purse belonged to the girlfriend, and she would be free to carry it lawfully in public
and be expected to do so.
                                              5
analysis, the court in Simpson determined that the defendant had shown a reasonable

probability that a properly instructed jury would have reached a different outcome. Id. at

1062. The court based this result on two findings: (1) “the jury could have concluded that

Mr. Simpson had not handled the handguns on or about June 19, 2014,” and (2) this

being so, “the jury could reasonably have concluded that Mr. Simpson had not intended

to possess the handguns and ammunition on or about the applicable dates.” Id.7 In its next

sentence, the court declared that “[i]n these circumstances, the instructional error affected

Mr. Simpson’s substantial rights . . . .” Id.

       So Simpson says that a jury might well have believed that the defendant did not

intend to exercise control of the firearms within the times charged in the indictment,

unless the government offered evidence that he had actually possessed them (i.e., handled

them) during that time. And because the government had shown only that the defendant

had handled the firearms about two months before the arrest (when he was showing his

wife how to shoot them), Simpson reversed those convictions. In Benford’s case, the

government can’t show so much. Benford didn’t expressly admit ever handling the

Lorcin pistol. Under Simpson, I can’t see how Benford would not prevail on plain-error’s


7
  In my view, this analysis is mistaken. It ties actual possession (i.e., handling) of a
firearm to constructive possession’s intent to exercise control of it (describing this as
intent “to possess”). It fails to weigh the government’s evidence of intent to exercise
control of the firearms in evaluating whether the defendant had met his burden to show a
reasonable probability of a different outcome. It turns the proper analysis sideways,
essentially requiring the government to show actual possession (handling) during the
dates charged. Instead, the court should have required Simpson to show a reasonable
probability of an acquittal on the intent-to-exercise-control element, fully considering the
effect of his handling the firearms near the charged dates as well as having the firearms
and ammunition strewn throughout his and his wife’s house.
                                                6
prejudice prong.8 It would not matter how much evidence the jury heard showing intent

to exercise control of the pistol.

       In Little we affirmed a conviction beset with the same instructional error. And

despite the government’s not having shown that the defendant actually possessed the

firearms and ammunition during the time charged in the indictment, we affirmed Little’s

conviction on constructive-possession grounds. See 829 F.3d at 1183. So I would apply

Little, not Simpson. See United States v. Rosales-Miranda, 755 F.3d 1253, 1261 (10th

Cir. 2014) (“It is axiomatic that ‘when faced with an intra-circuit conflict, a panel should

follow earlier, settled precedent over a subsequent deviation therefrom.’” (quoting

Haynes v. Williams, 88 F.3d 898, 900 n.4 (10th Cir. 1996))). And based on my earlier

expressed views on Little, I would conclude that Benford has not met his burden to show

a reasonable probability of a different outcome had the jury received the proper

instruction.

       For all reasons stated, I would affirm Benford’s conviction.




8
  In fact, in cases like Little, Simpson, and this one (those with a constructive-possession
instruction not including intent to exercise control as an element), I can’t see any case
that wouldn’t meet the first three prongs of the plain-error analysis. After all, if the
government had shown actual possession of the firearms, the jury would have convicted
on that basis, and the constructive-possession issue would never have arisen, especially
on appeal.
                                              7
