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

                            FOR THE TENTH CIRCUIT                          February 15, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,                                  No. 18-2033
                                                    (D.C. No. 5:15-CR-03947-RB-1)
 v.                                                        (D. New Mexico)

 MIA COY CAMPBELL,

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before TYMKOVICH, Chief Judge, BACHARACH, and McHUGH, Circuit Judges.
                 _________________________________


      A jury convicted Mia Coy Campbell of felony possession of a firearm, in

violation of 18 U.S.C. § 922(g)(1), after police seized a revolver from the backyard

of his residence. On appeal, Mr. Campbell argued the trial court had plainly erred in

instructing the jury on constructive possession by failing to inform the jury that it

could convict only after finding Mr. Campbell intended to exercise dominion or



      *
        After examining the briefs and appellate record, this panel determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
control over the revolver. We affirm the district court’s ruling that the erroneous jury

instruction did not amount to reversible plain error.

                               I.     BACKGROUND

                             A.     Factual Background

      In 2015, a team of Pecos Valley Drug Task Force (“PVDTF”) officers

executed an arrest warrant on Mr. Campbell. Officer Jorge Martinez located

Mr. Campbell in the backyard of his residence, ten to fifteen feet away from a

partially disassembled go-cart. Officer Martinez ordered Mr. Campbell to the ground,

Mr. Campbell complied, and Officer Martinez effectuated the arrest. In doing so,

Officer Martinez observed that Mr. Campbell’s hands were “greasy” as if “he was

working on a car.” Suppl. ROA, Vol. 3 at 120–21. Officer Martinez also found a

package of Marlboro Red cigarettes while conducting a pat-down search of Mr.

Campbell’s person.

      Meanwhile, other officers performed a protective sweep of the backyard and

the residence. In the course of that sweep, Officer David Whitzel observed a

smoldering Marlboro Red cigarette near the go-cart. Also near the go-cart and

cigarette was a partially-open bag Officer Whitzel described as a “cloth-like

toolbox.” Id. at 144–45. When Officer Whitzel bent down to take a closer look at the

cigarette, he saw the butt end of a revolver in the bag. He retrieved the revolver from

the bag, which also contained various tools, and determined the gun was loaded.

Aware that Mr. Campbell was a convicted felon, officers then obtained a warrant to

search the premises.

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          A more thorough search of the area around the go-cart revealed (1) a container

of nuts and bolts under an axle of the go-cart, and (2) several sockets and tools on the

ground behind the rear of the go-cart. An officer who observed the go-cart described

it as “disassembled.” Id. at 177. It further appeared that a coat of paint had recently

been applied to the go-cart, and a search of a trash can revealed an empty bottle of

spray paint, with drippings on the bottle’s lid. Finally, from the right rear tire of the

go-cart, officers recovered a cellphone, which was powered on.

          A search of the residence revealed two relevant pieces of evidence. First,

between the cushions of a couch, officers discovered an empty holster, sized

appropriately for the revolver found in the tool bag. Second, officers found several

legal documents bearing Mr. Campbell’s name, including Mr. Campbell’s birth

certificate. While officers performed this search, Mr. Campbell’s girlfriend arrived at

the residence. Other than the girlfriend and Mr. Campbell, officers did not observe

anyone in the residence or on the property. Nor did officers observe anyone fleeing

the property when they surrounded the front of the residence prior to Mr. Campbell’s

arrest.

          While inspecting the area outside the residence, officers noticed a Jeep with its

hood popped open. It did not appear to the officers that anyone had been working on

the Jeep that morning. And a photo taken two days before Mr. Campbell’s arrest also

showed the Jeep with its hood open at 2:00 a.m., suggesting the open hood did not

necessarily indicate someone was currently working on the car. Instead, based on

their observations and the evidence collected, PVDTF officers concluded

                                              3
Mr. Campbell had been working on the go-cart prior to his arrest, even though none

of them actually observed Mr. Campbell doing so.

                               B. Procedural Background

      The government charged Mr. Campbell as a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Prior to trial, both parties submitted proposed jury

instructions. Mr. Campbell proposed the following instruction on actual and

constructive possession, modeled after Tenth Circuit Criminal Pattern Jury

Instruction § 1.31 (2011):

             The law recognizes two kinds of possession: actual possession
      and constructive possession. A person who knowingly has direct
      physical control over an object or thing, at a given time, is then in actual
      possession of it.
             A person who, although not in actual possession, knowingly has
      the power at a given time to exercise dominion or control over an
      object, either directly or through another person or persons, is then in
      constructive possession of it.
             In the situation where the object is found in a place (such as a
      room or car) occupied by more than one person, you may not infer
      control over the object based solely on joint occupancy. Mere control
      over the place in which the object is found is not sufficient to establish
      constructive possession. Instead, in this situation, the government must
      prove some connection between the particular defendant and the object.
             In addition, momentary or transitory control of an object is not
      possession. You should not find that the defendant possessed the object
      if he possessed it only momentarily, or did not know that he possessed
      it.

      The district court issued Mr. Campbell’s proposed instruction on actual and

constructive possession to the jury, and the jury convicted Mr. Campbell of felony

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




                                           4
      After Mr. Campbell’s trial, this court decided United States v. Little, 829 F.3d

1177 (10th Cir. 2016), relying on Henderson v. United States, 135 S. Ct. 1780

(2015), and holding the government must prove intent to exercise dominion or

control over a firearm to establish constructive possession for purposes of

§ 922(g)(1). Little, 829 F.3d at 1182. Based on Little, Mr. Campbell moved for a new

trial, arguing his jury had not been properly instructed on constructive possession and

that this error satisfied the plain-error standard. In response, the government admitted

the error but argued it was not plain at the time of Mr. Campbell’s trial because

“Little overruled well-settled Tenth Circuit law and repudiated the widely used Tenth

Circuit Pattern Jury Instruction § 1.31 (2011).” Suppl. ROA, Vol. 1 at 176. The

government also contended Little had relied on “dicta” from Henderson and stated

that “the Supreme Court’s opinion in Henderson did not constitute a clear marker that

the law of constructive possession had changed in the Tenth Circuit.” Id. at 178.

      The district court denied Mr. Campbell’s motion for a new trial. The court

concluded that although Mr. Campbell had satisfied the first two prongs of the

plain-error standard, he could not satisfy the third and fourth prongs—requiring a

showing that the error “affects his substantial rights” and “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” Id. at 221. The

district court reasoned that where the trial record “overwhelmingly demonstrates that

[Mr. Campbell] constructively, if not actually, possessed the firearm” the instruction

could not “rise to the level of harmful error.” Id. at 220. Mr. Campbell timely

appealed.

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                                 II.    DISCUSSION

      On appeal, Mr. Campbell contends the district court erred in finding harmless

the court’s failure to issue a Little- and Henderson-compliant instruction on the intent

element of constructive possession. We disagree.

      As a preliminary matter, the government argues on appeal that Mr. Campbell

waived review of this issue by proposing the very instruction on actual and

constructive possession that he now challenges as erroneous.1 See United States v.

Deberry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“The invited-error doctrine prevents

a party who induces an erroneous ruling from being able to have it set aside on



      1
         The government’s stance on this issue took a drastic turn between
Mr. Campbell’s post-trial motion and this appeal. As discussed above, in its response
to Mr. Campbell’s motion for a new trial, the government argued that Little, not
Henderson, changed the law on constructive possession. Therefore, the government
continued, Mr. Campbell (who was tried after Henderson but before Little) could not
establish that any error in his instructions was plain at the time of trial. Now, on
appeal, the government reverses course, arguing that Henderson changed the law, and
thus the instruction on actual and constructive possession that Mr. Campbell urged
the district court to adopt “did not comport with settled law” at the time. Gov’t. Br. at
9, 11.
       Several opinions of this court, including the opinion in United States v.
Simpson, would have supported the government in its original position. See Simpson,
845 F.3d 1039, 1060 (10th Cir. 2017) (“[T]he law changed when our court [in Little]
held that constrictive possession contains an additional element: intent.”). Because
the defendant in Simpson was tried and convicted before the opinions in both
Henderson and Little, however, the court in Simpson had no reason to decide which
case had changed the law. Therefore, any such statements in Simpson were dicta. See
Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1184 (10th Cir.1995) (defining dicta as
“statements and comments in an opinion concerning some rule of law or legal
proposition not necessarily involved nor essential to determination of the case in
hand” (quoting Dicta, Black’s Law Dictionary 454 (6th ed. 1990)).


                                           6
appeal.” (internal quotation marks omitted)); United States v. Jereb, 882 F.3d 1325,

1339 (10th Cir. 2018) (finding invited error where defendant “meaningfully

participated in crafting the jury instruction actually given at trial, which reflected the

language [he] sought”). But we need not resolve this case on invited error, because

even assuming Mr. Campbell did not invite the error in his jury instructions, he has

not met the requirements for establishing plain error.

       We review Mr. Campbell’s claim for plain error because he did not object to

the jury instruction on actual or constructive possession at trial. See United States v.

Knight, 659 F.3d 1285, 1287 (10th Cir. 2011). To meet the plain error standard, Mr.

Campbell must establish (1) error, (2) that is plain, (3) that affects substantial rights,

and (4) that “seriously affects the fairness, integrity, or public reputation of the

judicial proceedings.” Id. (quotation marks omitted). “[A]ll four requirements must

be met,” and “the failure of any one will foreclose relief and the others need not be

addressed.” United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012). For the

reasons explained below, we conclude Mr. Campbell has not shown that the error in

his jury instructions “affect[ed] [his] substantial rights” and therefore he cannot

succeed on plain-error review. Knight, 659 F.3d at 1287 (quotation marks omitted).

       Under the third prong of the plain-error test, Mr. Campbell must “‘show a

reasonable probability that, but for the error,’ the outcome of the proceeding would

have been different.” United States v. Benford, 875 F.3d 1007, 1017 (10th Cir. 2017)

(quoting Molina-Martinez v. United States, 136 S. Ct. 1338, 1343 (2016)). The

burden on the defendant under the “reasonable probability standard” is lower than a

                                             7
showing of “a preponderance of the evidence”; a defendant need only demonstrate “a

probability sufficient to undermine confidence in the outcome.” Id. (quotation marks

omitted).

      Mr. Campbell has not carried the burden of showing a reasonable probability

that the outcome of his trial would have been different had the jury been properly

instructed. Based on the evidence presented at trial, a properly-instructed jury would

still have found Mr. Campbell had “the power and intent . . . to exercise dominion or

control” over the revolver and that he therefore constructively possessed that

revolver. Little, 829 F.3d at 1182. Indeed, the record contains overwhelming

evidence tying Mr. Campbell to the revolver.

      Mr. Campbell’s birth certificate and other legal documents bearing his name

connected him to the same address where police found the revolver. He was the only

individual present at that address when officers executed the arrest warrant. When

Officer Martinez first encountered Mr. Campbell, Mr. Campbell was within ten to

fifteen feet of the revolver. More importantly, Mr. Campbell’s greasy hands and the

cellphone on the go-kart’s right rear tire strongly supported the conclusion that he

had been working on the go-cart that morning. In fact, the still-smoldering cigarette

on the ground beside the go-cart established Mr. Campbell’s likely proximity to the

go-kart and the tool bag containing the revolver only moments before his arrest. And

the disassembled state of the go-cart, combined with the partially-open bag and the

array of tools under and around the go-cart, established that he had used items from

the bag that morning.
                                           8
      The jury also heard testimony that officers located within the residence a

holster appropriately sized for the revolver, supporting the inference that Mr.

Campbell had removed the revolver from that holster and carried the revolver

outside. Finally, the government presented evidence that an August 4, 2015, traffic

stop of Mr. Campbell resulted in the recovery of a handgun from a duffel bag that

one officer described as a tool bag, which evidence the trial court instructed the jury

to consider “as it bears on the defendant’s intent, knowledge, or absence of mistake

or accident.” Suppl. ROA, Vol. 3 at 345.

      At trial, Mr. Campbell argued a second person may have been in the backyard

just prior to his arrest and that his greasy hands might be attributable to his working

on the Jeep rather than the go-cart. It is not apparent how the jury’s decision to credit

these arguments would have benefited Mr. Campbell, however, because the only

tools officers discovered were in the bag containing the revolver and scattered around

the go-cart. Thus, even if he had been working on the Jeep, Mr. Campbell must have

been using the tools in the tool bag, which also contained the revolver.

      To be sure, the government has not provided substantial evidence that

Mr. Campbell exclusively possessed the premises where police found the revolver,

and thus the government may not rely on that exclusivity to infer Mr. Campbell’s

intent to control the revolver. See Little, 829 F.3d at 1182. But the government has

met its “higher burden [of] present[ing] some connection or nexus between the

defendant and the firearm.” United States v. Benford, 875 F.3d 1007, 1019 (10th Cir.

2017). Specifically, the government presented compelling evidence that

                                            9
(1) Mr. Campbell had been working on the go-cart that morning, (2) the tools he used

to work on the go-cart had been carried in a nearby bag or “cloth-like toolbox,” and

(3) the bag also contained a revolver. Considering this compelling evidence, a

properly-instructed jury would have concluded Mr. Campbell had intended to

exercise control over the bag and its contents, including the revolver.

      Accordingly, Mr. Campbell has not shown a reasonable probability that, but

for the instructional error, the outcome of his trial would have been different.

Because he has not shown that the error “affected his substantial rights,” we need not

address the other prongs of plain-error analysis.

                                III.   CONCLUSION

      For the foregoing reasons, we AFFIRM Mr. Campbell’s conviction and

sentence.

                                            Entered for the Court


                                            Carolyn B. McHugh
                                            Circuit Judge




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