                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                    UNITED STATES CO URT O F APPEALS
                                                                      August 16, 2006
                                 TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                      Clerk of Court


 U N ITED STA TES O F A M ER ICA,

               Plaintiff - Appellee,                    No. 05-3447
          v.                                            (D. Kansas)
 M ARLO J. M IM S,                             (D.C. No. 05-CR-20079-JW L)

               Defendant - Appellant.



                            OR D ER AND JUDGM ENT *


Before HA RTZ, EBEL, and T YM KOVICH, Circuit Judges.


      M arlo J. M ims was charged in the United States District Court for the

District of Kansas with possession of a firearm by a convicted felon, see 18

U.S.C. § 922(g)(1). He was convicted by a jury and sentenced to 235 months’

imprisonment. On appeal he challenges one of the jury instructions. W e affirm.




      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
I.    B ACKGR OU N D

      On the night of February 2, 2005, Officer Jeffrey Gardner of the Kansas

City, Kansas, Police Department was patrolling the area near Thirteenth and

Quindaro Streets w hen he observed a speeding car. After a brief pursuit,

M r. M ims, the driver, lost control of the car and struck a utility pole. Officer

Gardner stopped his patrol car behind M r. M ims’s now-disabled vehicle.

M r. M ims got out of the car and ran away. Officer Gardner pursued M r. M ims on

foot, catching up to him only after M r. M ims tripped over a fence that he had

knocked down with his car. M r. M ims then punched Officer G ardner in the face.

Officer Gardner struck back, and they exchanged further blows. During the fight

M r. M ims grasped Officer Gardner’s service firearm and attempted to pull it out

of the holster. The two proceeded to fight for control of the gun, with M r. M ims

initially unable to get control of it because Officer Gardner kept his hand on the

holster snap. At some point the snap popped open and, according to Officer

Gardner, M r. M ims stumbled backwards with the gun in his hands. Officer

Gardner testified that M r. M ims was then “in complete and sole possession of

th[e] firearm.” R. Vol. II at 43. Officer Gardner eventually managed to seize the

gun and aim it at M r. M ims, who fled. Officer Gardner later apprehended

M r. M ims.




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II.   D ISC USSIO N

      M r. M ims w as charged with violating 18 U.S.C. § 922(g), which makes it

unlawful for a convicted felon “to ship or transport in interstate or foreign

commerce, or possess in or affecting commerce, any firearm or ammunition; or to

receive any firearm or ammunition which has been shipped or transported in

interstate or foreign commerce.” Jury Instruction No. 12 gave the following

explanation of possession:

      A person has actual possession of something if he or she knowingly
      has direct physical control over it at a given time. If you find beyond
      a reasonable doubt that M r. M ims held the firearm even for a mere
      second or two, then you may find that the firearm was in his
      possession within the meaning of the w ord “possess” as used in these
      instructions, unless you are not persuaded beyond a reasonable doubt
      that M r. M ims knew what he possessed was a firearm.

R. Vol. I Doc. 24 at 14.

      On appeal M r. M ims challenges the jury instruction because it “improperly

narrow[ed] the jury inquiry from ‘direct physical control’, to whether the weapon

was ‘held.’” Aplt. Br. at 15. He contends that the “instruction permitted the jury

to find [him] guilty from the moment . . . he grabbed the pistol grip” because he

could be considered to have “held” the gun although he did not possess sole

control over it (inasmuch as Officer G ardner also had his hand on the gun). Id.

At trial, however, M r. M ims did not object on this ground. His entire objection to

the instruction was:




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      W ith respect to Instruction 12, we would object to that, specifically,
      the second sentence of that. While I’m familiar w ith both Tenth
      Circuit and other case law defining transitory or momentary
      possession, the case at least in the Tenth Circuit that I recall
      specifically was the one where the person was charged, I think, with
      an AK-47 or some other kind of assault rifle and the allegation was
      he carried it from the gun shop and put it in the back of someone’s
      pickup, and the Tenth Circuit basically said you didn’t get a
      momentary or transitory possession instruction in that— based on that
      base because he denies ever having the gun at all, and so I think in
      the— I think the court is taking out of context the second-or-two
      holding of a firearm because the cases that I recall— perhaps the
      court’s research is more extensive than mine because I obviously
      missed them. I think the instruction as given deprives the jury of the
      opportunity to evaluate the entire context or totality of the
      circumstance or the overall fight between M r. Gardner and M r. M ims
      and that, accepting M r. Gardner’s testimony that there was some
      brief, transitory possession in the context of that fight, I think that
      deprives the jury of the opportunity to evaluate whether or not in the
      context of the fight that constitutes the actual ability to have direct
      physical control over the object.

R. Vol. II at 93-94.

      “A party who objects to an instruction . . . must do so on the record, stating

distinctly the matter objected to and the grounds of the objection.” Fed. R. Civ.

P. 51(c)(1). M r. M ims’ objection to Jury Instruction 12 did not distinctly state

the issue he now raises on appeal. W e therefore review his current claim under

the plain-error doctrine. See United States v. Atencio, 435 F.3d 1222, 1230 (10th

Cir. 2006). On plain-error review we will reverse the judgment below only if

“there is (1) error, (2) that is plain, which (3) affects substantial rights, and which

(4) seriously affects the fairness, integrity, or public reputation of judicial




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proceedings.” United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th Cir.

2005) (en banc).

       Although M r. M ims points out that the word “held” in the second sentence

of the jury instruction may suggest that M r. M ims could be guilty if he merely

had his hand on the gun without having exclusive control over it, such a reading

would contradict the clear import of the prior sentence, which equates possession

with “direct physical control.” The purpose of the second sentence was to clarify

the temporal element of the crime, not to alter the meaning of the prior sentence.

Even if the possible ambiguity of the second sentence caused the instruction to be

erroneous, it was not plainly so. Apparently neither party nor the district court

perceived this ambiguity at trial. In particular, M r. M ims does not suggest that

the prosecutor argued to the jury that the offense was complete the mom ent he

had his hand on the gun. M r. M ims has not established plain error.

III.   C ON CLU SIO N

       W e AFFIRM the judgment of the district court.


                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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