                                                                                 FILED
                                                                     United States Court of Appeals
                                        PUBLISH                              Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       November 9, 2018

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

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                             No. 17-3067

JAY N. GIANNUKOS,

      Defendant - Appellant.
                      _________________________________

                     Appeal from the United States District Court
                              for the District of Kansas
                       (D.C. No. 2:15-CR-20016-CM-DJW-1)
                       _________________________________

Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with her on the briefs), Office of the Federal Public Defender for the Districts
of Colorado and Wyoming, Denver, Colorado, appearing for Appellant.

Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, United States
Attorney, with her on the brief), Office of the United States Attorney for the District of
Kansas, Kansas City, Kansas, appearing for Appellee.
                        _________________________________

Before BRISCOE, BALDOCK, and EID, Circuit Judges.
                   _________________________________

BRISCOE, Circuit Judge.
                     _________________________________

       Defendant Jay Giannukos appeals two convictions involving the illegal

possession of firearms. While conducting a parole search of Giannukos’s home,

officers found two firearms, methamphetamine, and counterfeiting equipment. A
grand jury indicted Giannukos on four counts: (1) possession with intent to distribute

methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);

(2) possession of a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c); (3) being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1); and (4) counterfeiting Federal Reserve Notes with the intent to

defraud, in violation of 18 U.S.C. § 471. A jury convicted Giannukos of all counts.

Giannukos appeals his firearm possession convictions (Counts 2 and 3), arguing that

the district court gave an erroneous constructive possession jury instruction and that

the prosecutor made improper statements during her closing argument. Exercising

jurisdiction pursuant to 28 U.S.C. § 1291, we reach only the instruction issue and

REVERSE and REMAND for a new trial.

                                            I

      On January 15, 2015, officers searched Giannukos’s home in response to an

anonymous tip that Giannukos was involved in illegal drug and counterfeiting

activities. ROA Vol. II at 265–66. At that time, Giannukos was on parole following

a prior state felony conviction and his status as a parolee was the legal basis for the

search. ROA Vol. I at 19. Two other people lived with Giannukos in the three

bedroom house. ROA Vol. II at 154–57, 337. One bedroom was used as a home

office. Another was shared by Giannukos and his girlfriend Ashley Humerickhouse.

The third belonged to Giannukos’s friend Johnny Chipps. Giannukos, Chipps, and

Humerickhouse were at the house during the search, as was James Lutz, a friend

whom Giannukos had hired to do work on the house. Id. at 108, 111.

                                            2
      In the living room of the house, which was accessible to all occupants of the

house, the officers found a .22-caliber revolver inside a drawer of a blue hutch. Id. at

175–81. In the first bedroom—used as a home office—the officers found counterfeit

currency and equipment to create counterfeit currency, as well as two digital scales,

one of which was near a metal spoon with white powder residue. Id. at 160–65. In

the second bedroom—belonging to Giannukos and Humerickhouse—the officers

found a black cloth bag containing a total of 10.87 grams of 91.7% pure

methamphetamine, distributed between five small Ziplock bags. Id. at 205–07, 308–

12. They also found a yellow bag containing a small Ziplock bag of .28 grams of

methamphetamine. Id. at 205–07, 314. There was a pink bag in a drawer beneath the

right side of the bed. Id. at 190. Inside the pink bag, the officers found a firearm

holster containing a Smith & Wesson magazine with eight rounds. Id. at 190–92.

Next to the pink bag, the officers found a .40-caliber Smith & Wesson firearm. Id.

      A grand jury returned a four-count indictment, which included the two

firearms charges at issue in this appeal: possession of a firearm in furtherance of a

drug trafficking crime, in violation of 18 U.S.C. § 924(c); and being a felon in

possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The case was tried to

a jury. Three witnesses’ testimonies are relevant to this appeal.

      First, Lutz testified about the work he had been hired to do at the house and

the firearm found in the bedroom that Giannukos shared with Humerickhouse. Lutz

explained that Giannukos had hired him to make various repairs around the house,

including the installation of a lock on the front door. ROA Vol. II at 266–67.

                                           3
According to Lutz, Giannukos “wanted to make sure that the house was a little bit

more secure” because he was upset about a recent incident when someone broke into

the house and shot his dog. Id. at 267.

      Lutz also testified that, on the evening of January 14th, Humerickhouse gave

him a tour of the house and showed him some work that she wanted done in the

bedroom she shared with Giannukos. Id. at 269–70. While in the bedroom, Lutz saw

a black and silver .40-caliber Smith & Wesson firearm under a dresser. Id. at 272.

Lutz picked up the firearm, removed and reinserted the loaded magazine, and then

placed the firearm back where he found it. Id. at 272–73. Lutz testified that

Giannukos was in the shower when he handled the firearm. Id. at 273–74.

      The government later called Special Agent R.J. Cook to impeach Lutz’s

testimony about Giannukos’s whereabouts when Lutz was in the bedroom. Special

Agent Cook testified that, during a previous interview, Lutz said that Giannukos was

in the bedroom—not the shower—when Lutz handled the firearm. Id. at 546–47.

      Next, Humerickhouse testified about the recent break-in and the firearm found

in the bedroom she shared with Giannukos. Humerickhouse recounted that she was

in her bedroom on the evening of January 1st when an unknown man entered the

house, shot open the bedroom door, shot and killed Giannukos’s dog, demanded

drugs and money from Humerickhouse, attempted to remove a safe from the

bedroom, and then left the house. Id. at 345–53. Humerickhouse testified that this

traumatic event “dramatically” changed “everything,” including her relationship with

Giannukos. Id. at 356.

                                          4
      When the questioning turned to the subject of the firearm found in the

bedroom, Humerickhouse’s testimony was less coherent. Humerickhouse

acknowledged her ownership of the pink bag containing a firearm holster and a Smith

& Wesson magazine, but denied putting either the holster or the magazine in the bag.

Id. at 376–77. Humerickhouse also denied putting the .40-caliber Smith & Wesson

firearm under the bag, id. at 378, or ever handling the firearm, id. at 384. When

shown a photograph of the firearm, Humerickhouse testified that she did not

recognize it. Id.

      In an effort to refresh Humerickhouse’s memory, the prosecutor asked her

whether she remembered having a conversation with Detective Dylan Passinese on

January 15th in which she told him that Giannukos acquired a black and silver .40-

caliber firearm after the January 1st break-in. Id. at 380–84. Humerickhouse

testified that she did not remember her conversation with Detective Passinese. Id.

The prosecutor then showed Humerickhouse a transcript of her conversation with

Detective Passinese; Humerickhouse still did not remember the conversation, but

acknowledged that the transcript indicated that she had given a statement about

Giannukos owning a firearm. Id.

      Humerickhouse said that she had trouble remembering her conversation with

Detective Passinese because she “was under the influence of drugs and . . . hadn’t

slept in days” when she spoke with him on January 15th. Id. at 382. Detective

Passinese then testified about Humerickhouse’s demeanor during their conversation.

He saw no indication that she was under the influence of drugs. Id. at 595. Rather,

                                          5
in his opinion, she “was calm, she was fine, [she] had no issues.” Id. The jury also

heard the audio recording of Humerickhouse’s interview with Detective Passinese.

Id. at 603.

       Finally, expert witness Ross Capps testified about his analysis of the DNA on

the two firearms found during the search of Giannukos’s home. Capps explained that

DNA testing of the revolver from the living room found “at least three individuals

with male contribution.” ROA Vol. II at 533. While Capps could not exclude

Giannukos as a contributor, “almost 99 percent of the population would not be

excluded.” Id. at 537. With respect to the firearm found in the bedroom, Capps

testified “that the major contributor of DNA was female” and that “Giannukos is

excluded as that major source.” Id. at 539. But, like “approximately 99 percent of

the population,” “Giannukos could not be excluded” as a minor source. Id. at 540–

41.

       After the close of evidence, the district court instructed the jury, including on

the definition of possession (Instruction No. 14):

                     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.

ROA Vol. I at 246.



                                            6
      The jury found Giannukos guilty on all four counts. The district court

sentenced Giannukos to 322 months’ total imprisonment: 240 months’ imprisonment

on Count 1; 60 months’ imprisonment on Count 2, to be served consecutively to

Count 1; 22 months’ imprisonment on Count 3, to be served consecutively to Count

2; and 240 months on Count 4, to be served concurrently with Count 1. Giannukos

was also sentenced to 3 years’ supervised release on each count, to be served

concurrently with each other. Giannukos timely appealed his convictions on the

firearms counts, Counts 2 and 3.

                                           II

      Giannukos argues that his convictions on Counts 2 and 3 should be reversed,

and this case remanded for a new trial, because the district court improperly

instructed the jury on the definition of constructive possession. The government

agrees that the jury instruction was erroneous, but argues that the error does not

warrant reversal.

      We review for plain error because Giannukos did not object to the jury

instruction in the district court. United States v. Benford, 875 F.3d 1007, 1016 (10th

Cir. 2017). Plain error review has four prongs:

             First, there must be an error that has not been intentionally
             relinquished or abandoned. Second, the error must be plain—that
             is to say, clear or obvious. Third, the error must have affected
             the defendant’s substantial rights, which in the ordinary case
             means he or she must show a reasonable probability that, but for
             the error, the outcome of the proceeding would have been
             different. Once these three conditions have been met, [we]
             should exercise [our] discretion to correct the forfeited error if


                                           7
             the error seriously affects the fairness, integrity or public
             reputation of judicial proceedings.

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

quotation marks omitted).

                                           A

      The parties agree that the district court erred and that the error was plain. The

district court instructed the jury that “[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.” ROA Vol. I at 246. This instruction was erroneous

because “constructive possession also requires intent to exercise control.” Benford,

875 F.3d at 1017 (citing United States v. Little, 829 F.3d 1177, 1182 (10th Cir.

2016)). The error was plain because the “omission of the intent element . . . is

‘clearly contrary to the law at the time of appeal.’” Id. (quoting Johnson v. United

States, 520 U.S. 461, 468 (1997)).

                                           B

      To satisfy the third prong of the plain error test, Giannukos “has the burden to

‘show a reasonable probability that, but for the error, the outcome of the proceeding

would have been different.’” Id. (quoting Molina-Martinez, 136 S. Ct. at 1343).

“[A] reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. (quotation marks omitted). “When a district court gives a legally

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


                                            8
often have concluded that the legal error affected the outcome of the trial

proceedings.” Id. (quoting United States v. Duran, 133 F.3d 1324, 1333 (10th Cir.

1998)).

                                           1

      We have twice analyzed whether a similarly erroneous constructive possession

instruction affected a defendant’s substantial rights when the firearms at issue were

recovered from a jointly occupied space. Benford, 875 F.3d at 1017; United States v.

Simpson, 845 F. 3d 1039, 1061–62 (10th Cir. 2017). In both cases we concluded that

“a reasonable probability exist[ed] that, had the jury been instructed on the intent

element, it would not have convicted” the defendant. Benford, 875 F.3d at 1017; see

also Simpson, 845 F.3d at 1061–62. We explained “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.”

Benford, 875 F.3d at 1020 (referencing Simpson, 845 F.3d at 1061–63). We reach

the same conclusion here.

      In Benford, the defendant lived in an apartment with his girlfriend. Id. at

1010–11. Pursuant to a search warrant, police searched the defendant’s apartment

and found a Lorcin pistol with a pink grip in an open computer bag located in the

master bedroom. Id. at 1011. When the police confronted the defendant about the

handgun, the defendant responded, “I guess I’ll have to take the charge.” Id. The

police also learned that, nineteen days before his arrest, the defendant had a

confrontation with his neighbor. Id. In the confrontation, the defendant told his

                                           9
girlfriend to “go get a gun,” and when she returned, the defendant pointed a black

handgun in his neighbor’s face. Id. at 1011–12. Based on the presence of the Lorcin

pistol, the jury convicted the defendant of being a felon in possession of a firearm in

violation of 18 U.S.C. § 922(g)(1). Id. at 1010. But the district court “failed to

instruct” the jury that the defendant “must have intended to exercise control over the

pistol.” Id. at 1016.

      We “conclude[d] a reasonable probability exist[ed] that a properly instructed

jury would not convict [the defendant] of constructively possessing the Lorcin pistol,

and thus, the jury instruction error affected [the defendant]’s substantial rights.” Id.

at 1019. We reached this conclusion for two reasons. First, we found that a

reasonable jury could have believed alternative explanations for all of the evidence

linking the defendant to the handgun. Id. (“For example, [the defendant]’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.”). Second, we stressed

how the defendant “jointly occupied the bedroom” with his girlfriend, which shed

“even more doubt on [the defendant]’s intent to exercise control over the pistol.” Id.

We illustrated this point with an analogy:

             Take, for example, another item officers found plainly visible in
             the bedroom: [the girlfriend]’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 [the defendant] shared with [his
             girlfriend], one could easily conclude [the defendant] knew of
             and had access to it, but it is harder to say that [the defendant]
             also intended to exercise control over it.

                                             10
Id. Because the government failed to present sufficient evidence of the defendant’s

intent to exercise control over the Lorcin pistol, we determined the erroneous

constructive possession instruction affected the defendant’s substantial rights. Id.

      Similarly, in Simpson, the defendant jointly occupied a house with his wife.

845 F.3d at 1061. Police conducted a search of the defendant’s house and found

shotguns and ammunition in the defendant’s garage, as well as handguns and

ammunition throughout the defendant’s house. Id. After a trial, the jury convicted

the defendant on two counts of unlawful possession of an unregistered shotgun and

ammunition, and an additional ten counts of unlawful possession of handguns and

ammunition. Id. But the district court gave an erroneous constructive possession

instruction that did not require intent to exercise control over the firearm. Id. at

1059–60. The defendant appealed, and we reviewed for plain error. Id.

      We reached different conclusions as to the shotgun offenses and the handgun

offenses. Regarding the two shotgun counts, we relied on uncontradicted testimony

that the defendant “had admittedly held the shotgun and tried to sell it about a month

prior to his arrest.” Id. at 1061. Because of that testimony, we “believe[d] that a

properly instructed jury would probably have arrived at the same result”—that the

defendant intended to exercise control over the shotgun—and thus the defendant

“failed to satisfy the third element of the plain-error test on his challenge to” the

shotgun offenses. Id. But as to the handgun offenses, we identified the locations

where the handguns were found, and emphasized that the defendant “jointly occupied


                                            11
each of these locations with his wife, and visitors had access to these places.” Id.

The only evidence linking the defendant directly to the handguns was the testimony

of an informant—whom the defendant impeached at trial—and the defendant’s

admission that he handled the handguns at some point. Id. at 1062. We reasoned that

“[t]he jury may or may not have decided to credit the testimony of the informant,

considering that [the defendant] had elicited evidence bearing on impeachment,” and

“the jury could have concluded that [the defendant] had handled the handguns at a

time different than that alleged in the indictment.” Id. We held that, “[i]n these

circumstances, the instructional error affected [the defendant]’s substantial rights on”

the handgun offenses. Id.

      Here, Giannukos lived in a house with Humerickhouse (his girlfriend) and

Chipps (his friend). ROA Vol. II at 333–39. Police found two firearms in

Giannukos’s house: (1) a .22-caliber revolver inside a hutch in the shared living

room; and (2) a .40-caliber pistol next to a pink bag in the bedroom shared by

Giannukos and Humerickhouse. Id. at 175–81, 190–92. As in Benford and Simpson,

the lack of evidence relating to Giannukos’s specific intent to exercise control of

either firearm “undermine[s] confidence in the outcome,” Benford, 875 F.3d at 1017

(quotation omitted).

      To prove Giannukos intended to exercise control of the firearms, the

government argues (1) the guns were in plain view and easily accessible to

Giannukos, and (2) he was motivated to exercise control of a gun after someone



                                          12
robbed his house. This blurs the distinction between the facts pertaining to each

firearm and fails to link Giannukos to either firearm.

        First, as to the .22-caliber revolver, it was found in a hutch in the living

room—a common area accessible to Giannukos, Humerickhouse, and Chipps. ROA

Vol. II at 175–81. The revolver had male DNA on it, id. at 537, but both Giannukos

and Chipps are male and both had access to the living room hutch. Nothing else

connected Giannukos to the revolver. This is even less evidence than was presented

in Simpson, where the defendant admitted to handling the relevant handguns, 845

F.3d at 1062, or the evidence in Benford, where the defendant had recently pointed a

handgun in his neighbor’s face, 875 F.3d at 1011–12. Here, there is no evidence that

Giannukos ever handled the revolver found in the living room; there is only evidence

that he had access to the revolver.

        Second, as to the .40-caliber pistol, the police found it next to a pink bag, and

the pistol’s holster and ammunition were inside the pink bag. ROA Vol. II at 190–

92. The firearm had primarily female DNA on it. Id. at 539. The government’s

DNA expert testified that “Giannukos is excluded as that major source.” Id.

Although Giannukos’s house was robbed two weeks prior to the police search,

Giannukos was not home—Humerickhouse was. Id. at 346. The intruder pointed a

gun at Humerickhouse, took Humerickhouse’s money, and shot a dog in front of

Humerickhouse. Id. at 346–48. Whatever theoretical motivation Giannukos had to

possess a gun after the robbery, Humerickhouse had the same motivation, if not

more.

                                             13
       As we said in Benford:

              The jury could reasonably conclude from this evidence that [the
              defendant] knew of and had access to the firearm[s]—and in fact
              the jury made just that conclusion when it convicted [the
              defendant] under our pre-Little standards—but a properly
              instructed jury would not be compelled to also conclude [the
              defendant] intended to exercise control over the firearm[s] based
              on this evidence.

875 F.3d at 1019. The same is true here. As a result, Giannukos has met his burden

to show “a reasonable probability exists that a properly instructed jury would not

convict [him] of constructively possessing the [firearms], and thus, the jury

instruction error affected [his] substantial rights.” Id.

                                             2

       The government argues that this case is distinguishable from Benford and

Simpson, where the defendants challenged their convictions for violating 18 U.S.C.

§ 922(g)(1), because Giannukos was also convicted of possession of a firearm in

furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Aplee. Br.

at 22. To convict Giannukos of violating § 924(c), the government needed to prove

that he “possessed one or both of the firearms . . . in furtherance of [the] crime” of

“possession with intent to distribute methamphetamine.” ROA Vol. I at 241

(Instruction No. 10). “Possession ‘in furtherance of’ means for the purpose of

assisting in, promoting, accomplishing, advancing, or achieving the goal or objective

of the underlying offense.” Id. The government’s position is that the “jury’s finding

. . . that Giannukos possessed a firearm in furtherance of drug trafficking necessarily



                                            14
subsumed a finding that Giannukos intended to exercise control and dominion over

the firearm.” Aplee. Br. at 24.

      We are not persuaded. Even assuming Instruction No. 10’s “in furtherance of”

language requires intent, it would require “intent to further the drug trafficking

crime,” not “intent to exercise dominion or control over the firearms.” As we

explained in Little, the intent required to convict must be more precise. In Little, the

district court instructed the jury that “constructive possession exists when a person

not in actual possession ‘knowingly has the power at a given time to exercise

dominion or control.’” 829 F.3d at 1181 (quoting the Tenth Circuit Criminal Pattern

Jury Instruction § 1.31 (2011)). “[A] different instruction defined the word

‘knowingly’ as ‘voluntarily and intentionally.’” Id. at 1182. We rejected the

government’s argument that “there was no error because . . . the . . . instruction that

constructive possession required knowledge and control effectively required intent.”

Id. at 1182–83.

             [R]eading these instructions together, the jury was informed that
             constructive possession requires that a defendant voluntarily and
             intentionally have the power to exercise dominion or control over
             an object. Intentionally having the power to exercise dominion is
             not the same as intending to exercise dominion. For example, a
             felon who knows his neighbor keeps a gun in his bedroom and
             who is given a key to watch his neighbor’s house would
             intentionally have the power to exercise control over the weapon,
             but would not be guilty of constructive possession without the
             intent to actually exercise control.

Little, 829 F.3d at 1183.




                                           15
       When Little’s rationale is applied here, we observe a similarly inadequate

instruction. If we assume that Instruction No. 10’s “in furtherance of” language

requires intent, and read that instruction together with the constructive possession

instruction, the district court informed the jury that § 924(c) requires the defendant to

knowingly have the power to exercise dominion or control over the firearms, with the

intent to further his drug trafficking crime. Intending to further a drug trafficking

crime, however, is not the same as intending to exercise control over a firearm. For

example, Giannukos could know Humerickhouse and Chipps kept firearms in the

house, and intend that the presence of those firearms would protect and promote his

drug trafficking crimes, but yet never intend to exercise control over the firearms. In

such a scenario, Giannukos would expect the guns to help deter future burglaries,

even though he never personally intended to control the firearms himself. Given the

lack of evidence that Giannukos intended to exercise control over the firearms, this

potential scenario undermines confidence in the outcome here.

                                            C

       Having concluded that the erroneous jury instruction affected Giannukos’s

substantial rights, we turn to the fourth prong of the plain error test. We exercise our

“discretion to correct the forfeited error,” Molina-Martinez, 136 S. Ct. at 1343, when

“the error affected the fairness, integrity, or public reputation of the trial,” Benford,

875 F.3d at 1021. “To satisfy this test, a defendant . . . need[s] to show that the error

is particularly egregious and that failure to notice the error would result in a

miscarriage of justice.” Simpson, 845 F.3d at 1062 (quotation marks omitted). But,

                                            16
in cases “involv[ing] a constitutional error,” our analysis is “less rigid.” Id.

(quotation marks omitted).

       A district court’s failure to instruct the jury on an essential element of the

crime charged “may have allowed the jury to convict without requiring the

government to prove all elements of the crime beyond a reasonable doubt.” Benford,

875 F.3d at 1021. And, “[i]n 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.

       In both Benford and Simpson we concluded that the erroneous constructive

possession instruction warranted the exercise of our discretion, satisfying the fourth

prong of the plain error test. See Benford, 875 F.3d at 1021; Simpson, 845 F.3d at

1062 (“[B]ecause the government’s evidence on intent was not overwhelming, the

instructional error seriously affected the fairness, integrity, or public reputation of the

judicial proceedings.”). These same concerns compel us to exercise our discretion

here. The government’s only argument regarding the fourth prong is that “the

evidence of Giannukos’s intent to exercise control or dominion over at least one of

the firearms in his house is overwhelming.” Aplee. Br. at 25. But as described

above, this is not true.

       Because we conclude that the erroneous jury instruction merits remand, we do

not reach Giannukos’s second issue regarding improper statements by the prosecutor

during closing argument.

                                            17
                                         III

      Because the district court plainly erred when instructing the jury, we

REVERSE Giannukos’s convictions on Counts 2 and 3 of the superseding

indictment, and REMAND for a new trial.




                                         18
