                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                     PUBLISH                      July 15, 2014
                                                              Elisabeth A. Shumaker
                   UNITED STATES COURT OF APPEALS                 Clerk of Court

                               TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff - Appellee,
 v.                                                     No. 13-3202
 JUAN D. MORALES,

             Defendant - Appellant.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                 FOR THE DISTRICT OF KANSAS
                 (D.C. NO. 6:13-CR-10030-EFM-1)


John K. Henderson, Jr., Assistant Federal Public Defender, Wichita, Kansas, for
Defendant-Appellant.

James A. Brown, Assistant United States Attorney (Barry R. Grissom, United
States Attorney, with him on the brief), Topeka, Kansas, for Plaintiff-Appellee.


Before KELLY, MURPHY, and HARTZ, Circuit Judges.


MURPHY, Circuit Judge.
I.       Introduction

         Defendant-appellant, Juan D. Morales, was found guilty of being a

convicted felon in possession of a firearm and sentenced to eighty-six months’

imprisonment. In this appeal, Morales argues the evidence was insufficient to

support his conviction. He also argues his Fifth Amendment due process rights

were violated when he was placed in handcuffs and transported through the public

area of the courthouse in view of the venire. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, we affirm Morales’s conviction and deny his request for a new

trial.

II.      Discussion

         A.    Sufficiency of the Evidence

         In March 2010, Deputy Brandon Hornback of the Ford County Sheriff’s

Department stopped a vehicle in which Morales was a passenger. Morales

immediately exited the vehicle and fled from the scene on foot. Deputy Hornback

chased Morales through the side yard of a residence, apprehending him

approximately one block from the spot where the traffic stop was initiated. After

a shell casing was found inside the vehicle, officers searched for a weapon by

retracing the path of Morales’s flight. They found a loaded handgun in the yard

through which Deputy Hornback chased Morales. They also found a cell phone

on the ground near the vehicle. The phone was placed in Morales’s property bag

at the jail and Morales took it when he was released.

                                             -2-
      Morales was charged with, inter alia, possession of a firearm by a

convicted felon, in violation of 18 U.S.C. § 922(g)(1). 1 The matter was tried

before a jury on May 16, 2013. At trial, Deputy Hornback described the stop of

the vehicle, the subsequent foot chase, and the recovery of the firearm and the

cell phone. Specifically, he testified Morales exited the vehicle immediately after

it came to a stop and then ran approximately one block before he was

apprehended. Deputy Hornback also testified he did not see Morales drop or

throw any objects, but both the firearm and cell phone were found along the path

Morales traveled as he fled. According to Deputy Hornback, the firearm was

discovered near a tree on the side of a residence. It was not dusty, dirty, or wet.

Based on the condition of the firearm when it was found, Deputy Hornback

opined it had not “been lying there for very long.”

      On appeal, Morales argues there was insufficient evidence to support his

conviction. This court reviews Morales’s sufficiency claim de novo, examining

the evidence in the light most favorable to the Government. United States v.

Cardinas Garcia, 596 F.3d 788, 794 (10th Cir. 2010). To obtain the § 922(g)(1)

conviction, the Government was required to prove (1) Morales is a convicted

felon, (2) he knowingly possessed a firearm or ammunition, and (3) the

possession was in or affecting interstate commerce. United States v. Colonna,


      1
      The other charge in the indictment was dismissed on the Government’s
motion.

                                         -3-
360 F.3d 1169, 1178 (10th Cir. 2004). On appeal, the only element Morales

challenges is whether he knowingly possessed the firearm.

      Possession of a firearm for purposes of § 922(g)(1) can be either actual or

constructive. United States v. McCane, 573 F.3d 1037, 1046 (10th Cir. 2009).

“Actual possession exists when a person has direct physical control over a firearm

at a given time. Constructive possession exists when a person knowingly holds

the power and ability to exercise dominion and control over a firearm.” Id.

(quotations and citation omitted). Morales raises several challenges to the

Government’s evidence. He asserts the Government failed to prove he actually

possessed the firearm because there was no direct evidence he carried or dropped

it. To the contrary, Deputy Hornback testified he lost sight of Morales for several

seconds during the chase and did not see him throw the firearm. Morales also

asserts there was no DNA or fingerprint evidence connecting him to the firearm.

Finally, he argues the jury could not reasonably have found he constructively

possessed the firearm because he did not have dominion or control over the yard

in which it was located.

      After thoroughly reviewing the record, Morales’s arguments are easily

rejected. “Like any other fact in issue, possession [of a weapon by a prohibited

person] may be proved by circumstantial as well as direct evidence.” United

States v. McCoy, 781 F.2d 168, 171 (10th Cir. 1985) (quotation omitted). Based

on the circumstantial evidence presented by the Government, viewed collectively,

                                        -4-
a reasonable jury could conclude Morales actually possessed the firearm.

Officers testified it was uncommon to find loaded weapons in residential yards in

Dodge City, Kansas. The Government presented testimony the firearm was found

along Morales’s path of travel and photographs showing it was free of dirt, dust,

moisture, and debris when it was recovered. A jury could reasonably conclude

from this evidence that the weapon was dropped by Morales as he ran from

Deputy Hornback and recovered shortly thereafter.

      The Government introduced two other pieces of circumstantial evidence

that provide additional support for the jury’s verdict. First, Morales fled when

the vehicle in which he was traveling was pulled over for a traffic violation. “It

is well recognized that a defendant’s intentional flight from police officers may

be used as circumstantial evidence of guilt.” United States v. Fernandez, 18 F.3d

874, 879 n.4 (10th Cir. 1994). There was testimony Morales was on parole at the

time of the traffic stop and, thus, faced the possibility of being returned to prison

if found in possession of a weapon. Thus, the jury could reasonably conclude

Morales fled to avoid being found with the firearm in his possession.

Additionally, the jury heard testimony that a cell phone was found along the path

Morales took while fleeing from Deputy Hornback. The phone was retained by

Morales after he was released from jail. From this evidence, the jury could

reasonably conclude (1) the phone belonged to Morales and (2) he had actual




                                          -5-
possession of both the phone and the firearm at the time he exited the vehicle,

dropping both as he ran.

      Viewing all the evidence collectively 2 and in the light most favorable to the

Government, a reasonable jury could conclude Morales had “direct physical

control over [the] firearm” immediately before discarding it during the chase.

McCane, 573 F.3d at 1046. Accordingly, the evidence was sufficient to sustain

the jury’s finding that Morales knowingly possessed the firearm.

      B.     Handcuffing

      Morales also argues his Fifth Amendment due process right to a fair trial

was violated when he was transported through the courthouse in handcuffs.

According to Morales, during a break in the jury selection process, United States

Marshals placed him in handcuffs and walked him through the hallway in front of

potential jurors. Counsel described the incident to the district court as follows:


      2
        In his opening and reply briefs, Morales argued the jury could not
reasonably find him guilty without piling inference upon inference. See United
States v. Anderson, 189 F.3d 1201, 1205 (10th Cir. 1999) (“[W]e may not uphold
a conviction obtained by piling inference upon inference.” (quotation and
alteration omitted)). During oral argument, however, counsel conceded the jury
was not required to pile inference upon inference but, rather, was only asked to
consider multiple pieces of indirect evidence in the aggregate. The exception to
counsel’s concession was the Government’s evidence that the spent shell casing
found in the vehicle and the live casings found in the firearm were both .380
caliber. The ammunition was not from the same manufacturer. Because the
Government’s evidence is more than sufficient to support the verdict even if the
caliber of the casings is not considered, it is unnecessary to address Morales’s
argument on this point.


                                         -6-
      Your Honor, my concern is that the marshals cuffed my client. I
      don’t think any jurors saw that. But then they walked him through
      the hallway. He was cuffed. I walked beside him. I tried to hide the
      handcuffs with my hand. But then we got to the elevator, well, there
      were several jurors standing around the elevator. Well, the marshals
      told them to get away, that they had to take charge of the elevator.
      They put him in the elevator . . . .

Counsel requested impanelment of a new venire, and argued it was unnecessary to

handcuff Morales because he is “not an individual who presents any threat.”

During the in camera hearing, the district court revealed the Marshals had

informed the court in advance they intended to handcuff Morales when they

transported him through the courthouse based on their security concerns. The

court engaged in a colloquy with Morales’s counsel over possible alternatives to

the handcuffing, but concluded the alternatives were either similarly prejudicial

or failed to address the security concerns. The district court refused to impanel a

new venire but agreed to admonish the jury and invited Morales to address the

incident during voir dire if he so chose. Nothing in the record indicates Morales

questioned the venire about the incident. 3

      Morales raised the handcuffing issue again in his Motion for Judgment of

Acquittal and the Government filed a response. In its written order denying the

motion, the district court rejected the Government’s reliance on United States v.

Simpson, a case in which this court held that “an isolated view of jurors of a

      3
       Morales’s counsel conceded during oral argument that he did not question
the jury pool during voir dire to determine if any member had seen Morales in
handcuffs.

                                         -7-
defendant in handcuffs does not justify a new trial in the absence of a showing of

actual prejudice.” 950 F.2d 1519, 1522 (10th Cir. 1991). The court, instead,

applied the test from Deck v. Missouri, concluding Morales was not entitled to a

new trial because security concerns justified the handcuffing. 544 U.S. 622, 624

(2005) (holding the use of visible shackles during the penalty phase violates the

Fifth Amendment “unless that use is justified by an essential state interest—such

as the interest in courtroom security—specific to the defendant on trial”

(quotation omitted)).

      This court reviews the district court’s denial of Morales’s motion for a new

trial for an abuse of discretion. United States v. Wardell, 591 F.3d 1279, 1293

(10th Cir. 2009). “The Fifth . . . Amendment[] prohibit[s] the use of physical

restraints visible to a jury absent a trial court determination, in the exercise of its

discretion, that they are justified by a [governmental] interest specific to a

particular trial.” Deck, 544 U.S. at 629; see also id. at 626 (“The law has long

forbidden routine use of visible shackles during the guilt phase . . . .”). In Deck,

the Supreme Court extended this prohibition to “the penalty phase of a capital

proceeding.” Id. at 632-33. The Court, however, noted that trial courts retain

discretion “to take account of special circumstances, including security concerns,

that may call for shackling.” Id. at 633. But, if a trial court orders a defendant to

wear visible shackles without adequate justification, the defendant is not required

to show actual prejudice to make out a due process claim. Id. at 635. Instead, the

                                           -8-
Government “must prove beyond a reasonable doubt that the shackling error

complained of did not contribute to the verdict obtained.” Id. (quotation and

alteration omitted).

      Although the appellate arguments of both parties center on Deck, it is

unclear whether the Deck analysis applies. Morales was not restrained during all

or a portion of the courtroom proceedings but only when he was transported

through the common area of the courthouse. The record indicates this occurred

only once, and Morales does not argue he was transported in handcuffs multiple

times. We have previously held that “an isolated view by jurors of a defendant in

handcuffs does not justify a new trial in the absence of a showing of actual

prejudice.” Simpson, 950 F.2d at 1522. We reiterated this ruling in a post-Deck

opinion. United States v. Jones, 468 F.3d 704, 709 (10th Cir. 2006) (“[A] juror’s

brief view of a defendant in shackles does not qualify as a due process violation

worthy of a new trial.”); accord Vera v. Ryan, 508 F. App’x 603, 604 (9th Cir.

2013) (unpublished disposition) (“[Defendant’s] clearly established due process

rights were not violated by a few jurors catching a fleeting view of him in

handcuffs while he was being transported.”). Under this court’s precedent,

therefore, it appears Morales bears the burden of showing prejudice. Simpson,

950 F.2d at 1522. He has wholly failed to meet that burden. In fact, nothing in

the record confirms that any seated juror actually saw him in the handcuffs. See

United States v. McKissick, 204 F.3d 1282, 1299 (10th Cir. 2000) (refusing to

                                         -9-
presume prejudice in the absence of evidence jurors noticed the stun belt worn by

the defendant). To the contrary, Morales’s counsel advised the district court that

(1) he did not believe any member of the venire saw the Marshals place the

handcuffs on Morales and (2) there were “several” members of the jury pool at

the elevator when the Marshals placed Morales on it. Because Morales made the

strategic decision not to question the venire about the incident despite the district

court’s permission to pursue such questioning, the record does not reveal whether

any of those “several” members of the venire were seated on the jury.

      Even if we assume both that Deck applies and that a seated juror saw

Morales in handcuffs, the due process argument fails. A defendant can make out

his due process claim without demonstrating actual prejudice only if the trial

court permitted the use of visible shackles “without adequate justification.”

Deck, 544 U.S. at 635. Adequate justification can be based on a “need to protect

the courtroom and its occupants,” including “special security needs or escape

risks, related to the defendant on trial.” Id. at 633; see also id. at 629 (noting the

district court’s determination on shackling during the guilt phase may “take into

account the factors that courts have traditionally relied on in gauging potential

security problems and the risk of escape at trial”). As the district court stated in

its order denying Morales’s Motion for Judgment of Acquittal,

      [Morales] presented a lengthy prior record of nearly two dozen
      offenses, going back to his early juvenile years, including battery,
      assault, probation violations, obstruction of process, aggravated

                                          -10-
      assault, weapons charges, escape from custody, discharge of firearm
      at an occupied vehicle, and criminal threat. He was listed by NCIC
      as a gang member.

The Presentence Investigation Report (“PSR”) confirms the district court’s

assessment of Morales’s criminal history.

      The PSR reveals Morales has eight juvenile convictions, including a

conviction for aggravated escape. At the time he was convicted of the instant

§ 926(g)(1) violation, he was twenty-six years old and had eight adult

convictions. Although four of the adult convictions were for minor violations, the

remaining adult convictions involved more serious conduct. When Morales was

nineteen, he was charged with attempt to commit first degree murder, criminal

discharge of a firearm, and criminal possession of a weapon. He was convicted of

criminal discharge of a firearm at an occupied dwelling, and criminal discharge of

a firearm at a vehicle. When he was twenty-three, he was charged with

trafficking contraband in a correctional institution, attempted battery of a state

correctional officer, incitement to riot, riot, and criminal damage to property. The

charges were dismissed pursuant to a plea and he was convicted of criminal

threat. Morales was also charged with aggravated battery and aggravated

intimidation of a witness. Those charges were dismissed after he pleaded guilty

to criminal threat.

      The record provides adequate justification for the district court’s decision

to permit Morales to be handcuffed while being transported through the common

                                         -11-
areas of the courthouse. Because Morales’s criminal history includes, inter alia,

an escape conviction and charged conduct involving violence against law

enforcement officers, there was adequate justification for the handcuffing based

on the “special security needs or escape risks, related to the defendant on trial.” 4

      4
       It is unclear from the record whether the district court was aware of
Morales’s criminal history before or after it approved the handcuffing. In
response to Morales’s request for a new venire, the court stated it permitted the
handcuffing because it “never had reason to” “second-guess [the Marshals] on
security issues.” When Morales’s counsel asked the district court to elaborate on
the security issues identified by the Marshals Service, the court stated:

             I don’t have details on those. Typically when I get those
      reports, unless I’ve got—unless I’m pretty deep in the facts on the
      case, I don’t usually ask, well, what’s he been doing or what’s the
      situation. I mean, if it’s a nature of a charge that—and I can’t think
      of a good example—where I wouldn’t expect there to be security
      concerns, I might ask about that. But on drug or gun offenses, I
      usually don’t. But that’s what their report was to my chambers.

In the order denying Morales’s Motion for Judgment of Acquittal, the district
court stated the Marshals transported Morales “only after acquainting the [court]
with their security concerns.” The district court, however, also stated the
recommendation to transport Morales in handcuffs was based in part on “issues
where [Morales] was being held pretrial (the details of which the Court was not
informed).”

       If the court permitted Morales to be handcuffed solely on the advice of the
United States Marshals, it abused its discretion. See United States v. Haynes, 729
F.3d 178, 189 (2d Cir. 2013) (“[T]he ultimate decision to impose any physical
restraints during trial must be made by the District Court judge alone and must be
made on the record.”). But any abuse of discretion was harmless in light of the
record evidence detailing the specifics of Morales’s criminal history, and the
district court’s reasoned judgment that no alterative arrangements were feasible.
See United States v. Wardell, 591 F.3d 1279, 1294 (10th Cir. 2009) (holding
visible restraints do not pose a constitutional problem when “(1) the court makes
a defendant-specific determination of necessity resulting from security concerns;
                                                                      (continued...)

                                          -12-
Deck, 544 U.S. at 633; see also Wardell, 591 F.3d at 1293, 1296 (10th Cir. 2009)

(holding “[s]ecurity needs or escape risks related to the defendant on trial” justify

visible shackling and noting the defendant had two “previous convictions . . . for

escape-related crimes” (quotation omitted)). Thus, Morales’s Fifth Amendment

claim fails.

III.   Conclusion

       We affirm the judgment of conviction and deny Morales’s request for a

new trial.




       4
       (...continued)
and (2) it minimizes the risk of prejudice”).

                                         -13-
