United States v. Shannon

UNITED STATES OF AMERICA, Plaintiff - Appellee, v. MICHAEL SHANNON, Defendant - Appellant.

No. 19-1202

UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

April 20, 2020

(D.C. No. 1:18-CR-00353-CMA-1)

(D. Colo.)

ORDER AND JUDGMENT^*

Before HOLMES, PHILLIPS, and CARSON, Circuit Judges.

A jury found Michael Shannon guilty of possession of cocaine and possession of a firearm by a felon. He contends that there was insufficient evidence to support his convictions and that the district court erred in its instruction to the jury on possession of a firearm by a felon. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

BACKGROUND

On April 12, 2018, officers from a multi-agency task force were conducting surveillance of a residence on East Moreno Avenue in Colorado Springs, attempting to locate an individual named Demontrae Wilson. A silver Ford Thunderbird with two male occupants was parked in front of the house. Officers saw one male, closely matching the description of Mr. Wilson, exit the front passenger side of the vehicle and walk toward the house. The driver remained alone in the vehicle for a few minutes and "did some moving around the passenger compartment," R., Vol. 4 at 98, including "reach[ing] toward the center console," id. at 199. When the driver exited the vehicle, officers recognized him as Mr. Shannon from prior investigations. After initially walking to the front of the house, Mr. Shannon walked away and entered a gold Infiniti sedan that pulled up outside the house.

Several officers then approached the residence and examined the Thunderbird along the way. The windows were heavily tinted, but they saw, in plain view, plastic baggies and a digital scale on the driver's side floorboard and a green bag covered up in the back seat. Once at the residence, the officers learned that the Thunderbird's passenger was not Mr. Wilson but was an individual named Zane Anderson.

Meanwhile, other officers followed the Infiniti, which traveled approximately half a mile to a neighborhood park known for drug activity. Mr. Shannon exited the vehicle, walked around the general area, spoke with a few people, and began walking back in the direction of the Thunderbird and the house where officers had hoped to locate Mr. Wilson. One officer exited his vehicle near Mr. Shannon and observedhim duck down between two vehicles as though he was attempting to hide something. The officer stopped Mr. Shannon and found a white and green Newport cigarette pack on the ground under a truck where Mr. Shannon had ducked down. Inside that pack were three baggies, including two containing what appeared to be cocaine. The officer searched Mr. Shannon and found two cell phones, a set of keys that included a key to the Thunderbird, and $680 cash split nearly evenly between his wallet and one of his pockets. One of the cell phones contained text messages from two days earlier from someone named "Ray Big," stating, "Yo, give me a call bro," followed by "I might need the AR now." Id. at 161-62 (internal quotation marks omitted).

Officers also seized and searched the Thunderbird. They found: (1) a white and green Newport cigarette pack, a digital scale, and plastic baggies on the driver's side floorboard; (2) a digital scale and plastic baggies in the driver's door pocket; (3) a white and green Newport cigarette pack containing a baggie of what appeared to be cocaine in the center console; and (4) a green camping chair, containing an AR-15 assault rifle, on the rear seat. The vehicle was registered to someone named Allen Covington,¹ but there were no documents concerning Mr. Covington in the vehicle. Instead, officers found documents for Mr. Shannon, including (1) his Colorado identification card in the center console; (2) an order cancelling his driver license in the passenger compartment; and (3) several documents in the trunk, including hissocial security card, an apartment rent reminder in his name, and an arrest warrant referencing someone named "Bossy," id. at 156, which was Mr. Shannon's nickname.

Field testing indicated the baggies contained cocaine, but subsequent forensic testing showed the substances were cocaine and methamphetamine. Specifically, the cigarette pack in the center console of the Thunderbird contained a baggie with 2.51 grams of cocaine, and the pack found on the ground of the parking lot contained one baggie with 2.35 grams of cocaine and another with 5.22 grams of methamphetamine.

A jury found Mr. Shannon guilty of possession of a firearm by a felon and possession of cocaine. He was found not guilty of possession of methamphetamine, possession with intent to distribute methamphetamine, possession with intent to distribute cocaine, using or carrying a firearm during and in relation to a drug trafficking offense, and possession of a firearm in furtherance of a drug trafficking offense. The district court sentenced him to 51 months for possession of a firearm by a felon and 12 months for possession of cocaine, to run concurrently. Mr. Shannon timely appealed.

DISCUSSION

I. Sufficiency of the Evidence

Mr. Shannon first contends the district court erred in denying his motion for acquittal on the basis of insufficient evidence. We disagree.

A. Standard of Review

We review de novo a claim of insufficient evidence. See United States v. Benford, 875 F.3d 1007, 1014 (10th Cir. 2017). "Evidence is sufficient to support aconviction 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." Id. We "consider both direct and circumstantial evidence, as well as the reasonable inferences to be drawn from that evidence." United States v. Brooks, 438 F.3d 1231, 1236 (10th Cir. 2006) (internal quotation marks omitted). We "defer to the jury's resolution" and do not "weigh conflicting evidence" or "consider the credibility of witnesses." Id. The evidence "need not conclusively exclude every other reasonable hypothesis" or "negate all possibilities except guilt." United States v. Erickson, 561 F.3d 1150, 1158-59 (10th Cir. 2009) (internal quotation marks omitted). Rather, "we must simply determine whether the evidence, if believed, would establish each element of the crime." United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004) (brackets and internal quotation marks omitted).

B. Possession of a Firearm by a Felon

"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) [Mr. Shannon] was previously convicted of a felony; (2) he thereafter knowingly possessed a firearm; and (3) the possession was in or affecting interstate commerce." Benford, 875 F.3d at 1015. Only the second element is at issue here.

Possession "may be either actual or constructive." Id. "Actual possession exists when a person has direct physical control over a thing." Id. at 1020 (internal quotation marks omitted); see also United States v. Samora, ___ F.3d ___, 2020 WL1697486, at *1 (10th Cir. Apr. 8, 2020) (noting for "actual possession, the defendant must have held the firearm for a mere second or two during the time specified in the indictment" (internal quotation marks omitted)). Constructive possession, on the other hand, exists "when a person, though lacking such physical custody, still has the power and intent to exercise control over the object." Benford, 875 F.3d at 1020 (emphasis and internal quotation marks omitted).

"[W]hen, 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. at 1015.² "[P]ossession of a weapon by a prohibited person may be proved by circumstantial as well as direct evidence." United States v. Morales, 758 F.3d 1232, 1235 (10th Cir. 2014) (brackets omitted). "While caution must be taken that the conviction not be obtained by piling inference on inference, an inference of constructive possession is reasonable if the conclusion flows from logical and probabilistic reasoning." United States v. Lazcano-Villalobos, 175 F.3d 838, 843 (10th Cir. 1999) (internal quotation marks omitted).

The government contends there was sufficient evidence of both actual and constructive possession. Mr. Shannon insists his "possession of the firearm was, atbest, constructive." Aplt. Opening Br. at 18. We need not address actual possession because there was "sufficient evidence for a rational jury to find [Mr. Shannon] constructively possessed the firearm at issue." Samora, ___ F.3d ___, 2020 WL 1697486, at *2 & n.2.

Mr. Shannon correctly notes his proximity to the firearm is not, by itself, sufficient to establish constructive possession. But close proximity is probative "when considered with the rest of the evidence presented." United States v. Bowen, 437 F.3d 1009, 1016 (10th Cir. 2006). Such other evidence includes the fact that it was obvious to officers looking through the heavily tinted windows that there was "something covered up on the back seat," R. Vol. 4 at 102 (internal quotation marks omitted). And while he was alone in the vehicle for several minutes, officers observed Mr. Shannon "moving around the passenger compartment." Id. at 98.

Mr. Shannon attempts to distance himself from the Thunderbird by stating it "did not belong to [him] and there was no evidence he had occupied it for any length of time prior to his arrest." Aplt. Opening Br. at 21. The vehicle was registered to a different individual, but that person was nowhere to be found. And documents identifying Mr. Shannon, not the registered owner, were found throughout the vehicle, showing he "had access to all areas of [it]." United States v. Gambino-Zavala, 539 F.3d 1221, 1229 (10th Cir. 2008). Such documents—found in the center console, the passenger compartment, and the...