FILED
                                                             United States Court of Appeals
                                                                     Tenth Circuit

                                                                   August 30, 2018
                      UNITED STATES COURT OF APPEALS
                                                                 Elisabeth A. Shumaker
                                   TENTH CIRCUIT                     Clerk of Court



 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,

 v.                                                      No. 16-1474
                                              (D.C. No. 1:15-CR-00030-MSK-1)
 DAVID SCOTT,                                             (D. Colo.)

          Defendant - Appellant.


                              ORDER AND JUDGMENT *


Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.


      A jury convicted David Scott of possession of a firearm by a felon and

sentenced him to 60 months in prison. Scott appeals his conviction and sentence.

He challenges the jury instructions, admission of prior bad acts evidence under

Rule 404(b), and the district court’s variance of the sentence upwards to 60

months from a United States Sentencing Guidelines range of 27 to 33 months.

      The government concedes the jury instruction for constructive possession

misstated the law and constituted error. We agree and further find it to be plain


      *
         This order and judgment is not binding precedent except under the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.
error. Accordingly, we reverse the judgment of the district court and remand with

instructions to vacate the underlying conviction and sentence and to retry Scott in

accordance with this Order and Judgment.

                                  I. Background

      Scott was a passenger in a car that collided with another car. A police

officer observed the collision, and investigated the accident. He found three

passengers, but the driver of the car had fled.

      Once other officers arrived at the scene, the police asked for identification

from Scott and the other passengers. Scott complied and also gave information

about the seating arrangement of the passengers when asked. Scott was seated in

the back on the passenger side. One of the other passengers was seated in the

front passenger’s seat, and the other was seated behind the driver.

      Officers searched the vehicle and found a worn blue or black Star PD-CAL

.45-caliber pistol under the middle of the back seat. The gun was wrapped in a

red bandana and was next to a red-stitched, gray work glove. Scott was wearing

and carrying several red articles of clothing and accessories: a red and black hat,

black jeans with red stitching at the bottom of the back pockets, a red and white

belt, a red lighter, and a red cell phone case.

      After officers found the gun and learned that Scott had a prior conviction

for being a felon in possession of a firearm, the officers arrested Scott.



                                          -2-
Authorities later swabbed Scott’s cheek for DNA, and his DNA matched one of

three partial DNA profiles on the gun.

      He was tried and convicted of being a felon in possession of a firearm and

sentenced to 60 months in prison.

                                    II. Analysis

      After failing to object to the jury instructions at trial, Scott contends on

appeal, subject to plain error review, that the jury instructions misstated the

elements for constructive possession of a firearm. The government agrees.

Nonetheless, the government argues this mistake does not qualify as “plain error”

because the erroneous instructions did not affect his substantial rights, nor did

they seriously affect the fairness, integrity, or public reputation of the judicial

proceedings. Scott also challenges some of the evidence admitted at trial and the

length of his sentence.

      We conclude the incorrect jury instruction constituted plain error, so we

reverse and remand.

      A. Jury Instructions

       As the government concedes, the standard for constructive possession

given in the jury instructions was based on case law that is no longer valid. 1 Jury


      1
        The instructions were consistent with a number of past cases before the
standard changed. See, e.g., United States v. Denson, 

, 1220 (10th
Cir. 2014); United States v. Morales, 

, 1235 (10th Cir. 2014);
                                                                     (continued...)

                                          -3-
Instruction No. 14 contained the standard for constructive possession:

            In determining whether the Government has shown that
            Mr. Scott possessed a firearm, you are instructed that a
            person possesses a firearm if he has either actual or
            constructive possession of it. A person has actual
            possession of a firearm if that person has direct physical
            control over the firearm at a given time. A person has
            constructive possession of a firearm if that person does
            not have actual physical possession of the firearm at a
            particular point in time but he knows of the firearm’s
            presence and that he has the power to take physical
            control of it.

            Multiple people may be in constructive possession of a
            firearm simultaneously if each person has knowledge of
            the firearm’s presence and each person has the power to
            control it. However, merely being in the presence of
            others who have possession of a firearm does not
            constitute possession.

R., Vol. IV at 571 (emphasis added). 2 Under this instruction, the jury could find

Scott constructively possessed the gun if he knowingly had the power to control

it.

      This instruction no longer accurately reflects the law because our circuit

now requires an additional element of intent for constructive possession. In

United States v. Little, we explained that Henderson v. United States, 

(2015), “change[d] the law of constructive possession in our circuit.” 829


      1
       (...continued)
United States v. Kitchell, 

, 1228 (10th Cir. 2011).
      2
        The court also instructed the jury on actual possession. The jury used a
general verdict form, so we do not know which theory it used to convict Scott.

                                        -4-
F.3d 1177, 1182 (10th Cir. 2016). “[C]onstructive possession exists when a

person not in actual possession knowingly has the power and intent at a given

time to exercise dominion or control over an object.” 

And

in United States v. Simpson, we further clarified “[i]t was no longer enough to

show that [the defendant] knew about the items and could control them.” 

, 1060 (10th Cir. 2017), cert. denied, 

, 199 (2017). Thus,

while previous cases only required power and knowledge, after Little and

Simpson, constructive possession requires three elements: power, knowledge, and

intent to control. The difference is crucial. Intent is more difficult to show than

knowledge of the illicit contraband or weapon; intent requires purposeful resolve

in exercising dominion or control over the item.

      Despite the incorrect instructions, Scott acknowledges he did not object at

trial and has consequently asked for plain error review. “Plain error occurs when

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

proceedings.” United States v. McGlothin, 

, 1260 (10th Cir. 2013).

The government concedes the first two elements: the erroneous instruction

constituted an error that was plain.

      The government, however, contests the third and fourth elements.

      As to the third element, an error affects a defendant’s substantial rights if

there is “reasonable probability that, but for the error, the outcome of the

                                          -5-
proceeding would have been different.” 

(citation

omitted). And, a “plainly erroneous jury instruction affects a defendant’s

‘substantial rights’ if the instruction concerns a principal element . . . of the

crime, thus suggesting that the error affected the outcome of the case.” 

(quoting United States v. Duran, 

, 1330 (10th Cir.

1998)). 3

       The jury instruction on constructive possession for Scott’s trial misstated a

principal element of the charged crime—intent—and in doing so removed the

burden from the government of proving Scott’s intent to possess the firearm. In

Simpson, we encountered a nearly identical omission in jury instructions. We

found the defendant’s substantial rights were affected because “the erroneous jury

instruction had omitted an important element of the crime, intent, and the

defense’s theory had focused on that element.” 

(emphasis added).

Even with stronger evidence of constructive possession, we concluded the jury

could have reasonably concluded that the defendant did not intend to possess the

firearm.




       3
         The government argues that Scott erroneously relied on United States v.
Holly, 

, 1307 (10th Cir. 2007), in claiming that “it was the
government’s burden to show beyond a reasonable doubt that the error did not
contribute to the verdict.” Aple. Br. at 40. We agree with the government on this
point, even though we ultimately conclude Scott has met his higher burden.

                                           -6-
      To satisfy the fourth element, the defendant must show the instructional

error “seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.” 

. We have found that instructional

errors do not always meet this element. United States v. Wolfname, 

, 1223 (10th Cir. 2016). But as we recently recognized in 

, where “the government’s evidence on intent was not overwhelming, the

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

the judicial proceedings, “ citing 

(concluding that the

failure to instruct on an essential element of the crime satisfied the fourth element

of the plain-error test because the government's evidence on the omitted element

of the crime was neither overwhelming nor uncontroverted).

      In Scott’s case, the evidence is not overwhelming. 4 Scott was in a car with

three other individuals, none of whom claimed the gun. A jury certainly could

reasonably conclude—as the jury likely did—that Scott had knowledge of the

gun. But possession requires more than mere knowledge; it requires intent to

control. The government points to mostly circumstantial evidence linking Scott to




      4
        The government also argues the evidence for actual possession was
overwhelming and would make the error harmless, but we are not convinced. The
government did not show any compelling evidence of ownership or “direct
physical control” of the gun at the relevant time. United States v. Benford, 

, 1020 (10th Cir. 2017) (quoting Henderson v. United States, 

, 1784 (2015)).

                                          -7-
the gun: the position of the gun, Scott’s DNA, and the red motif across Scott’s

clothing and accessories. We are unpersuaded.

      First, the gun was located under the middle seat of the rear compartment,

and another passenger had direct access to the gun. And Scott emphasized at trial

that he was right-handed, so he would have had to reach across his body to access

the gun from his seat on the passenger side of the car. In other words, the gun’s

positioning would constitute unnatural placement of the gun for a right-handed

person, who might want the gun to be closer to the right side of his body for

easier access. And Scott suggested the gun may have moved its position under

the back seat following the collision, given the looseness of the seat.

      As to the DNA evidence, the government’s expert found it was

inconclusive—Scott’s DNA was one of three DNA profiles found on the gun.

The government’s expert admitted the DNA was “trace DNA or touch DNA,”

meaning it could have reached the gun through secondary transfer, such as

touching someone else who eventually touched the gun. R., Vol. IV at 371–372.

The expert also opined that the gun’s magazine had touch DNA, but the partial

profile of the DNA found on the magazine did not match Scott’s DNA. In fact,

the expert admitted it was “some other person’s DNA.” 

And there

were no fingerprints on the gun.

      Finally, the red bandana containing the gun and the red-stitched work glove

found next to it do not directly implicate Scott. Two of the other occupants of the

                                         -8-
car admitted they also were members of a gang known as the “Bloods,” and all

occupants were “wearing red clothing and other items that [we]re . . . consistent

with Bloods gang membership.” R., Vol. IV at 638. Because of the general

importance of red for the Bloods and because the red motif was not unique to

Scott, the bandana and glove could be linked to any of the other occupants of the

vehicle.

      Therefore, we conclude that had the court issued the legally correct

instructions including the intent element, the outcome of Scott’s trial might have

been different. Accordingly, this error affected Scott’s substantial

rights—establishing the third element of plain error. 5 We also conclude the fourth

element of plain error has been met. As in Simpson, the lack of overwhelming

and uncontroverted evidence meant “the fairness, integrity, or public reputation of

the judicial proceedings” were 

.

      Consequently, we find plain error and remand for a new trial.

      B. Rule 404(b) Evidentiary Challenges and Sentence




      5
        The government also contends it proved actual possession. The only
evidence offered for actual possession was what we described above in discussing
constructive possession. While the parties discuss the applicability of Holly, 

(10th Cir. 2007), we ultimately find it inapplicable since the third
element of plain error would be satisfied under either theory of possession. Nor
is United States v. Fykes, 678 F. App’x 677 (10th Cir. 2017) (unpublished),
persuasive since the gun in that case was located in the defendant’s backpack
along with his passport, laptop, and other personal items.

                                         -9-
      Scott challenges three admissions of evidence by the district court relating

to prior bad acts: (1) Scott’s prior conviction under the same statute of being a

felon in possession of a firearm, (2) testimony of Scott’s prior girlfriend

indicating that Scott possessed a “small gun” in 2012, and (3) her testimony that

Scott stole one of her other guns in the past. He also argues that his sentence is

substantively unreasonable.

      Since we are remanding for a new trial, we decline to opine on the

challenges to the evidence or his sentence. It is unclear whether the government

will pursue the same evidence on remand, and Scott is free to seek a motion in

limine regarding the objectionable evidence. If Scott is reconvicted he will be

entitled to resentencing, and the facts and circumstances at that time will differ

from those asserted on appeal.

                                 III. Conclusion

      Because the district court plainly erred by giving the jury a legally

erroneous instruction, we REVERSE the judgment of the district court and

remand with instructions to vacate the underlying conviction and sentence and to

retry Scott in accordance with this Order and Judgment.

                                                ENTERED FOR THE COURT

                                                Timothy M. Tymkovich
                                                Chief Judge




                                         -10-