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United States v. Campbell

United States District Court, D. New Mexico

August 16, 2017




         This matter is before the Court on Defendant Mia Coy Campbell's Motion for New Trial pursuant to Rules 52(b) and 33. (Doc. 71.) The Government opposes this motion. (Doc. 78.) Having considered the arguments of the parties, relevant law, and being otherwise fully informed, the Court DENIES the Motion for New Trial.

         I. BACKGROUND

         On November 5, 2015, Defendant was indicted on a charge of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). (Doc. 13.) A three-day trial commenced on March 22, 2016. (Doc. 53.) At trial, the parties introduced the following relevant evidence.

         On September 24, 2015, agents from various law enforcement agencies obtained a warrant to arrest Defendant on charges unrelated to this case. (Doc. 75 at 23, 49.) The agents found Defendant at 209 Fabian Road in Carlsbad, New Mexico, around 9:00 a.m. (Id. at 23.) The agents surrounded the home to monitor entrances and exits from the property. (Id. at 25-26.) Pecos Valley Drug Task Force agent Jorge Martinez walked along the north side of the home toward the backyard, where he saw Defendant. (Id.) Defendant was in the backyard, ten to fifteen feet away from a canopy with a partially disassembled go-cart beneath the canopy when Agent Martinez saw him. (Id. at 27-29.) Agent Martinez placed Defendant under arrest and the agents ascertained that Defendant was the only one at the home or in the backyard when they arrived. (Id. at 29, 49.)

         The agents found a firearm inside an open tool bag in the backyard, next to the disassembled go-cart under the canopy. (Id. at 55-56.) Agents also found an empty can of spray paint in the garbage can next to the canopy. (Id. at 86-88.) The go-cart was still covered in wet paint. (Id.) There was a powered-on cell phone on one of the go-cart's tires. (Id. at 124, 143.) No one claimed the phone before the trial. (Id.) A Marlboro cigarette that had been recently extinguished was next to the go-cart. (Id. at 54.) Agents discovered a box of Marlboro cigarettes in Defendant's pocket after the arrest. (Id. at 30-31.) Defendant asked to smoke one of the cigarettes. (Id.) Agents noted that Defendants hands had grease on them, as though he had worked on an engine. (Id.) Inside the home, there were personal documents that belonged to the Defendant and an empty holster matching the firearm found in the backyard. (Id. at 59-61.)

         The Government introduced evidence about Defendant's prior incident with firearm possession. Approximately one month before the trial in this case, officers stopped Defendant in a vehicle in which he was the sole occupant. There was a handgun inside a bag in the backseat. (See Doc. 76 at 39-56.) Defendant did not object to the proposed jury instruction regarding actual versus constructive possession at trial. (Id. at 80-90.) The jury found Defendant guilty of being a felon in possession of a firearm. (Doc. 77 at 2.)


         Federal Rule of Criminal Procedure 33 provides that “the court may vacate any judgment and grant a new trial if the interest of justice so requires.” Fed.R.Civ.P. 33(a). “A motion for a new trial is not regarded with favor and is only issued with great caution.” United States v. Herrera, 481 F.3d 1266, 1269-70 (10th Cir. 2007) (citing United States v. Trujillo, 136 F.3d 1388, 1394 (10th Cir. 1998)). The decision whether to grant a motion for a new trial is committed to the sound discretion of the trial court. United States v. Stevens, 978 F.2d 565, 570 (10th Cir. 1992). “The Court of Appeals will find plain error only when an error is particularly egregious and the failure to remand for correction would produce a miscarriage of justice.” United States v. Rosales-Miranda, 755 F.3d 1253, 1258 (10th Cir. 2014)

         When a defendant does not object to alleged prosecutorial misconduct at trial, review is limited to plain error. United States v. Anaya, 727 F.3d 1043, 1053 (10th Cir. 2013) (citing United States v. Dazey, 403 F.3d 1147, 1170 (10th Cir. 2005); United States v. Caballero, 277 F.3d 1235, 1244 (10th Cir. 2002); United States v. Gonzalez-Montoya, 161 F.3d 643, 650 (10th Cir. 1998); United States v. May, 52 F.3d 885, 887 (10th Cir. 1995)). “Plain error occurs when there is (1) error, (2) that is plain, which (3) affects the defendant's substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Fleming, 667 F.3d 1098, 1003 (10th Cir. 2011) (citing United States v. Taylor, 514 F.3d 1092, 1100 (10th Cir. 2008)). Fed. R. Crim. P 52(b). “Even when the district court fails to include an element of the crime in the instruction (including a mens rea element), we still apply the harmless error rule, asking whether it appears beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” United States v. Little, 829 F.3d 1177, 1183 (10th Cir. 2016) (citing United States v. Sorensen, 801 F.3d 1217, 1229 (10th Cir. 2015)).


         The Defendant bases his request for a new trial on the possession instruction. Neither party disputes that the jury instruction at issue was erroneous. Defendant argues that the instruction given to the jury regarding constructive possession constitutes harmful error warranting a new trial in light of the Tenth Circuit's holding in Little, 829 F.3d 1177. In deciding whether this error warrants a new trial, the Court must decide whether it was harmless. Little, 829 F.3d at 1183. Defendant claims that the Tenth Circuit now holds that the constructive possession instruction given in his case was legally erroneous because it failed to require “proof of intent to exercise control over an object.” (Doc. 71 at 4.) Defendant explains that the “faulty instruction used in Little was the same instruction used to convict” Defendant. (Id.) Defendant argues that the fact pattern in his case can be distinguished from facts in Little, so the fact that the Tenth Circuit upheld the conviction of the defendant in Little due to harmless error is irrelevant. (Id. at 4-7.)

         In Little, the Tenth Circuit held that “constructive possession occurs 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.” Little, 829 F.3d at 1183. The Tenth Circuit determined that the Tenth Circuit Criminal Pattern Jury Instruction §1.31 (2011) was deficient because it failed to provide instructions regarding the mens rea requirement of the law of constructive possession. Id. The Tenth Circuit also held that omitting the mens rea element in Little was harmless because trial evidence demonstrated that the defendant intended to exercise control over the firearms at issue. Id. at 1183. Similarly, in this case, the evidence is of a substantial enough weight to demonstrate that Defendant intended to exercise control over the firearm in his backyard. The Tenth Circuit recognized that “a reasonable jury would be compelled to conclude that Little intended to exercise control over the weapons” found in his well house because of “substantial evidence demonstrating that Little had exclusive control over the well house.” Id.

         The trial record overwhelmingly demonstrates that Defendant constructively, if not actually, possessed the firearm, so the instruction regarding constructive possession does not rise to the level of harmful error. As established above, Defendant was in a small backyard walking away from the canopy when Agent Martinez encountered him. The agents established that no one else was in the backyard or at the home when they arrived. Defendant was only a few feet away from the firearm at that time. The Government also presented evidence that Defendant exercised exclusive control over the activities under the canopy: the smoldering cigarette that matched the cigarettes in Defendant's pocket, the spray paint can and the wet paint on the go-cart, Defendant's greasy hands that indicated that he had been working on an engine, and the unclaimed powered-on cell phone found near the go-cart. The Government also provided evidence that Defendant possessed a firearm a month prior to his arrest, which bears upon Defendant's intent to possess and exercise control over the firearm present on the day of his arrest. The Government showed that Defendant exclusively controlled the house and the backyard on the day of his arrest. A reasonable jury could have been convinced that the evidence showed that Defendant had actual possession, not mere constructive possession. If Defendant had actual possession, then he exercised direct ...

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