United States v. Adkins

196 F.3d 1112, 1999 Colo. J. C.A.R. 6342, 53 Fed. R. Serv. 531, 1999 U.S. App. LEXIS 29754, 1999 WL 1029130
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 12, 1999
Docket98-3322
StatusPublished
Cited by75 cases

This text of 196 F.3d 1112 (United States v. Adkins) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Adkins, 196 F.3d 1112, 1999 Colo. J. C.A.R. 6342, 53 Fed. R. Serv. 531, 1999 U.S. App. LEXIS 29754, 1999 WL 1029130 (10th Cir. 1999).

Opinions

MURPHY, Circuit Judge.

I. INTRODUCTION

Tony Glen Adkins was convicted as a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The trial judge sentenced Adkins to a term of 180-months imprisonment followed by three years of supervised release. On appeal, Adkins raises four claims: (1) the trial court erred when it refused to give Adkins’ proposed theory of defense jury instruction defining “possession” to exclude momentary control without criminal intent; (2) the court erred by allowing the government to introduce into evidence a rifle similar to the one for which Adkins was charged in the indictment; (3) the evidence presented at trial was insufficient to sustain a conviction; and (4) the court erred by applying an Armed Career Criminal enhancement in sentencing him. This court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and affirms both the conviction and sentence.

[1114]*1114II. BACKGROUND

On March 2, 1998 in Onaga, Kansas, Tony Glen Adkins was driving a blue compact Chevrolet, with Sheila Tork riding in the passenger seat. Adkins collided with a parked trailer owned by Ernest May, who then called 911. Immediately after the collision, Adkins and Tork fled the scene. When Pottawatomie County Deputy Sheriff Cory Gilmore arrived, May was the only person remaining. Deputy Gilmore ran a license check on the Chevrolet and determined an Elsie Bluma of Onaga was the owner.

Upon searching the abandoned Chevrolet, Sheriffs officers discovered six to seven lose 7.62 x 39 mm rifle rounds. Several minutes later, Bluma arrived at the scene. Bluma told officers she had loaned the car earlier that day to a Glen or a Glen Scott. Attempting to find Adkins and Tork, the officers went to Bluma’s residence, where they located Tork but not Adkins. While at Bluma’s house, the officers also discovered two or three more 7.62 x 39 mm rifle rounds.

On April 15, 1998, an agent of the Bureau of Alcohol, Tobacco, and Firearms (“ATF”) interviewed Jeff Comer at his business, J and J True Value Hardware. A federally licensed firearms dealer, Comer stated that on February 15, 1998, he sold an SKS Paratrooper, 7.62 x 39 mm rifle to Bluma, also providing her a complimentary box of ammunition. Comer further stated a white male, whom Comer identified as Adkins, was with Bluma when she bought the rifle. At trial, Comer could not recall who carried the rifle from the store; Bluma testified Adkins must have done so.

On April 17, 1998, ATF agents and Sheriffs officers searched Bluma’s residence, finding thirty-seven more 7.62 x 39 mm rifle rounds and three photographs of Adkins. Three weeks later, Adkins was arrested in Topeka, Kansas, though no rifle was ever found.

III. ANALYSIS

A. Jury Instructions

This court reviews a trial court’s decision on whether to give a particular jury instruction for abuse of discretion and views the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law. See Medlock v. Ortho Biotech, Inc., 164 F.3d 545, 552 (10th Cir.), cert. denied, — U.S. -, 120 S.Ct. 48, — L.Ed.2d - (1999); United States v. Cerrato-Reyes, 176 F.3d 1253, 1262 (10th Cir.1999).

Adkins asserts the trial court erred in refusing to give his proposed theory of defense instruction, which in defining “possession” stated in relevant part, “Momentary, transitory, or temporal control of a thing, without criminal intent, is not possession.” Indeed, the trial court twice refused to give the jury this proposed instruction. Initially, when deciding upon the proper jury charge, the court rejected Adkins’ proposal. Instead, the court gave a standard possession instruction which indicated in order to convict, the jury must find Adkins “knowingly possessed” a firearm and further defined both “possession” and “knowing,” but did not mention the concept of “fleeting possession.” In his closing argument, however, defense counsel was allowed to and did argue that the government’s evidence was insufficient, showing Adkins only temporarily possessed the rifle when he carried it from the hardware store to Bluma’s vehicle. During deliberations, the jury inquired about possession, and again, the trial court refused to provide them with Adkins’ proposed instruction.1 On appeal, Adkins maintains the court’s failure to give his [1115]*1115fleeting possession instruction may have led the jury to improperly convict Adkins based upon but a momentary possession.

A defendant is entitled to a theory of defense instruction when that instruction articulates a correct statement of the law and sufficient evidence has been presented to support the jury’s finding in defendant’s favor on that theory. See United States v. Dozal, 173 F.3d 787, 796 (10th Cir.1999); United States v. Swallow, 109 F.3d 656, 658 (10th Cir.1997). Although Adkins’ fleeting possession instruction may indeed constitute a correct statement of the law, no possible interpretation of the evidence presented at trial could support an acquittal under that theory.

Courts which explicitly have accepted the fleeting possession theory define it this way: a jury must acquit a defendant charged with possession of contraband when the evidence demonstrates not only that the defendant merely momentarily possessed contraband, but also that the defendant either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporarily. In interpreting a statute virtually identical to 18 U.S.C. § 922(g), the Fifth Circuit did recognize the fleeting possession theory, but only when the possession was both temporary and justified for self-defense purposes. See United States v. Panter, 688 F.2d 268, 271 (5th Cir.1982). The Fifth Circuit earlier emphasized the knowledge or intent element of the fleeting possession theory when it discussed it in the context of a drug possession case: “[Defendant’s] possession of the one [marijuana] cigarette was a mere fleeting possession, not inconsistent with honest intention or mere curiosity, and his throwing the cigarette away upon being ordered to stop is not, in our opinion, substantial evidence of a guilty knowledge or intent. Criminal intent is a sine qua non of criminal responsibility.” Rent v. United States, 209 F.2d 893, 900 (5th Cir.1954); see also United States v. Parker, 566 F.2d 1304, 1306 (5th Cir.1978) (“That possession is momentary is immaterial” to prosecution for possession of unregistered firearm). Moreover, in an unpublished order and judgment addressing 18 U.S.C. § 922(g), this court noted “federal firearms laws impose ‘something approaching absolute liability.’ ” United States v.

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Bluebook (online)
196 F.3d 1112, 1999 Colo. J. C.A.R. 6342, 53 Fed. R. Serv. 531, 1999 U.S. App. LEXIS 29754, 1999 WL 1029130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-adkins-ca10-1999.