United States v. Eddings

• Court: Court of Appeals for the Tenth Circuit
• Decided: October 31, 2025
• Docket: 24-2118
• Status: Published

Opinion

Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS October 31, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-2118

WALTER PALMON EDDINGS,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of New Mexico (D.C. No. 1:22-CR-00300-KWR-1) _________________________________

Alan S. Mouritsen, Parsons Behle & Latimer, Salt Lake City, Utah, for Defendant – Appellant.

Tiffany L. Walters, Assistant United States Attorney (Holland S. Kastrin, Acting United States Attorney, with her on the brief), District of New Mexico, Albuquerque, New Mexico, for Plaintiff – Appellee. _________________________________

Before HARTZ, McHUGH, and EID, Circuit Judges. _________________________________

McHUGH, Circuit Judge. _________________________________

This is a direct appeal from Defendant-Appellant Walter Eddings’s conviction

for two counts of being a felon in possession of a firearm or ammunition in violation

of 18 U.S.C. §§ 922(g)(1) and 924. Count One of the indictment was based on Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 2

Sergeant Peter Andazola’s testimony that he observed Mr. Eddings reposition a rifle

while cleaning the back seat of an SUV. Count Two concerns additional firearms and

ammunition that officers found in a backpack Mr. Eddings was carrying at the time

of his arrest.

Before trial, Mr. Eddings moved to suppress evidence seized as a result of his

warrantless arrest, contending that the officers lacked probable cause. The district

court found that the officers had probable cause to make the warrantless arrest and

denied the motion. At trial, the Government requested an investigative-techniques

jury instruction, which informs the jury that the government is not obligated to use

all, or any particular, investigative methods available to prove its case. The district

court gave the instruction over Mr. Eddings’s objection. After deliberations, the jury

returned a verdict of guilty on both counts.

On appeal, Mr. Eddings raises four challenges. First, Mr. Eddings challenges

the district court’s denial of his motion to suppress, arguing that Sgt. Andazola’s

testimony was not credible and was insufficient to support a finding of probable

cause. Second, Mr. Eddings challenges the sufficiency of the evidence to support a

conviction as to Count One, arguing the evidence establishes only that Mr. Eddings

moved a bag containing a rifle but that no evidence supported a finding that he

physically handled the rifle or knew the bag contained a rifle. Third, Mr. Eddings

contends the district court abused its discretion in giving the investigative-techniques

instruction because the instruction was inappropriate considering the arguments

presented at trial and because the instruction was misleading when used in

2 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 3

combination with the instruction on reasonable doubt. Lastly, Mr. Eddings argues for

the first time in his reply brief that evidence found in the backpack should have been

suppressed because the warrantless search of the backpack was not a valid search

incident to arrest.

For the reasons explained below, we reject Mr. Eddings’s arguments and,

exercising jurisdiction under 28 U.S.C. §1291, we affirm his conviction.

I. BACKGROUND

A. Factual Background

On January 31, 2022, Sgt. Andazola of the New Mexico State Police was

conducting surveillance at the Ambassador Inn (the “Inn”) in Albuquerque as part of

an investigation to apprehend a fugitive who had been seen at the Inn. Mr. Eddings

was not initially the subject of this investigation. In preparation for this surveillance,

however, Sgt. Andazola received briefing informing him that Mr. Eddings had also

been seen at the Inn. Sgt. Andazola conducted a record search on Mr. Eddings as a

safety precaution where he saw a photograph of Mr. Eddings and learned that

Mr. Eddings had a prior felony conviction.

During the surveillance operation, Sgt. Andazola and his partner, Agent

Charles Volk, were in a truck in the parking lot of the Inn. Agent Volk was

positioned in the driver’s seat and facing away from the Inn. Sgt. Andazola was

positioned in the truck’s back seat, looking through the back window with binoculars

and a still camera, to surveil the Inn. Distant surveillance video of the operation

3 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 4

shows that conditions were sunny and that Sgt. Andazola had unobstructed views of

the Inn as well as several vehicles in the parking lot.

While conducting surveillance, Sgt. Andazola observed Mr. Eddings and a

bald man exit the Inn together down a small stairwell. The bald man carried a bag

with the barrel of a firearm sticking out of it and held the gun by the exposed barrel.

Sgt. Andazola was able to identify the firearm as an AK-47-style rifle. He then

watched the bald man place the bag with the rifle in the back seat of a black Toyota

SUV.

Shortly thereafter, Mr. Eddings approached the SUV and began cleaning the

vehicle—removing trash and using wet wipes to clean the seats. While Mr. Eddings

cleaned the back seat of the SUV, Sgt. Andazola saw Mr. Eddings pick up the rifle

for a few seconds and reposition it in the back seat. Eventually, Mr. Eddings got into

the front passenger’s seat, the bald man took the driver’s seat, and an unidentified

woman got into the back seat before the car drove away.

Law enforcement followed the SUV to a 7-Eleven where they apprehended

Mr. Eddings. At the time of arrest, Mr. Eddings had a black backpack slung around

his shoulder. After arriving at the scene—at which point Mr. Eddings was in

custody—Sgt. Andazola searched the backpack and discovered two loaded handguns

inside. The next day, officers obtained a warrant to search the SUV, where they

found the rifle and a loaded magazine in a bag in the backseat.

4 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 5

B. Procedural Background Mr. Eddings was indicted and charged with two counts of being a felon in

possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and

924. Count One related to Mr. Eddings’s possession of the rifle found in the SUV;

Count Two was based on his possession of the two pistols found in the backpack he

was holding at the time of arrest.

Mr. Eddings moved to suppress all evidence recovered because of

Mr. Eddings’s arrest, arguing that his warrantless arrest was not supported by

probable cause. Mr. Eddings argued that Sgt. Andazola’s testimony was unsupported

by corroborating evidence, and that his position facing Mr. Eddings’s back would

have made it unlikely he could see what Mr. Eddings was doing inside the vehicle.

On this basis, Mr. Eddings argued that Sgt. Andazola’s testimony was not credible

and that there was no alternative basis to support a finding of probable cause.

The district court denied the motion, concluding the officers had probable

cause to arrest Mr. Eddings based on Sgt. Andazola’s identification of Mr. Eddings

as a felon and his observation that Mr. Eddings physically moved a firearm in the

back of a vehicle. The court noted that Sgt. Andazola saw the offense in broad

daylight with unobstructed views across the parking lot during clear weather. It

further observed that the Government had presented photos of Mr. Eddings cleaning

the vehicle and that Sgt. Andazola gave an extensive explanation of what he was and

was not able to see. Finally, the court pointed to Sgt. Andazola’s extensive training

and experience dealing with firearms through his time in the military and as a New

5 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 6

Mexico State Police officer. Based on his experience, the exposed barrel protruding

from the bag, and the way the bag was being held, the court noted that Sgt. Andazola

identified the item in the bag as a rifle with 100% certainty. The district court

therefore determined that Sgt. Andazola’s testimony was credible and supported a

finding of probable cause.

At trial, Sgt. Andazola recounted the narrative of what he observed during his

surveillance of the Inn. The Government also presented nontestimonial evidence,

including distant surveillance footage showing activity in the parking lot,

photographs of Mr. Eddings cleaning and sitting in the SUV, photographs of the

firearms and ammunition that were found, and the firearms and ammunition

themselves.

While cross-examining Sgt. Andazola, defense counsel drew attention to the

lack of evidence directly corroborating Sgt. Andazola’s testimony that Mr. Eddings

repositioned the rifle. Defense counsel focused on the lack of photographic and video

evidence of that moment and also drew attention to the lack of evidence presented

from radio transmissions, DNA, and fingerprint analysis.

After the first day of the two-day trial, the Government asked the district court

to provide an investigative-techniques instruction, 1 which would inform the jury that

1 We use the term “investigative-techniques instruction” as the term used by the parties and the term used in our prior decision in United States v. Trent, 767 F.3d 1046 (10th Cir. 2014). Other courts have referred to these jury instructions as “anti- CSI” instructions based on their origin in attempting to taper unrealistic juror evidentiary expectations from investigative dramas such as CSI. See, e.g., Fahie v. Virgin Islands, 858 F.3d 162, 166 (3d Cir. 2017). Still, other courts refer to these 6 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 7

the government was not required to use any particular investigative technique to

prove its case. The district court had initially denied the request for such an

instruction prior to trial, concluding it was “duplicative to existing pattern instruction

§ 1.08, which provides instruction on how the jury must weigh the testimony

provided.” ROA Vol. I at 250. However, shortly before the close of evidence, the

court reconsidered, concluding that the evidence presented at trial warranted such an

instruction.

Mr. Eddings’s counsel objected that the instruction was unnecessary because it

was duplicative and because he had not presented a wrong person defense. He also

argued generally that the instruction undermined his client’s ability to present a

defense based on an inadequate investigation. The Government countered that the

instruction was warranted by defense counsel’s insinuation that testimonial evidence

was insufficient to meet the Government’s burden of proof. The court agreed with the

Government and gave the investigative-techniques instruction over Mr. Eddings’s

objection.

After deliberations, the jury returned its verdict, finding Mr. Eddings guilty as

to both Counts One and Two.

instructions as “no duty” instructions. See, e.g., Wheeler v. United States, 930 A.2d 232, 238 (D.C. 2007).

7 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 8

II. ANALYSIS Mr. Eddings raises four arguments on appeal. First, Mr. Eddings argues that

the district court abused its discretion in denying his motion to suppress because his

warrantless arrest was not supported by probable cause. Second, Mr. Eddings asserts

that there was insufficient evidence to convict him as to Count One of the indictment

because no evidence supported a finding that he actually or constructively possessed

the rifle or that he had knowledge of the rifle. Third, Mr. Eddings contends the

district court abused its discretion in giving the investigative-techniques instruction

to the jury because the instruction was not warranted by the arguments made at trial

and was misleading when combined with the district court’s instruction regarding

reasonable doubt. Fourth, Mr. Eddings argues that the district court plainly erred in

failing to suppress evidence from the search of the backpack Mr. Eddings was

carrying at the time of his arrest.

We address each argument in turn.

A. Motion To Suppress Mr. Eddings contends the district court abused its discretion in denying his

motion to suppress because it erred in concluding that Mr. Eddings’s warrantless

arrest was supported by probable cause. Mr. Eddings argues that Sgt. Andazola’s

testimony detailing how he observed Mr. Eddings handle a firearm while cleaning the

back seat of the SUV was not credible based on Sgt. Andazola’s position during

surveillance and because it was unsupported by additional evidence. Mr. Eddings

8 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 9

also contends there was no evidence from which the district court could conclude that

he knew the bag contained a firearm.

In response, the Government argues that the district court did not clearly err in

its decision to credit Sgt. Andazola’s testimony and that there was sufficient evidence

from which Mr. Eddings’s knowledge that the bag contained a rifle could be inferred.

Furthermore, the Government urges that Mr. Eddings’s argument regarding

knowledge is waived because he failed to raise the argument in the district court and,

on appeal, failed to provide good cause for his failure to raise the argument earlier.

1. Standard of Review

The Fourth Amendment provides that “[t]he right of the people to be secure in

their persons, houses, papers, and effects, against unreasonable searches and seizures,

shall not be violated.” “A warrantless arrest violates the Fourth Amendment unless it

was supported by probable cause.” Keylon v. City of Albuquerque, 535 F.3d 1210,

1216 (10th Cir. 2008). Probable cause to arrest exists if, under the totality of the facts

and circumstances within an officer’s knowledge, “a reasonable person would believe

that an offense has been committed by the person arrested.” Morris v. Noe, 672 F.3d

1185, 1192 (10th Cir. 2012) (quotation marks omitted); see also Mink v. Knox, 613

F.3d 995, 1003 (10th Cir. 2010).

“When reviewing a district court’s denial of a motion to suppress, we view the

evidence in the light most favorable to the government and accept the district court’s

factual findings unless they are clearly erroneous.” United States v. Palms, 21 F.4th

689, 697 (10th Cir. 2021) (internal quotation marks omitted). Determinations of

9 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 10

witness credibility are likewise reviewed for clear error. United States v. Zabalza,

346 F.3d 1255, 1259 (10th Cir. 2003). However, we review the ultimate question of

whether probable cause supported the search or seizure de novo. United States v.

Artez, 389 F.3d 1106, 1111 (10th Cir. 2004).

2. Discussion

Here, whether officers had probable cause to make a warrantless arrest turns

on the credibility of Sgt. Andazola’s testimony that he observed Mr. Eddings—an

individual with a prior felony conviction—possess a firearm while cleaning the SUV.

Mr. Eddings’s primary contention is that the district court should not have credited

Sgt. Andazola’s testimony. In particular, Mr. Eddings notes that while Sgt. Andazola

captured several photos of Mr. Eddings during his surveillance, he failed to capture

any photographs of the moment when Mr. Eddings handled the firearm. Nor did the

Government present any other corroborating evidence of possession. Furthermore,

Mr. Eddings argues that Sgt. Andazola’s position, facing Mr. Eddings’s back while

he cleaned the SUV, made it unlikely that Sgt. Andazola could observe what

Mr. Eddings was doing inside the back seat of the vehicle.

Despite Mr. Eddings’s skepticism as to what Sgt. Andazola could have

observed, Sgt. Andazola testified that, using his binoculars and due to the position of

Mr. Eddings’s body, Sgt. Andazola was able to observe Mr. Eddings moving the bag.

And video surveillance demonstrates that Sgt. Andazola’s view was otherwise

unobstructed and conducted in daylight with clear weather.

10 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 11

Furthermore, the lack of photographic and video evidence showing

Mr. Eddings moving the firearm does not directly contradict that testimony. The

video surveillance is from too far of a distance to observe what Mr. Eddings was

doing in the back of the SUV. And Sgt. Andazola explained the absence of

photographic evidence, stating that he was unable to appreciate the significance of

what he observed until the opportunity to photograph the incident had passed.

Under these facts, the district court did not clearly err in crediting

Sgt. Andazola’s testimony that he observed Mr. Eddings reposition the firearm. As a

result, there was probable cause to arrest Mr. Eddings as a felon in possession of a

firearm.

For the first time on appeal, Mr. Eddings argues that probable cause was

lacking because no evidence supported a reasonable basis to believe that Mr. Eddings

knew that the bag in the SUV contained a firearm. Knowledge that the item

possessed is a firearm or ammunition is a necessary element of a felon in possession

charge under 18 U.S.C. § 922(g)(1). Rehaif v. United States, 588 U.S. 225, 227

(2019). Mr. Eddings, however, provides us with no reason why he did not raise this

argument in the district court.

To preserve an issue for appeal, a party must “alert the district court to the

issue and seek a ruling.” GeoMetWatch Corp. v. Behunin, 38 F.4th 1183, 1206 (10th

Cir. 2022) (quotation marks and brackets omitted). “Changing to a new theory on

appeal that falls under the same general category as an argument presented at trial or

discussing a theory only in a vague and ambiguous way below is not adequate to

11 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 12

preserve issues for appeal.” Okland Oil Co. v. Conoco Inc., 144 F.3d 1308, 1314 n.4

(10th Cir. 1998) (internal quotation marks omitted). Motions to suppress evidence

and specific arguments to suppress evidence raised for the first time on appeal “are

waived absent a showing of good cause for why they were not raised below.” United

States v. Burke, 633 F.3d 984, 991 (10th Cir. 2011).

Because Mr. Eddings failed to argue before the district court that a lack of

evidence that he knew the bag contained a firearm precluded a finding of probable

cause, and because he declined to show good cause for his failure to do so, this

argument is waived. Nevertheless, there was sufficient evidence from which

Mr. Eddings’s knowledge of the firearm could have been inferred. Sgt. Andazola

testified that the barrel of the rifle was left exposed and that the bald man, with whom

Mr. Eddings was walking, held the gun by the barrel. From this exposed barrel,

Sgt. Andazola testified that he was 100% certain that the bag contained a firearm. He

also testified that Mr. Eddings exited the Inn with the bald man and eventually

repositioned the rifle in the back seat of the SUV where the bald man had placed it.

Based on the exposed barrel, Mr. Eddings’s proximity to the bag while the barrel was

exposed, and Mr. Eddings’s repositioning the bag, the district court could have easily

concluded that Sgt. Andazola had a reasonable basis to infer that Mr. Eddings knew

the bag contained a firearm.

Accordingly, the district court did not abuse its discretion in denying

Mr. Eddings’s motion to suppress based on a finding of probable cause.

12 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 13

B. Sufficiency of the Evidence

Mr. Eddings next contends the evidence was insufficient to convict him as to

Count One of the indictment. First, he again argues there is insufficient evidence

from which a reasonable jury could find that he knew the bag in the SUV contained a

firearm. Additionally, Mr. Eddings argues that Sgt. Andazola’s testimony is legally

insufficient to support either actual or constructive possession of the rifle. Evidence

that he possessed a bag containing a firearm, Mr. Eddings argues, is insufficient to

support actual possession because he lacked physical contact with the firearm. And

Mr. Eddings argues that the Government failed to present evidence of a nexus

between himself and the rifle sufficient to support a finding of constructive

possession.

“Under the sufficiency-of-the-evidence test, we view the evidence in the light

most favorable to the government and ask whether the evidence—and any reasonable

inferences to be drawn from it—would allow a reasonable jury to find the defendant

guilty beyond a reasonable doubt.” United States v. Gallegos, 784 F.3d 1356, 1359

(10th Cir. 2015). In reviewing the sufficiency of the evidence, we do not “weigh

conflicting evidence or consider witness credibility.” United States v. Freeman, 70

F.4th 1265, 1273 (10th Cir. 2023) (quotation marks omitted).

This court reviews an unpreserved challenge to the sufficiency of the evidence

for plain error. United States v. Wyatt, 964 F.3d 947, 952 (10th Cir. 2020). “To

establish plain error, the appellant must demonstrate the district court (1) committed

13 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 14

error, (2) the error was plain, and (3) the plain error affected her substantial rights.”

Id. (quotation marks omitted). If the first three factors are met, the court “may

exercise discretion to correct the error if (4) it seriously affects the fairness, integrity,

or public reputation of judicial proceedings.” Id. (quotation marks omitted).

Mr. Eddings acknowledges that the issue of whether there was sufficient

evidence to convict him of Count One was not preserved. However, “a conviction in

the absence of sufficient evidence will almost always satisfy all four plain-error

requirements.” Gallegos, 784 F.3d at 1359. Thus, the plain error analysis differs little

from a de novo analysis in this context. Id.

a. Knowledge

In his challenge to the sufficiency of the evidence as to Count One,

Mr. Eddings reiterates his argument that there was insufficient evidence presented to

establish that he knew a firearm was inside the bag in the SUV. As with his argument

regarding knowledge and probable cause, however, we are unpersuaded.

At trial, Sgt. Andazola reiterated his suppression hearing testimony as to what

he had seen during his surveillance of the Ambassador Inn. He testified that he saw

Mr. Eddings and the bald man exit the Inn together and that the bald man was

carrying a bag containing a rifle and holding the rifle by its exposed barrel.

Sgt. Andazola again recounted how the bald man had placed the bag containing the

rifle in the SUV and how he had later seen Mr. Eddings pick up and reposition the

bag. The jury observed the rifle in court as well as an image of the bag in which it

14 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 15

was stored. Based on Sgt. Andazola’s testimony that the barrel of the rifle was

exposed and visible, Mr. Eddings’s proximity to the bald man while he carried the

rifle by the barrel, Mr. Eddings’s repositioning of the rifle, and the jury’s ability to

see the bag in which it was contained, it was not unreasonable for the jury to

conclude beyond a reasonable doubt that Mr. Eddings knew the bag contained a

b. Actual possession

Next, Mr. Eddings argues that actual possession requires evidence of direct

physical contact and that the evidence was therefore insufficient to sustain a

conviction as to Count One under a theory of actual possession. Mr. Eddings argues

that the evidence at trial at most supported a finding that he handled the bag in which

the rifle was contained. Thus, he contends there was no evidence presented to support

a finding that Mr. Eddings handled the rifle directly. According to Mr. Eddings, this

forecloses the possibility of actual possession. We disagree.

This court has never held that this kind of direct physical contact is required to

support a finding of actual possession. Instead, we have identified direct physical

control as the defining feature of actual possession. United States v. Thompson, 133

F.4th 1094, 1098 (10th Cir. 2025).

In United States v. Johnson, 46 F.4th 1183, 1187–88 (10th Cir. 2022), we

considered and rejected the defendant’s argument that actual possession required

physical handling of a firearm. We concluded that evidence the defendant had placed

his leg over the firearm was sufficient to support a finding of actual possession

15 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 16

because knowingly sitting on an item indicates physical control over it. Id. at 1187–

89. Pointing to a prior decision noting that a firearm’s presence in the defendant’s

front pocket amounted to actual possession, see United States v. Spence, 721 F.3d

1224, 1229–31 (10th Cir. 2013), we suggested in Johnson that the result would be the

same if a defendant asked a coconspirator to place a firearm into the defendant’s

pocket or holster such that the defendant would have direct physical control over the

firearm despite never touching it. Johnson, 46 F.4th at 1188.

Similarly, here we have no difficulty concluding that evidence presented at

trial was sufficient to support a finding that Mr. Eddings actually possessed the rifle

in the SUV. In taking direct physical control over the bag, the evidence necessarily

supports a finding that Mr. Eddings likewise exercised direct physical control over

what the jury could reasonably conclude were the known contents of that bag.

c. Constructive possession

Lastly, Mr. Eddings argues that the evidence was insufficient for a jury to find

beyond a reasonable doubt that he constructively possessed the rifle based on his

presence in the SUV where the rifle was found. “[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.” United States v. Little, 829 F.3d

1177, 1182 (10th Cir. 2016) (internal quotation marks omitted). “When a defendant

has exclusive possession of the premises on which a firearm is found, knowledge,

16 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 17

dominion, and control can be properly inferred because of the exclusive possession

alone.” United States v. Jameson, 478 F.3d 1204, 1209 (10th Cir. 2007).

Yet, to support a finding of constructive possession when two or more people

occupy a given space, the government must show a nexus between the defendant and

the firearm. United States v. Samora, 954 F.3d 1286, 1290 (10th Cir. 2020). This

nexus requires a showing that the defendant knew of, had access to, and intended to

exercise power and control over the firearm. United States v. Stepp, 89 F.4th 826,

832 (10th Cir. 2023). Such a nexus may be proven by direct or circumstantial

evidence so long as it is not proven by joint occupancy alone. Id. at 832–33.

Mr. Eddings argues that the evidence here, rather than demonstrating access to

the firearm and an intent to exercise power and control over it, instead merely shows

his presence in a vehicle with the rifle and two other persons. Again, we are not

persuaded.

As discussed above, the evidence presented at trial allowed the jury to

conclude beyond a reasonable doubt that Mr. Eddings had knowledge that there was a

rifle in the bag. Sgt. Andazola’s testimony that he witnessed Mr. Eddings readjust the

firearm in the back seat of the SUV and that Mr. Eddings eventually occupied the

front passenger seat of the vehicle is sufficient for a reasonable jury to conclude that

Mr. Eddings had both access to the rifle and the intent to exercise power and control

over it. Accordingly, the evidence presented at trial was sufficient to support a

conviction as to Count One based on a finding of either actual or constructive

possession over the rifle.

17 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 18

C. Jury Instructions

Mr. Eddings next argues that the district court abused its discretion in offering

the jury an investigative-techniques instruction, which told the jury the Government

was not required to use all investigative techniques available or to use any particular

investigative technique to prove its case. The instruction read to the jury was as

follows:

You have heard testimony as to the manner in which the Government conducted its investigation in this case, including certain investigative methods or techniques that were used, and certain investigative methods or techniques that were not used. In attempting to prove its case, the Government is under no obligation to use all of the investigative methods that are available to it or use any particular method. The question is whether the evidence presented is sufficient to convince you beyond a reasonable doubt of the defendant’s guilt.

ROA Vol. IV at 351. While Mr. Eddings concedes we have approved these

instructions in other cases, he makes two arguments for why the instruction was

impermissible in this case.

First, Mr. Eddings argues that the circumstances of the trial did not warrant an

investigative-techniques instruction because the arguments presented in the case did

not repeatedly draw attention to additional techniques that the Government should

have used. Instead, Mr. Eddings states that he merely drew attention to the lack of

evidence produced by the Government’s chosen investigative methods. Second, he

argues that the combination of the investigative-techniques instruction and the

district court’s use of the Tenth Circuit pattern instruction defining reasonable doubt,

which fails to list a lack of evidence as a basis for reasonable doubt, misled the jury

18 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 19

into believing that it could not consider investigative inadequacies. The Government

argues that Mr. Eddings failed to preserve these specific objections and that he

waived plain error review by failing to argue for it in his opening brief.

When preserved, we review a district court’s decision to give a particular jury

instruction for abuse of discretion and review legal objections to the instructions de

novo. Lederman v. Frontier Fire Prot., Inc., 685 F.3d 1151, 1154 (10th Cir. 2012).

We review jury instructions by examining the instructions in their entirety. United

States v. Heckard, 238 F.3d 1222, 1231 (10th Cir. 2001).

A district court judge has “substantial discretion in formulating the

instructions, so long as they are correct statements of the law and adequately cover

the issues presented.” United States v. Vasquez, 985 F.2d 491, 496 (10th Cir. 1993).

The question is not whether the instructions are flawless but instead “whether the

jury was misled in any way and whether it had a[n] understanding of the issues and

its duty to decide those issues.” Brodie v. Gen. Chem. Corp., 112 F.3d 440, 442 (10th

Cir. 1997) (quotation marks omitted). We will reverse only where there is

“substantial doubt that the jury was fairly guided.” United States v. Hicks, 116 F.4th

1109, 1118 (10th Cir. 2024) (quotation marks omitted).

However, Rule 30(d) of the Federal Rules of Criminal Procedure requires that

“[a] party who objects to any portion of the instructions or to a failure to give a

requested instruction must inform the court of the specific objection and the grounds

for the objection before the jury retires to deliberate.” Failure to object in accordance

19 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 20

with Rule 30 precludes appellate review except for plain error. 2 United States v.

Zapata, 546 F.3d 1179, 1190 (10th Cir. 2008). “If a party presents a new argument on

appeal in support of its objection to a jury instruction, that new argument is

unpreserved.” United States v. Walker, 130 F.4th 802, 806 (10th Cir. 2025). A

generalized objection to an instruction is likewise insufficient to preserve a specific

objection on appeal. Zapata, 546 F.3d at 1190.

“When an appellant fails to preserve an issue and also fails to make a plain-

error argument on appeal, we ordinarily deem the issue waived (rather than merely

forfeited) and decline to review the issue at all—for plain error or otherwise.” United

States v. Leffler, 942 F.3d 1192, 1196 (10th Cir. 2019). We have, however, allowed a

criminal defendant to argue error in an opening brief and then argue plain error in a

reply brief after the government asserts waiver. United States v. McBride, 94 F.4th

1036, 1044 (10th Cir. 2024). This exception will apply only if the defendant

“attempts to run the gauntlet created by our rigorous plain-error standard of review.”

United States v. Isabella, 918 F.3d 816, 845 (10th Cir. 2019) (internal quotation

marks omitted).

2 Again, plain error review requires the appellant to demonstrate that (1) the district court erred, (2) the error was plain, and (3) the error affected the appellant’s substantial rights. United States v. Wyatt, 964 F.3d 947, 952 (10th Cir. 2020). If the first three factors are met, the court “may exercise discretion to correct the error if (4) it seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. (quotation marks omitted).

20 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 21

Before the district court, Mr. Eddings objected to the use of an investigative-

techniques instruction, articulating three bases for the objection. First, he argued that

the instruction was inapplicable to the circumstances of this case because the case

from which the language was taken, United States v. Trent, 767 F.3d 1046 (10th Cir.

2014), approved use of the instruction when the defense argues that a proper

investigation would have revealed the true culprit of the crime. But here, rather than

pointing fingers at another culprit, Mr. Eddings argued that no crime ever occurred.

Second, Mr. Eddings asserted that the instruction was duplicative of Pattern Criminal

Jury Instruction 1.08, which already addressed the jury’s role to judge the credibility

of evidence. Third, Mr. Eddings claimed generally that the instruction impeded his

right to present a thoughtful and well-reasoned defense by undermining his ability to

attack law enforcement’s investigation and credibility.

On appeal, Mr. Eddings argues that an investigative-techniques instruction is

misleading in cases where defense counsel merely criticizes the government’s chosen

investigative methods rather than pointing to additional methods that should have

been used. Mr. Eddings also argues that while such an instruction may be permissible

alone, it is misleading when combined with instructions that fail to explicitly instruct

the jury that a lack of evidence provides a basis for reasonable doubt. Neither of

Mr. Eddings’s arguments were raised before the district court. Furthermore,

Mr. Eddings’s general objection that the instruction undermined his ability to attack

the credibility of the Government’s investigation was insufficient to preserve the

specific objections now raised.

21 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 22

Mr. Eddings likewise failed to argue that the jury instructions should be

reviewed for plain error in his opening brief. In his reply brief, Mr. Eddings does

raise plain error with respect to his second argument that the combination of the

investigative-techniques instruction and the instruction on reasonable doubt misled

the jury. Yet, he did not do so for his argument that the instruction is impermissible

when the defense merely criticizes the lack of evidence produced by the investigative

methods that the government used.

While we would ordinarily deem Mr. Eddings’s first argument to be waived,

waiver “binds only the party, not the court.” See Planned Parenthood of Kan. & Mid-

Mo. v. Moser, 747 F.3d 814, 837 (10th Cir. 2014). Because Mr. Eddings’s arguments

regarding the investigative-techniques instruction are related, we exercise our

discretion to overlook the failure to argue plain error with respect to Mr. Eddings’s

first argument. Nonetheless, because Mr. Eddings failed to raise his specific

objections before the district court, we consider Mr. Eddings’s challenges to the jury

instructions under plain error review.

This court first addressed the propriety of an investigative-techniques

instruction in United States v. Cota-Meza, 367 F.3d 1218 (10th Cir. 2004). The

specific instruction in that case was as follows:

Evidence has been received regarding law enforcement methods and equipment used in the investigation of this case. Likewise, evidence has been received concerning enforcement methods and equipment which were not used in relation to the investigation.

22 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 23

You may consider this evidence for the purpose of evaluating the weight of the evidence produced by the government and the credibility of law enforcement personnel involved in the investigation. However, there is no legal requirement that the government, through its enforcement agents, must use all known or available crime detection methods or any particular type of equipment in its investigations.

Id. at 1223.

On appeal, the defendant in Cota-Meza argued that the instruction improperly

suggested to the jury that “it was okay that the government didn’t fingerprint, that it

didn’t get video-recorders fixed or that [the] lost audio-tapes of Mr. Cota-Meza[’s]

interview were irrelevant.” Id. (alterations in original). Notwithstanding these

concerns, we concluded that it was not an abuse of discretion to give the instruction

because it was a correct statement of the law, and the instruction did not “prevent the

jury from concluding that a failure to employ certain investigative methods

nevertheless detracts from the credibility of the government’s evidence.” Id. We

noted that the district court had specifically instructed the jury that it could consider

the manner in which the investigation was conducted in evaluating the weight of the

evidence and credibility of testimony. Id. We likewise observed that the jury had

been instructed they were the sole judges of the credibility of witnesses and weight of

the evidence. Id. We thus concluded that there was no substantial doubt that the jury

was fairly guided. Id.

This court again approved an investigative-techniques instruction in Trent, 767

F.3d at 1051. The Trent instruction was identical to the instruction used in this case,

omitting the precatory language used in Cota-Meza to instruct the jury that it could

23 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 24

consider the failure to use certain investigative techniques “for the purpose of

evaluating the weight of the evidence produced by the government and the credibility

of law enforcement personnel involved in the investigation.” Compare Court’s

Instructions to the Jury at 15 (ROA Vol. I at 51), United States v. Trent, 767 F.3d

1046 (10th Cir. 2014) (No. 12-6283), with Cota-Meza, 367 F.3d at 1223. The

defendant in Trent argued that the investigative-techniques instruction undercut his

theory that the government’s investigation was faulty and that a proper investigation

would have uncovered the real possessor of the gun. Trent, 767 F.3d at 1051. We

rejected this argument, concluding that the instruction did not prevent the defendant

from arguing that a better investigation would have exonerated him. 3 Id.

a. Whether the instruction was improper based on the arguments made at trial

Mr. Eddings’s first argument is that the use of an investigative-techniques

instruction is improper in cases where the defendant merely criticizes the evidence

available from the government’s chosen investigative methods rather than repeatedly

suggesting that other specific investigative techniques should have been used. In

3 Other unpublished decisions in this circuit have approved the use of investigative-techniques instructions in cases where the instruction (1) accurately states the law, (2) does not prevent the jury from concluding that failure to use certain investigative techniques detracts from the credibility of the government’s evidence, and (3) includes other instructions informing the jury that it is the sole judge of the credibility of witnesses and weight of the evidence. See United States v. Lemon, 714 F. App’x 851, 861 (10th Cir. 2017) (unpublished); see also United States v. Johnson, 479 F. App’x 811, 817–18 (10th Cir. 2012) (unpublished); United States v. Arthurs, 647 F. App’x 846, 847–48 (10th Cir. 2016) (unpublished); United States v. Jenks, 714 F. App’x 894, 897–98 (10th Cir. 2017) (unpublished).

24 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 25

cases where defense counsel suggests that specific techniques should have been used,

Mr. Eddings argues that the jury is able to understand the instruction in relation to the

defendant’s argument. However, when the defendant merely criticizes inadequacies

in the evidence produced by the government’s chosen method, Mr. Eddings argues

that an investigative-techniques instruction improperly suggests to the jury that it

should ignore the deficiencies in the government’s evidence because the government

was never obligated to use that investigative technique to prove its case.

In support of this argument, Mr. Eddings relies on cases from the District of

Columbia and Maryland state courts, which limit the use of investigative-techniques

instructions to cases where defense counsel makes particular kinds of arguments at

trial. 4 Mr. Eddings also points to cases in other federal circuit courts, which have

4 Maryland courts have held that investigative-techniques instructions have the unconstitutional effect of undermining the prosecution’s burden of proof except when the instruction is used to cure an improper defense argument, such as a suggestion by the defense counsel that forensic evidence is required. See Taylor v. State, 473 Md. 205, 210–18 (2021) (presenting an overview of Maryland cases addressing the issue and holding that these instructions are improper in the absence of defense overreaching). Even when used as a curative instruction, Maryland courts require that the instruction refer to the prosecution’s continuing burden to prove its case beyond a reasonable doubt. Id. at 218–19.

Courts in the District of Columbia take a more moderate approach and allow the instruction if (1) there is evidence that the police failed to gather available evidence or a defense argument to that effect and (2) the instruction is needed to counter an inference that the police were negligent in conducting their investigation. See Wheeler, 930 A.2d at 238–39; Blocker v. United States, 239 A.3d 578, 589 (D.C. 2020). The D.C. courts have stated that, without such an anchor in the evidence or arguments, the instruction risks confusing the jury and undermining the reasonable doubt standard. Wheeler, 930 A.2d at 239.

25 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 26

approved the use of investigative-techniques instructions where defense counsel

emphasized that the government failed to use specific techniques, like DNA, to

support its case. See United States v. Saldarriaga, 204 F.3d 50, 52–53 (2d Cir. 2000)

(per curiam); United States v. Gorny, 655 F. App’x 920, 922–24 (3d Cir. 2016)

(unpublished). Yet nothing in these decisions suggests that a district court abuses its

discretion by giving an investigative-techniques instruction when defense arguments

regarding an inadequate investigation are not sufficiently repetitive or where counsel

merely criticizes the investigative techniques used.

Mr. Eddings identifies no federal case law suggesting that a district court

abuses its discretion when it gives an investigative-techniques instruction in the

absence of a defense argument that the government should have used specific,

unutilized investigative techniques. Nor does he identify any federal case law

suggesting that such arguments must be sufficiently repetitive to justify an

instruction. Indeed, circuit courts addressing investigative-techniques instructions

have generally approved of their use where the instruction accurately states the law

and the jury is properly instructed as to the government’s burden of proof. 5

5 See, e.g., United States v. Carter, No. 21-1005, 2022 WL 16909404, at *4 (2d Cir. Nov. 14, 2022) (concluding that the district court did not plainly err in giving an investigative-techniques instruction because it was a correct statement of law and noting that the court properly instructed the jury on the government’s burden of proof and the jury’s duty to consider all the evidence or lack thereof); United States v. Brown, 658 F. App’x 100, 104 (3d Cir. 2016) (approving the use of an investigative- techniques instruction and rejecting the argument that it impermissibly shifted the burden of proof because the jury was accurately instructed on the government’s burden to prove its case beyond a reasonable doubt); United States v. Sassak, No. 23- 4046, 2024 WL 3439428, at *2 (4th Cir. July 16, 2024) (concluding that the use of an 26 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 27

Even if there were support for such restrictions on the instruction, however,

the record here does not support Mr. Eddings’s argument that he merely criticized the

lack of evidence produced by the Government’s chosen investigative methods. To be

sure, Mr. Eddings’s defense at trial focused on the lack of photos or videos of

Mr. Eddings repositioning the firearm—a criticism of the lack of evidence produced

from the Government’s chosen methods of surveillance. But Mr. Eddings’s counsel

also directly and indirectly suggested that other investigative techniques should have

been used. On cross examination, defense counsel questioned Sgt. Andazola about

whether Mr. Eddings was wearing gloves and whether Sgt. Andazola had requested

DNA and fingerprint evidence. 6 He elicited testimony that there was no recorded

radio traffic in this case—at least suggesting a failure to provide recordings of Sgt.

Andazola’s observations in real time about what he observed. And Mr. Eddings asked

investigative-techniques instruction was not plain error and noting that the Fourth Circuit has repeatedly rejected arguments that these instructions mislead the jury into believing that it cannot consider the type of evidence presented). 6 The district court had instructed the parties not to question any witness regarding DNA or fingerprint evidence unless the court had first made a ruling as to the admissibility of the proposed testimony. The instruction was based on the district court’s concern that the DNA and fingerprint reports were inadmissible hearsay, and the Government had not called a witness who could testify as to the contents of those reports. Despite the district court’s instruction, defense counsel asked Sgt. Andazola whether he had ordered fingerprint and DNA tests to be run, to which Sgt. Andazola responded that he had. While the district court cut this line of questioning short, the jury was never presented with DNA or fingerprint evidence and was not instructed to disregard that portion of Sgt. Andazola’s testimony.

27 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 28

about whether Sgt. Andazola had been issued a video camera to use in investigations,

to which Sgt. Andazola responded that he had not.

To meet the second prong of the plain error standard, Mr. Eddings was

required to demonstrate that any error was plain—that is, “clear or obvious at the

time of the appeal.” See United States v. Gonzalez-Huerta, 403 F.3d 727, 732 (10th

Cir. 2005). Mr. Eddings fails to identify any case law suggesting that an

investigative-techniques instruction is improper where defense counsel criticizes the

government’s chosen investigative methods as opposed to repeatedly suggesting that

specific investigative techniques should have been used. Furthermore, the record

does not clearly support Mr. Eddings’s contention that he merely criticized the

Government’s chosen investigative methods, instead of implying that other available

investigative techniques were available but not employed. Accordingly, we cannot

conclude that the district court plainly erred in giving the investigative-techniques

instruction in this case.

b. Whether the instructions lowered the Government’s burden of proof

In his second argument, Mr. Eddings contends that the investigative-

techniques instruction—when used in conjunction with the pattern instruction on

reasonable doubt—rendered the jury instructions misleading and had the effect of

reducing the Government’s burden of proof. Mr. Eddings states that the Tenth Circuit

pattern instruction on reasonable doubt is an outlier in failing to mention that a

reasonable doubt can be found based on a lack of evidence. According to Mr.

Eddings, when the jury is told that the government is not obligated to use any

28 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 29

particular investigative method but is not also told that a lack of evidence can give

rise to reasonable doubt, it misleads the jury into believing that the government’s

failure to use certain investigative methods is irrelevant to whether the government

has met its burden.

Additionally, Mr. Eddings notes that the investigative-techniques instruction

here deviated from the instruction given in Cota-Meza, which informed the jury that

it was free to consider the government’s failure to use certain investigative

techniques “for the purpose of evaluating the weight of the evidence produced by the

government and the credibility of law enforcement personnel involved in the

investigation.” See Cota-Meza, 367 F.3d at 1223. Mr. Eddings likewise points to

other circuits that continue to use this language in their investigative-techniques

instructions.

As Mr. Eddings acknowledges, our prior case law has rejected the argument

that the Tenth Circuit pattern instruction on reasonable doubt misleads the jury

because it fails to explicitly mention that a lack of evidence can give rise to

reasonable doubt. In United States v. Petty, 856 F.3d 1306, 1311 (10th Cir. 2017), we

concluded that the instructions given by the district court made it apparent that a lack

of evidence would give rise to reasonable doubt. We pointed to instructions

informing the jury that it was the government’s burden to prove guilt beyond a

reasonable doubt, that the defendant was not required to prove his innocence or

present any evidence at all, and that the jury was to base its verdict on consideration

29 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 30

of the evidence. Id. From these instructions, we concluded that any reasonable juror

would understand that a lack of evidence can give rise to reasonable doubt. Id.

Here, the district court’s instructions as to reasonable doubt were appropriate

under Petty. The district court correctly instructed the jury that the government’s

failure to meet its burden of proof must result in acquittal. It further instructed that

Mr. Eddings was not required to prove his innocence or present evidence in his

defense. And it instructed the jury that it was to base its verdict on the evidence

presented.

Furthermore, in Trent, we approved an investigative-techniques instruction

identical to the one in this case without the precatory language that was present in

Cota-Meza. Compare Court’s Instructions to the Jury at 15 (ROA Vol. I at 51),

United States v. Trent, 767 F.3d 1046 (10th Cir. 2014) (No. 12-6283), with Cota-

Meza, 367 F.3d at 1223. In the absence of case law to the contrary, we cannot

conclude that the use of two instructions individually approved by this court amounts

to plain error when used together.

Although the absence of such language is not plainly erroneous, there is

nothing to prevent district courts from including it. Several of our sister circuits have

included language in their investigative-techniques instructions—similar to that used

in Cota-Meza—informing the jury that it can consider the failure to use certain

investigative techniques when determining whether the government has met its

burden of proof. See, e.g., Mod. Crim. Jury Instr. 3d Cir. 4.14 (2024) (“You may

consider [the government’s failure to employ specific investigative techniques] in

30 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 31

deciding whether the government has met its burden of proof.”); United States v.

Dennis, 19 F.4th 656, 671–72 (4th Cir. 2021) (approving use of an investigative-

techniques instruction and noting that the district court took care to explain that the

jurors could consider the failure to use certain investigative techniques when

considering whether the government had met its burden). Although such language is

not required when the instructions as a whole correctly instruct the jury as to its role,

inclusion of the language from Cota-Meza accurately reminds the jury of the

purposes for which it can consider evidence that the government failed to use certain

investigative techniques.

D. Search of the Backpack

Finally, Mr. Eddings argues for the first time in his reply brief that it was plain

error for the district court not to suppress the handguns found in the backpack he was

carrying at the time of his arrest. Pointing to our decision in United States v. Knapp,

917 F.3d 1161 (10th Cir. 2019), Mr. Eddings argues that the warrantless search of the

backpack was not a valid search incident to arrest because it was not a search of his

person, nor was it justified by a need to disarm him or to preserve evidence.

Accordingly, Mr. Eddings contends that the two handguns should have been

suppressed as the fruit of an unlawful search.

“[T]he general rule in this circuit is that a party waives issues and arguments

raised for the first time in a reply brief.” M.D. Mark, Inc. v. Kerr–McGee Corp., 565

F.3d 753, 768 n.7 (10th Cir. 2009). We see no reason to deviate from that general

rule here, where the Government had no opportunity to respond to Mr. Eddings’s

31 Appellate Case: 24-2118 Document: 53-1 Date Filed: 10/31/2025 Page: 32

arguments that the search of the backpack was not a valid search incident to arrest.

Nor was the Government afforded the opportunity to put forward an argument that

suppression of the evidence is nonetheless inappropriate. 7 Accordingly, we decline to

consider this argument as waived.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment.

7 For example, in United States v. Braxton, 61 F.4th 830, 833–38 (10th Cir. 2023), we considered whether the inevitable discovery doctrine applied to the warrantless search of a backpack. Here, the Government was not afforded an opportunity to argue that this or other exceptions to suppression might apply.