UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 21-3113

LARRY D. JOHNSON,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Kansas (D.C. No. 2:17-CR-20034-DDC-JPO-1) _________________________________

Candace Caruthers, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

Michelle McFarlane, Special Assistant United States Attorney (Duston J. Slinkard, United States Attorney, and James A. Brown, Appellate Chief, with her on the brief), Office of the United States Attorney, District of Kansas, Kansas City, Kansas, for Plaintiff-Appellee. _________________________________

Before TYMKOVICH, Chief Judge, BRISCOE and MATHESON, Circuit Judges. _________________________________

TYMKOVICH, Chief Judge. _________________________________

Larry D. Johnson was convicted by a jury for possessing a firearm and

possessing crack cocaine with the intent to distribute. He seeks to overturn his Appellate Case: 21-3113 Document: 010110731614 Date Filed: 08/30/2022 Page: 2

two firearms convictions because he claims the jury received an erroneous

instruction on constructive possession.

Reviewing for plain error, we affirm. Had the jury been given the proper

instruction, we find it would have nevertheless been compelled to conclude

Johnson had both actual and constructive possession of the firearm. After

officers pulled him over for driving the wrong way on a one-way street, they saw

a black pistol laying on the driver’s seat where he had been sitting. Because

Johnson had been exerting physical control over the firearm by sitting on it, we

find he actually possessed it. And we also conclude he was in constructive

possession of the firearm based on physical contact; the fact the firearm was

loaded; his previous statement admitting to possessing a firearm to aid in drug

trafficking; and his simultaneous possession of drugs for distribution.

I. Background

A. The Arrest and Charges

Johnson was arrested during a traffic stop after officers discovered drugs

and a firearm. They found a pistol laying on the driver’s seat, and on his person

they found $411 in cash and a large plastic bag containing 28 smaller bags with

cocaine base (crack).

After his arrest, Johnson was charged with (1) possessing cocaine base with

the intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);

(2) possessing a firearm in furtherance of a drug trafficking crime, in violation of

18 U.S.C. § 924(c)(1)(A); and (3) possession of a firearm by a convicted felon, in 2 Appellate Case: 21-3113 Document: 010110731614 Date Filed: 08/30/2022 Page: 3

violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). A jury convicted him as

charged.

B. Testimony at Trial

To better understand the jury’s verdict on firearms possession, it is useful

to briefly review the testimony at trial.

At trial only the government proffered a number of fact witnesses. The

jury heard from the officers who stopped and arrested Johnson, Johnson’s

girlfriend and owner of the Chevy Impala he was driving, the ATF special agent

who testified about the significance of the evidence collected during the stop, a

Kansas Bureau of Investigation DNA Analyst who performed DNA testing on the

firearm, and a detective who testified about a previous statement Johnson had

made about possessing firearms and selling drugs during an earlier case.

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