UNPUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-4259

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

JUSTIN O’NEAL BARNES,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. James C. Dever III, District Judge. (4:17-cr-00060-D-1)

Submitted: December 30, 2021 Decided: January 5, 2022

Before NIEMEYER, AGEE, and WYNN, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Sean P. Vitrano, VITRANO LAW OFFICES, PLLC, Wake Forest, North Carolina, for Appellant. Kenneth A. Polite, Jr., Assistant Attorney General, Lisa H. Miller, Acting Deputy Assistant Attorney General, Thomas E. Booth, Criminal Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.; G. Norman Acker, III, Acting United States Attorney, Kristine L. Fritz, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. PER CURIAM:

Justin O’Neal Barnes was convicted by a jury of possession of a firearm and

ammunition by a felon, in violation of

(g). The district court sentenced

Barnes to 120 months’ imprisonment, the statutory maximum. Barnes appeals, challenging

the validity of his conviction in light of Rehaif v. United States,

(2019), the

sufficiency of the evidence with respect to his possession of the firearm at issue, and the

district court’s jury instruction regarding flight as evidence of guilt. Finding no error, we

affirm.

Barnes first contends that his § 922(g) conviction must be vacated in light of the

Supreme Court’s ruling in Rehaif because the indictment did not allege that Barnes knew

he had a qualifying felony conviction. “In felon-in-possession cases after Rehaif, the

Government must prove not only that the defendant knew he possessed a firearm, but also

that he knew he was a felon when he possessed the firearm.” Greer v. United States,

(2021) (emphasis added). “[A] Rehaif error is not a basis for plain-error

relief unless the defendant first makes a sufficient argument or representation on appeal

that he would have presented evidence at trial that he did not in fact know he was a felon.”

.

Prior to trial, Barnes stipulated that he had been “convicted of a crime punishable

by imprisonment for a term exceeding one year (a felony), and his right to possess a firearm

had not been restored.” Because Barnes admitted that he knew he had a qualifying prior

conviction at the time of the offense, we find no error under Rehaif.

2 Barnes next argues that the evidence was insufficient to establish that he actually or

constructively possessed the firearm at issue. Unlawful possession of a firearm may be

actual or constructive and exclusive or joint. United States v. Lawing,

(4th Cir. 2012). “A defendant may have constructive possession of contraband even if it

is not in his immediate possession or control.” United States v. Shorter,

(4th Cir. 2003). Constructive possession requires both that the defendant “knew of the

contraband’s presence and had the power to exercise dominion and control over it.” United

States v. Hall,

(4th Cir. 2017) (alterations and internal quotation marks

omitted). Constructive possession also must be intentional. See United States v. Al Sabahi,

(4th Cir. 2013).

Viewed in the light most favorable to the Government, United States v. Burgos,

(4th Cir. 1996) (en banc), the evidence presented at Barnes’ trial established

the following. On the afternoon of October 11, 2017, officers from the Greenville North

Carolina police department responding to an emergency call observed Barnes driving away

in a Ford Crown Victoria. The officers followed Barnes and saw him entering an ABC

store. Store employees testified that Barnes was intoxicated and did not make a purchase.

In-store video showed Barnes bending over a box of gin but not taking a bottle from the

box. A search of the store revealed a loaded Ruger .45 semi-automatic pistol in the box of

gin on the sales counter where Barnes had been seen. Shell casings recovered from Barnes’

vehicle matched the casings recovered from the shooting at the convenience store.

Barnes relies on United States v. Blue,

(4th Cir. 2015), arguing that

there was no evidence that he possessed the gun found in the store. “[M]ere proximity to

3 the contraband,” “mere presence on the property where the contraband is found,” or “mere

association with the person who does control the contraband” is insufficient to establish

dominion and control over the contraband.

. However, here a jury could

reasonably infer that a gun found in a box that Barnes was seen bending over was placed

there by Barnes. See United States v. Moody,

(4th Cir. 2021) (holding

that circumstances supporting an inference of constructive possession of a firearm can be

sufficient for a § 924(c) conviction). A store employee testified that no one else had been

in the store at the time Barnes was there and she had not seen any customers in the store

with a gun. We therefore conclude that the evidence was sufficient to establish Barnes’

possession of the firearm.

Finally, Barnes argues that the district court abused its discretion in giving an

instruction on flight as evidence of guilt. Specifically, Barnes claims that the district court

improperly instructed the jury that it was allowed to infer consciousness of guilt if it found

that Barnes had attempted to flee from police officers.

We “review a district court’s decision to give a particular jury instruction for abuse

of discretion . . . and review[s] whether a jury instruction incorrectly stated the law de

novo.” United States v. Miltier,

(4th Cir. 2018) (citations omitted). A jury

instruction is not erroneous if, “in light of the whole record, [it] adequately informed the

jury of the controlling legal principles without misleading or confusing the jury to the

prejudice of the objecting party.”

(internal quotation marks omitted). “Even if a jury

was erroneously instructed, however, we will not set aside a resulting verdict unless the

4 erroneous instruction seriously prejudiced the challenging party’s case.”

(internal

quotation marks omitted).

“[I]n appropriate circumstances, a consciousness of guilt may be deduced from

evidence of flight and . . . a jury’s finding of guilt may be supported by consciousness of

guilt.” United States v. Obi,

(4th Cir. 2001). “[T]he jury’s consideration

of evidence of flight requires that it be able, from the evidence, to link such flight to

consciousness of guilt of the crime for which the defendant is charged.”

“To establish

this causal chain, there must be evidence that the defendant fled or attempted to flee and

that supports inferences that (1) the defendant’s flight was the product of consciousness of

guilt, and (2) his consciousness of guilt was in relation to the crime with which he was

ultimately charged and on which the evidence is offered.”

We have reviewed the

transcript of Barnes’ trial and find that the district court’s instruction fairly and accurately

informed the jury of the controlling legal principles without misleading or confusing them

on this issue.

Accordingly, we affirm Barnes’ conviction. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.

AFFIRMED

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