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Date: 10-30-2021
Case Style:
United States of America v. Michael Wayne Parsons
Case Number: 18-3669
Judge: Ralph R. Erickson
Court: United States Court of Appeals
For the Eighth Circuit
Plaintiff's Attorney: United States Attorney’s Office
Defendant's Attorney:
Description:
St. Louis, MO - Criminal defense lawyer represented defendant with a
being a felon in possession of a firearm charge.
Parsons claimsto be an ambassador and diplomat of the Tsilhqot'in (Chilcotin)
Nation, located in British Columbia, Canada. In 2009, Parsons was convicted of
aggravated assault – a felony offense – in Tipton County, Tennessee. In January
2017, Parsons absconded while on pretrial release awaiting trial on new Tennessee
state charges of being a felon in possession of a firearm. A warrant was issued in
Tennessee for his failure to appear.
On January 11, 2017, Parsons piloted a small plane to the Arapahoe Airport
located in Furnas County, Nebraska. It appears that Parsons was en route to the
Tsilhqot'in Nation in Canada. That same day, law enforcement officers triangulated
Parsons’ cell phone activity to the area surrounding the Arapahoe Airport. Parsons
elected to sleep in the airport overnight and was arrested at the airport the next
morning by officers from several state and federal agencies. Because the law
enforcement officers mistakenly believed that Parsons had arrived by motor vehicle,
they did not impound or search Parsons’ plane at the time of Parsons’ arrest. It is
undisputed that the plane remained in the hangar for approximately two months, and
that several people had access to the plane during this time.
On March 22, 2017, officers from the Federal Bureau of Investigation
searched the plane pursuant to a warrant and discovered an AR-15 style rifle, three
fully-loaded 30-round magazines and additional ammunition. Items bearing Parsons’
name, including an insurance application and a hangar receipt, were found near the
gun. Parsons was charged with being a felon in possession of a firearm, in violation
of 18 U.S.C. § 922(g)(1).
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Parsons elected to proceed to trial pro se. The jury heard evidence related to
the plane and its contents. The evidence included excerpts from three recorded jail
calls made by Parsons prior to the search of the plane. During the recorded calls
Parsons alluded to items(which he referred to as “gifts” and the “nation’sitems”) that
were left in the plane and that needed to be removed from the plane immediately.
Law enforcement traced and testified about the provenance of the gun,
showing an original purchase in Alabama in 2006 by Matthew Lovan. Lovan
testified that he sold the gun to Parsons in 2008 and he never saw it again. Parsons
himself testified that he purchased a gun fromLovan, and he admitted that the firearm
found in the plane appeared to be the same gun that he purchased from Lovan.
Notwithstanding this admission, Parsons claimed to have traded the gun to a friend
who later passed away.
After the government rested, Parsons moved for a judgment of acquittal under
Fed. R. Crim. P. 29, which the district court denied. Parsons was convicted, and the
district court imposed a below-guidelines sentence of 84 months’ imprisonment.
Parsons now appeals, contending insufficiency of the evidence. He assertsthe district
court erred when it denied his Rule 29 motion. Parsons claims the evidence failed to
establish he “knowingly” possessed a firearm because the airplane where the gun was
found had been left unlocked and unattended before law enforcement officers found
the gun.
II. Discussion
We review sufficiency of the evidence in a criminal case de novo, viewing the
evidence “in the light most favorable to the government, resolving conflicts in the
government’sfavor, and accepting allreasonable inferencesthatsupport the verdict.”
United States v. Morris, 723 F.3d 934, 938 (8th Cir. 2013) (quotation omitted).
Reversal is warranted only when “no reasonable jury could find all the elements
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beyond a reasonable doubt . . . .” United States v. Wiest, 596 F.3d 906, 910 (8th Cir.
2010).
Until recently, possession of a firearm by a convicted felon required the
Government to prove three elements: “(1) previous conviction of a crime punishable
by a term of imprisonment exceeding one year, (2) knowing possession of a firearm,
and (3) the firearm was in or affecting interstate commerce.” United States v.
Montgomery, 701 F.3d 1218, 1221 (8th Cir. 2012). See 18 U.S.C. § 922(g). The
Supreme Court has added a fourth element: (4) that the defendant “knew he belonged
to the relevant category of persons barred from possessing a firearm.” Rehaif v.
United States, ___ U.S. ___, 139 S.Ct. 2191 (2019).2
Parsons challenges only the
second element, arguing that the evidence was insufficient to prove he knowingly
possessed the firearm.
Possession of a firearmmay be actual or constructive. United States v. Garrett,
648 F.3d 618, 622 (8th Cir. 2011). To show constructive possession, the government
must prove that the defendant had “dominion over the premises where the firearm
2Rehaif was decided after the filing of this appeal, and Parsons has not raised
a Rehaif argument here. Nevertheless, we find that such an argument would be
without merit. Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 734
(1993) (elements of plain error review); United States v. Hollingshed, 940 F.3d 410,
415 (8th Cir. 2019) (considering a Rehaif argument raised while the direct appeal was
pending because “Supreme Court decisions in criminal cases apply to all cases
pending on direct review”). At the time of his arrest, Parsons had absconded from
pretrial release in Tennessee, while awaiting trial on state charges for being a felon
in possession of a firearm. He served more than two years in prison for the
underlying aggravated felony assault conviction. Thus, even assuming that Rehaif
applies and some error occurred, Parsons cannotshow a “reasonable probability that,
but for the error, the outcome of the proceeding would have been different.” United
States v. Valquier, 936 F.3d 781, 785 (8th Cir. 2019); see Rehaif, 139 S.Ct. at 2198
(doubting that the obligation to prove a defendant’s knowledge of his status will be
burdensome because knowledge can be inferred from circumstantial evidence).
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[was] located, or control, ownership, or dominion over the firearm itself.” United
States v. Maxwell, 363 F.3d 815, 818 (8th Cir. 2004), cert. denied, 543 U.S. 1154,
125 S.Ct. 1293 (2005). “Constructive possession may be established by
circumstantial evidence alone, but the government must show a sufficient nexus
between the defendant and the firearm.” United States v. Evans, 431 F.3d 342, 345
(8th Cir. 2005). Indeed, “a jury rarely has direct evidence of a defendant’s
knowledge, [and]it is generallyestablished through circumstantial evidence.” United
States v. Smith, 508 F.3d 861, 867 (8th Cir. 2007) (quoting United States v. Ojeda,
23 F.3d 1473, 1476 (8th Cir. 1994)). This is true even if other people had access to
the location where the firearm was found. See, e.g., United States v. White, 816 F.3d
976 (8th Cir. 2016) (finding constructive possession where others had a key to the
storage unit where the gun wasfound and circumstantial evidence showed defendant
had knowledge of the storage units contents).
Here, on two occasions, Parsons himself provided evidence to support a finding
that he knowingly possessed the gun: first, in the recorded jail calls when he
referenced items that needed to be removed from the plane; and, second, when he
admitted at trial that the gun looked like the firearmhe purchased fromLovan. Lovan
testified that it was the same gun he sold to Parsons in Alabama in 2008.
Parsons’ claim that the firearm’s presence on the plane piloted by him to
Nebraska is a surprising and inexplicable coincidence strains credulity. Parsons had
dominion over the plane when he flew from Tennessee to Nebraska. The gun was
found near personal items that belonged to Parsons. And, Parsons had recently
absconded from Tennessee while awaiting trial on a state charge for being a felon in
possession of a firearm.
Taken together, there was sufficient evidence to establish a nexus between
Parsons and the gun. The district court did not err in denying Parson’s Rule 29
motion for judgment of acquittal
Outcome: The judgment of the district court is affirmed. Parsons’ remaining motionsfor
stay, for release from custody, and for return of his property are denied.
Plaintiff's Experts:
Defendant's Experts:
Comments: