United States v. Jean-Pierre, 2021 WL 2426203 (10th Cir. June 15, 2021) (CO): Jean Pierre appealed his convictions for conspiracy to commit securities fraud and securities fraud. He argued the district court incorrectly admitted evidence that he had previously used his niece’s signature without her permission to submit attorney letter agreements to a stock trading website. He also argued that the securities fraud convictions should be reversed because the court refused to give his requested instruction which explained the government’s burden to prove a specific factual theory. The panel rejected both arguments. Regarding evidence of Jean-Pierre’s pre-offense use of his niece’s signature, the panel said if the court did err in letting the jury hear that evidence, its error was harmless. Before the government introduced the series of pre-offense letters, it questioned a stock market representative, Jean-Pierre’s niece and presented another group of attorney letter agreements that were part of the charged offense conduct. The market representative testified Jean-Pierre was banned from submitted attorney letters and his niece said she did not work in securities, never signed any of the letters, and Jean-Pierre had access to her signature. The panel said the inference of fraud came from that evidence, not the pre-offense letters and Jean-Pierre did not object to any of it. Thus, any assumed error in admitting the pre-offense letters was harmless. Regarding the Jean-Pierre’s proposed instruction, the panel dismissed the government’s argument that he had not preserved the issue for review. The panel detailed exactly how he had: First, he submitted an instruction that explained the government was required to prove the securities at issue were not subject to a registration exemption. With the proposed instruction, Jean-Pierre detailed the reason for including such language: he could not have deceived investors if the securities were exempt from registration. Second, after the court rejected this additional language, it asked whether there were any objections to the final version of its instructions. Jean-Pierre said he disagreed with the statement in the instructions that the exemption instruction was his proposed instruction. He said the court had not adopted his entire instruction and reiterated the court should add the language on the government’s burden. He again asked that the jury be told it must find beyond a reasonable doubt that no exception excused the securities registration requirement. According to Fed.R.Crim.P. 30, the panel said, Jean-Pierre did enough to preserve the issue. That rule requires a party who objects to any portion of the instructions or to a failure to give an instruction, to tell the court of the specific objection and the grounds for it before the jury begins deliberations. Although a mere tendering of jury instructions, without further objections, will not preserve the issue, that is not what happened here. The panel then reviewed the issue de novo to see if the court’s instructions accurately stated the governing law and provided the jury with an accurate understanding of the relevant legal standards and factual issues. Jean-Pierre argued that the government’s securities fraud theory was aimed at proving he made a materially false statement in representing that the securities offered and sold were exempt from registration. He said the jury should have been instructed that the government had to prove beyond a reasonable doubt that they were not exempt. Not so, said the panel. There are 4 means by which one can commit securities fraud, making an untrue material statement is just one way. The jury was told the government had to prove any of the four means beyond a reasonable doubt. The panel held there is “no requirement that the district court further instruct the jury that the government’s burden applies to a specific means of satisfying that element.” United States v. Xiong, 2021 WL 2430790 (10th Cir. June 15, 2021) (OK): Xiong argued that the district court’s failure to instruct the jury on constructive possession violated his 6th Amendment right to a jury trial. Reviewing for plain error, the panel held Xiong did not show there was a reasonable probability the outcome would have been different. Admittedly, Xiong was not in physical possession of the firearm at issue. And the jury was not instructed, as it should have been, that when one is not in “physical custody” of a firearm, the government has to prove that person still has the power and intent to exercise control over it. Here, the evidence demonstrated that Xiong did have the power and intent to exercise that control. The shotgun was on the floor behind the driver’s seat with the grip facing the front passenger seat where Xiong sat. He could have easily grabbed the loaded shotgun from there. The driver did not have the same access – he would have had to get out of the car and open the back door or “twist around” and “lift the barrel” to get it. The panel concluded that there was “only one plausible conclusion: Though lacking physical custody of the short-barreled shotgun, Defendant retained the power and intent to exercise control over it.” Thus, the outcome would have been the same even if the jury had been properly instructed. United States v. Juranek, 2021 WL 2434009 (10th Cir. June 25, 2021) (CO) (unpub): the panel vacates the sentence and remands to the district court to reconsider its decision that Colorado third degree assault is categorically a crime of violence in light of Borden v. U.S. That offense is perpetrated when a person “knowingly or recklessly causes bodily injury to another person.”