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United States v. Giannukos

United States Court of Appeals, Tenth Circuit

November 9, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JAY N. GIANNUKOS, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 2:15-CR-20016-CM-DJW-1)

          Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Office of the Federal Public Defender for the Districts of Colorado and Wyoming, Denver, Colorado, appearing for Appellant.

          Carrie N. Capwell, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with her on the brief), Office of the United States Attorney for the District of Kansas, Kansas City, Kansas, appearing for Appellee.

          Before BRISCOE, BALDOCK, and EID, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         Defendant Jay Giannukos appeals two convictions involving the illegal possession of firearms. While conducting a parole search of Giannukos's home, officers found two firearms, methamphetamine, and counterfeiting equipment. A grand jury indicted Giannukos on four counts: (1) possession with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C); (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); (3) being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1); and (4) counterfeiting Federal Reserve Notes with the intent to defraud, in violation of 18 U.S.C. § 471. A jury convicted Giannukos of all counts. Giannukos appeals his firearm possession convictions (Counts 2 and 3), arguing that the district court gave an erroneous constructive possession jury instruction and that the prosecutor made improper statements during her closing argument. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reach only the instruction issue and REVERSE and REMAND for a new trial.

         I

         On January 15, 2015, officers searched Giannukos's home in response to an anonymous tip that Giannukos was involved in illegal drug and counterfeiting activities. ROA Vol. II at 265-66. At that time, Giannukos was on parole following a prior state felony conviction and his status as a parolee was the legal basis for the search. ROA Vol. I at 19. Two other people lived with Giannukos in the three bedroom house. ROA Vol. II at 154-57, 337. One bedroom was used as a home office. Another was shared by Giannukos and his girlfriend Ashley Humerickhouse. The third belonged to Giannukos's friend Johnny Chipps. Giannukos, Chipps, and Humerickhouse were at the house during the search, as was James Lutz, a friend whom Giannukos had hired to do work on the house. Id. at 108, 111.

         In the living room of the house, which was accessible to all occupants of the house, the officers found a .22-caliber revolver inside a drawer of a blue hutch. Id. at 175-81. In the first bedroom-used as a home office-the officers found counterfeit currency and equipment to create counterfeit currency, as well as two digital scales, one of which was near a metal spoon with white powder residue. Id. at 160-65. In the second bedroom-belonging to Giannukos and Humerickhouse-the officers found a black cloth bag containing a total of 10.87 grams of 91.7% pure methamphetamine, distributed between five small Ziplock bags. Id. at 205-07, 308- 12. They also found a yellow bag containing a small Ziplock bag of .28 grams of methamphetamine. Id. at 205-07, 314. There was a pink bag in a drawer beneath the right side of the bed. Id. at 190. Inside the pink bag, the officers found a firearm holster containing a Smith & Wesson magazine with eight rounds. Id. at 190-92. Next to the pink bag, the officers found a .40-caliber Smith & Wesson firearm. Id.

         A grand jury returned a four-count indictment, which included the two firearms charges at issue in this appeal: possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The case was tried to a jury. Three witnesses' testimonies are relevant to this appeal.

         First, Lutz testified about the work he had been hired to do at the house and the firearm found in the bedroom that Giannukos shared with Humerickhouse. Lutz explained that Giannukos had hired him to make various repairs around the house, including the installation of a lock on the front door. ROA Vol. II at 266-67. According to Lutz, Giannukos "wanted to make sure that the house was a little bit more secure" because he was upset about a recent incident when someone broke into the house and shot his dog. Id. at 267.

         Lutz also testified that, on the evening of January 14th, Humerickhouse gave him a tour of the house and showed him some work that she wanted done in the bedroom she shared with Giannukos. Id. at 269-70. While in the bedroom, Lutz saw a black and silver .40-caliber Smith & Wesson firearm under a dresser. Id. at 272. Lutz picked up the firearm, removed and reinserted the loaded magazine, and then placed the firearm back where he found it. Id. at 272-73. Lutz testified that Giannukos was in the shower when he handled the firearm. Id. at 273-74.

         The government later called Special Agent R.J. Cook to impeach Lutz's testimony about Giannukos's whereabouts when Lutz was in the bedroom. Special Agent Cook testified that, during a previous interview, Lutz said that Giannukos was in the bedroom-not the shower-when Lutz handled the firearm. Id. at 546-47.

         Next, Humerickhouse testified about the recent break-in and the firearm found in the bedroom she shared with Giannukos. Humerickhouse recounted that she was in her bedroom on the evening of January 1st when an unknown man entered the house, shot open the bedroom door, shot and killed Giannukos's dog, demanded drugs and money from Humerickhouse, attempted to remove a safe from the bedroom, and then left the house. Id. at 345-53. Humerickhouse testified that this traumatic event "dramatically" changed "everything," including her relationship with Giannukos. Id. at 356.

         When the questioning turned to the subject of the firearm found in the bedroom, Humerickhouse's testimony was less coherent. Humerickhouse acknowledged her ownership of the pink bag containing a firearm holster and a Smith & Wesson magazine, but denied putting either the holster or the magazine in the bag. Id. at 376-77. Humerickhouse also denied putting the .40-caliber Smith & Wesson firearm under the bag, id. at 378, or ever handling the firearm, id. at 384. When shown a photograph of the firearm, Humerickhouse testified that she did not recognize it. Id.

         In an effort to refresh Humerickhouse's memory, the prosecutor asked her whether she remembered having a conversation with Detective Dylan Passinese on January 15th in which she told him that Giannukos acquired a black and silver .40-caliber firearm after the January 1st break-in. Id. at 380-84. Humerickhouse testified that she did not remember her conversation with Detective Passinese. Id. The prosecutor then showed Humerickhouse a transcript of her conversation with Detective Passinese; Humerickhouse still did not remember the conversation, but acknowledged that the transcript indicated that she had given a statement about Giannukos owning a firearm. Id.

         Humerickhouse said that she had trouble remembering her conversation with Detective Passinese because she "was under the influence of drugs and . . . hadn't slept in days" when she spoke with him on January 15th. Id. at 382. Detective Passinese then testified about Humerickhouse's demeanor during their conversation. He saw no indication that she was under the influence of drugs. Id. at 595. Rather, in his opinion, she "was calm, she was fine, [she] had no issues." Id. ...


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