*

This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th

Cir. R. 32.1.

FILED

United States Court of Appeals

Tenth Circuit

October 21, 2009

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 08-6243

v. (W.D. Oklahoma)

ADAM RICHARD, a/k/a Adam Scott,

Defendant - Appellant.

(D.C. No. 5:08-CR-00079-F-1)

ORDER AND JUDGMENT*

Before LUCERO, ANDERSON, and EBEL, Circuit Judges.

On March 18, 2008, a federal grand jury returned a single count indictment

against defendant and appellant, Adam Richard. The indictment charged

Mr. Richard with being an unlawful user of a controlled substance in knowing

possession of a firearm that had been transported in interstate commerce, in

violation of 18 U.S.C. § 922(g)(3). Mr. Richard filed a pretrial motion to dismiss

the indictment, arguing that the statute was unconstitutional, which was denied,
-2-

and he filed a motion to suppress evidence seized from his residence pursuant to a

search warrant. Following a hearing, the motion to suppress was also denied.

The case was tried to a jury on June 4 and 5. The jury found Mr. Richard

guilty, and Mr. Richard’s post-trial motion for judgment of acquittal was denied. 

Mr. Richard was sentenced to sixty months of probation and was ordered to pay a

special assessment of $100.00. This appeal followed, in which we affirm the

decisions of the district court.

BACKGROUND

On January 27, 2006, law enforcement personnel executed a federal search

warrant at 1701 Wilshire in Duncan, Oklahoma, the residence of Mr. Richard’s

parents. Mr. Richard lived there with his parents. Inside Mr. Richard’s bedroom

agents found a .22 caliber Ruger rifle in a corner, and a black bag containing drug

paraphernalia on top of Mr. Richard’s computer. Inside the black bag, agents

found a smaller blue bag that contained four cut drinking straws that are

commonly used to snort methamphetamine, a black capped clear glass vial with

suspected methamphetamine residue on it, a small glass vial wrapped in black

electric tape with suspected methamphetamine residue on it, and a smaller plastic

baggie with two corners removed. Each item subsequently tested positive for

methamphetamine residue.
-3-

On February 8, 2006, Mr. Richard met voluntarily with law enforcement

personnel from the Drug Enforcement Administration (“DEA”), the Bureau of

Alcohol, Tobacco and Firearms (“ATF”), and the Stephen’s County Sheriff’s

Office. The interview lasted approximately an hour to an hour and forty-five

minutes and involved a discussion of the items the law enforcement personnel had

seized from Mr. Richard’s bedroom the previous month. Mr. Richard asked

permission to audio-tape the interview, but the authorities declined his request.

According to police notes and testimony, Mr. Richard admitted during the

interview that he had been using methamphetamine for the last three to four years

and that his last usage had been a few days before the interview. Mr. Richard

further stated that he would use methamphetamine every day or every other day,

consuming up to a gram each time. During the interview, Deputy Richards and

Agent Nunley noticed sores on Mr. Richard’s face, neck and arms that they

thought were similar to sores found on regular users of methamphetamine. DEA

Investigator Crowder and Agent Nunley testified that they recalled Mr. Richard

indicating that his preferred method of ingesting methamphetamine was to snort

it. Investigator Crowder further testified that Mr. Richard said he did not go out

looking for methamphetamine; rather, he only used it when people provided him

with it. Mr. Richard stated that the rifle in his bedroom was a gift from an uncle

and that he last shot the rifle six or seven months before. He said that he had

possessed the rifle for the last two years.
-4-

As indicated above, a federal grand jury indicted Mr. Richard on one count

of being a drug user in possession of a firearm, in violation of 18 U.S.C.

§ 922(g)(3), and a jury found him guilty. On appeal, he makes the following

arguments: (1) the district court erred by denying Mr. Richard’s pretrial motion

to suppress evidence obtained pursuant to the execution of a search warrant that

lacked probable cause to believe evidence of a crime would be found in the

residence to be searched; (2) the district court erred by denying Mr. Richard’s

motions to dismiss the indictment on the ground that (a) 18 U.S.C. § 922(g)(3) is

unconstitutionally vague as applied to him, and/or (b) 18 U.S.C. § 922(g)(3)

violates the Second Amendment’s protection of Mr. Richard’s right to keep and

bear arms; (3) the district court erroneously instructed the jury on the definition

of an unlawful user of a controlled substance and there was insufficient evidence

to support the jury’s guilty verdict; and (4) the district court erred by denying Mr.

Richard’s post-trial motion for judgment of acquittal, based on the denial of Mr.

Richard’s right to due process.

DISCUSSION

I. Denial of Motion to Suppress:

The firearm found in Mr. Richard’s bedroom was seized pursuant to a

search warrant authorized by a United States Magistrate Judge. ATF Special

Agent Todd Nunley supplied the affidavit supporting the search warrant. 
-5-

Mr. Richard argues that the affidavit was “devoid of facts providing a nexus

between the place to be searched and the items to be seized,” Appellant’s Br. at

24, and he argues that what facts were presented in the affidavit were stale.

The affidavit began with Agent Nunley’s description of his own experience

in the investigation of drug cases and what he has typically found in searches in

such cases. He then recited that he “submit[s] that evidence of the abovedescribed offenses will be present at” the identified residence of Mr. Richard,

1701 Wilshire Drive, Duncan, Stephens County, Oklahoma. Aff. ¶ 2, Appellant’s

Add. of Exs. at 13. The affidavit proceeded to list five and one-half pages of

common characteristics of “individuals involved in the distribution of illegal

controlled substances,” including: using leased vehicles with hidden

compartments; using concealed storage spaces and outbuildings containing drugmaking materials and paraphernalia; using isolated buildings and structures

because of the volatile nature of methamphetamine production and the distinct

odor it produces; using “front” businesses and other means to launder cash

received from drug sales; maintaining books, records, receipts, etc. at the drug

dealer’s residence or place of business; hiding evidence of drug transactions in

secure locations within the drug dealer’s residence, place of business, or vehicle;

attempting to make proceeds of drug sales appear legitimate; maintaining lists of

addresses and/or phone numbers of drug trafficking associates and using cell

phones and pagers to maintain contact with associates; maintaining firearms at the
-6-

drug dealer’s residence or place of business, as “[f]irearms are tools of the trade

for drug dealers”; investing illegal proceeds from drug transactions in legal

businesses; trading controlled substances for other stolen items like firearms,

checks and financial instruments; frequently using five, ten and twenty dollar

denomination bills; illegally possessing firearms for extended periods of time,

typically at the drug dealer’s residence or other property; and using countersurveillance equipment to warn of intruders and law enforcement approaching the

drug dealer’s residence. Id. ¶ 3, pp. 14-19. The next four paragraphs recited

more general observations about the conduct and behavior of drug dealers, based

upon Agent Nunley’s experience.

Agent Nunley thereafter set out the facts he believed established probable

cause that evidence that Mr. Richard was a user of a controlled substance and that

he possessed firearms would be found at the residence he shared with his parents. 

Agent Nunley averred that the information contained in the affidavit has “been

corroborated through interviews as well as surveillance.” Id. at ¶ 9. While there

are chunks of the affidavit that have been redacted because they do not pertain to

Mr. Richard, there are references to Mr. Richard receiving methamphetamine (in

late 2004); providing precursor chemicals, particularly ephedrine (in late 2004

and on other undated occasions); possessing firearms and having a “fixation” with

them; living at the Wilshire residence with his parents; behaving like a person on

methamphetamine (in June 2005, while officers were conducting surveillance of
1

One of these incidents involved an unnamed person telling Agent Nunley

that Mr. Richard’s mother said, in late 2004, that “she had observed instances

where her son, Adam RICHARD, would be awake for three (3) days and then

sleep for a period of three (3) days.” Id. at ¶ 24. When the unnamed person was

asked what would make an individual exhibit behavior like that, he responded,

“meth.” Id.

-7-

another residence);1 dealing primarily in cash; hiding ephedrine in the attic and

walls of his parents’ residence (in August 2004); having access to and spending

large amounts of cash; being involved in transactions involving ephedrine (on

numerous occasions, including May 2004); admitting in March 2005 that he was

involved with the use and distribution of methamphetamine; and associating with

known methamphetamine users. As indicated, a magistrate judge issued a search

warrant on the basis of the affidavit in support of the search warrant, and a

firearm and methamphetamine were found in Mr. Richard’s bedroom at the house

on Wilshire.

Mr. Richard filed a motion to suppress, and a hearing was conducted,

although no evidence was presented. After hearing arguments of counsel, the

district court denied the motion, finding as follows:

The motion to suppress will be denied. And I’m denying the

motion because I have very carefully considered it. I have very

carefully considered the briefs that have been filed and the arguments

that have been made. And I’m denying the motion because I think

that it is the legally and factually correct ruling. But it is, in my

estimation, an exceedingly close issue. . . .

As I have already mentioned, I’m not swayed nearly as much

by the staleness issue as an independent issue as I am by the issue as

to the nexus between the criminal activity described in the affidavit
-8-

and the place that was searched. So as to staleness as an independent

basis for suppression, I’m not persuaded that staleness is a problem.

The older information or the less recent information set forth

in the affidavit does, in my view, provide context and continuity in a

sense and I think in a very realistic sense as a backdrop that

provides, in turn, a confidence level for the magistrate in evaluating

the more recent information in the affidavit. The older information,

in and of itself, certainly might not be enough to support the warrant,

but it does bolster the affidavit as to the more recent activity.

On the issue of the nexus between the criminal activity

described in the affidavit and the place to be searched, I do deny the

motion, but I will say and I must say that this case, in my view, is on

the razor’s edge . . . .

. . . .

This affidavit has precious little on its face, at least as of the

date close to the early 2006 date, that provides a reliable nexus to the

place to be searched. . . . But both on the underlying issue of

whether there’s a fair probability that the fruits of criminal activity

will be found at the place to be searched on the basis of the affidavit

itself and, if need be, on the basis of [the good faith exception of]

United States v. Leon, [468 U.S. 897 (1984)], I do deny the motion.

Tr. of Mot. to Suppress at 37-40, R. Vol. 2.

“In reviewing the denial of a motion to suppress, we must view the

evidence in the light most favorable to the government and uphold the district

court’s factual findings unless clearly erroneous.” United States v. Roach, ___

F.3d ___, 2009 WL 2989182, at *4 (10th Cir. Sept. 21, 2009). Because the

probable cause determination must be supported by facts contained in the

affidavit in support of the search warrant, “we limit our review to those facts.” 

Id. The sufficiency of a search warrant is a conclusion of law, however, which
-9-

we review de novo. Id. Finally, “[w]e afford great deference to a magistrate’s

finding of probable cause, reversing only if the affidavit supporting the warrant

application provides ‘no substantial basis for concluding that probable cause

existed.’” Id. (quoting United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir.

2000) (further quotation omitted)).

“An affidavit establishes probable cause for a search warrant if the totality

of the information it contains establishes the fair probability that contraband or

evidence of a crime will be found in a particular place.” United States v.

Soderstrand, 412 F.3d 1146, 1152 (10th Cir. 2005) (further quotation omitted). 

Accordingly, “[p]robable cause requires only a probability or substantial chance

of criminal activity, rather than an actual showing of such activity.” United

States v. Biglow, 562 F.3d 1272, 1281 (10th Cir. 2009 ) (quotation marks and

citation omitted). The affidavit must, however, show a “nexus between . . .

suspected criminal activity and the place to be searched, and a court may not

arrive at probable cause simply by piling hunch upon hunch.” Roach, 2009 WL

2989182, at *4 (quotation marks and citations omitted).

Mr. Richard argues that Agent Nunley’s affidavit in support of the search

warrant was deficient and failed to establish probable cause because it relied on

stale, outdated and insufficient evidence showing a nexus between Mr. Richard’s

drug activities and the Wilshire residence. We disagree.
-10-

A. Nexus

With respect to the nexus requirement, “[w]hether a sufficient nexus has

been established between a defendant’s suspected criminal activity and his

residence . . . necessarily depends upon the facts of each case.” Biglow, 562 F.3d

at 1279. “Certain non-exhaustive factors relevant to our nexus analysis include

(1) the type of crime at issue, (2) the extent of a suspect’s opportunity for

concealment, (3) the nature of the evidence sought, and (4) all reasonable

inferences as to where a criminal would likely keep such evidence.” Id. Our case

law has established that “a sufficient nexus is established once ‘an affidavit

describes circumstances which would warrant a person of reasonable caution’ in

the belief that ‘the articles sought’ are at a particular place.” Id. (quoting United

States v. One Hundred Forty-Nine Thousand Four Hundred Forty-Two and 43/100

Dollars ($ 149,442.43) in U.S. Currency, 965 F.2d 868, 874 (10th Cir. 1992)).

Furthermore, “[w]e have long recognized that magistrate judges may ‘rely

on the opinion’ of law enforcement officers ‘as to where contraband’ or other

evidence ‘may be kept.’” Id. (quoting United States v. Hargus, 128 F.3d 1358,

1362 (10th Cir. 1997)). Thus, “[i]n some cases, the ‘additional evidence’ linking

an individual’s suspected illegal activity to his home has . . . come in the form of
2

We acknowledged in Biglow that there has been some confusion in our

case law regarding the nexus requirement:

All agree that a nexus must exist between suspected criminal activity

and the place to be searched, but the parties dispute the strength of

the evidence that must link the two. On one hand, Defendant cites

our decision in United States v. Rowland, 145 F.3d 1194, 1204 (10th

Cir. 1998) for the proposition that probable cause ‘to search a

person’s residence does not arise based solely upon probable cause

that the person is guilty of a crime.’ We noted, in that case, that

‘additional evidence’ must link a defendant’s home to ‘the suspected

criminal activity.’ On the other hand, the Government relies on a

line of cases associated with United States v. Reyes, 798 F.2d 380,

382 (10th Cir. 1986), which suggest that evidence indicating a

defendant is a drug trafficker is alone sufficient to establish probable

cause to search that defendant’s residence for drugs and related

evidence.

Biglow, 562 F.3d at 1278-79 (footnote omitted). Hence, in Biglow we

emphasized the necessity of a case-by-case analysis. We employ such a casespecific approach in the matter at hand.

-11-

an affiant officer’s statement that certain evidence—in his or her professional

experience—is likely to be found in a defendant’s residence.” Id.2

As a result, “magistrate judges may draw their own reasonable conclusions,

based on the Government’s affidavit and the practical considerations of everyday

life, as to the likelihood that certain evidence will be found at a particular place.” 

Id. at 1280. Given that standard, we agree with the district court’s analysis

concluding that, while it is a close question, there was sufficient indicia that

evidence of Mr. Richard’s drug activity would be found at his house. We note 

Mr. Richard’s point that there were only two explicit references to the Wilshire

residence in the affidavit. Nonetheless, Agent Nunley expressed his professional
-12-

opinion, based upon extensive experience, that individuals involved in drug

activity like Mr. Richard’s typically maintain evidence of and/or tools of their

illegal activity in their residence, including firearms, drugs, and drug components. 

That is sufficient to establish a nexus, and it is only bolstered by the explicit

references to illegal activity in the Wilshire residence.

B. Staleness

With respect to the staleness issue, Mr. Richard asserts that the affidavit in

support of the search warrant “lacked facts to support the credibility of hearsay

assertions of unknown individuals that were based on observations eighteen to

twenty-four months prior to the search warrant being requested.” Appellee’s Br.

at 15. “[W]hether information is too stale to establish probable cause depends on

the nature of the criminal activity, the length of the activity, and the nature of the

property to be seized.” United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir.

2004). As the government notes, the affidavit contains approximately eighteen

separate instances of Mr. Richard using methamphetamine, selling

methamphetamine, or obtaining and/or distributing ephedrine from numerous

sources from May 2004 to January 2006. Additionally, three independent

confidential sources described four instances of Mr. Richard using or possessing

firearms. The last information regarding Mr. Richard’s drug use was provided to

Agent Nunley on January 11, 2006, and the last information regarding
-13-

Mr. Richard’s proximity to firearms was provided to Agent Nunley on January 18,

2006. Given that Mr. Richard was suspected of continuous and ongoing drug

activity, the information provided both from surveillance by law enforcement

personnel and from conversations with confidential sources concerning

Mr. Richard’s conduct from May 2004 to January 2006 (some two weeks prior to

the request for the warrant), was not stale.

We further agree with the district court that “[t]he older information or the

less recent information set forth in the affidavit . . . provides context and

continuity . . . and . . . in a very realistic sense is a backdrop that provides, in

turn, a confidence level for the magistrate in evaluating the more recent

information in the affidavit. The older information . . . does bolster the affidavit

as to the more recent activity.” Tr. of Mot. to Suppress at 37-38, R. Vol. 2. And

to the extent Mr. Richard challenges the reliability of the confidential sources,

law enforcement personnel corroborated the information the sources provided by

comparing their information with each other and by conducting their own

independent surveillance. All of this information portrayed Mr. Richard as a user,

distributor and manufacturer of methamphetamine, as well as a supplier of

ephedrine to other methamphetamine producers, from 2004 until 2006, when the

search warrant was issued.
3

Even were we not to conclude that the affidavit provided probable cause

for a search warrant, we would conclude, for essentially the reasons stated by the

district court, that the good faith doctrine of United States v. Leon, 468 U.S. 897

(1984), would require denial of Mr. Richard’s motion to suppress the evidence.

-14-

We therefore agree with the district court that the affidavit provided

probable cause to believe that evidence of Mr. Richard’s criminal activity would

be found at the Wilshire residence.3

II. 18 U.S.C. § 922(g)(3):

18 U.S.C. § 922(g)(3) provides that “[i]t shall be unlawful for any

person . . . who is an unlawful user of or addicted to any controlled substance . . .

to possess[,] in or affecting commerce, any firearm.” Mr. Richard moved to

dismiss the indictment on the ground that § 922(g)(3) was unconstitutionally

vague as applied to him, and on the ground that it violated the Second

Amendment’s guarantee of the “right of the people to keep and bear Arms.” U.S.

Const. amend. II.

The district court denied the motion to dismiss based on the Second

Amendment prior to trial. With respect to the constitutional challenge on the

ground of vagueness, the district court denied Mr. Richard’s motion to dismiss

after the government had presented its case. We affirm both those rulings.
-15-

A. Second Amendment Challenge:

“This court reviews a challenge to the constitutionality of a statute de

novo.” Yes on Term Limits, Inc. v. Savage, 550 F.3d 1023, 1027 (10th Cir.

2008). In District of Columbia v. Heller, 128 S. Ct. 2783 (2008), the Supreme

Court held that the Second Amendment provides an individual with a right to

possess and use a firearm for lawful purposes, such as self-defense within the

home.

The Court, however, specifically stated in Heller that “nothing in our

opinion should be taken to cast doubt on longstanding prohibitions on the

possession of firearms by felons and the mentally ill, or laws forbidding the

carrying of firearms in sensitive places such as schools and government

buildings.” Id. at 2816-17; see also United States v. McCane, 573 F.3d 1037, 

1047 (10th Cir. 2009) (rejecting the argument that § 922(g) is unconstitutional in

light of Heller). The Court also specifically stated its intention that such

“presumptively lawful regulatory measures [act] only as examples; our list does

not purport to be exhaustive.” Heller, 128 S. Ct. at 2817 n.26.

Accordingly, the individual right to bear arms protected by the Second

Amendment is subject to appropriate restrictions like those contained in 18 U.S.C.

§ 922(g)(3).
-16-

B. Unconstitutional or Void for Vagueness as Applied:

Mr. Richard argues that § 922(g)(3) is unconstitutionally vague as applied

to him. In particular, he asserts that “§ 922(g)(3) fails to apprise what conduct is

prohibited and fails to establish minimal guidelines to govern law enforcement.” 

Appellant’s Br. at 30. We have stated:

[W]e reject . . . an as-applied constitutional challenge to the statute

criminalizing firearm possession by drug users [§ 922(g)(3)]. Such a

challenge will fail where the government has introduced sufficient

evidence of a temporal nexus between the drug use and firearm

possession. . . . Given the ample evidence of Defendant’s heavy,

habitual drug use in the year during which he possessed the firearms

at issue, we conclude that the statute was not unconstitutionally

vague as applied to him.

United States v. Edwards, 540 F.3d 1156, 1162 (10th Cir.), cert. denied, 129 S.

Ct. 964 (2008); see also United States v. Patterson, 431 F.3d 832, 836 (5th Cir.

2005) (“As [§ 922(g)(3)] applies to [defendant], it is not vague; an ordinary

person would understand that [defendant’s] actions establish him as an unlawful

user. He admitted that he regularly used marijuana . . . Section 922(g)(3) is not

unconstitutionally vague as applied to [defendant].”)

Mr. Richard tries to distinguish Edwards on two grounds: “simply

establishing a pattern of use, as opposed to ‘habitual use’ as in Edwards, during

the time the firearm is ‘possessed,’ is insufficient to support a violation of the

law”; and “[t]here must be not only a temporal nexus between the regular and

ongoing use of a controlled substance and possession of a firearm, there must also
-17-

be a nexus between the use and the physical location of the firearm.” Appellant’s

Br. at 31. We reject these distinctions. Mr. Richard cites no case authority for

his requirement of a “physical nexus” between the defendant’s drug use and the

firearm, nor can we find any such case law. And, Mr. Richard’s attempt to

distinguish “a pattern of use” from “habitual abuse” is, simply, unavailing in the

circumstances of this case. There was ample evidence that Mr. Richard was a

regular user of methamphetamine during a time period when he possessed at least

one firearm.

For the foregoing reasons, we affirm the district court’s denial of

Mr. Richard’s several motions to dismiss the indictment.

III. Unlawful User Under § 922(g)(3) and Sufficiency of Evidence:

Mr. Richard argues the district court improperly instructed the jury on the

elements of § 922(g)(3) and the definition of a drug-user and that the evidence

was insufficient to convict him of being a drug user in possession of a firearm

within the meaning of that statute.

A. Adequacy of Jury Instruction:

The full instruction given to the jury defining a drug user in possession of a

firearm under 18 U.S.C. § 922(g)(3) was as follows:
-18-

An “unlawful user of a controlled substance” is an individual

who, on a regular and on-going basis, uses a controlled substance in

a manner other than that prescribed by a licensed physician.

For the defendant to possess a firearm “while” he was an

unlawful user of a controlled substance does not require that the

defendant used the controlled substance at the precise time he

possessed the firearm. The defendant is not required to have used

illegal drugs on a particular day, or within a matter of days before

the possession of the firearm. Nor is the defendant required to have

been under the influence of an illegal drug at the exact same time

that he possessed the firearm. For the defendant to have possessed

the firearm “while” he was an unlawful user of a controlled

substance means that the defendant must have possessed the firearm

during the same time period that he was a regular and ongoing

unlawful user of a controlled substance.

Instruction No. 17, Jury Instructions at 19-20, R. Vol. 1 at 109-10. Mr. Richard

argues that “this definition does not comport with the stated Congressional

purpose of the statute, viz: keeping firearms out of the hands of categories of

potentially irresponsible persons.” Appellant’s Br. at 40. Mr. Richard submitted

a proposed jury instruction that would require the jury to find that an unlawful

user under § 922(g)(3) was a person who met the definition of an addict found in

the Diagnostic and Statistical Manual of Mental Disorders, (4th ed.), which the

district court declined to give.

“We review de novo whether, as a whole, the [trial] court’s jury

instructions correctly stated the governing law and provided the jury with an

ample understanding of the issues and applicable standards.” Martinez v.

Caterpillar, Inc., 572 F.3d 1129, 1132 (10th Cir. 2009). However, we review for

an abuse of discretion the district court’s decision whether to give a particular
4

Mr. Richard properly preserved his sufficiency-of-the-evidence challenge

by moving for judgment of acquittal under Fed. R. Crim. P. 29(a) at the close of

the government’s case-in-chief, which was denied. Mr. Richard then filed a posttrial motion for a judgment of acquittal, pursuant to Fed. R. Crim. P. 29(c), which

(continued...)

-19-

instruction and we “reverse only in those cases where we have a substantial doubt

whether the jury was fairly guided in its deliberations.” Id. (quotation marks and

citation omitted). “As long as the charge [to the jury] as a whole adequately

states the law, the refusal to give a particular instruction is not an abuse of

discretion.” Zokari v. Gates, 561 F.3d 1076, 1090 (10th Cir. 2009) (quotation

marks and citation omitted). We are confident that the instruction in this case

complied with those requirements. We find no abuse of discretion in the district

court’s refusal to submit the jury instruction Mr. Richard sought, and we conclude

that the instructions, as a whole, adequately and accurately stated the governing

law.

B. Sufficiency of the Evidence:

With respect to the sufficiency of the evidence that Mr. Richard was an

unlawful user of a controlled substance and that there was an adequate nexus

between the controlled substance use and possession of the firearm, we have held

that the “sufficiency of the evidence to support a jury’s verdict is a legal question

that we review de novo.” United States v. Lewis, 240 F.3d 866, 870 (10th Cir.

2001).4

 “On appeal, the court asks whether, when considered in the light most
4

(...continued)

suffered a similar fate.

5

Interestingly, or perhaps more appropriately phrased as “tellingly,”

Mr. Richard cites no cases in support of his argument that the government must

demonstrate a nexus between the physical location of the firearm and his drug

use. We are aware of no such cases imposing that requirement.

-20-

favorable to the government, a reasonable jury could have found the defendant

guilty beyond a reasonable doubt.” Id.

Mr. Richard argues that the government failed to prove he was an unlawful

user of a controlled substance during the time period the firearm was in his

bedroom and, additionally, that the government failed to prove a nexus between

the unlawful use of a controlled substance (methamphetamine) and the possession

of the firearm. He asserts “[t]here must be not only a temporal nexus between the

regular and ongoing use of a controlled substance and possession of a firearm,

there must also be a nexus between the use and the physical location of the

firearm.” Appellant’s Br. at 42.5

As another circuit has observed, “cases interpreting § 922(g)(3) typically

discuss two concepts: contemporaneousness and regularity. The Eighth Circuit

has explained that ‘courts generally agree the law runs the risk of being

unconstitutionally vague without a judicially-created temporal nexus between the

gun possession and regular use.’ The Third, Fourth, and Ninth Circuits have

stated that there must be some regularity of drug use in addition to

contemporaneousness to meet the statute’s requirements.” United States v.
-21-

Burchard, ___ F.3d ___, 2009 WL 2768494, at *5 (6th Cir. 2009) (quoting United

States v. Patterson, 431 F.3d 832, 838-39 (8th Cir. 2005) (further citations

omitted))).

As applied to this case, Mr. Richard admitted to law enforcement personnel

that he had used methamphetamine for the past three to four years and his last

usage was two days before the interview on February 8, 2006. Additionally, the

methamphetamine residue and drug paraphernalia discovered in Mr. Richard’s

room on the same day and in the same place that the rifle was discovered provide

facts from which the jury could reasonably infer that Mr. Richard possessed the

firearm during the same period that he was a regular and ongoing user of a

controlled substance. We accordingly conclude that the evidence was sufficient

to support the jury’s verdict.

IV. Due Process Claim:

Finally, Mr. Richard argues that the district court erred in denying his posttrial motion for judgment of acquittal on the ground that the government denied

Mr. Richard’s due process rights by interfering with his effort to preserve

evidence. This allegation derives from the government’s refusal to permit

Mr. Richard to record his interview which occurred on February 8, 2006, at the

Stephens County Sheriff’s Department. Agent Nunley, Rodney Richards, an

investigator for the Stephens County Sheriffs Department, and two DEA agents
6

The district court took pains to explain the significance of this issue:

Although there was testimony at trial about certain aspects of

defendant’s physical appearance that suggested drug use, and about

the drug-related items found in defendant’s bedroom when the search

was conducted . . . , no witness claimed the ability to evaluate the

observed features with precision sufficient to support an inference as

to the temporal proximity between Mr. Richard’s use of

methamphetamine and his possession of the rifle that was found in

his bedroom. The evidence at trial would not, without the testimony

about defendant’s admissions during the interview at the Sheriff’s

office, support a jury finding against the defendant on the temporal

element of the § 922(g)(3) charge. The government does not contend

otherwise.

Order at 5-6, R. Vol. 1 at 168-69. After discussing in detail the testimony

provided by the officers, the district court summed it up as follows:

In this case, three law enforcement officers, including a federal

agent and a federal investigator, testified about an interview at the

Sheriff’s office. One of those witnesses, Agent Nunley, gave an

account of the interview which would be sufficient to convict. One

(continued...)

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were present at the February 8 interview. Although Mr. Richard asked to record

the interview, and apparently even brought recording equipment, he was not

permitted to record the meeting. Three of the law enforcement personnel testified

at Mr. Richard’s trial as to what transpired in the interview.

In his motion for acquittal following the jury’s guilty verdict, Mr. Richard

asserted that the denial of permission to record the February 8 interview

amounted to a denial of due process of law, and he further argued that the

doctrine of spoliation of evidence required dismissal of the case. The district

court denied the motion. We agree with the district court’s decision.6
6

(...continued)

of those witnesses, Ms. Crowder, gave testimony which would not

just fall short of satisfying the temporal requirement—it would, if

credited, undermine the testimony of Agent Nunley in support of that

requirement. The testimony of the third witness, Deputy Richards,

fell into the middle ground. He gave very general support to Agent

Nunley’s account of the duration and frequency of defendant’s use of

methamphetamine, but, as noted, could not attribute to defendant any

statement as to whether his last use was 30 days, 60 days, 90 days or

six months before the Oklahoma City use a couple of days before the

interview at the Sheriff’s office, and could not quote Crowder,

Nunley or [DEA Agent] Kushner as having even asked about that.

The case went to the jury on the basis of evidence fraught with

material uncertainties which clearly would not have existed if the

defendant had not been prohibited by Agent Nunley from recording

the interview.

Id. at 9-10, R. Vol. 1 at 172-73.

-23-

The Supreme Court has held that “unless a criminal defendant can show

bad faith on the part of the police, failure to preserve potentially useful evidence

does not constitute a denial of due process of law.” Arizona v. Youngblood, 488

U.S. 51, 58 (1988); see also United States v. Beckstead, 500 F.3d 1154, 1159

(10th Cir. 2007) (“[U]nless a criminal defendant can show bad faith on the part of

the police, failure to preserve potentially useful evidence does not constitute a

denial of due process of law.”). Mr. Richard argues that the government’s refusal

to allow him to record his interview was tantamount to an intentional failure to

preserve exculpatory evidence, in violation of his due process rights. He further

contends that “[t]he agents operated in ‘bad faith’ because this was a conscious
-24-

decision to prevent a contemporaneous, complete record of each question and

answer during the interview.” Appellant’s Br. at 44.

The district court rejected Mr. Richard’s argument, stating as follows:

In the case at bar, as in Arizona v. Youngblood, there has not

been, and cannot be, a showing that Agent Nunley’s prohibition of

tape recording deprived the defendant of the benefit of exculpatory

evidence. By Agent Nunley’s account, a tape recording would have

made no difference. The testimony of Deputy Richards and

Investigator Crowder tends, to some degree, to raise questions about

Agent Nunley’s estimation of his proficiency versus that of a tape

recorder, but there has been no showing that a recording, if made,

would have been exculpatory. Consequently, applying the distinction

recognized by the Court in Arizona v. Youngblood, the court

concludes that bad faith must be shown.

Having carefully considered all of the evidence before it, the

court stops short of finding actual bad faith on the part of Agent

Nunley or his colleagues. At the time he prohibited the recording,

Agent Nunley would not have known with any certainty whether he

was avoiding the creation of exculpatory evidence. In bringing

defendant to the table, prohibiting recording, and eliciting

admissions, Agent Nunley was probably maximizing the leverage

that his badge gave him, but that does not amount to actual bad faith. 

If the due process required complete good faith, rather than

bad faith, my conclusion would likely be different. The federal agent

and investigators knew exactly what they were doing when they

invited defendant to the Sheriff’s office. They hoped to walk out of

the conference room with the indictable case that they didn’t have

when they walked in. It worked.

. . . Although I cannot find outright bad faith, I do find, under

all the circumstances, the government’s treatment of defendant was

high-handed and arrogant.

Order at 12-13, R. Vol. 1 at 175-76.
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We agree with the district court that, while definitely not commendable, the

government’s conduct did not amount to bad faith as construed in our case law. 

We accordingly affirm the district court’s denial of Mr. Richard’s motion for

acquittal on the ground that the Due Process clause of the Constitution was

violated.

CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s orders and

decision and AFFIRM the defendant’s conviction and sentence.

ENTERED FOR THE COURT

Stephen H. Anderson

Circuit Judge