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United States v. Johnson.

No. 21-3113. 8/30/2022. D.Kan. Judge Tymkovich. Jury Instructions—Actual and Constructive Possession of Firearm—Plain Error Review.

August 30, 2022

Officers stopped defendant after they observed him driving the wrong way on a one-way street. When officers saw a beer bottle in defendant’s hand, they asked him to step out of the vehicle. When defendant got out, the officers saw a loaded pistol on the driver’s seat where defendant had been sitting. During the arrest, the officers discovered $411 in cash and a large plastic bag containing 28 smaller bags of crack cocaine.

Defendant was charged with (1) possessing cocaine base with intent to distribute, (2) possessing a firearm in furtherance of a drug trafficking crime, and (3) possession of a firearm by a convicted felon. A jury convicted him on all three counts. Defendant appealed the firearm convictions, contending that the district court issued an erroneous jury instruction on constructive possession. Because defendant failed to object at trial, the Tenth Circuit reviewed for plain error.

The two firearm charges required the government to prove that defendant had actual or constructive possession of the firearm. On appeal, the government conceded that the first two elements of plain error review were met: the district court made an error that was plain by omitting the element of intent from its jury instruction for constructive possession. However, defendant did not meet the third element because he failed to demonstrate a reasonable probability that, but for the error claimed, the result of the proceeding would have been different. Because defendant had borrowed the car from his girlfriend, the government had to show a nexus between defendant and the firearm. When the evidence of actual possession before a jury is sufficient, the Tenth Circuit will not reverse a conviction merely because the jury was given an erroneous instruction on constructive possession.

The Tenth Circuit rejected defendant’s argument that the evidence showing he had been sitting on the gun was insufficient to demonstrate actual possession. Actual possession is direct physical control at a given time. Under Tenth Circuit precedent, a firearm does not have to be held to constitute actual possession (e.g., carrying a pistol in a pocket is physical possession). Here, defendant sat on the firearm for at least the duration of the traffic stop before he exited the vehicle. Therefore, the uncontroverted evidence of actual possession was so strong that no reasonable jury would have acquitted defendant had it received a proper instruction on constructive possession.

Further, even if the jury had not found actual possession, it would have been compelled to conclude that defendant constructively possessed the firearm had it received the proper instruction. The evidence of defendant’s intent to exert control over the firearm was strong. Defendant was knowingly sitting on the gun, and the verdict on the second count demonstrated the jury believed the government’s explanation that defendant possessed the firearm to aid him in drug trafficking. In addition, the jury heard that defendant informed an officer in a 2004 case that he had a gun in connection with drug distribution. The evidence therefore supported the conclusion that defendant was in constructive possession of the firearm.

The convictions were affirmed.


Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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