Pattern Tenth Circuit Jury Instructions on Constructive Possession, Deliberate Ignorance Erroneously Given

By Shari Allison
Federal Public Defender Office, District of New Mexico
Sep 2, 2016

United States v. Little, 2016 WL 3902581 (10th Cir. 2016): In this felon-in-possession case, the panel overrules a line of case beginning with US v. Colonna, 360 F.3d 1169 (10th Cir. 2004), and finds that the Tenth Circuit's pattern jury instruction on constructive possession is erroneous. The district court gave the unmodified Tenth Circuit jury instruction on constructive possession, which provides that constructive possession exists when a person not in actual possession "knowingly has the power at a given time to exercise dominion or control over an object." Little contended that the jury should have been instructed that constructive possession exists when a person knowingly has the power and the intention to exercise dominion or control. The panel acknowledged that the Colonna line of cases could not be overruled absent intervening Supreme Court or en banc authority to contrary; it found that authority in the SCOTUS decision Henderson v. US, 135 S.Ct. 1780 (2015), in which the Court observed that "[c]onstructive possession is established when a person, though lacking physical custody, still has the power and intent to exercise control over the object." Based on Henderson, the panel found that Colonna should be overruled on that point of law and held, in accordance with Supreme Court precedent and most other circuits, "that constructive possession exists when a person not in actual possession knowingly has the power and intent at a given time to exercise dominion or control over an object."

Two members of the panel then concluded that the jury instruction was not reversible error. It rejected the government's argument that the fact another instruction defined the word "knowingly" as "voluntarily and intentionally" rendered the error harmless because "[i]ntentionally having the power to exercise dominion is not the same as intending to exercise dominion." However, given the particular facts of this case, the majority felt a reasonable jury would have been compelled to conclude that Little knew about the weapons. One member of the panel dissented on this point, and his dissent is well worth reading for a discussion of why error should not be considered harmless.

The panel also concluded that the deliberate ignorance instruction was improperly given, reiterating the proposition that "[a]llowing a deliberate ignorance instruction premised on evidence of constructive knowledge reduces the standard for conviction from knowledge to recklessness or negligence." However, as with the constructive possession instruction, the panel concluded that the error was harmless.

The court found no error in the giving of the aiding and abetting and the possible guilt of others instructions.

Although Mr. Little will not receive a third trial (as the first resulted in a hung jury), he will be resentenced. His advisory guideline range had been enhanced under USSG 2K2.1 in part because he had prior New Mexico convictions for battery on a peace officer, which the district court determined were crimes of violence. It was not clear whether the district court relied on the use of force definition or the residual clause contained in the career offender guideline, which is the relevant definition of "crime of violence" for purposes of 2K2.1. The government conceded on appeal that, following Johnson v. US, 135 S.Ct. 2551 (2015), and US v. Madrid, 805 F.3d 1204 (10th Cir. 2015), reliance on the residual clause of the career offender guideline was error. Accordingly, the panel remanded for resentencing.