A Not-so-Little Change in Constructive Possession Law
The Tenth Circuit reversed years of law on the constructive possession of contraband in United States v. Cody Little, 2016 WL 3902581 (10th Cir. July 19, 2016). Henceforward, “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.” Id. at *3. This decision overruled a line of cases beginning with United States v. Colonna, 360 F.3d 1169 (10th Cir. 2004), which had held that “[i]t is not necessary to show that the defendant intended to exercise ... dominion or control” for purposes of constructive possession. Id. at 1179 (emphasis added). The Court also provided some good language on the aiding and abetting and deliberate ignorance pattern instructions. The Tenth Circuit's Pattern Jury Instruction on constructive possession is no longer accurate.
Despite critical commentary from legal academics and other circuits, the Court had rejected prior challenges to its pattern constructive possession instruction because “a panel may not overrule Colonna ‘[a]bsent intervening Supreme Court or en banc authority to the contrary.’” 2016 WL 3902581 *2 (quoting U.S. v. Ledford, 443 F.3d 702, 716 (10th Cir. 2005). This time, it found that intervening Supreme Court authority in Henderson v. United States, 135 S.Ct. 1780 (2015), which had 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.” Id. at 1784 (emphasis added). Accordingly, it overruled its prior line of cases and brought Tenth Circuit law into agreement with the majority of other circuits.
The deliberate ignorance instruction was also improper. The Court affirmed that this instruction should only be given in the limited circumstance “when evidence has been presented showing the defendant purposely contrived to avoid learning the truth.” 2016 WL 3902581 *5. The Court rejected the government’s argument that evidence Little should have known about the firearms was sufficient to support the instruction. It also found fault with the trial court for allowing the instruction based on evidence Little knew or should have known about the firearms in the well house, stating, “Allowing a deliberate ignorance instruction premised on evidence of constructive possession reduces the standard for conviction from knowledge to recklessness or negligence.” Id.
However, as so often happens, the fact that two instructions central to the government’s case were erroneously given was not grounds for reversal because two members of the panel thought the evidence that Little knew about the firearms in the well house was overwhelming.
Judge Holmes dissented on this point, and would have reversed and remanded based on giving an incorrect instruction on constructive possession.
Although Little will not receive a third trial, he will be resentenced. Following the decision in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), the government agreed that Little’s prior New Mexico convictions for battery on a peace officer should not have been considered crimes of violence for purposes of the sentencing guidelines, and his sentence was therefore improperly enhanced.
Despite critical commentary from legal academics and other circuits, the Court had rejected prior challenges to its pattern constructive possession instruction because “a panel may not overrule Colonna ‘[a]bsent intervening Supreme Court or en banc authority to the contrary.’” 2016 WL 3902581 *2 (quoting U.S. v. Ledford, 443 F.3d 702, 716 (10th Cir. 2005). This time, it found that intervening Supreme Court authority in Henderson v. United States, 135 S.Ct. 1780 (2015), which had 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.” Id. at 1784 (emphasis added). Accordingly, it overruled its prior line of cases and brought Tenth Circuit law into agreement with the majority of other circuits.
The deliberate ignorance instruction was also improper. The Court affirmed that this instruction should only be given in the limited circumstance “when evidence has been presented showing the defendant purposely contrived to avoid learning the truth.” 2016 WL 3902581 *5. The Court rejected the government’s argument that evidence Little should have known about the firearms was sufficient to support the instruction. It also found fault with the trial court for allowing the instruction based on evidence Little knew or should have known about the firearms in the well house, stating, “Allowing a deliberate ignorance instruction premised on evidence of constructive possession reduces the standard for conviction from knowledge to recklessness or negligence.” Id.
However, as so often happens, the fact that two instructions central to the government’s case were erroneously given was not grounds for reversal because two members of the panel thought the evidence that Little knew about the firearms in the well house was overwhelming.
Judge Holmes dissented on this point, and would have reversed and remanded based on giving an incorrect instruction on constructive possession.
Although Little will not receive a third trial, he will be resentenced. Following the decision in United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015), the government agreed that Little’s prior New Mexico convictions for battery on a peace officer should not have been considered crimes of violence for purposes of the sentencing guidelines, and his sentence was therefore improperly enhanced.
posted by Anonymous at 10:49 AM
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