Sunday, July 24, 2016

Tenth Circuit constructive-possession law gets a makeover

The Tenth Circuit Criminal Pattern Jury Instructions have long defined constructive possession without any reference to the person's intent to exercise dominion or control:

"A person who, although not in actual possession, knowingly has the power at a given time to exercise dominion or control over an object, either directly or through another person or persons, is then in constructive possession of it."

Instruction § 1.31. This instruction was, until last week, consistent with Tenth Circuit law. See United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir. 2004) ("[i]t is not necessary to show that the defendant intended to exercise . . . dominion or control").


Last week, the Circuit overruled Colonna:

"We thus hold 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."

United States v. Little, No. 15-2019, 2016 WL 3902581 at *3 (10th Cir. July 19, 2016) (emphasis added).

This brings the Tenth Circuit in line with "every other circuit but one that has considered the issue," as well as with Henderson v. United States, 135 S.Ct. 1780 (2015).

And this means that the pattern instruction is deficient and must be modified for future cases. Unfortunately for Mr. Little, the Court found the deficiency harmless in his case.

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