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Constructive Possession: Court of Appeals Won’t Reverse Even When Trial Judge Gave Bad Instructions to Jury

Kish Law LLC

Federal crimes often involve questions about whether a person “possesses” an item. The concept of “constructive possession” allows a jury to convict a Defendant if he or she does not have actual possession, but has the power and intention to take control of the item at a later point. The United States Court of Appeals for the Eleventh Circuit, here in Atlanta, recently confronted a case where the trial judge used faulty language when telling the jury about the concept of constructive possession. Although the instruction was bad, the Court of Appeals refused to reverse the Defendant’s conviction. The case is U.S. v. Cochran.

Roderick Cochran was seen outside a house, and a police officer claimed she observed him from a block away going in and out of the property. When the police used a warrant to go inside and search the house, they found drugs in the kitchen, and ammunition hidden in a bedroom. Cochran’s driver’s license listed him as living two doors down, and a piece of mail was found inside addressed to he and his niece, who had also lived there. Like some of the early scenes in “My Cousin Vinny”, the defense established that trees and other obstructions made it impossible for the officer to have observed Cochran from a block away. Additionally, the defense showed that including Mr. Cochran’s name on the letter addressed to his niece was a standard format, but it did not show he lived with the niece.

Like most federal courts, the Eleventh Circuit publishes Pattern Jury Instructions for use in federal criminal trials. The Pattern Instruction on possession tells jurors that even if a Defendant does not actually possess an item, he or she can have “constructive possession” if the Defendant has power and intention to take control of it later. In Mr. Cochran’s trial, prosecutors convinced the trial judge to add a sentence that read:”Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing.” Cochran’s very able lawyers from the Federal Public Defender objected to the instruction. The jury was quite confused, asking questions about how it should decide if Mr. Cochran possessed either the ammunition or the drugs. “If you have free access to a home then do you have constructive possession of the contents?” The district court replied that it could not answer the question and instructed the jury to consult the jury instructions. During deliberations the next day, the jury again sent a note to the district court, this time asking: “Regarding Count 1 [the ammunition charges] does the definition of constructive possession apply to the phrase ‘knowingly possess?'”
Again, the trial judge wold not answer the questions. The jury ultimately acquitted Cochran of the charge concerning the ammunition, but convicted on the drug crimes.

The Court of Appeals agreed that the government’s addition that, “[c]onstructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing,” eliminated the “power and the intention to take control over it later” language. That omission was especially troubling given that the definition of “constructive possession” immediately follows the instruction that “[a]ctual possession of a thing occurs if a person knowingly has direct physical control of it.” 11th Cir. Pattern Jury Instructions (Criminal), Special Instruction 6 (2010) . According to Judge Wilson (who wrote the opinion) “such a juxtaposition could create an inference that constructive possession, as defined by the government’s instruction, lacks an intentionality requirement.”

Judge Wilson found a second problem with the prosecutor’s extra language for the constructive possession instruction. The supplemented constructive possession instruction said that control over the premises-rather than control over the contraband itself-was sufficient to convict. However, the jury makes all choices about the facts and what inferences can be drawn from such evidence. Judge Wilson noted that the Court regularly “disapproves” of jury instructions that invade the jury’s province by implicitly mandating an inference.

Despite these problems, the Eleventh Circuit nevertheless upheld Mr. Cochran’s drug convictions. “We find that although the wording of the final sentence of the constructive possession instruction would have been more clear if it included language about knowledge or intent, that flaw is mitigated by the totality of the instructions.” The Court noted that the trial judge did tell jurors that it had to find “knowing possession, and that the prosecutors repeatedly argued that Cochran did in fact know about the drugs found in the home. These twin factors led the Court to affirm the conviction.

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