Tenth Circuit Finds Criminal Pattern Jury Instruction § 1.31 Erroneous

By: Mackenzie Shields

In United States v. Little, 2016 WL 3902581 (10th Cir. 2016), the Tenth Circuit held that its own Criminal Pattern Jury Instruction § 1.31 was legally flawed because it omitted the element of intent to exercise control.

After his conviction of being a felon in possession of a firearm and of possession a stolen firearm, Appellant challenged the constructive possession jury instruction. Appellant argued that constructive possession requires proof of intent to exercise dominion and control over an object following the Supreme Court’s opinion in Henderson v. United States, 135 S. Ct. 1780 (2015).

The district court used the unmodified Tenth Circuit Criminal Pattern Jury Instruction § 1.31 (2011), which provides that constructive possession exists when a person not in the actual possession “knowingly has the power at any given time to exercise dominion or control over an object.” Previous Tenth Circuit precedent, most notably United States v. Colonna, 360 F.3d 1169, 1179 (10th Cir. 2004), held that “[i]t is not necessary to show that the defendant intended to exercise … dominion or control.” However, the Henderson case changed the law of constructive possession, effectively overruling the Colonna line of cases. In Henderson the Court squarely held that constructive possession requires both power to control an object and intent to exercise that control. 135 S. Ct. at 1784.

However, based on the facts of this case, the instructional error did not constitute reversible error. The majority concluded that a reasonable jury would have been compelled to conclude that the appellant intended to exercise control over the weapons.