Court Upholds Flawed Constructive Possession Jury Instruction

By Robyn Hagan Cain on June 14, 2012 | Last updated on March 21, 2019

Roderick Cochran was convicted for possessing with intent to distribute five grams or more of cocaine base and possessing with intent to distribute cocaine. The cocaine and cocaine base at issue were discovered when officers searched a residence; Cochran was standing in the driveway of that residence at the time of the search.

At trial, the government argued that, although Cochran lacked actual possession of the contraband, he constructively possessed the drugs.

The Eleventh Circuit's pattern jury instruction regarding constructive possession states: "'Constructive possession' of a thing occurs if a person doesn't have actual possession of it, but has both the power and the intention to take control over it later." The government requested that an additional sentence be added: "Constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing."

The district court permitted the instruction over Cochran's objection. Cochran was convicted, and appealed, arguing that the jury instruction was misleading as a matter of law.

The Eleventh Circuit Court of Appeals agreed with Cochran that there were a number of problems with the given constructive possession instruction. The court noted, "The government's suggested addition that, 'constructive possession of a thing also occurs if a person exercises ownership, dominion, or control over a thing or premises concealing the thing,' eliminates the 'power and the intention to take control over it later' language. That omission is especially troubling given that the definition of 'constructive possession' immediately follows the instruction that 'actual possession of a thing occurs if a person knowingly has direct physical control of it.'"

Such a juxtaposition, according to the court, could create an inference that constructive possession lacks an intentionality requirement.

Furthermore, the court noted that the supplemented constructive possession instruction states that control over the premises -- rather than control over the contraband itself -- is sufficient to convict. While the Eleventh Circuit will uphold a conviction on a sufficiency of the evidence challenge based on control of premises, the court expressed concerns about instructing a jury that control of premises can serve as a sole basis of conviction.

The Eleventh Circuit's articulated concerns, however, were not enough to persuade the court to overturn Cochran's conviction. The appellate court agreed that district courts should utilize a more precise constructive possession instruction, but ruled that there was not a "substantial and ineradicable doubt" as to whether the jury was properly guided here.

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 was mitigated by the totality of the instructions. Because the jury instructions stated in a different section that possession of the contraband had to be knowing, the failure to reiterate that requirement did not constitute reversible error.

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