2.10 Actual And Constructive Possession

• Currency: 2023
• Year: 2023
• Section: Chapter 2 Defining The Crime And Related Matters

2.10 ACTUAL AND CONSTRUCTIVE POSSESSION

(1) Next, I want to explain something about possession. The government does not necessarily

have to prove that the defendant physically possessed the _______ for you to find him guilty of

this crime. The law recognizes two kinds of possession--actual possession and constructive

possession. Either one of these, if proved by the government, is enough to convict.

(2) To establish actual possession, the government must prove that the defendant had direct,

physical control over the _______, and knew that he had control of it.

(3) To establish constructive possession, the government must prove that the defendant had the

right to exercise physical control over the _______, and knew that he had this right, and that he

intended to exercise physical control over _______ at some time, either directly or through other

persons.

(4) For example, if you left something with a friend intending to come back later and pick it up,

or intending to send someone else to pick it up for you, you would have constructive possession

of it while it was in the actual possession of your friend.

(5) But understand that just being present where something is located does not equal possession.

The government must prove that the defendant had actual or constructive possession of the

_______, and knew that he did, for you to find him guilty of this crime. This, of course, is all for

you to decide.

Use Note

If the government’s theory of possession is that it was actual or constructive, give all

paragraphs of this instruction. If the government’s only theory of possession is that it was

constructive, modify this instruction to delete references to actual possession.

If the government’s only theory of possession is that it was actual, do not give this

instruction; instead, give Instruction 2.10A. This instruction (Instruction 2.10) should be given

only when there is some evidence of constructive possession.

Committee Commentary 2.10

(current through October 1, 2021)

If the government uses only a theory of actual possession, it is error to give an instruction

on constructive possession. See United States v. James, 819 F.2d 674 (6th Cir. 1987) (reversible

error to give constructive possession instruction where no evidence of constructive possession

was presented). See also United States v. Wolak, 923 F.2d 1193, 1198 (6th Cir. 1991)

(cautioning against use of boilerplate possession instruction including concepts of joint and

constructive possession when neither concept was at issue given the facts of the case).

Conversely, if the government’s only theory of possession is that it was constructive, the trial

judge should omit the portions of the instruction defining actual possession.