2.11 Joint Possession

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

2.11 JOINT POSSESSION

(1) One more thing about possession. The government does not have to prove that the defendant

was the only one who had possession of the _______. Two or more people can together share

actual or constructive possession over property. And if they do, both are considered to have

possession as far as the law is concerned.

(2) But remember that just being present with others who had possession is not enough to

convict. The government must prove that the defendant had either actual or constructive

possession of the _______, and knew that he did, for you to find him guilty of this crime. This,

again, is all for you to decide.

Use Note

This instruction should be used only when there is some evidence of joint possession.

Committee Commentary 2.11

(current through March 1, 2023)

The Sixth Circuit reviewed this instruction and concluded that it “correctly states the

law.” In United States v. Chesney, 86 F.3d 564 (6th Cir. 1996), the district judge gave Pattern

Instruction 2.11. The Sixth Circuit held that “a joint possession instruction was applicable in this

case, given that two people were riding in the car in which the gun was found, and the district

court’s instruction correctly states the law.” Id. at 573.

A panel of the Sixth Circuit has cautioned, however, that “A trial judge should not

‘always charge joint possession’ without considering the facts of the case.” United States v.

Woodard, 1993 WL 393092 at 4, 1993 U.S. App. LEXIS 26288 at 11-12 (6th Cir. 1993)

(unpublished). The panel ruled that it was not error for the trial judge to give a joint possession

instruction where the jury could find joint possession from the evidence even though both sides

argued only sole possession. Id.

The Sixth Circuit has long recognized that a defendant need not have exclusive

possession of property to be convicted of a possessory offense. Joint possession will suffice.

See United States v. Craven, 478 F.2d 1329, 1333 (6th Cir. 1973). But this instruction should

not be given unless there is some evidence of joint possession. See 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).