United States v. Thompson

133 F.4th 1094

• Court: Court of Appeals for the Tenth Circuit
• Decided: April 15, 2025
• Docket: 24-4006
• Status: Published

Opinion

Appellate Case: 24-4006 Document: 61-1 Date Filed: 04/15/2025 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS April 15, 2025

Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-4006

BRANDON KEITH THOMPSON,

Defendant - Appellant. _________________________________

Appeal from the United States District Court for the District of Utah (D.C. No. 2:21-CR-00316-DBB-1) _________________________________

Jessica Stengel, Assistant Federal Public Defender (and Scott Keith Wilson, Federal Public Defender, with her on the briefs), Salt Lake City, Utah, for Defendant - Appellant.

Tyler Murray, Assistant United States Attorney (and Trina A. Higgins, United States Attorney, with him on the brief), Salt Lake City, Utah, for Plaintiff - Appellee. _________________________________

Before HARTZ, KELLY, and ROSSMAN, Circuit Judges. _________________________________

KELLY, Circuit Judge. _________________________________

Defendant-Appellant, Brandon K. Thompson, was convicted of being a felon in

possession of a firearm, 18 U.S.C. § 922(g)(1), and was sentenced to 110 months’

imprisonment and three years’ supervised release. I R. 519–20. On appeal, he argues

that (1) the district court’s jury instruction on actual possession incorrectly stated the law, Appellate Case: 24-4006 Document: 61-1 Date Filed: 04/15/2025 Page: 2

(2) the jury was not instructed on his theory of the case, (3) the evidence was insufficient

to demonstrate knowing possession, and (4) 18 U.S.C. § 922(g)(1) is an unconstitutional

exercise of Congress’s power under the Commerce Clause. Aplt. Br. at 1–2. Exercising

our jurisdiction under 28 U.S.C. § 1291, we affirm.

Background

On July 8, 2021, employees at an AT&T store in Sandy, Utah, saw Mr. Thompson

“messing” with an area where Apple watches were on display. III R. 395–99. After

confronting Mr. Thompson about a missing watch, one of the employees activated a

security alarm which alerted the police. Id. at 401–02. Sandy Police Officers Nystrom

and Johnson responded to the alert. Id. at 418–19, 495–96. Officer Johnson went inside

the store and asked Mr. Thompson for permission to pat him down. Id. at 498. Mr.

Thompson initially agreed, but then changed his mind and ran out of the store. Id. at

498–99. Officer Johnson radioed that Mr. Thompson was fleeing, and Officer Nystrom

turned on her body camera as both officers ran after Mr. Thompson. Id. at 421–22, 499.

The officers attempted to tackle Mr. Thompson, who tripped and fell into a parked

car during the struggle. II Supp. R. Ex. 1a. Officer Johnson attempted to handcuff Mr.

Thompson and got on top of him. Id. Mr. Thompson then grabbed onto Officer

Johnson’s holster and firearm with both of his hands and began to pull. Id.; see also I

Supp. R. Ex. 2–3.

At this time, Eusebio Santos, a retired New York Police Department officer, saw

the officers attempting to subdue Mr. Thompson. III R. 346, 355. Mr. Santos got out of

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his truck to help. Id. at 357. According to Mr. Santos, Mr. Thompson had “completely

gripped” the firearm, had pulled it partially out of the holster, and had his finger on the

trigger. Id. at 360–62.

As Mr. Santos approached, Mr. Thompson pulled the trigger causing a round to

fire into the ground. Id. at 424; II Supp. R. Ex. 1a. Officer Nystrom radioed that shots

were fired. III R. 425–26. After the shot, a melee followed with Mr. Santos and the

officers attempting to get Mr. Thompson’s hands off of the firearm. Id. at 503, 506–07; II

Supp. R. Ex. 1a. The struggle ended when Officer Johnson tased Mr. Thompson, and the

officers then detained him. III R. 506–09.

At trial, the government introduced testimony from Mr. Santos, Officer Nystrom,

and Officer Johnson, as well as video evidence of the altercation between Mr. Thompson

and the officers, which was recorded on Officer Nystrom’s body camera. Id. at 346, 408,

475; II Supp. R. Ex. 1a. Officer Johnson testified that his holster had a lever which

needed to be switched to remove the firearm from the holster. III R. 565. This made the

firearm’s trigger inaccessible and invisible while it was in the holster. Id. at 414–15, 504.

Additionally, the firearm had a safety mechanism that was located within the trigger

itself. Id. at 477, 485–86. The trigger had two stages (the safety trigger and the actual

trigger) which both had to be pressed fully in order to shoot the firearm. Id. at 485–86.

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Discussion

I. The district court did not abuse its discretion by declining to instruct the jury that actual possession must be exclusive.

Before trial, the parties stipulated that Mr. Thompson was a felon at the time of the

incident, knew that he had his hands on Officer Johnson’s firearm, knew how a firearm

operated, and intended to possess the firearm. I R. 360. Thus, the trial focused on

whether Mr. Thompson had actual possession of the firearm. Mr. Thompson’s proposed

jury instructions defined actual possession in terms of “control or dominion,” and his trial

counsel clarified that “the idea of dominion is the power to exclude others[.]” Id. at 164–

66; III R. 637, 641–42. The district court declined to give this instruction because it

found that Tenth Circuit precedent never indicated that language regarding “dominion” or

“exclusive control” should be imported from constructive possession into actual

possession. III R. 643–44. The district court’s instruction regarding actual possession

provided in pertinent part:

A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. The amount of time a person knowingly has direct physical control over a thing need not be lengthy, a second or two can be sufficient.

Id. at 672.

On appeal, Mr. Thompson argues that the district court abused its discretion by

improperly instructing the jury on actual possession. Aplt. Br. at 17. More specifically,

he argues that the district court omitted the “critical” requirement that actual possession

must be exclusive. Id. We review a properly preserved claim of error in jury instructions

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for an abuse of discretion.1 United States v. Benvie, 18 F.4th 665, 669 (10th Cir. 2021).

In the jury instruction context, “[a] district court abuses its discretion when its decision is

arbitrary, capricious or whimsical or falls outside the bounds of permissible choice in the

circumstances.” United States v. Olea-Monarez, 908 F.3d 636, 639 (10th Cir. 2018)

(quotations omitted). We review the jury instructions as a whole de novo “to determine

whether they properly state the law and issues in a particular case.” Benvie, 18 F.4th at

669.

The Supreme Court has recognized that “possession” can be either “actual” or

“constructive.” Henderson v. United States, 575 U.S. 622, 626 (2015). “Actual

possession exists when a person has direct physical control over a thing.” Id. (emphasis

added). Comparatively, “[c]onstructive possession is established when a person, though

lacking such physical custody, still has the power and intent to exercise control over the

object.” Id. The concept of “exclusive” control over an object may arise in the

constructive possession context. See United States v. Johnson, 46 F.4th 1183, 1187 (10th

Cir. 2022). For example, “[w]hen a defendant has exclusive control over the property

where contraband is found, a jury can reasonably infer the defendant constructively

1 We reject the government’s argument that Mr. Thompson’s challenge to this instruction should be reviewed for plain error. See Aplee. Br. at 23–24. To preserve a claim of error in jury instructions, a party “must inform the court of the specific objection and the grounds for the objection[.]” Fed. R. Crim. P. 30(d). Here, Mr. Thompson’s counsel argued at both the pretrial conference and the final jury instruction conference that the jury should be instructed that actual possession requires the power to exclude others. See III R. 150, 637, 641–42. Though counsel used both “dominion and control” and “the power to exclude others” interchangeably, these phrases raised the same argument, which the district court understood and ruled on fully. See id. at 637–48. 5 Appellate Case: 24-4006 Document: 61-1 Date Filed: 04/15/2025 Page: 6

possessed the contraband.” Id. (emphasis added); see also United States v. Samora, 954

F.3d 1286, 1290 (10th Cir. 2020) (“Knowledge, dominion, and control can be inferred

when a defendant has exclusive control over the premises in which the firearm was

found.”).

Mr. Thompson now argues that actual possession — not constructive possession

— requires exclusive control. Aplt. Br. at 17–18. Mr. Thompson relies on United States

v. Johnson, where this court found evidence of actual possession where a defendant sat on

a firearm because doing so “conceal[ed] it from the sight of others” and “require[d]

anyone who would try to make contact with or control the item to physically move the

person sitting on it.” 46 F.4th at 1188–89. From this, Mr. Thompson argues that actual

possession over a firearm requires knowing, exclusive dominion. Aplt. Br. at 27–28. He

also relies on “car crime” cases, decisions of our sibling circuits, pattern jury

instructions,2 law review articles, and dictionary definitions. Id. at 21–26.

But none of these sources speak to whether Tenth Circuit law requires an

instruction that actual possession must be exclusive. Johnson involved a faulty

constructive possession instruction that omitted the element of intent. 46 F.4th at 1186.

Mr. Johnson argued that reversal of his firearm convictions was required because the

constructive possession instruction was faulty and the evidence of actual possession was

weak or insufficient, so the court could not rely upon it. 46 F.4th at 1186–89 (“At its

2 The district court correctly noted that the Tenth Circuit’s pattern jury instruction titled “Actual or Constructive Possession” would not be useful because it deals almost entirely with constructive possession and never defines actual possession. See I R. 407; Tenth Cir. Crim. Pattern Jury Inst. No. 1.31. 6 Appellate Case: 24-4006 Document: 61-1 Date Filed: 04/15/2025 Page: 7

core, [Mr. Johnson’s] argument is that the evidence he had been sitting on the gun . . . is

not enough to demonstrate actual possession. We disagree.”). Johnson suggests that a

defendant’s exclusive possession of a firearm may be a factor to consider when assessing

the sufficiency of the evidence for actual possession. Id. But Johnson in no way suggests

that we should graft language regarding exclusivity from the constructive possession

context onto the requirements for actual possession. Indeed, Mr. Thompson’s trial

counsel acknowledged that this court has not incorporated the concept of exclusivity into

its law on actual possession. See I R. 402–03; see also Oral Arg. at 1:25–2:50 (appellate

counsel acknowledging the same).

Given the absence of support for Mr. Thompson’s position, we can hardly say that

the district court abused its discretion in refusing his requested instruction. Critically, the

language of the instruction accurately stated the law and closely tracked the Supreme

Court and Tenth Circuit definitions of actual possession. See III R. 672; Henderson, 575

U.S. at 626 (“Actual possession exists when a person has direct physical control over a

thing.”); Johnson, 46 F.4th at 1188 (explaining that “a mere second or two” of control can

be sufficient for actual possession of a firearm). The district court’s decision to focus the

jury on whether Mr. Thompson achieved direct physical control of the firearm — the

“sine qua non” of actual possession — was appropriate. III R. 647.

II. The district court did not abuse its discretion by refusing to give Mr. Thompson’s requested instruction on his theory of the case.

Mr. Thompson next argues that the district court abused its discretion by refusing

to instruct the jury on his theory of the case. Aplt. Br. at 32. Mr. Thompson challenges

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the district court’s refusal to give two of his requested instructions: (1) an instruction

regarding momentary possession, and (2) an instruction regarding attempted possession.

Id. at 35–36; I R. 219. We review a district court’s refusal to give a requested instruction

on the defendant’s theory of the case for an abuse of discretion. United States v. Britt, 79

F.4th 1280, 1286 (10th Cir. 2023). “A criminal defendant is entitled to an instruction on

his theory of defense provided that theory is supported by some evidence and the law.”

United States v. Beckstrom, 647 F.3d 1012, 1016 (10th Cir. 2011) (quotations omitted).

However, a district court does not err in refusing to give a requested instruction on the

defendant’s theory of the case if that theory is adequately conveyed by other instructions.

See United States v. Martin, 528 F.3d 746, 753 (10th Cir. 2008).

The first proposed instruction would have instructed that “a person is not in

possession of an object simply because the person momentarily touches or tries to touch

it.” Aplt. Br. at 35; I R. 219. The second would have instructed that the jury must find

Mr. Thompson not guilty if it concluded that he “attempted or tried to possess the

firearm, but never had control or dominion over it.” Aplt. Br. at 35–36; I R. 219. Both

instructions related to Mr. Thompson’s theory that although he attempted to possess the

firearm, he merely touched it and never had control over it. III R. 697, 701.

Even though the district court did not adopt Mr. Thompson’s requested

instructions, it still adequately conveyed his theory of the case. The district court

addressed the degree of control necessary for actual possession by instructing that “[t]he

amount of time a person knowingly has direct physical control over a thing need not be

lengthy, a second or two can be sufficient.” Id. at 672. This language is more in line with

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this court’s precedent than Mr. Thompson’s proposed language, and properly instructed

the jury on the necessary degree of control. See Johnson, 46 F.4th at 1187–89. The court

also instructed that the jury must find Mr. Thompson not guilty if it found that he merely

attempted to control the firearm. By instructing that Mr. Thompson needed to have

“direct physical control over [the firearm] at a given time” the district court clearly

explained that Mr. Thompson had to succeed in controlling the firearm to be guilty. III R.

672. Although the instruction never used the word “attempt,” the district court was not

required to use the exact language that Mr. Thompson requested. United States v. Dozal,

173 F.3d 787, 797 (10th Cir. 1999). Thus, the instructions adequately conveyed Mr.

Thompson’s theory of the case to the jury.

III. The evidence was sufficient to show that Mr. Thompson had actual possession of the firearm.

Mr. Thompson next argues that the evidence was insufficient to show that he

knowingly controlled the firearm. Aplt. Br. at 37, 39. We review challenges to the

sufficiency of the evidence de novo, “viewing the evidence and the reasonable inferences

to be drawn therefrom in the light most favorable to the government.” United States v.

Dewberry, 790 F.3d 1022, 1028 (10th Cir. 2015) (quotations omitted). “We will reverse

only if no rational trier of fact could have found the essential elements of a crime beyond

a reasonable doubt.” Id. (quotations omitted). Because we owe “considerable deference

to the jury’s verdict,” we neither weigh conflicting evidence nor consider the credibility

of witnesses. Id.

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The government needed to prove that “(1) [Mr. Thompson] had previously been

convicted of a felony; (2) he thereafter knowingly possessed a firearm; and (3) the

possession was in or affecting interstate commerce.” Samora, 954 F.3d at 1290. On

appeal, Mr. Thompson challenges only the sufficiency of the evidence as to second

element — that he knowingly possessed a firearm. Aplt. Br. at 39.

The government claims that this challenge is resolved squarely by our decision in

United States v. Coleman, 9 F.3d 1480 (10th Cir. 1993). Aplee. Br. at 19–21. In

Coleman, this court held that the defendant “used” a firearm in a crime of violence for the

purposes of 18 U.S.C. § 924(c) when he went to rob a bank unarmed but later struggled

with a security guard to get the guard’s firearm. 9 F.3d at 1482–84. This court rejected

the defendant’s argument that struggling with the security guard never gave him “enough

control or possession of the weapon to ‘use’ it.” Id. But Coleman was decided in the

context of the “use” of a weapon under § 924(c), which “does not require that the

assailant have a precise, measurable amount of physical dominion or control over a

weapon.” Id. at 1484. This context differs from the standard in this case, which required

the government to prove that Mr. Thompson had “direct physical control” over the

firearm. Henderson, 575 U.S. at 626.

Though Coleman does not control our analysis, ample evidence supports the jury’s

conclusion that Mr. Thompson had direct physical control of the firearm. First, video

evidence clearly showed that Mr. Thompson had both of his hands on the gun and was

aggressively pulling on it for much longer than a few seconds before the firearm

discharged. II Supp R. Ex. 1a; I Supp. R. Ex. 2–3. The video evidence was bolstered by

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testimony from Mr. Santos and the officers that Mr. Thompson had his hands on the gun,

and as Mr. Thompson himself acknowledges, supports the reasonable inference that he

was the one who pulled the trigger. III R. 359–62, 470, 546; Aplt. Br. at 41. The

government also introduced evidence that the firearm’s holster had a securing mechanism

that would conceal the trigger unless the firearm was pulled out of the holster. III R. 565.

Additionally, the firearm’s trigger safety mechanism had two stages which both needed to

be pressed fully in order to shoot the firearm. Id. at 485–86. Thus, “[v]iewing all the

evidence collectively and in the light most favorable to the Government, a reasonable

jury could conclude that [Mr. Thompson] had direct physical control over the firearm.”

United States v. Morales, 758 F.3d 1232, 1236 (10th Cir. 2014) (quotations omitted).

Mr. Thompson’s arguments about his mental state are misplaced. Mr. Thompson

makes much of the fact that, despite the government’s burden to prove that he knowingly

possessed the firearm, the government did not offer evidence of his mental state. See

Aplt. Br. at 39; Aplt. Supp. Auth. This argument ignores the fact that the parties

stipulated that Mr. Thompson knew that he had his hands on a firearm, knew how a

firearm operated, and intended to possess the firearm. I R. 360; III R. 331–32. These

stipulations, combined with the strong evidence of Mr. Thompson’s control over the

firearm, were sufficient to sustain a conviction.

IV. 18 U.S.C. § 922(g)(1) is constitutional under the Commerce Clause.

Finally, Mr. Thompson argues that 18 U.S.C. § 922(g)(1) is an unconstitutional

exercise of Congress’s Commerce Clause powers. Aplt. Br. at 44. Mr. Thompson

correctly acknowledges that this argument is foreclosed by precedent from both the

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Supreme Court and this circuit, and he raises it for preservation purposes only. Id.; see

also Scarborough v. United States, 431 U.S. 563 (1977); United States v. Urbano, 563

F.3d 1150, 1153–55 (10th Cir. 2009). Accordingly, the district court’s judgment is

AFFIRMED.