United States v. Johnson, 46 F.4th 1183

Police stopped Johnson for driving the wrong way; he was the sole occupant of his girlfriend’s Chevy Impala and initially refused to exit. Officers observed a capped beer bottle in his hand.
After Johnson exited, officers found a black, loaded pistol on the driver’s seat where he had been sitting; an officer testified it appeared Johnson had been sitting on the gun or had a large part of his leg on it.
Officers recovered $411 and a large bag containing 28 smaller bags of cocaine base (crack) on Johnson’s person; an expert testified the packaging and quantity supported distribution.
The firearm yielded a mixed DNA profile (major contributor consistent with an unknown female); no usable fingerprints were found.
Government introduced a 2004 statement (Rule 404(b)) in which Johnson admitted previously having a gun in connection with drug distribution.
Johnson was convicted of possession with intent to distribute (21 U.S.C. § 841), possession of a firearm in furtherance of a drug-trafficking crime (18 U.S.C. § 924(c)), and being a felon in possession (18 U.S.C. §§ 922(g)(1), 924(a)(2)). On appeal he challenged the constructive-possession jury instruction for omitting the intent element; the Tenth Circuit reviewed for plain error and affirmed.

Issue	Plaintiff's Argument (Johnson)	Defendant's Argument (Government)	Held
Whether the district court’s constructive-possession instruction (omitting intent) was plain error requiring reversal	The omitted intent element could have led the jury to convict on constructive possession; evidence of actual possession was not so strong that the error was harmless	Government concedes the instruction was plain error but argues no reasonable probability of a different result because the evidence showed actual possession and, if properly instructed, constructive possession as well	Affirmed: error was plain but did not affect substantial rights; no reasonable probability the outcome would differ
Whether evidence supported actual or constructive possession of the firearm	Sitting on or touching the gun with a leg/buttocks is insufficient for actual possession; DNA not his and gun not on his person undermines constructive-possession intent	Sitting on the loaded, readily accessible gun constituted direct physical control (actual possession); coupled with drugs for distribution and prior admission, intent to exercise dominion supports constructive possession	Court: actual possession established (direct physical control); alternatively constructive possession also established given nexus, loaded gun, drugs for distribution, and prior statement

United States v. Little, 829 F.3d 1177 (10th Cir. 2016) (constructive possession requires power and intent)
United States v. Xiong, 1 F.4th 848 (10th Cir. 2021) (upholding conviction despite erroneous instruction where evidence supported possession)
United States v. Benford, 875 F.3d 1007 (10th Cir. 2017) (joint-occupancy cases require a nexus showing knowledge, access, and intent)
United States v. Samora, 954 F.3d 1286 (10th Cir. 2020) (reversal where actual-possession evidence was weak and constructive-possession instruction was erroneous)
United States v. Adkins, 196 F.3d 1112 (10th Cir. 1999) (holding a firearm briefly can support actual possession depending on knowledge and intent)
United States v. Spence, 721 F.3d 1224 (10th Cir. 2013) (carrying a pistol in a pocket constitutes physical possession)
United States v. Simpson, 845 F.3d 1039 (10th Cir. 2017) (strong evidence of actual possession can make an erroneous constructive-possession instruction harmless)
United States v. Morales, 758 F.3d 1232 (10th Cir. 2014) (possession may be proven by circumstantial as well as direct evidence)