Constructive Possession in Firearm Cases: Flight, Coordinated Concealment, and DNA Evidence Can Surpass “Mere Proximity” (Third Circuit, Nonprecedential)

I. Introduction

In United States v. Kenan Thomas (consolidated appeals including Romeo Walter), the U.S. Court of Appeals for the Third Circuit reviewed jury convictions arising from a foot chase in St. Thomas, U.S. Virgin Islands. Brothers Kenan Thomas and Romeo Walter were convicted of (1) being felons in possession of firearms under 18 U.S.C. § 922(g)(1), and (2) unauthorized possession of a firearm under 14 V.I.C. § 2253(a). Both defendants moved for judgments of acquittal in the district court, arguing insufficiency of the evidence on “knowing possession.” On appeal, they renewed those challenges and also attacked their sentences as procedurally unreasonable under 18 U.S.C. § 3553(a)(6) (unwarranted disparity).

The Third Circuit (in a nonprecedential opinion) affirmed across the board, holding that the combined force of eyewitness testimony, surveillance video, flight and concealment behavior, and DNA evidence permitted rational jurors to find knowing (actual or constructive) possession beyond a reasonable doubt—and that the sentencing court did not abuse its discretion when it rejected co-defendant disparity arguments.

II. Summary of the Opinion

  • Sufficiency/Judgment of Acquittal: Applying the deferential sufficiency framework, the court held that a rational jury could find that Thomas knowingly possessed the firearms (including by actual possession of a gun in his waistband and handling bags containing firearms), and that Walter was present and constructively possessed firearms based on video, group flight/coordination with the bags, and strong DNA matches on the duffel bag and items inside it.
  • Sentencing: Reviewing for abuse of discretion, the court upheld the district court’s consideration of § 3553(a)(6), agreeing that the defendants were not similarly situated to co-defendants who pleaded guilty, had different offenses, different criminal histories, acceptance-of-responsibility credit, and lower Guidelines ranges.

III. Analysis

A. Precedents Cited (and How They Shaped the Result)

1. Appellate sufficiency review and the “no reweighing” rule

The court anchored its review in the Third Circuit’s established sufficiency standard:

  • United States v. Brodie, 403 F.3d 123, 133 (3d Cir. 2005): De novo review of acquittal denials, viewing evidence “in the light most favorable to the prosecution,” and confining reversal to cases where the government’s failure is “clear.” Brodie also supplied the admonition not to “usurp the role of the jury” by re-weighing evidence—critical here because the defendants’ arguments largely attacked the strength and interpretation of DNA/video evidence rather than its existence.
  • United States v. Gambone, 314 F.3d 163, 170 (3d Cir. 2003): The court must examine the “totality of the evidence, both direct and circumstantial,” which permitted the panel to aggregate video, testimony, flight behavior, and DNA rather than assess each item in isolation.

2. Elements of § 922(g)(1) and possession concepts

  • Rehaif v. United States, 588 U.S. 225, 227 (2019): Cited for the proposition that the government must prove, inter alia, that the defendant “knowingly possessed a firearm” for § 922(g). (The opinion focused on the possession component, not Rehaif’s knowledge-of-status requirement, which was apparently not contested on appeal.)
  • Henderson v. United States, 575 U.S. 622, 626 (2015): Provided the controlling definitions: “actual possession” (direct physical control) and “constructive possession” (power and intent to exercise control).
  • Heath v. People, 2024 VI 17, ⁋ 40 and 14 V.I.C. § 2253(d)(5): Grounded the territorial constructive-possession definition (“power and the intention ... to exercise dominion or actual control ... either directly or through another person”), harmonizing local law with the federal constructive possession framework used in Henderson.
  • United States v. Carey, 72 F.4th 521, 530 n.12 (3d Cir. 2023): Cited for the proposition that constructive possession can be joint—important because the government’s proof depicted coordinated group handling of bags containing multiple firearms.
  • Codrington v. People, 57 V.I. 176, 199 (V.I. 2012): Reinforced that constructive possession may be proved by circumstantial evidence—central to upholding a verdict that relied heavily on inference from conduct and forensic traces.

3. “Proximity alone is not enough” and what counts as “something more”

  • United States v. Benjamin, 711 F.3d 371, 376-77 (3d Cir. 2013): The key limiting principle: “Proximity alone is not enough” for constructive possession; “something more” is needed. The panel treated defendants’ “no direct handling shown” arguments as proximity-only framing and then identified multiple “more” factors.
  • United States v. Foster, 891 F.3d 93, 111 (3d Cir. 2018) (quoting United States v. Jenkins, 90 F.3d 814, 818 (3d Cir. 1996)): Attempting to “hide or to destroy the contraband” supports constructive possession. The court used this line to characterize the group’s coordinated efforts to move the bags to a patio and the later discarding/throwing of the bags as concealment behavior consistent with dominion and intent to control.
  • United States v. Walker, 545 F.3d 1081, 1088 (D.C. Cir. 2008) (quoting United States v. Alexander, 331 F.3d 116, 127 (D.C. Cir. 2003)): Listed additional “connection” indicators (motive, gestures implying control, evasive conduct, statements). The Third Circuit cited this persuasive authority to validate reliance on “evasive conduct” (flight) and coordinated acts implying control over the bags and their contents.

4. “All evidence admitted” counts for sufficiency

  • McDaniel v. Brown, 558 U.S. 120, 131 (2010): The sufficiency analysis considers “all of the evidence admitted by the trial court, regardless of whether that evidence was admitted erroneously.” The panel used this to sidestep Thomas’s attempt to convert probable-cause/suppression concerns into a sufficiency argument.

5. Sentencing review and co-defendant disparity

  • United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc): Provided the abuse-of-discretion frame for procedural reasonableness and examples of procedural error (failure to consider § 3553(a) factors; reliance on clearly erroneous facts).
  • United States v. Parker, 462 F.3d 273, 277 (3d Cir. 2006): District courts are not required to consider disparity among co-defendants, though they may. Parker supported affirmance because the district court did consider co-defendant disparity and explained why the defendants were not similarly situated.

B. Legal Reasoning

1. Thomas: actual possession evidence plus corroborating forensic proof

The court’s reasoning was straightforward: even if the “familial flag” DNA results on certain items were less definitive, the government’s case was not a DNA-only case. The panel emphasized multiple, mutually reinforcing proof sources:

  • Eyewitness testimony that Thomas had a gun in his waistband during the chase.
  • Surveillance video showing Thomas remove a gun from his waistband and place it on a duffel bag on the patio.
  • Physical handling of the bags and efforts to move/ditch them during police pursuit (conduct consistent with control and concealment).
  • DNA strongly linking Thomas to the backpack and an ammunition-filled bandana inside it.

With that record, the court treated challenges to the “familial flag” evidence as going to weight, not sufficiency, invoking United States v. Brodie to avoid reweighing credibility and forensic interpretation.

2. Walter: presence established by video comparison; constructive possession inferred from coordination + DNA

Walter’s appeal turned on (a) whether he was present, and (b) whether he knowingly possessed firearms. On presence, the court held that jurors could identify the man in the video (wearing a sling) by comparing him to Walter in the courtroom; the lack of an in-court eyewitness identification did not make the proof insufficient.

On possession, the court applied the Henderson v. United States constructive-possession test (power and intent to control) and the “something more than proximity” requirement from United States v. Benjamin. It found that “something more” in:

  • Flight and evasive conduct with the group from marked police vehicles.
  • Coordinated handling of the bags—members of the group scaled the patio and received bags from below; the group acted collectively to move contraband.
  • DNA evidence strongly linking Walter to the duffel bag and several items recovered from it (including a Glock handgun and magazines), supporting an inference that his connection was contemporaneous with the criminal episode rather than innocent or remote.
  • Concealment behavior (moving bags to the patio; discarding them), aligning with United States v. Foster / United States v. Jenkins as evidence of constructive possession.

The panel acknowledged Walter’s alternative theory—that DNA does not specify when or how it was deposited—but held that sufficiency review does not require the jury to accept that benign inference where a guilty inference is rational under the totality of circumstances (United States v. Gambone; United States v. Brodie).

3. Sentencing: § 3553(a)(6) does not mandate co-defendant parity; “similarly situated” matters

The defendants framed their sentencing attack as disparity with co-defendants who received lower outcomes. Citing United States v. Parker, the court reiterated that co-defendant disparity analysis is not required; even so, the district court did the work and found the comparators not “similarly situated” because they: pleaded guilty to different offenses, had less serious criminal histories, accepted responsibility, and had lower Guidelines ranges. Under United States v. Tomko, that fact-based determination was not clearly erroneous; therefore there was no procedural error.

C. Impact

Although designated nonprecedential (and thus not binding under the Third Circuit’s internal operating procedures), the opinion is still informative as a synthesis of commonly recurring proof issues in firearm possession cases:

  • Constructive possession proof packages: The decision exemplifies how the government can combine surveillance video, coordinated group conduct, flight, concealment, and DNA to satisfy “power and intent” and to supply the “something more” beyond proximity required by United States v. Benjamin.
  • DNA evidence as corroboration, not isolation: The court treated contested “familial flag” DNA evidence as a weight question where other evidence strongly supported guilt—signaling that defendants may struggle on sufficiency when challenging nuances of forensic strength without undermining the broader narrative proof.
  • Identification without direct eyewitness naming: The acceptance of jury comparison between a defendant’s appearance and surveillance footage underscores that presence may be established by circumstantial identification, not solely by a witness pointing to the defendant.
  • Co-defendant disparity arguments: The sentencing discussion reinforces that disparity analysis is anchored in whether defendants are truly “similarly situated,” and that pleas, acceptance of responsibility, and criminal history differences are legitimate bases to distinguish co-defendants.

IV. Complex Concepts Simplified

Judgment of acquittal (Rule 29 conceptually)
A request for the judge to set aside a guilty verdict (or stop the case before it goes to the jury) because the evidence is legally insufficient. On appeal, the court asks only whether any rational juror could convict on the evidence viewed most favorably to the prosecution.
Actual vs. constructive possession
  • Actual possession means physically holding or directly controlling the firearm.
  • Constructive possession means not holding it, but having both the power and intent to control it (even through others), and it may be joint among multiple people.
“Proximity alone is not enough”
Being near a gun does not automatically prove constructive possession. Courts look for “something more”—for example, evasive conduct, concealment, gestures of control, prior use, or other connections tying the defendant to the firearm beyond mere location.
DNA “familial flag”
A forensic result indicating the DNA profile may match a close family member (or reflect a mixture), making the association less definitive than a direct, strong match. The court treated disputes about this as a jury “weight” question when other evidence supported guilt.
Procedural reasonableness and § 3553(a)(6)
A sentence is procedurally unreasonable if the court uses the wrong method—e.g., ignores required factors or relies on clearly erroneous facts. Section 3553(a)(6) concerns “unwarranted” disparities; differences are warranted when defendants are not similarly situated (different charges, pleas, criminal histories, Guidelines).

V. Conclusion

United States v. Kenan Thomas affirms that, on sufficiency review, courts will uphold firearm possession convictions where the government presents a coherent, circumstantial-and-direct evidence picture showing knowing dominion and control—particularly where flight, coordinated concealment, and DNA links collectively supply the “something more” beyond mere proximity under United States v. Benjamin. On sentencing, the opinion confirms that co-defendant disparity arguments fail where defendants are not truly comparable, and that a district court’s explained differentiation based on pleas, criminal history, and Guidelines ranges will ordinarily withstand procedural-reasonableness review under United States v. Tomko and United States v. Parker.