Constructive Possession May Be Proved by Flight, Coordinated Concealment, Video Identification, and DNA—And § 3553(a)(6) Does Not Require Co‑Defendant Parity

1. Introduction

United States v. Kenan Thomas (3d Cir. May 29, 2026) is a nonprecedential Third Circuit decision affirming the firearm convictions and sentences of brothers Kenan Thomas and Romeo Walter arising from an April 8, 2020 encounter with Virgin Islands police in St. Thomas. A jury convicted both defendants of (1) being a felon in possession of a firearm under 18 U.S.C. § 922(g)(1) and (2) unauthorized possession of a firearm under 14 V.I.C. § 2253(a).

On appeal, the defendants challenged: (i) the denial of their motions for judgment of acquittal (insufficiency of the evidence—particularly as to knowing possession, and for Walter, presence at the scene); and (ii) the procedural reasonableness of their sentences, arguing the District Court misapplied 18 U.S.C. § 3553(a)(6) by understating unwarranted disparities compared with co-defendants who pleaded guilty.

2. Summary of the Opinion

The Third Circuit affirmed in all respects. It held that, viewing the evidence in the light most favorable to the prosecution, a rational jury could find beyond a reasonable doubt that:

  • Thomas knowingly possessed firearms based on eyewitness testimony (a gun visible in his waistband), surveillance video (removing and placing a gun on a bag), his handling of the bags, concealment behavior, and DNA strongly linking him to the backpack and ammunition bandana.
  • Walter was present and knowingly (constructively) possessed firearms based on jury identification from video (notably the sling), coordinated flight and movement of the bags, and strong DNA links to the duffel bag and multiple firearm-related items inside it.

On sentencing, the Court held there was no abuse of discretion in the District Court’s analysis under § 3553(a)(6), emphasizing that co-defendant disparity analysis is not required and that the co-defendants were not similarly situated (different charges, guilty pleas, lesser criminal histories, acceptance of responsibility, and lower Guidelines ranges).

3. Analysis

3.1. Precedents Cited

Standards for reviewing sufficiency / Rule 29 denials

  • United States v. Brodie, 403 F.3d 123 (3d Cir. 2005): The Court relied on Brodie for the governing sufficiency framework—de novo review, evidence viewed in the prosecution’s favor, and reversal confined to cases of clear prosecutorial failure. Brodie also anchors the Court’s repeated point that appellate judges may not reweigh evidence or invade the jury’s role.
  • United States v. Gambone, 314 F.3d 163 (3d Cir. 2003): Used to emphasize that the “totality of the evidence,” including both direct and circumstantial proof, is considered in evaluating sufficiency.
  • McDaniel v. Brown, 558 U.S. 120 (2010): Cited for the proposition that sufficiency review considers all evidence admitted at trial, even if it might have been admitted erroneously—relevant here because Thomas attempted to pivot to probable-cause/suppression themes that do not alter the sufficiency calculus on appeal.

Elements of the federal firearm offense

  • Rehaif v. United States, 588 U.S. 225 (2019): Cited to frame § 922(g) as requiring proof of “knowing” possession (among other elements). The opinion does not dwell on Rehaif’s knowledge-of-status component, instead using it to ground the knowledge requirement for possession.

Actual vs. constructive possession

  • Henderson v. United States, 575 U.S. 622 (2015): Supplies the classic definition: actual possession is “direct physical control,” and constructive possession is “power and intent to exercise control.” Henderson is the doctrinal bridge the Court uses to evaluate bag-based firearm access without requiring the gun to be in hand at the moment of arrest.
  • Heath v. People, 2024 VI 17 and 14 V.I.C. § 2253(d)(5): Provide territorial-law alignment with the federal constructive-possession concept, confirming that Virgin Islands law similarly focuses on “power” and “intention” to control, directly or through another person.
  • United States v. Carey, 72 F.4th 521 (3d Cir. 2023) and Codrington v. People, 57 V.I. 176 (V.I. 2012): Support two key evidentiary propositions: constructive possession may be joint, and it may be proven circumstantially—both critical where multiple men handled bags in a coordinated sequence.
  • United States v. Benjamin, 711 F.3d 371 (3d Cir. 2013): Cited for the limiting rule that “proximity alone is not enough” and that “something more” is required for constructive possession. The Court uses Benjamin as a guardrail, then explains why the government had more than proximity for both defendants (flight, concealment, coordination, DNA, and video).
  • United States v. Foster, 891 F.3d 93 (3d Cir. 2018) (quoting United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996)): Used to identify “attempted concealment or destruction” of contraband as a classic “something more” indicator supporting constructive possession. This directly maps onto testimony and video evidence showing the group’s coordinated effort to move and then discard the bags.
  • United States v. Walker, 545 F.3d 1081 (D.C. Cir. 2008) (quoting United States v. Alexander, 331 F.3d 116 (D.C. Cir. 2003)): Imported as persuasive authority listing additional “something more” factors (connection to gun, motive, gestures implying control, evasive conduct, statements about enterprise). The Third Circuit draws on this factor-based approach to show how flight and coordinated handling can evidence dominion/control beyond mere presence.

Procedural reasonableness and § 3553(a)(6) disparities

  • United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc): Provides the abuse-of-discretion framework for procedural reasonableness and identifies procedural errors, including reliance on clearly erroneous facts or failure to consider § 3553(a) factors.
  • United States v. Parker, 462 F.3d 273 (3d Cir. 2006): Central to rejecting the disparity argument: district courts are not required to consider co-defendant disparities (though they may). Here, the District Court did consider them, and Parker supports the conclusion that it did not commit a procedural misstep by declining to equalize sentences across dissimilar co-defendants.

3.2. Legal Reasoning

(a) Why the evidence sufficed as to Thomas

The Court treated Thomas’s arguments—especially attacks on the “familial flag” DNA results—as largely weight-based disputes reserved for the jury. Under United States v. Brodie, the appellate role is not to decide whether alternative inferences were possible, but whether the verdict was rational.

The Court emphasized a multi-source evidentiary package: (i) officer testimony that a gun was visible in Thomas’s waistband; (ii) surveillance video showing Thomas remove a gun and place it on a bag; (iii) testimony and video depicting Thomas physically handling the bags and attempting to conceal them; and (iv) strong DNA evidence linking Thomas to the backpack and ammunition bandana. That combination supported both actual possession (waistband gun) and constructive possession (dominion/control over bags containing multiple firearms).

(b) Why the evidence sufficed as to Walter

Walter’s threshold claim—insufficient evidence he was present—was resolved by allowing the jury to identify him via the surveillance video, including the distinctive sling, and compare the depicted individual to Walter in court.

On possession, the Court applied the Benjamin “proximity plus” concept and identified multiple “plus” factors: coordinated flight; group action to move the bags to the patio; and strong DNA links between Walter and the duffel bag plus multiple items inside it (including a handgun and several magazines). The Court acknowledged the defense theory that DNA may not establish when or how contact occurred, but held the jury was entitled to reject that benign explanation, particularly when combined with contemporaneous conduct (flight and concealment) consistent with joint dominion and control.

(c) Why the sentencing challenge failed

The Court framed the claim as procedural: whether the District Court misapplied 18 U.S.C. § 3553(a)(6). Relying on United States v. Parker, the panel reiterated that co-defendant disparity analysis is optional, not mandatory. Even so, the District Court did the comparison and found the defendants were not “similarly situated” to co-defendants who pleaded guilty, accepted responsibility, had less serious criminal histories, and faced lower Guidelines ranges. Under United States v. Tomko, that factual assessment was not clearly erroneous, so there was no abuse of discretion.

3.3. Impact

Although designated nonprecedential, the opinion reflects how the Third Circuit is likely to evaluate frequently recurring proof patterns in firearm cases: constructive possession inferred from coordinated flight, concealment behavior, and handling of containers holding firearms—especially when reinforced by surveillance footage and DNA associations. For practitioners, the decision underscores that appellate sufficiency challenges are difficult where the government presents converging strands of evidence (video + conduct + forensic links), because disagreements about the strength of any one strand (e.g., partial DNA or “familial flag” results) are typically treated as jury-weight questions under Brodie.

On sentencing, the decision reinforces a durable Third Circuit theme from Parker: § 3553(a)(6) is not a command to harmonize sentences among co-defendants, particularly when differences in pleas, criminal history, and Guidelines ranges explain divergence. District courts that make an explicit “not similarly situated” record are positioned to withstand procedural-reasonableness attacks.

4. Complex Concepts Simplified

  • Motion for judgment of acquittal: A post-trial request arguing that, even taking the evidence in the government’s favor, no rational jury could convict. Appellate review is highly deferential to the verdict.
  • Actual vs. constructive possession: Actual possession means physically holding or directly controlling the gun. Constructive possession means not holding it, but having both the ability and intent to control it (for example, controlling a bag that contains it). Constructive possession can be shared.
  • “Proximity alone is not enough”: Being near a gun does not automatically prove possession. Courts look for extra indicators—flight, concealment, gestures implying control, prior use, statements, or other connecting evidence.
  • DNA “familial flag”: A DNA result suggesting the contributor may be the person tested or an immediate relative. It is generally less definitive than a strong match, and arguments about its strength usually go to weight (how persuasive it is), not admissibility or sufficiency by itself.
  • Procedural reasonableness and § 3553(a)(6): A sentence is procedurally unreasonable if the judge makes a legal or factual mistake in applying the sentencing factors. Section 3553(a)(6) concerns avoiding unwarranted disparities, but in the Third Circuit the judge need not equalize sentences among co-defendants, especially where they are not comparable.

5. Conclusion

The Third Circuit affirmed the convictions because the government presented a cohesive body of evidence—surveillance video, eyewitness testimony, coordinated flight and concealment conduct, and DNA links—supporting findings of knowing actual and/or constructive possession. It affirmed the sentences because the District Court did not commit procedural error under § 3553(a)(6), reasonably concluding that the defendants were not similarly situated to co-defendants who pleaded guilty and had different histories and Guidelines ranges. Even as a nonprecedential disposition, the opinion is a practical roadmap of how “proximity plus” evidence and co-defendant disparity arguments are likely to be assessed in Third Circuit firearm and sentencing appeals.