Constructive Possession Proven by Coordinated Flight, Bag-Handling, and DNA Evidence; Co-Defendant Disparity Claims Fail Where Defendants Are Not Similarly Situated

1. Introduction

In United States v. Kenan Thomas and Romeo Walter (consolidated appeals Nos. 25-2102, 25-2103 & 25-2104), the Third Circuit reviewed (1) the denial of both defendants’ motions for judgment of acquittal after jury convictions for firearm possession, and (2) challenges to the procedural reasonableness of their sentences under 18 U.S.C. § 3553(a)(6). The prosecution arose from an April 8, 2020 police chase in St. Thomas (Virgin Islands) involving two bags later recovered from a shanty, containing multiple firearms, magazines, and ammunition.

The key issues were:

  • Sufficiency of the evidence that each defendant knowingly possessed firearms (actually or constructively).
  • Sufficiency of evidence that Walter was present and involved in the incident.
  • Procedural reasonableness: whether the District Court misapplied § 3553(a)(6) by incorrectly assessing potential sentencing disparities with co-defendants.

The panel (Krause, Chung, Smith) affirmed in all respects in a nonprecedential opinion.

2. Summary of the Opinion

The Third Circuit held that, viewing the trial evidence in the light most favorable to the government, a rational jury could find beyond a reasonable doubt that both Thomas and Walter knowingly possessed firearms. For Thomas, the evidence included officer testimony and surveillance footage showing a gun in his waistband, his control over the bags, concealment efforts, and strong DNA associations on key items. For Walter, the court found sufficient evidence of his presence (via video comparison) and constructive possession based on coordinated flight and handling of the bags, together with strong DNA associations on the duffel bag and items inside it.

On sentencing, the court rejected the claim of procedural error under § 3553(a)(6), concluding the District Court did not clearly err in finding the co-defendants were not similarly situated (different pleas, different offenses, different criminal histories, acceptance of responsibility, and different Guidelines ranges).

3. Analysis

A. Precedents Cited

1) Sufficiency-of-the-evidence framework

  • United States v. Brodie, 403 F.3d 123 (3d Cir. 2005): The court applied Brodie’s deferential sufficiency standard—reviewing the record “in the light most favorable to the prosecution” and affirming unless the prosecution’s failure is “clear.” Brodie also anchors the principle that appellate courts must not reweigh evidence or intrude on the jury’s role.
  • United States v. Gambone, 314 F.3d 163 (3d Cir. 2003): Cited for examining the “totality of the evidence,” including both direct and circumstantial proof—important because the government’s case combined surveillance video, chase testimony, and DNA evidence.
  • McDaniel v. Brown, 558 U.S. 120 (2010): The opinion invoked McDaniel to clarify that sufficiency review considers “all of the evidence admitted by the trial court,” even if some evidence might have been admitted erroneously—used to dispose of Thomas’s attempt to repackage suppression/probable-cause complaints as a sufficiency issue.

2) Elements of the firearm offenses and “knowing possession”

  • Rehaif v. United States, 588 U.S. 225 (2019): Cited for the proposition that the government must prove, among other things, “knowing” firearm possession for § 922(g). In this appeal, the contested element was possession (actual/constructive), not the defendant’s knowledge of status.
  • Henderson v. United States, 575 U.S. 622 (2015): Used to define actual versus constructive possession: actual possession is “direct physical control,” while constructive possession requires “power and intent to exercise control.” This distinction framed the entire sufficiency analysis, especially for Walter.
  • Heath v. People, 2024 VI 17 and 14 V.I.C. § 2253(d)(5): The court relied on Virgin Islands law to mirror the constructive-possession concept—“power” and “intention” to exercise dominion or control—confirming that the same analytic framework supported the territorial firearm conviction (and informing the federal analysis).

3) Constructive possession: “proximity plus” and circumstantial factors

  • United States v. Carey, 72 F.4th 521 (3d Cir. 2023): Cited for the proposition that constructive possession may be “joint,” reinforcing that the government need not prove exclusive control over a firearm or container.
  • Codrington v. People, 57 V.I. 176 (V.I. 2012): Used to support that constructive possession can be proven by circumstantial evidence—crucial where the defendants argued the absence of direct proof of handling particular firearms.
  • United States v. Benjamin, 711 F.3d 371 (3d Cir. 2013): Quoted for the limiting principle: “Proximity alone is not enough”; the government must show “something more.” This precedent set the hurdle Walter tried to invoke: even if he was near the bags/firearms, there must be additional evidence of control and intent.
  • United States v. Foster, 891 F.3d 93 (3d Cir. 2018) and United States v. Jenkins, 90 F.3d 814 (3d Cir. 1996): Emphasized that efforts to hide or destroy contraband can evidence constructive possession. The court used this reasoning when crediting evidence of the group’s flight, coordinated movement of bags, and concealment behavior.
  • 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)): Offered a catalogue of “something more” factors beyond proximity (evasive conduct, gestures implying control, statements, motive, connection to the gun). The Third Circuit used this as a persuasive articulation of the kinds of circumstantial facts that can establish constructive possession.

4) Sentencing procedure and disparity

  • United States v. Tomko, 562 F.3d 558 (3d Cir. 2009) (en banc): Supplied the abuse-of-discretion standard for procedural reasonableness and described procedural error, including misapplication of § 3553(a) factors or reliance on clearly erroneous facts.
  • United States v. Parker, 462 F.3d 273 (3d Cir. 2006): Central to the disparity issue: district courts are “not require[d] … to consider sentencing disparity among co-defendants,” though they may. Here, because the District Court did consider co-defendants and articulated distinctions, Parker supported affirmance.

B. Legal Reasoning

1) Thomas: ample evidence of actual possession and concealment, plus DNA support

The court concluded a rational jury could find Thomas knowingly possessed firearms based on multiple independent evidentiary strands:

  • Direct evidence of a gun on his person: officer testimony that a gun was visible in Thomas’s waistband and video showing Thomas removing a gun from his waistband. This supports actual possession at least at that moment, and provides strong context for inferring knowledge of firearms in the bags.
  • Control over the containers: testimony and video depicting Thomas handling the backpack and duffel, moving them during flight, and later attempting to discard/conceal them. Control of containers holding firearms is classic circumstantial proof of constructive possession of their contents, especially when paired with evasive conduct.
  • DNA evidence: “extremely strong” DNA on the backpack and red bandana containing ammunition bolstered the inference of knowing involvement with the firearms-related items. The opinion treated “familial flag” DNA results as potentially weaker, but characterized Thomas’s attack on that DNA as a weight argument for the jury, not a sufficiency argument for appellate reversal under Brodie.

2) Walter: presence inferred from video and constructive possession established by coordinated conduct + DNA

Walter’s challenge had two layers: (a) he claimed he was not shown to be present, and (b) even if present, he claimed there was no proof he knowingly possessed firearms.

  • Presence: the panel held the jury could compare Walter in the courtroom with the individual shown in surveillance video (notably wearing a sling) and conclude it was him. Conflicting testimony about whether officers saw three or four men did not negate sufficiency under the deferential Brodie standard.
  • Constructive possession (“proximity plus”): The court acknowledged Benjamin’s rule that proximity alone is insufficient, but found “something more” in: (i) flight as a group, (ii) joint efforts to move the bags onto the patio while evading police, and (iii) strong DNA associations placing Walter on the duffel bag and multiple items inside it (including a Glock handgun and magazines). Together, these facts supported the inference that Walter knew the bag’s contents and had the power and intent to exercise control over them, even without video showing him touching a specific firearm.
  • Time/means of DNA transfer: The court treated Walter’s argument—DNA does not show exactly how or when it was deposited—as a classic jury question. Under Brodie, the jury was free to infer incriminating contact from the strength and placement of the DNA evidence, especially when combined with coordinated evasive conduct.

3) Sentencing: § 3553(a)(6) does not compel parity with differently situated co-defendants

The defendants argued procedural error: the District Court allegedly misapplied § 3553(a)(6) by concluding their sentences would not create unwarranted disparities compared to co-defendants who received lesser sentences.

The Third Circuit affirmed for two core reasons:

  • Under United States v. Parker, a district court is not required to consider disparity among co-defendants at all.
  • Even though the District Court did consider it, the court’s conclusion that co-defendants were not similarly situated was supported and not clearly erroneous under United States v. Tomko: co-defendants pleaded guilty to different offenses, had less serious criminal histories, accepted responsibility, and had lower Guidelines ranges. These are conventional, legally relevant differentiators that defeat an “unwarranted disparity” claim.

C. Impact

Although labeled nonprecedential, the opinion reinforces several practical guideposts likely to influence how litigants frame future Third Circuit and Virgin Islands firearm-possession cases:

  • Constructive possession can be established through coordinated flight and container-handling—especially where the group’s conduct reflects joint efforts to transport and conceal contraband (Foster/Jenkins logic).
  • DNA evidence disputes often go to weight, not sufficiency: Arguments that DNA does not pinpoint the time or method of transfer may not defeat sufficiency when paired with other circumstantial evidence connecting a defendant to the container or contraband.
  • § 3553(a)(6) disparity arguments are limited when co-defendants are meaningfully different: Pleas, acceptance of responsibility, criminal history, and Guidelines ranges remain strong bases for distinguishing defendants, and Parker reduces the leverage of co-defendant comparisons as a procedural attack.

4. Complex Concepts Simplified

  • Actual possession: having the firearm on your person or in your hands—direct physical control.
  • Constructive possession: not holding the firearm, but having both (1) the power and (2) the intent to control it—directly or through others. It can be joint, meaning more than one person can constructively possess the same gun.
  • “Proximity plus”: being near a gun is not enough by itself. Courts look for extra facts showing control/intent—like evasive conduct, concealment efforts, control of the container holding the gun, or other links (e.g., DNA).
  • Familial flag DNA result: a weaker DNA association suggesting the profile could match an immediate family member. The court treated disagreement about how much weight to give such evidence as primarily for the jury.
  • Procedural reasonableness: whether the sentencing process was legally correct (proper calculation and consideration of § 3553(a) factors), distinct from whether the sentence is too long/short in a broader sense.

5. Conclusion

The Third Circuit affirmed the defendants’ firearm convictions and sentences by applying a consistently deferential sufficiency standard and a conventional constructive-possession analysis: coordinated flight, joint handling and concealment of containers, and DNA links collectively supported the jury’s verdicts even where direct handling of specific firearms was not shown for every defendant. On sentencing, the court held there was no procedural error under § 3553(a)(6) where the District Court reasonably distinguished the defendants from co-defendants based on plea posture, criminal history, acceptance of responsibility, and Guidelines ranges.