Defining Constructive Possession and Judicial Discretion in Evidentiary Reopening

Introduction

The Eleventh Circuit’s decision in United States v. Dennis Thompson (No. 24-10418, Apr. 29, 2025) addresses three core issues in federal criminal practice: (1) sufficiency of the evidence for possession with intent to distribute methamphetamine under 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii); (2) the district court’s discretion to reopen direct examination in response to a juror question; and (3) the admissibility of a non-testifying confidential informant’s criminal convictions under Federal Rules of Evidence 609 and 806. Dennis Thompson appeals both the sufficiency of the evidence and two evidentiary rulings. Reviewing de novo the sufficiency challenge and for abuse of discretion the evidentiary decisions, the Court of Appeals affirms the conviction and holds any evidentiary error harmless.

Summary of the Judgment

Dennis Thompson was indicted for possessing with intent to distribute nearly one kilogram of methamphetamine. Law enforcement intercepted Thompson after an informant—April Courson—placed a tracker in her luggage and rode with him on a trip from Lanier County to Atlanta. Following a high-speed chase, deputies recovered a black bag lodged in Thompson’s rear window containing methamphetamine, a drug ledger, gym shorts, and a wallet. At trial, Thompson challenged the evidence’s sufficiency and the district court’s rulings: reopening the government’s direct examination to answer a juror’s question, and excluding certified records of the informant’s convictions. The Eleventh Circuit affirmed: (1) Thompson’s flight, attempt to discard the bag, and dominion over the vehicle supported a finding of knowing possession with intent to distribute; (2) reopening the government’s direct was within the court’s discretion and caused no unfair prejudice; and (3) the informant’s credibility had already been impeached, so excluding her certified convictions was harmless error.

Analysis

1. Precedents Cited

• United States v. Futrell, 209 F.3d 1286 (11th Cir. 2000): Sufficiency review standard.
• United States v. Vera, 701 F.2d 1349 (11th Cir. 1983): Constructive possession via dominion over vehicle.
• United States v. Edwards, 166 F.3d 1362 (11th Cir. 1999): Actual possession defined as direct physical control.
• United States v. Hernandez, 433 F.3d 1328 (11th Cir. 2005): Constructive vs. actual possession.
• United States v. Tamargo, 672 F.2d 887 (11th Cir. 1982): Intent to distribute may be inferred from quantity and paraphernalia.
• United States v. Mercer, 541 F.3d 1070 (11th Cir. 2008): Elements of possession with intent to distribute.
• United States v. Jimenez, 600 F.2d 1172 (5th Cir. 1979): Attempt to abandon contraband evidences guilty knowledge.
• United States v. Borders, 693 F.2d 1318 (11th Cir. 1982): Flight as circumstantial evidence of guilt.
• United States v. Molinares, 700 F.2d 647 (11th Cir. 1983) & Duran, 411 F.2d 275 (5th Cir. 1969): District court’s discretion to reopen evidence.
• United States v. Burston, 159 F.3d 1328 (11th Cir. 1998): Harmless-error standard under Rule 609 impeachment.

2. Legal Reasoning

Sufficiency of the Evidence: To sustain a § 841(a)(1) conviction for possession with intent to distribute, the government must prove knowledge, possession (actual or constructive), and intent to distribute. Drawing every inference in favor of the verdict, the court found:

• Possession: As driver and dominator of the vehicle, Thompson constructively possessed the bag. His attempt to discard the bag upon spotting deputies constituted actual possession.
• Knowledge: Thompson tried to abandon the bag and led officers on a 120+ mph chase. Flight and concealment support an inference of guilty knowledge.
• Intent to Distribute: Nearly one kilogram of methamphetamine, a drug ledger documenting transactions, and lack of personal-use paraphernalia justified inferring intent to distribute.

Reopening Direct Examination: When a juror asked, “Where was the tracking device located?” the district court, exercising its broad discretion under Molinares and Duran, allowed the government to recall Agent Lee. Thompson had not yet begun jury deliberations and was given a full opportunity on cross-examination to address the new testimony. No prejudice resulted from this brief reopening.

Exclusion of Informant’s Convictions: Thompson sought to impeach Courson’s out-of-court statements by introducing certified convictions under Rules 609 and 806. The court excluded those records as unnecessary because both Lee and FBI Agent McDaniel had already testified to Courson’s prior convictions. Under Burston, this was harmless: the jurors heard the substance of Courson’s criminal history and Thompson’s closing argument emphasized her untrustworthiness, so admitting the records would have been merely cumulative.

3. Impact on Future Cases

This decision reaffirms several key principles:

• Flight and attempts to conceal or discard contraband remain powerful circumstantial evidence of knowledge and intent.
• District courts retain broad discretion to reopen testimony for juror-submitted questions so long as no unfair surprise or prejudice occurs.
• When impeaching non-testifying hearsay declarants, certified records of convictions may be excluded as cumulative if the jury already has heard the convictions.

Practitioners should note that vigorous impeachment at trial—through cross-examination and elicited testimony—may render documentary impeachment unnecessary and harmless.

Complex Concepts Simplified

• Actual vs. Constructive Possession: “Actual” means the defendant physically handled the drugs; “constructive” means he had the power and intent to control them, e.g., as driver of a car holding hidden contraband.
• Harmless Error: An incorrect evidentiary ruling is “harmless” if it did not substantially influence the jury. When the same fact was already in evidence, admitting formal documents adds little.
• Reopening Direct Examination: A court can allow additional direct testimony to clarify material facts raised by jurors, so long as both sides have a fair chance to question the witness.

Conclusion

United States v. Dennis Thompson solidifies the Eleventh Circuit’s approach to possession-with-intent charges: dominion over a vehicle and a driver’s flight strongly support conviction; juror-initiated clarifications may merit limited evidentiary reopening; and redundant impeachment materials need not be admitted when a witness’s credibility has already been fairly attacked. The decision underscores the balance between ensuring a fair adversarial process and preserving the district court’s flexibility to address developing evidentiary matters on the fly.