Introduction

In United States v. Thompson, 24-4006 (10th Cir. Apr. 15, 2025), the Tenth Circuit addressed critical questions about the jury instructions and evidentiary sufficiency in a felon-in-possession prosecution under 18 U.S.C. § 922(g)(1). Defendant-appellant Brandon K. Thompson, a convicted felon, was apprehended after allegedly seizing and firing a police officer’s handgun during a struggle in a Utah AT&T store. At trial, the district court omitted any requirement that “actual possession” be “exclusive,” instead instructing that mere “direct physical control,” even if momentary, sufficed. Thompson challenged the jury instructions, the adequacy of evidence on knowing possession, and the statute’s constitutionality under the Commerce Clause. Exercising its appellate jurisdiction under 28 U.S.C. § 1291, the Tenth Circuit affirmed on all counts, establishing that exclusivity is not a component of actual possession.

Summary of the Judgment

The Tenth Circuit unanimously affirmed Thompson’s conviction and sentence. Key points of the decision:

• The court held that “actual possession” under § 922(g)(1) requires only “direct physical control” over a firearm, not “exclusive” dominion.
• The district court did not abuse its discretion in refusing to instruct the jury that actual possession must be exclusive or to give defendant’s requested “momentary touch” and “attempted possession” instructions.
• Sufficient evidence—body-cam video plus officers’ and civilian witness testimony—supported the jury’s finding that Thompson had actual, knowing control of the weapon and pulled the trigger.
• The court reaffirmed that § 922(g)(1) is a valid exercise of Congress’s Commerce Clause authority.

Analysis

1. Precedents Cited

• Henderson v. United States, 575 U.S. 622 (2015): Defined actual possession as “direct physical control” and constructive possession as “power and intent to exercise control.”
• United States v. Johnson, 46 F.4th 1183 (10th Cir. 2022): Discussed constructive-possession exclusivity—holding that exclusive control over premises may permit inference of constructive possession—but did not import exclusivity into actual possession.
• United States v. Samora, 954 F.3d 1286 (10th Cir. 2020): Reiterated knowledge, dominion, and control elements for constructive possession.
• United States v. Coleman, 9 F.3d 1480 (10th Cir. 1993): Held that struggled control of a guard’s firearm qualified as “use” under § 924(c), illustrating that momentary but forcible control can satisfy statutory elements (though under § 924(c) rather than § 922(g)(1)).
• Scarborough v. United States, 431 U.S. 563 (1977) & United States v. Urbano, 563 F.3d 1150 (10th Cir. 2009): Upheld § 922(g)(1)’s constitutionality under the Commerce Clause.

2. Legal Reasoning

(a) No Exclusivity in Actual Possession
The court scrutinized Thompson’s proposed jury instruction, which would have imported the concept of “exclusive dominion” from constructive possession doctrine into actual possession. Citing Henderson, the court reaffirmed that actual possession “exists when a person has direct physical control over a thing,” without any exclusivity requirement. The district court’s instruction—“direct physical control…a second or two can be sufficient”—tracked Supreme Court and Tenth Circuit precedent and thus was legally sound.

(b) Requested “Theory of the Case” Instructions
Thompson’s “momentary touch” and “attempted possession” instructions were refused. The appellate court held that the district court’s existing instructions already communicated that momentary control sufficed and that mere attempts without control would mandate acquittal. A defendant is entitled to theory-of-defense instructions only if supported by record and not otherwise covered. Here, “direct physical control” language adequately conveyed his defensive theory.

(c) Sufficiency of the Evidence
Viewing video footage and multiple eyewitness accounts in the government’s favor, a rational jury easily could find that Thompson applied enough force and duration of contact to seize Officer Johnson’s holstered firearm, disengage its retention lever, compress the dual-stage trigger, and discharge a round. Stipulations on Thompson’s knowledge of his status as a felon, firearm operation, and intent to possess further cemented the sufficiency analysis.

(d) Commerce Clause Challenge
The court reiterated its prior holdings that § 922(g)(1) regulates a class of activity—possession of firearms by felons—that substantially affects interstate commerce. No Supreme Court or Tenth Circuit precedent calls for its invalidation.

3. Impact

This decision clarifies and cements two key rules for future § 922(g)(1) prosecutions:

• Jury instructions on “actual possession” need only articulate “direct physical control”; there is no Tenth Circuit requirement that a defendant have “exclusive” dominion over the weapon.
• Momentary or brief contact, if knowing and forcible, suffices for actual possession when coupled with intent, and challenges to jury instructions must show that the court entirely omitted or mis‐stated required elements, not just disfavored language.

Trial courts in this circuit will rely on Thompson when crafting jury instructions for felon-in-possession and related gun-control statutes, ensuring that the focus remains on control rather than exclusivity or proprietary dominion.

Complex Concepts Simplified

• Actual vs. Constructive Possession
  • Actual possession: physical control—e.g., holding a gun in your hand or sitting on it.
  • Constructive possession: power and intent to control—e.g., contraband in your locked closet.
• Exclusive Control
  • In the constructive context, exclusive dominion may support an inference that you knew of and intended to control hidden contraband.
  • In the actual context, exclusivity is irrelevant—touching or holding suffices, even if others also touch or grab the item.
• Momentary Control
  • Under Tenth Circuit law, only a “second or two” of awareness and handling is enough to constitute actual possession, provided the defendant knows what the object is and intends to control it.
• Dual-Stage Trigger Safety
  • Modern firearms often have a safety within the trigger itself that requires two distinct pressures to fire. The court noted this to explain why mere brushing or accidental contact would not discharge the weapon.
• Commerce Clause and § 922(g)(1)
  • Court consistently holds that regulating gun possession by felons is within Congress’s power because such possession affects the national market and interstate trafficking of firearms.

Conclusion

United States v. Thompson solidifies the principle that for felon-in-possession prosecutions under 18 U.S.C. § 922(g)(1), “actual possession” demands only direct physical control, without any additional exclusivity requirement. The decision endorses flexible instructions that focus on “did the defendant knowingly touch or hold the firearm?” rather than on theoretical dominion over the weapon. It also reaffirms that momentary control will do, that § 922(g)(1) remains constitutional, and that each case’s facts—video evidence, witness testimony, mechanical features of the firearm—will determine whether a jury could reasonably find the requisite possession. Trial courts and litigants in the Tenth Circuit should adopt these clear parameters when structuring jury instructions and presenting or challenging evidence in future firearm possession cases.