Exculpatory-Defense Bar to Lesser-Included Simple-Possession Instructions and Zherka-Controlled Rejection of § 922(g)(1) Second Amendment Challenges

1. Introduction

Parties and posture. The United States prosecuted Robert Jackson after a search of the apartment he shared with his girlfriend, Jasmine Pope, yielded cocaine, fentanyl/methamphetamine mixtures (including ANPP), two firearms, ammunition, and drug-packaging materials. A jury convicted Jackson of: (1) possession with intent to distribute, 21 U.S.C. § 841; (2) possessing firearms in furtherance of drug trafficking, 18 U.S.C. § 924(c)(1)(A)(i); and (3) felon-in-possession, 18 U.S.C. §§ 922(g)(1), 924(a)(2). He appealed.

Key appellate issues. Jackson argued (i) the evidence was insufficient to prove he possessed the drugs and intended to distribute them; (ii) the district court erred by refusing a lesser-included instruction for simple possession (21 U.S.C. § 844); and (iii) 18 U.S.C. § 922(g)(1) is unconstitutional (facially and as applied) under the Second Amendment.

2. Summary of the Opinion

The Second Circuit affirmed across the board. It held that:

• The evidence supported a finding of constructive possession of the drugs (at least jointly with Pope), including Jackson’s residence in the apartment, his warning to Pope about the impending search, and his statement to an officer (“looks like you got me again”).
• The evidence supported intent to distribute, especially the presence of firearms, packaging materials, drugs in small baggies, and a larger quantity of uncut cocaine.
• The district court did not abuse its discretion in denying a lesser-included simple-possession instruction because the trial evidence did not permit a rational jury to convict on simple possession while acquitting on intent-to-distribute—particularly given the distribution indicia and the absence of personal-use evidence or paraphernalia.
• Jackson’s Second Amendment challenge to § 922(g)(1) was foreclosed by Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025).

3. Analysis

3.1 Precedents Cited

The panel’s reasoning is largely an application of established Second Circuit and Supreme Court frameworks. The citations function as “guardrails” defining review standards, the constructive-possession test, and when lesser-included instructions are warranted.

• United States v. Rigas, 490 F.3d 208 (2d Cir. 2007)
  Used to frame the “heavy burden” a defendant bears when challenging the sufficiency of the evidence. This sets an appellate presumption in favor of the verdict when the record permits competing inferences.
• United States v. Vilar, 729 F.3d 62 (2d Cir. 2013)
  Supplies the lens for sufficiency review: view evidence in the government’s favor, credit favorable inferences, and defer to the jury’s credibility and weight determinations. The panel used Vilar to justify relying on circumstantial proof (living arrangements, reactions, statements) rather than requiring direct evidence of handling drugs.
• Musacchio v. United States, 577 U.S. 237 (2016) and Jackson v. Virginia, 443 U.S. 307 (1979)
  Provide the constitutional baseline: whether “any rational trier of fact” could find the elements beyond a reasonable doubt. This standard is deliberately deferential and made it difficult for Jackson to overturn fact-bound determinations like constructive possession and intent.
• United States v. Pauling, 924 F.3d 649 (2d Cir. 2019)
  Adds a limiting principle: while juries may draw reasonable inferences, appellate courts “give no deference to impermissible speculation.” The panel implicitly concluded the jury’s inference of possession/intent was grounded in concrete circumstances (shared bedroom, warning call, incriminating remark, distribution tools), not guesswork.
• United States v. Willis, 14 F.4th 170 (2d Cir. 2021)
  Central to two issues. First, it states the definition of constructive possession (power and intention to exercise dominion and control), and emphasizes that possession need not be exclusive—supporting the panel’s “joint possession” rationale with Pope. Second, it recognizes that firearms plus cutting/packaging equipment are “highly probative” of intent to distribute once possession is shown; the panel used that logic to uphold the intent finding.
• United States v. Facen, 812 F.3d 280 (2d Cir. 2016)
  Used to distinguish “mere presence” from presence plus contextual indicators that permit an inference of constructive possession. The panel highlighted factors akin to Facen: a defendant’s reaction to police and circumstances suggesting trusted access/control in the location where contraband is found.
• United States v. Snype, 441 F.3d 119 (2d Cir. 2006) and United States v. Diaz, 176 F.3d 52 (2d Cir. 1999)
  Provide the two-part test for a lesser-included instruction: (1) elements subset; (2) evidence allows a rational jury to convict on the lesser while acquitting on the greater. The panel accepted part (1) (simple possession is a subset of possession-with-intent) and focused on part (2).
• United States v. Abreu, 342 F.3d 183 (2d Cir. 2003)
  Establishes that whether evidence “justifies” the lesser instruction is committed to the trial judge’s discretion, reviewed for abuse of discretion. Abreu also supports a practical inquiry: once the jury rejects the defense theory and finds possession, it may be “extremely unlikely” to reject intent where the distribution indicia are strong.
• United States v. Garcia-Duarte, 718 F.2d 42 (2d Cir. 1983)
  Used by comparison to illustrate when failure to give a simple-possession lesser-included instruction can be reversible error: extremely small quantity (.23 grams of cocaine) permitted a rational personal-use inference. By contrasting Jackson’s 13 grams plus additional mixtures and distribution paraphernalia, the panel explained why this case fell outside Garcia-Duarte’s logic.
• United States v. Zapata-Tamallo, 833 F.2d 25 (2d Cir. 1987)
  Provides the critical doctrinal move: when a defendant advances an “exculpatory defense” that—if believed—would require acquittal on both the greater and lesser offenses, he is not entitled to a lesser-included instruction. The panel applied this directly because Jackson’s trial theory was essentially “the drugs were Pope’s, not mine,” which negates possession altogether.
• Zherka v. Bondi, 140 F.4th 68 (2d Cir. 2025)
  Dispositive of the constitutional challenge: it “uphold[s] the constitutionality” of § 922(g)(1) and “foreclos[es]” Jackson’s facial and as-applied Second Amendment arguments. The panel treated Zherka as controlling circuit authority requiring rejection of the claim without re-litigating the Second Amendment merits.

3.2 Legal Reasoning

A. Sufficiency: Constructive possession in a shared residence

The opinion applies the familiar constructive-possession test: whether Jackson had the power and intention to exercise dominion and control over the drugs. Rather than requiring proof that Jackson physically handled the substances, the panel relied on a constellation of circumstantial facts that, together, permitted a rational inference of control:

• Co-residence and location: drugs were found in the bedroom Jackson shared with Pope, supporting access and control.
• Reactive conduct: Jackson warned Pope that officers were coming to search the apartment, suggesting knowledge of contraband and an effort to manage the risk.
• Consciousness of guilt statement: “looks like you got me again,” which the jury could reasonably treat as an admission-like indicator of culpability.

Importantly, the panel rejected a false binary between “Jackson possessed” and “Pope possessed.” Citing Willis, it emphasized possession “need not be exclusive.” That allows joint constructive possession—especially salient in shared spaces—so long as the evidence supports Jackson’s dominion/control, not merely proximity.

B. Sufficiency: Intent to distribute from “tools of the trade”

After affirming possession, the panel upheld intent to distribute by invoking the common evidentiary logic (quoted from Willis) that firearms and cutting/packaging tools are “highly probative” of distribution purpose. Here, the record included:

• Two firearms;
• Drugs packaged into small baggies;
• A larger quantity of uncut cocaine;
• Empty plastic baggies and a razor blade with residue.

The legal reasoning is incremental: (1) establish constructive possession; (2) treat distribution indicia as probative of intent; (3) conclude that a rational jury could find the intent element beyond a reasonable doubt under Jackson v. Virginia.

C. Lesser-included instruction: evidentiary “middle ground” and the exculpatory-defense rule

The panel accepted that simple possession (§ 844) is a lesser-included offense of possession with intent to distribute (§ 841). The fight was whether the evidence provided a rational basis for the jury to choose the lesser while rejecting the greater.

The panel offered two independent (and reinforcing) reasons why the district court acted within its discretion under Abreu:

1. The record did not support a personal-use inference. The quantities were not, by themselves, conclusive—but they did not affirmatively suggest personal use, especially compared to United States v. Garcia-Duarte (.23 grams). The presence of firearms, cash, and packaging equipment pointed toward distribution, and the court underscored the absence of evidence that Jackson was an active user or possessed personal-use paraphernalia.
2. Jackson’s defense theory eliminated the “middle ground.” Under United States v. Zapata-Tamallo, a defendant is not entitled to a lesser-included instruction when his exculpatory defense—if believed—would produce acquittal on both the greater and lesser charges. Jackson’s primary defense was that the drugs belonged to Pope alone. If the jury accepted that, it could not convict Jackson of any possession offense. Once the jury rejected that theory and found Jackson possessed the drugs, the panel reasoned (echoing Abreu) it would be “extremely unlikely” for a rational juror to deny intent given the strong distribution indicia.

Functionally, the opinion illustrates a recurring trial dynamic: lesser-included instructions are most appropriate when the evidence supports a genuine intermediate option (e.g., possession is clear but intent to distribute is genuinely disputable). When a defendant stakes everything on “not mine,” the intermediate option can collapse.

D. Second Amendment challenge to § 922(g)(1): controlling circuit law

The panel disposed of Jackson’s facial and as-applied challenge to 18 U.S.C. § 922(g)(1) by citing Zherka v. Bondi, which “uphold[s]” the statute’s constitutionality. The reasoning is institutional: a later panel must follow controlling circuit precedent absent en banc reconsideration or intervening Supreme Court authority.

3.3 Impact

Although nonprecedential, the order signals how the Second Circuit is likely to treat similar records:

• Shared-residence drug cases: The court remains receptive to constructive-possession findings based on residence, access, suspicious reactive conduct, and admission-like statements, and it reiterates that joint possession is sufficient.
• Intent to distribute: Firearms plus packaging/cutting materials remain “highly probative,” reducing the likelihood of successful sufficiency challenges where “tools of the trade” appear alongside drugs.
• Lesser-included strategy: Defendants seeking a § 844 instruction should consider whether the trial record contains affirmative personal-use evidence and whether their theory preserves a plausible “middle ground.” An all-or-nothing “someone else possessed” defense may, under Zapata-Tamallo, undermine entitlement to the lesser instruction.
• § 922(g)(1) litigation: In the Second Circuit, Zherka is treated as foreclosing routine Second Amendment challenges to felon-in-possession prosecutions, at least absent new Supreme Court developments.

4. Complex Concepts Simplified

• Constructive possession: You can “possess” contraband without holding it, if you have the ability and intent to control it (e.g., it’s in your bedroom, you can access it, and circumstances show you treat it as under your control).
• Joint possession: More than one person can possess the same drugs at the same time. The government does not have to prove exclusive control.
• Sufficiency of the evidence: On appeal, the question is not whether judges believe the defendant is guilty, but whether a rational juror could find guilt beyond a reasonable doubt when viewing the evidence in the prosecution’s favor.
• Impermissible speculation vs. reasonable inference: Juries may draw common-sense conclusions from facts (inferences), but cannot pile guesswork on guesswork without evidentiary support (speculation).
• Lesser-included offense instruction: A jury is given the option to convict on a less serious offense included within the charged offense only if the evidence supports that “middle” outcome (guilty of the lesser, not guilty of the greater).
• Exculpatory defense bar (in this context): If the defendant’s own theory is “I didn’t possess it at all,” and that theory—if believed—would require acquittal of both greater and lesser possession crimes, courts may deny a lesser-included instruction because the evidence does not present a rational basis for the intermediate verdict.
• Facial vs. as-applied constitutional challenge: “Facial” means the law is unconstitutional in all (or almost all) applications; “as-applied” means unconstitutional as applied to this particular defendant’s circumstances.

5. Conclusion

United States v. Jackson reaffirms three practical points in federal criminal appeals: (1) constructive possession can be proved circumstantially in shared residences and may be joint; (2) firearms and drug-packaging/cutting evidence strongly support an inference of intent to distribute once possession is established; and (3) a lesser-included simple-possession instruction is properly denied where the evidence does not support a personal-use inference and where the defendant’s exculpatory “not mine” theory would require acquittal on both the greater and lesser offenses. Separately, the order underscores that, in the Second Circuit, Zherka v. Bondi forecloses standard Second Amendment attacks on 18 U.S.C. § 922(g)(1).