United States v. Abercrombie: Circumstantial Evidence and Constructive Possession of Firearms in Vehicle Stops

I. Introduction

United States v. Abercrombie, Nos. 24‑1474 & 24‑1867 (1st Cir. Dec. 16, 2025), is a firearms-possession case arising from a Boston traffic stop conducted minutes after a nearby drive‑by shooting. The First Circuit affirmed a felon‑in‑possession conviction under 18 U.S.C. § 922(g)(1), the denial of a motion for a new trial, and the revocation of supervised release based on the same conduct.

The decision does not announce a dramatic new rule, but it significantly refines the First Circuit’s constructive-possession jurisprudence in vehicle cases. It illustrates:

• How thin but cumulative circumstantial evidence (seat control, weapon placement, gloved hand, absence of fingerprints, and repeated movements toward the floor area) can suffice to prove constructive possession of a firearm under § 922(g)(1);
• The rigorous, “prosecution‑friendly” standard governing Rule 29 sufficiency challenges and the limited role of appellate courts when alternative innocent explanations are plausible;
• The strict standard for granting a Rule 33 new trial based on weight of the evidence and alleged confusion from contextual evidence (here, a drive‑by shooting); and
• How a valid conviction beyond a reasonable doubt essentially forecloses attack on a supervised release revocation that is governed by a lower “preponderance of the evidence” standard.

The opinion also illustrates the First Circuit’s approach to undeveloped constitutional arguments: a facial Second Amendment challenge to § 922(g)(1) was treated as waived when not meaningfully argued.

II. Factual and Procedural Background

A. The Traffic Stop and Discovery of the Firearm

On April 16, 2020, shortly after 6:00 p.m., Boston police responded to a drive‑by shooting in Roxbury. Within minutes, officers broadcast over the radio that a navy-blue Ford Fusion was the suspected vehicle. Although that tip later proved wrong (video showed the shooter in a Honda CR‑V), Officers Thomas Driscoll and Matthew O’Loughlin, canvassing nearby, soon saw a black Ford Fusion exit the lot of Fuentes Market and turn onto Parker Street.

Believing this Fusion might have been involved in the shooting, the officers conducted a stop. The car had:

• Driver: Dominick Douglas;
• Front passenger: Tevin Abercrombie;
• No backseat passengers at that time.

Abercrombie wore dark clothing, a hood, glasses, a medical mask, and notably, a blue surgical/latex glove on his right hand only, with no glove on his left. Both occupants were removed and frisked, with no weapons found on their persons. Douglas told Officer O’Loughlin that he had just come from the market and invited the officers to “go ahead and search the car.”

Officer Driscoll quickly searched the passenger area and, within seconds, saw a black pistol under the very front of the passenger seat, a “few inches” from the floor mat:

• The pistol was loaded (round in the chamber and magazine inserted);
• The serial number was obliterated;
• The handle pointed toward the front of the car and the muzzle toward the passenger door;
• From the frame of the open passenger door, Officer O’Loughlin could see the gun by simply leaning to his right;
• Driscoll testified that the gun’s orientation was consistent with how a right-handed person sitting in that passenger seat would place it under the seat.

Both Douglas and Abercrombie were then arrested.

B. Forensic and Video Evidence

Detective Joe Medina photographed the pistol in situ and arranged forensic testing of the gun, magazine, and ammunition:

• The pistol was operational;
• No fingerprints were recovered from the firearm, magazine, or ammunition.

Medina also collected surveillance video from cameras near the shooting scene and Fuentes Market. The videos showed:

• A drive‑by shooting from a Honda CR‑V at three men, who scattered;
• Less than a minute later, one of the men appeared on camera talking on a phone;
• Seconds after that, the Fusion entered the frame, drove down Halleck Street, turned on Gurney Street, and parked in the Fuentes Market lot—about two minutes after the shooting;
• Douglas exited the driver’s side, Abercrombie exited the front passenger side, and a third person exited the backseat;
• Douglas spoke with two of the men who had just been shot at; Abercrombie was on his cell phone.

Importantly, the videos then showed:

• Abercrombie reentering the front passenger seat; through the windshield, Medina saw Abercrombie’s masked head “pop up” from the floor mat area;
• Abercrombie leaving the car again and entering the market, where:
  • He kept his gloved right hand in his coat pocket;
  • He touched store items only with his ungloved left hand.
• No one entered the Fusion while Abercrombie was in the store;
• After further conversation with Douglas, both men reentered the car (Douglas driving, Abercrombie in the front passenger seat);
• As the Fusion backed out of the parking space, Medina testified that Abercrombie’s blue mask again moved down toward the floor mat area.

The parties stipulated that:

1. The pistol was a “firearm” under § 922(g) and was operable, and the ammunition was real;
2. Both had traveled in interstate or foreign commerce;
3. Abercrombie knew before the date of the charged offense that he had a prior conviction punishable by more than one year.

Thus, the only disputed element at trial was whether Abercrombie knowingly possessed the pistol (and thus the ammunition) found under his seat.

C. District Court Proceedings and Appeals

After a jury convicted Abercrombie under § 922(g)(1), he filed:

• A Rule 29 motion for judgment of acquittal, arguing insufficient evidence of possession (mere presence in the car);
• A Rule 33 motion for a new trial, arguing (a) the evidence was extremely thin and (b) the government unfairly used confusing, prejudicial narrative about the drive‑by shooting.

The district court (Judges Woodlock and Stearns) denied both motions. Separately, a judge revoked Abercrombie’s supervised release (imposed after a prior drug conviction) based on the same finding of constructive possession of the pistol.

On appeal, Abercrombie challenged:

• The denial of the Rule 29 motion (sufficiency of the evidence of constructive possession);
• The denial of the Rule 33 motion (weight of the evidence and alleged confusion/prejudice from the drive‑by evidence);
• The revocation of supervised release.

He also had previously moved to dismiss the indictment, arguing that § 922(g)(1) is facially unconstitutional under the Second Amendment, but on appeal he did not develop that argument, merely noting ongoing legal debate and a perceived tension with United States v. Torres‑Rosario, 658 F.3d 110 (1st Cir. 2011). The First Circuit held that issue waived.

III. Summary of the Opinion

The First Circuit (Aframe, J., joined by Barron, C.J., and Rikelman, J.) held:

A. Sufficiency of the Evidence (Rule 29)

Viewing the evidence in the light most favorable to the government, a rational juror could find beyond a reasonable doubt that Abercrombie constructively possessed the pistol. Key factors:

• Abercrombie exclusively controlled the front passenger seat during the relevant period; no one else used that seat before the stop;
• The gun was located near the front of that seat, in a position not easily reachable from the backseat and plainly visible from the doorframe;
• The gun’s orientation was consistent with placement by a right-handed front passenger like Abercrombie;
• Abercrombie’s single latex glove on his right hand, and the absence of fingerprints on the gun, magazine, and ammunition, suggested an intent to avoid leaving prints on the weapon;
• Video showed Abercrombie’s head and body repeatedly moving toward the floor mat area beneath his seat, where the gun was found.

These combined facts went beyond “mere proximity” and sufficed to prove constructive possession under § 922(g)(1). The First Circuit rejected Abercrombie’s argument that the case required impermissible “stacking” of inferences.

B. New Trial (Rule 33)

Applying the “seriously erroneous result” and “miscarriage of justice” standard, the court held the district court did not abuse its discretion in denying a new trial:

• Although the case was “close” and the proof circumstantial, the evidence did not “preponderate heavily” against the verdict;
• The jury’s role was to choose among competing reasonable inferences, and the court could not act as a “thirteenth juror” simply because a different result was conceivable;
• The government’s use of the drive‑by shooting narrative and associated videos was not so confusing or unfair as to render the conviction unjust, especially where the jury could evaluate that narrative directly from the same video evidence.

C. Revocation of Supervised Release

Because the firearms conviction was supported by evidence sufficient to satisfy the beyond‑a‑reasonable‑doubt standard, that same evidence necessarily satisfied the preponderance of the evidence standard required for revocation. The revocation was therefore affirmed.

D. Second Amendment Challenge

Abercrombie’s facial Second Amendment challenge to § 922(g)(1) was deemed waived under United States v. Zannino, 895 F.2d 1 (1st Cir. 1990), because he failed to meaningfully develop the argument on appeal.

IV. Detailed Analysis

A. Standards of Review and the “Prosecution‑Friendly” Lens

The decision begins by restating well‑settled, but critical, standards that frame virtually all sufficiency and new‑trial appeals.

1. Rule 29 – Sufficiency of the Evidence

Denial of a Rule 29 motion is reviewed de novo, but within a very government‑favorable framework:

• The court asks whether any rational factfinder could find each element of the offense beyond a reasonable doubt, considering the evidence and all reasonable inferences in the light most favorable to the prosecution. (Ridolfi, Rodríguez, Mendoza‑Maisonett);
• Appellate focus is on whether a guilty verdict finds support in a plausible rendition of the record, including “reasonable, common sense inferences” (Ridolfi);
• This is sometimes called a “prosecution‑friendly” standard (Lara).

This standard is sharply distinct from a harmless‑error or evidentiary‑admissibility inquiry. Importantly, as the court later emphasizes, a sufficiency review looks at all evidence admitted at trial, whether or not it was properly admitted (O’Donovan).

2. Rule 33 – New Trial

A motion for a new trial based on the “weight of the evidence” is reviewed only for abuse of discretion. Under Simon and Rothrock, a trial judge may grant a new trial:

• Only when it is “quite clear that the jury has reached a seriously erroneous result” or a “miscarriage of justice otherwise looms”;
• Not simply because the judge would personally have decided differently – the judge is not a “thirteenth juror” (Ruiz, quoting Rothrock).

This standard is intentionally stringent; it preserves the jury’s primary role in weighing evidence and drawing inferences.

3. Supervised Release Revocation Standard

Revocation of supervised release requires proof by a preponderance of the evidence that a condition of release was violated. (Tanco‑Pizarro). Because preponderance (“more likely than not”) is a lower standard than beyond a reasonable doubt, a criminal conviction normally suffices, as here, to sustain revocation on the same factual basis.

B. Constructive Possession Doctrine as Applied

1. Actual vs. Constructive Possession

The court reiterates that § 922(g)(1) can be satisfied by:

• Actual possession – “immediate, hands‑on physical possession” of the firearm (Guzmán‑Montañez); or
• Constructive possession – the defendant “knowingly has the power at a particular time to exercise dominion and control” over the firearm (Sylvestre, quoting Nuñez).

There was no evidence anyone actually saw Abercrombie physically holding the gun, and the government conceded that point. Thus, the case turned on whether he constructively possessed the gun.

2. Elements of Constructive Possession

The First Circuit synthesizes and applies several earlier decisions:

• Knowledge – the defendant must know of the weapon’s existence (Ridolfi);
• Power and intention to control – he must have the ability to exercise dominion and control over it at the relevant time (Sylvestre, Nuñez);
• Constructive possession may be proven entirely by circumstantial evidence, including control over the area in which the firearm is found (Burgos, Fernández‑Jorge);
• But “mere proximity” to a weapon is not enough (Weems); there must be “some action, some word, or some conduct that links the individual to the contraband and indicates that he had some stake in it, some power over it” (Tanco‑Baez, quoting McLean).

A key earlier First Circuit formulation, reiterated in Maldonado‑García, is that “constructive possession of a firearm may be established by showing that the person knows (or has reason to know) that the firearm is within easy reach, so that he can take actual possession of it virtually at will.”

3. How the Court Assembled the Circumstantial Evidence

The court’s central contribution lies in how it assembles a series of individually ambiguous facts into a cohesive picture of constructive possession:

a. Exclusive control of the passenger seat and weapon placement

The court emphasizes that Abercrombie exercised exclusive control over the front passenger seat throughout the relevant period:

• Videos showed who entered and exited the car;
• No one else occupied the front passenger seat from the time the Fusion appeared on video en route to Fuentes Market until the traffic stop;
• The gun was located at the very front of the seat, near the floor mat, in a position not easily accessible to a backseat occupant.

Given this control over the area, it was reasonable for jurors to infer that Abercrombie knew of the gun and had power over it. The court reinforces this by noting:

• The gun was readily visible from the doorframe if one simply leaned in (as Officer O’Loughlin did); jurors could conclude Abercrombie would have seen it during his multiple entries and exits from the car;
• The gun’s orientation made sense as the product of a right‑handed passenger placing it under the seat – which matched Abercrombie’s apparent right‑hand dominance.

b. The single latex glove and absence of fingerprints

The opinion’s most notable doctrinal move is its reliance on Abercrombie’s single latex glove as evidence of constructive possession, strengthened by the absence of fingerprints.

Citing United States v. Jones, 432 F.3d 34 (1st Cir. 2005), the court explains:

“Latex gloves offer little if any protection against the weather. They most obviously would serve the function of preventing fingerprints from being left on items like [a] gun . . . . Wearing such gloves [is] thus a gesture suggesting an intention to exercise dominion and control over [a] gun . . . .”

Here, several features compound that inference:

• The glove was worn on the right hand only, which could be presumed to be the dominant hand used to handle a weapon;
• No fingerprints were recovered from the gun, magazine, or ammunition – consistent with someone taking steps to handle the weapon without leaving prints;
• Inside the market, surveillance footage showed Abercrombie hiding his gloved hand in his pocket while touching items only with his ungloved hand, undermining his claim that the glove was simply a COVID‑era precaution.

The court acknowledges Abercrombie’s alternative explanation (pandemic‑related prophylaxis) but finds it reasonable for jurors to reject that view based on his own conduct: he did not use the glove to avoid touching surfaces; he concealed it and used his bare hand instead. That pattern supports an inference that the glove was worn for evidentiary avoidance (fingerprints), not hygiene.

c. Repeated head/body movement toward the floor mat area

Detective Medina’s testimony that Abercrombie’s head “popped up” from the floor‑mat region and that he repeatedly bent toward the floor mat is treated as another circumstantial indicator that he knew a gun was there. The court is careful not to overstate this evidence in isolation:

• It recognizes that other courts have found similar evidence insufficient when coupled only with presence near a hidden gun (Blue from the Fourth Circuit);
• But it maps those facts onto a broader evidentiary mosaic: exclusive seat control, visibility of the gun, glove and fingerprint evidence, and the orientation of the firearm.

Abercrombie argued he might have been bending toward a blue Gatorade bottle on the passenger floor. The government rebutted this through Medina’s testimony that the bottle never came into view through the windshield during those movements. The First Circuit emphasizes that:

• Trials are precisely where such alternative theories are to be tested;
• The government is not required to disprove every innocent hypothesis (Apicelli, Spinney);
• It is for the jury, not the appellate court, to decide which explanation is more credible.

4. Distinguishing “Mere Proximity” and the “Stacking Inferences” Concern

Abercrombie relied on cases like United States v. Blue (4th Cir. 1992), which found insufficient evidence when the only connecting facts were:

• The defendant was sitting over a gun hidden under his seat, and
• An officer saw him lean forward at some point.

The First Circuit addressed this via its own earlier decision in United States v. Liranzo, 385 F.3d 66 (1st Cir. 2004), where it upheld a conviction in similar circumstances by identifying additional connecting facts (including the way the firearm was propped under the seat, suggesting it had been placed there recently). Liranzo had already distinguished Blue on the ground that there, unlike in Blue, more than mere presence and a lean forward existed.

In Abercrombie, the court again follows Liranzo, explaining:

• This case also has more than presence plus a lean: it has glove evidence, absence of fingerprints, consistent gun orientation, visibility from the doorframe, and repeated interest in the floor area;
• Thus, it does not run afoul of the prohibition on “stacking inference upon inference” (Valerio): the evidence supports direct, common‑sense inferences, not speculative chains piled on one another.

In short, the court uses Liranzo and Maldonado‑García to illustrate that constructive possession in a car requires something more than simple proximity—but that “something more” can be a constellation of factors, each modest, that together satisfy the beyond‑a‑reasonable‑doubt standard.

C. Alternative Explanations and the Role of the Jury

A recurring theme is the distinction between:

• Evidence being consistent with innocence, and
• Evidence being legally insufficient.

Abercrombie offered several innocent interpretations:

• The latex glove was for COVID protection;
• He was bending toward the floor to reach for a Gatorade bottle, not a gun;
• The gun’s position was not realistically the way a right‑handed passenger would stash it.

The First Circuit holds that:

• It is perfectly fair for a defendant to advance such alternative theories at trial;
• It is equally proper for the government to respond with counter‑evidence (e.g., Medina’s testimony about what was visible through the windshield, Driscoll’s in‑court demonstration of how the gun could be placed by a right‑handed person);
• Ultimately, the jury’s job is to choose among these competing interpretations, applying “reasonable, common sense inferences” (Ridolfi), and an appellate court cannot reweigh the evidence unless no rational juror could have reached the verdict.

The court underscores that the government need not “disprove every hypothesis consistent with the defendant’s innocence” (Apicelli, quoting Spinney), nor must a conviction fail just because “reasonable people could have reached a different conclusion” (Ruiz).

D. Treatment of Alleged Prejudicial Evidence and the Drive‑By Shooting Narrative

1. Sufficiency vs. Evidentiary Error

Abercrombie argued that the government unfairly suggested he had gang affiliations by showing he was conversing with the targets of the drive‑by shooting shortly after it happened. The First Circuit’s response is doctrinally important:

• This is not, strictly speaking, a sufficiency argument; it is an argument about prejudicial or confusing evidence or prosecutorial argument;
• Abercrombie did not object at trial and did not argue that the district court plainly erred by failing sua sponte to limit such evidence;
• In a sufficiency review, the appellate court considers all evidence admitted at trial, even if some were arguably admitted in error (O’Donovan).

Since Federal Rule of Evidence 606(b) prohibits delving into jury deliberations, courts cannot know whether the jury actually relied on any improper inference; therefore sufficiency review asks whether a hypothetical reasonable jury could convict on the admitted evidence—not whether this particular jury did so for proper reasons (Ballinger).

2. Use of the Drive‑By Evidence in the Rule 33 Analysis

As part of the Rule 33 new‑trial analysis, Abercrombie argued the government presented conflicting and confusing theories about when he learned of the shooting and how that related to his possession of the gun.

The First Circuit:

• Notes that no one disputes the timeline: shortly after the shooting, the Fusion arrives near the scene, and Abercrombie and Douglas speak with the targets of the shooting;
• Observes that the government supplied videos and Medina’s testimony, then suggested Abercrombie brought the gun because his associates had just been attacked;
• Holds that this kind of motive/context narrative is permissible so long as the jury can independently assess it based on the same evidence (Rodríguez‑Vélez);
• Concludes that there is no miscarriage of justice in allowing the government to offer such a narrative where the jurors had direct access to the underlying videos and could accept or reject the government’s interpretation.

The case therefore illustrates the limits of post‑trial complaints about allegedly confusing narrative structures when the defense did not object contemporaneously and when the jury had the tools to evaluate the narrative for itself.

E. Rule 33: Close Cases and the “Thirteenth Juror” Problem

The First Circuit candidly labels this “a close case that resulted in a conviction.” That admission is notable, but it does not change the outcome. Under Simon, Rothrock, and Ruiz:

• The district court cannot order a new trial simply because it might have acquitted;
• There must be a serious error in the verdict or an impending miscarriage of justice;
• Here, the evidence—though circumstantial—did not “preponderate heavily” against the verdict.

The First Circuit therefore finds no abuse of discretion in leaving the verdict intact. The jury had heard both sides’ competing narratives, received instructions, and returned a guilty verdict; nothing in the record indicated that this verdict was so unsound that it warranted the extraordinary remedy of a new trial.

F. Supervised Release Revocation: Preponderance and Piggybacking on the Conviction

Having upheld the § 922(g)(1) conviction, the court’s analysis of the supervised release revocation is straightforward. Under Tanco‑Pizarro:

• A violation of supervised release (here, based on possessing a firearm) need only be proven by a preponderance of the evidence;
• Because the same evidence sufficed to support a felony conviction beyond a reasonable doubt, it necessarily met the lower preponderance threshold;
• The court therefore affirms the revocation without additional factual analysis.

In practice, this means that once a conviction is affirmed on sufficiency grounds, an attached revocation based on the same conduct will nearly always stand, absent some independent procedural or substantive defect.

G. Waiver of the Second Amendment Facial Challenge

Abercrombie’s earlier motion to dismiss the indictment had argued that 18 U.S.C. § 922(g)(1) is facially invalid under the Second Amendment. On appeal, however, he:

• Merely noted that the validity of § 922(g)(1) is subject to “ongoing legal discussion”; and
• Suggested that Torres‑Rosario, which upheld § 922(g)(1), may be inconsistent with his position.

Citing Zannino, the First Circuit treats this as waiver, not mere forfeiture. That precedent holds that appellate arguments are deemed waived when a party:

“utter[s] only a few passing references” to an issue and does not develop any supporting argument.

As a result:

• The panel does not address the merits of the Second Amendment challenge or the continuing vitality of Torres‑Rosario in light of later Supreme Court decisions;
• The opinion leaves undisturbed existing First Circuit precedent upholding the constitutionality of § 922(g)(1).

V. Complex Concepts Simplified

1. Actual vs. Constructive Possession

Actual possession is straightforward: the defendant is literally holding or carrying the item.

Constructive possession exists when the defendant is not physically holding the item but:

• Knows it is there, and
• Has the ability and intent to control it (for example, to retrieve it at will).

Think of a key locked in your glove compartment. You might not be holding it, but if you know it is there and can access it whenever you choose, you “constructively possess” it.

2. Circumstantial vs. Direct Evidence

• Direct evidence directly proves a fact (e.g., a witness saw the defendant holding the gun);
• Circumstantial evidence consists of facts from which you can reasonably infer another fact (e.g., the defendant’s fingerprints are on the gun; he was the only person who had access to the area where the gun was hidden).

The law treats circumstantial evidence as fully valid; convictions can rest entirely on circumstantial proof if the inferences are reasonable.

3. Rule 29 vs. Rule 33

Rule 29 (Judgment of Acquittal):

• Asks whether the evidence was legally sufficient for any reasonable jury to convict;
• Courts must view evidence in the light most favorable to the prosecution and draw all reasonable inferences for the government.

Rule 33 (New Trial):

• Asks whether the verdict is so against the weight of the evidence that it would be a miscarriage of justice to let it stand;
• Gives more discretion to the trial judge than Rule 29, but still requires great deference to the jury’s verdict.

4. Facial Challenge vs. As‑Applied Challenge

• A facial challenge asserts that a law is unconstitutional in all its applications (no set of circumstances in which it can validly apply);
• An as‑applied challenge concedes the law may be valid generally but claims it is unconstitutional in the particular circumstances of the defendant’s case.

Abercrombie’s Second Amendment argument was a facial challenge to § 922(g)(1), but it was not developed on appeal and was therefore waived.

5. Supervised Release and the Preponderance Standard

Supervised release is a period of community supervision following a federal prison term. Violating conditions of supervised release (such as committing a new crime) can lead to revocation and additional imprisonment.

In revocation proceedings:

• The government need only prove violations by a preponderance of the evidence (more likely than not), not beyond a reasonable doubt;
• This lower standard reflects that revocation is viewed as modifying an existing sentence, not imposing punishment for a new crime in the first instance.

VI. Impact and Broader Significance

A. Strengthening Constructive Possession Cases in Vehicle Settings

United States v. Abercrombie will likely be significant in § 922(g)(1) prosecutions within the First Circuit, particularly in vehicle‑based gun cases where no one is caught physically holding the firearm.

The opinion:

• Reaffirms that constructive possession can be proven through a combination of circumstantial factors even when each factor, taken alone, might be explainable innocently;
• Gives prosecutors a roadmap of the kinds of facts that, collectively, might suffice:
  • Exclusive control over a particular seat or area;
  • Gun location and orientation consistent with use by that occupant;
  • Visibility of the firearm from points where the defendant plainly would have looked;
  • Behavior suggestive of knowledge (repeated glances/movements toward the hiding place);
  • Use of gloves and the absence of fingerprints.
• Offers law enforcement guidance: careful documentation (including photographic and video evidence) of where and how a weapon is found, as well as body‑camera or surveillance footage of occupants’ movements, can be pivotal.

B. Use of “Glove Evidence” and Forensics

By leaning heavily on Jones and the latex glove, the court amplifies the significance of glove usage in firearms prosecutions:

• Wearing a latex glove, especially on just one hand and in a context where it is not used for hygiene, can be treated as circumstantial evidence of consciousness of guilt and intent to avoid leaving fingerprints;
• The absence of fingerprints on a weapon, often dismissed as neutral, can support the inference when combined with glove usage that the user intentionally kept the gun fingerprint‑free.

Defense counsel should anticipate this and be prepared with credible, concrete alternative explanations for glove use, particularly when consistent with broader conduct (e.g., using the gloved hand to touch high‑contact surfaces during a health scare). Here, the contrary behavior (hiding the glove and using the bare hand) undermined that narrative.

C. Appellate Strategy: Importance of Preserving and Developing Arguments

The opinion underscores:

• The need to object contemporaneously to allegedly prejudicial or confusing evidence (such as gang‑affiliation implications or highly emotional context like a shooting);
• The limited utility of recasting such complaints as sufficiency challenges, which must assume all admitted evidence is properly considered;
• The danger of undeveloped appellate arguments, shown by the waiver of the Second Amendment challenge under Zannino.

D. Supervised Release Practice

For supervised release cases, Abercrombie again confirms:

• When revocation is tied to an underlying conviction, attacking the conviction is generally the only realistic appellate route;
• If the conviction stands under a beyond‑a‑reasonable‑doubt sufficiency review, the preponderance standard for revocation will almost inevitably be satisfied on the same facts.

E. The “Close Case” Comment

The court’s description of this as a “close case” is meaningful in two ways:

• It communicates to lower courts and juries that circumstantial evidence of constructive possession must be scrutinized carefully; this is not a green light to infer possession from bare proximity;
• But it also signals that as long as the prosecution can offer a plausible, non‑speculative narrative grounded in objective facts, appellate courts will defer to the jury’s resolution of such close cases.

VII. Conclusion

United States v. Abercrombie reinforces the First Circuit’s constructive‑possession jurisprudence in a context that frequently arises in practice: a weapon found under a car seat shared by multiple occupants. The opinion holds that:

• Constructive possession under § 922(g)(1) can rest entirely on circumstantial evidence that, in the aggregate, shows knowledge of and dominion over the firearm;
• Facts such as exclusive seat control, weapon placement and visibility, body movements toward the hiding place, and especially glove use plus absence of fingerprints can jointly satisfy the beyond‑a‑reasonable‑doubt standard;
• Alternative innocent explanations do not defeat sufficiency so long as a reasonable jury could instead adopt the prosecution’s interpretation;
• New trials under Rule 33 are reserved for truly exceptional cases where the verdict is seriously unjust, not merely close or difficult;
• Supervised release revocations based on the same facts as a valid conviction are readily sustained under the lower preponderance standard; and
• Appellate courts will treat undeveloped constitutional arguments, including facial Second Amendment challenges to § 922(g)(1), as waived.

In the broader legal landscape, Abercrombie provides a careful, fact‑driven illustration of how far circumstantial evidence can—and cannot—go in establishing constructive possession in vehicle stops, while reaffirming strong deference to jury verdicts and to district courts’ management of close criminal trials.