Criminal – Constructive possession – Firearm

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Where a defendant was indicted for unlawful possession of a firearm and ammunition by a felon after a Boston police officer found a loaded pistol under the front passenger seat of a car in which the defendant was sitting, the evidence was sufficient to support the defendant’s conviction, so the trial judge’s denial of the defendant’s motions for a judgment of acquittal and new trial should be affirmed.

“A grand jury sitting in the District of Massachusetts indicted Tevin Abercrombie for unlawful possession of a firearm and ammunition by a felon after a Boston police officer found a loaded pistol under the front passenger seat of a car in which Abercrombie was sitting. … Abercrombie proceeded to trial, which ended in a guilty verdict. The district court denied Abercrombie’s motions for a judgment of acquittal and new trial. … Abercrombie appeals the denial of these motions. We affirm. …

“… There is no evidence that Abercrombie held the firearm. We therefore focus on the adequacy of proof that Abercrombie constructively possessed the pistol. …

“Our review of the record leads us to conclude that the government’s proof satisfies the ‘prosecution-friendly’ standard under Rule 29 such that the district court correctly denied Abercrombie’s motion for a judgment of acquittal. …

“At bottom, Abercrombie contends that this case falls within the rule that a conviction should not stand where it requires the reviewing court to stack inference upon inference to sustain the verdict. … But that is not the situation we face. The government presented facts and argued why they supported Abercrombie’s knowledge that the pistol was under his seat. Abercrombie provided alternate explanations for many of these facts. To affirm the conviction does not require that we stack inferences; it requires that we afford appropriate deference to the jury’s ‘reasonable, common sense inferences drawn from the evidence.’ …

“In addition to seeking a judgment of acquittal, Abercrombie seeks a new trial under Federal Rule of Criminal Procedure 33. His argument is premised on assertions that (1) the evidence against him was thin and (2) the government filled evidentiary gaps by offering confusing arguments about the relevance of the drive-by shooting to his possession of the pistol. …

“As we have already explained, the case against Abercrombie was circumstantial. But that does not mean that he is entitled to a new trial. There was proof that gave rise to competing inferences and the jury’s role was to choose between them. United States v. Ruiz, 105 F.3d 1492, 1502 (1st Cir. 1997). Here, the jury determined that the evidence, taken in its totality, sufficed to show beyond a reasonable doubt that Abercrombie constructively possessed the pistol. We acknowledge that reasonable people could have reached a different conclusion, but ‘a trial judge is not a thirteenth juror who may set aside a verdict merely because [the judge] would have reached a different result.’ … Because we cannot conclude that the jury’s verdict was seriously wrong, we cannot reverse the district court’s denial of the new trial motion on strength-of-evidence grounds. …

“This was a close case that resulted in a conviction. Abercrombie offered almost no trial objections and has not raised any arguments on appeal challenging the district court’s management of the trial. The jury received evidence and arguments presenting competing narratives and then determined the version of events that it believed to be true. In these circumstances, the jury’s verdict was not a miscarriage of justice. Thus, there is no reason to retry the case.”

United States v. Abercrombie (Lawyers Weekly No. 01-258-25) (20 pages) (Aframe, J.) Appealed from the U.S. District Court for the District of Massachusetts. Stephen P. Super for the defendant-appellant; Mark T. Quinlivan, with whom Leah B. Foley was on brief, for the United States (Docket Nos. 24-1474 and 24-1867) (Dec. 16, 2025).

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