Tag Archives: felon-in-possession

Spoiler Alert: There’s No Easter Bunny (Especially an Armed One) – Update for April 23, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

AIN’T NO EASTER BUNNY… AND NO DEFENSE TO FELON-IN-POSSESSION, EITHER

manyguns190423Something that just about all readers of this newsletter (at least, those who have it delivered through the Bureau of Prisons’ email system) have in common is that the current state of the law prohibits them from possessing a firearm or any ammunition. The felon-in-possession statute, 18 USC 922(g)(1), is easier to violate than you’d think. An old, broken shotgun missing its firing pin in a pile of attic junk, a single empty shell casing kept as a souvenir: either is enough to buy you a few more years in federal prison. Read the definitions in 18 USC 921 if you doubt it.

Bernard Cherry was lit up on booze when a police officer found him on his hands and knees in the grass with a flashlight, looking for his keys. The friendly cop helped Bert search until he found a .40 cal. Glock in the grass not far from the hapless drunk. Bernie said someone had tried to rob him, and he had knocked the gun out of the assailant’s hands before the man fled. Bernie had then picked up the Glock, but threw it down when the police officer pulled up.

Bernie had a record, and so was charged with being a felon-in-possession. At trial, he asked for an “innocent possession” instruction, that he was not guilty of being in possession if he obtained the gun innocently and held it with no illicit purpose; and if possession of the gun was only momentary. The district court turned him down, and Bernie was convicted.

bunnygun190423Last week, the 7th Circuit agreed, holding that – like the Easter Bunny – there ain’t no “innocent possession” defense. There may be “necessity” and “duress” defenses to felon-in-possession, where defendants can justify their momentary possession of a gun (you see a 6-year old waving a loaded pistol, and grab it for the child’s safety, for example). But the Circuit has never recognized the kind of defense Bernie proposed.

Besides, the Court pointed out, Bernie threw the gun away. “Even though he was in the presence of law enforcement,” the 7th said, “there is no evidence that he took any action, much less immediate action, to turn over the firearm.”

United States v. Cherry, 2019 U.S. App. LEXIS 11219 (7th Cir. Apr. 17, 2019)

– Thomas L. Root

Know Your Guns: Supreme Court to Review Mens Rea of Felon-In-Possession – Update for January 14, 2019

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

SUPREME COURT TO REVIEW FELON-IN-POSSESSION STATUTE

gun160718The felon-in-possession statute, 18 USC 922(g)(1), makes it illegal for a convicted felon to possess a gun or ammo. But the statute does not specify a punishment. Instead, 18 USC 924(a)(2) provides the 10-year maximum for anyone who knowingly violates the F-I-P statute.

But what do you have to know? Do you have to know you’re breaking the law? Know that you are a convicted felon, or that what you possess is really a gun? Or just know that whatever it is, you possess it?

The Supreme Court granted review to a case that explores the mens rea requirement for the F-I-P statute a case which has implications for thousands of people convicted of being felons-in-possession, as well for the general issue of mens rea requirements for federal criminal statutes. The implications for people serving time for such convictions could be significant.

burglthree160124Certiorari was also granted in a case asking whether generic burglary requires proof that a defendant intended to commit a crime at the time of unlawful entry or whether it is enough that the defendant formed the intent to commit a crime while “remaining in” the building or structure. Two circuits hold the defendant has to intend to commit a crime as he or she enters. Four hold that it’s burglary even if a defendant can enter the structure with a pure heart, and only later decides to commit a crime.

Because burglary is a crime of violence offense for both the Armed Career Criminal Act conviction and the Guidelines career offender label, the holding could be important for a lot of people now doing time.

It is unclear whether the cases will be decided by June or will go into the the next term starting in October 2019.

Quarles v. United States, Case No. 17-778 (certiorari granted Jan. 11, 2019) 

Rehaif v. United States, Case No. 17-9560 (certiorari granted Jan. 11, 20190

– Thomas L. Root

Convicted CEO Wins Back Gun Rights – Update for October 9, 2018

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.

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DISTRICT COURT SAYS NOT ALL FELONIES MAKE YOU A FELON-IN-POSSESSION

carriefgun170807One of the most popular offenses charged by U.S. Attorneys is 18 USC 922(g)(1), the felon-in-possession statute. The section prohibits people who have been convicted in any court of a crime punishable by imprisonment for a term exceeding one year from possessing firearms or ammunition that have traveled in interstate commerce.

There’s a twist, however (isn’t there always?) Under 18 USC 921(20), a “crime punishable by imprisonment for a term exceeding one year” does not include any federal or state offenses “pertaining to antitrust violations, unfair trade practices, or other similar offenses relating to the regulation of business practices…”

Greg Reyes, a corporate executive who did 18 months in 2010 for fraudulent backdating of corporate stock options, has sued the Dept. of Justice, arguing that his securities law convictions were “similar offenses relating to the regulation of business practices,” and thus he was not prohibited from buying a handgun.

gunknot181009The government responded that “other similar offenses relating to the regulation of business practices…” were only those relating to antitrust or unfair trade practices. The district court, however, held a week ago that a similar offense is any other offense “if an examination of either its primary purpose or the elements of the violation reveals that the offense statute is designed primarily to address economic harm to consumers or competition.”

Under this standard, none of Greg’s prior convictions for securities fraud, falsifying corporate books and records, and making false statements to accountants required the government to prove an effect on competition or consumers. Nevertheless, the court ruled, each offense was clearly enacted for the purpose of protecting consumers.

The district court concluded that Greg’s felony convictions did not prevent him from possessing guns or ammo. The court did not have to reach Greg’s secondary issue, that the statute violated equal protection by artificially parsing the convictions which would or would not prevent possession of firearms.

gun160711The court  denied a motion by DOJ to dismiss Greg’s lawsuit and set deadline this week to decide whether final relief should be granted in favor of the former executive.

Reyes v. Sessions, Case No. 17-1643 (D.D.C. Sept. 28, 2018)

Guns.com, Convicted securities fraud exec may get gun rights back (Oct. 3, 2018)

– Thomas L. Root

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This Is Not The Gun You’re Looking For – Update for March 30, 2017

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We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
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GUN CONTROL

The Scots had an expression for it: “possession is eleven points in the law, and they say there are but twelve.” But possession is not always a good thing – such as, for instance, if you’re one of a handful of Americans with a felony on your record (a mere 20 million people as of 2010).

gunfreezone170330In that case, federal law prohibits you from possessing a firearm. The statute in question – 18 USC 922(g) – is generally known as “felon-in-possession” although it’s more than that. The F-I-P statute is long on definitions as to what kind of crime is disqualifying, and what is a firearm – but the gist of it is that if you were ever convicted of a felony (or even some types of misdemeanors), you had better be standing on the twelfth point of the law. That is to say, you had better not be in possession of a firearm.

Which brings us to the story of Gilberto Ray Ramos. No doubt Gil is a man with a real problem. Earlier this week, the 8th Circuit upheld his conviction on multiple drug offenses. But in so doing, it reversed his conviction as a felon in possession.

Gil’s problems started with a fellow drug trafficker who, after being arrested for his own misdeeds, make the all-too-common and quite reasonable decision to help the police in hopes of reducing his sentencing. Among other tales the informant told the constabulary, he recounted that Gil had sent him a text message offering to sell him a .40 caliber handgun.

vibrator170330The authorities ultimately collected enough evidence to search Gil’s apartment, which he shared with a woman named Jasmyn. When they tossed the place, the police found a .45 caliber handgun in one of the two bedrooms, hidden under a mattress next to a pink vibrator. Men’s and women’s clothes were hanging in the closet. In the kitchen, the police found a water bill for the place, issued in Gil’s name.

When he was arrested, Gil was on parole from Arkansas. Before his trial in the federal case, Gil signed a waiver of hearing for Arkansas in which he admitted “that I have violated the following condition(s) of release as alleged[.]” Underneath, boxes labeled “#4 Laws” and “#5 Weapons” are marked.

The 8th Circuit held that the evidence wasn’t good enough. An F-I-P conviction may be based on constructive possession as well as actual possession. Constructive possession is where the felon knows the gun is present and can exercise control over the premises where the gun is located. Some cases have held that such dominion alone is good enough, because dominion permits the jury to infer the felon knew the gun was there.

goodpros170330But as the Circuit noted, dominion is not good enough to prove knowledge where the premises are occupied by more than one person. There, the government has to provide additional evidence of a link between the gun and the felon. “Otherwise,” the Court argued, “a father could be imprisoned for marijuana that his son has hidden in the house, or a wife could be jailed for her husband’s secret cache of illegal guns.”

Here, Gil jointly occupied the apartment with Jasmyn. As its extra evidence, the government pointed to the fact that there were men’s clothes in the closet of the bedroom where the gun was found. But, as the Circuit noted, “they also found women’s clothes in that closet and men’s clothes in the other bedroom’s closet. Further, the gun was found under the mattress next to a pink vibrator.”

The 8th concluded that “on this evidence, it is more than possible” that Gil was convicted for a gun Jasmyn had that he knew nothing about.”

Notguns170330The Court conceded that the government presented evidence that Gil had tried to sell a different gun to the informant and admitted in the Arkansas parole form that he violated a condition of parole involving “weapons.” But neither of those facts tied Gil to the particular gun – the .45 caliber pistol – that he was charged with possessing. “Although this evidence may demonstrate that Ramos had access to a gun,” the Court held, “it does not mean that he had access to this gun or that he even knew about it.”

United States v. Ramos, Case No. 16-1306 (8th Cir., Mar. 27, 2017)

– Thomas L. Root

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