Criminal Law & Process – Page 129 – Marquette University Law School Faculty Blog

Seventh Circuit Criminal Case of the Week: The Limits of Constructive Possession

Post author:Michael M. O'Hear
Post published:September 27, 2009
Post category:Criminal Law & Process Federal Criminal Law & Process Seventh Circuit

The Seventh Circuit had only one new opinion in a criminal case last week, but, fortunately, it was an interesting one. Under 18 U.S.C. § 922(g), it is a federal crime for felons to possess a firearm. Proof of the crime is easy enough when a felon is found actually carrying a gun. But what if the gun is nowhere on his person, but merely, say, in his home?

In practice, the federal courts have interpreted the law expansively so as to encompass a broad range of circumstances beyond actual possession. Thus, under the doctrine of “constructive possession,” a felon may indeed be convicted based on the discovery of a firearm in his home.

But, as the Seventh Circuit made clear last week in United States v. Katz (No. 08-2341), even the doctrine of constructive possession has its limits.

Go to Prison

Post author:Andrea K. Schneider
Post published:September 24, 2009
Post category:Criminal Law & Process Marquette Law School

prison Last week I had the honor of joining my colleague Janine Geske on her regular journey to Green Bay Correctional Facility, a maximum-security prison reminiscent of the prison in Shawshank Redemption. The prisoners at Green Bay run the gamut of serious crimes from sexual assault to drug distribution to armed robbery to homicide. Janine runs a three-day session on restorative justice, meeting with about twenty prisoners as part of a several-month program on the challenges and possibilities faced by these men. She has been running this program here for years as part of our Restorative Justice Initiative, and I was so excited to finally fit this in my schedule. Having done this trip last week and then spent the past weekend in services for Rosh Hashanah, I have had plenty of time to reflect on crime, punishment, repentence, and redemption. In retrospect, I don’t know that I could have timed this better. Suffice it to say, the experience was amazing.

First, let me set the stage.

Seventh Circuit Criminal Case of the Week: What Can Be Inferred From a Lie?

Post author:Michael M. O'Hear
Post published:September 19, 2009
Post category:Circuit Splits Criminal Law & Process Federal Criminal Law & Process Federal Sentencing Seventh Circuit

When a person is caught in a lie, we normally assume that he is covering something up. But, if a defendant in a criminal case lies on the witness stand, is it fair to assume that he actually did what he was accused of doing? Such was the question in United States v. Edwards (No. 08-1124).

Edwards was arrested after making arrangments to sell crack to a government informant. The intended sale did not actually take place, but that is no barrier to conviction for drug trafficking. And, once convicted, a drug dealer becomes responsible under the federal sentencing guidelines for the entire quantity of drugs he has ever sold that counts as “relevant conduct.” (For an earlier post on the pitfalls of relevant conduct, see here.) In order to establish the amount that Edwards sold, the sentencing judge relied on, among other things, $765 in cash that Edwards was carrying at the time of his arrest. Edwards tried to explain away the cash with an unsubstantiated and seemingly implausible story about selling his minivan, but the judge was not convinced. If the minivan story was fabricated, then Edwards must have earned the money from selling crack, right? The sentencing judge concluded as much, and increased Edwards’ drug quantity accordingly.

On appeal, however, the Seventh Circuit held that the judge moved to this conclusion too quickly.