Federal Law & Legal System – Page 139 – 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.

A Republican Form of Government

Post author:Edward A. Fallone
Post published:September 20, 2009
Post category:Constitutional Interpretation Federalism Legal History U.S. Supreme Court

On September 17, I participated in the Constitution Day program at the Law School. All of the presenters were asked to discuss one part of the United States Constitution that is often overlooked. My choice was the “republican form of government” clause, Article IV Section 4, which reads as follows: “The United States shall guarantee to every state in this Union a Republican Form of Government . . . .”

To call this clause of the Constitution “overlooked” is an understatement. The authors of the Federalist Papers spent little or no time discussing the meaning of this clause. The Supreme Court, when asked to interpret this clause, has generally admitted that it doesn’t have the slightest idea what it means—with the consequence that the Court has rendered the clause irrelevant and left it devoid of meaning. This is a shame because, properly understood, I believe that this clause is one of the most important in the Constitution.

The federal government guarantees every state a Republican form of government. What does the word “republican” mean? It certainly does not refer to a specific political party. Political parties did not even exist in 1789.

Today’s school children are generally taught that the clause is intended to guarantee that state governments use the mechanics of representative democracy over the mechanics of direct democracy. This interpretation is incorrect. While the Framers often wrote of the benefits of a political system whereby voters elected representatives who would make important decisions on their behalf, especially in instances where the geographic territory to be governed was large, the Framers never expressed the opinion that the direct exercise of democracy by the people should be prohibited.

Indeed, this incorrect interpretation of the clause is dangerous because it has led some observers to question the constitutionality of state-wide voter initiatives altogether, such as the ones that regularly go before the voters in California. These types of initiatives may be unwise as a means of using direct democracy to determine the policies of state government. But the use of state-wide initiatives of this type is certainly constitutional.

So if the “Republican form of government” clause does not prohibit the use of direct democracy as a means of state government, what is its purpose? Simply stated, the clause prohibits the people of any state in the Union from amending their state constitution in order to adopt a monarchy or an aristocracy.

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.