![\"seventh](\"http:\/\/law.marquette.edu\/facultyblog\/wp-content\/uploads\/2009\/09\/seventh-circuit2.jpg\" "\\"seventh")
The Seventh Circuit had\u00a0only one new opinion in\u00a0a criminal case last week, but, fortunately, it was an interesting one.\u00a0 Under 18 U.S.C. \u00a7 922(g), it is a federal crime for felons to\u00a0possess a firearm.\u00a0 Proof of the crime is easy enough when a felon is found actually carrying a gun.\u00a0 But what if the gun is nowhere on his person, but merely, say, in his home?\u00a0<\/p>\n
In practice, the federal courts have interpreted\u00a0the\u00a0law\u00a0expansively so as to encompass\u00a0a broad range of circumstances beyond actual possession.\u00a0 Thus, under the doctrine of\u00a0“constructive possession,” a\u00a0felon may indeed be convicted based on the discovery of a firearm in his home.\u00a0<\/p>\n
But,\u00a0 as the Seventh Circuit made clear last week in United States v. Katz<\/em> <\/a>(No. 08-2341), even the doctrine of constructive possession has its limits.\u00a0 <\/p>\n Katz, a felon, had some sort of altercation with Grice, his girlfiend, at her home.\u00a0 Responding to\u00a0911 calls, police arrived at the scene, detained Katz, and searched Grice’s home.\u00a0 The search revealed, among other items of interest, drugs and a shotgun with Katz’s fingerprints on it.\u00a0 At trial, Katz stipulated that he had been convicted of a felony prior to the incident at Grice’s home, and\u00a0a jury subsequently\u00a0found him guilty of\u00a0being a felon in possession.\u00a0<\/p>\n On appeal, Katz argued that the evidence was insufficient to estabish his guilt beyond a reasonable doubt.\u00a0 The Seventh Circuit, per Judge Rovner, agreed.<\/p>\n Although Katz’s fingerprints were on the shotgun, it was impossible to tell how old the fingerprints were.\u00a0 Nor did the evidence at trial establish when exactly Katz had become a felon, other than that it happened sometime before the altercation with Grice.\u00a0 For all the Seventh Circuit could tell, Katz might have handled the gun\u00a0long before his felony conviction.\u00a0 Thus, the evidence was insufficient to establish actual possession of a firearm by a felon.<\/p>\n What of constructive possession?\u00a0 If the gun had been found in Katz’s <\/em>residence, then the government would have been home free.\u00a0 But are we prepared to extend the constructive possession doctrine to the residence of a felon’s girlfriend<\/em>?\u00a0 Is it fair to infer that a\u00a0guy really has control over all of the property in his girlfriend’s home?<\/p>\n The Seventh Circuit answered no, at least on the facts of Katz:<\/em><\/p>\n There is no evidence whatsoever that Katz resided at the premises, or even that he had ever stayed at the home for any period of time.\u00a0 The only evidence presented indicates that the home belonged to Grice exclusively: the lease was in her name; she did not want to leave him in the home when she left for work; she called police to have him removed from her home; and she possessed the keys.\u00a0 He apparently did not have keys because he took hers when he left the premises.\u00a0 There are none of the indicia of joint possession of the premises that we have found in other cases.\u00a0 (7)<\/p><\/blockquote>\n In trying to show constructive possession of the premises, the government relied on the fact that Katz carried $1,800 in cash at the time of his arrest.\u00a0 The goverment’s theory was that (a) drug dealers often carry large amounts of cash, (b) drugs were found in Grice’s home, (c) therefore, Katz was dealing drugs from Grice’s home, (d) drug dealers often keep guns around the places where they deal drugs, and (e) therefore, the gun at Grice’s home must have been Katz’s.\u00a0 Just stating the government’s argument reveals how speculative the reasoning was, and the Seventh Circuit appropriately found it insufficient to support a criminal conviction.\u00a0 Interestingly, then, this is the second week in a row in which the Seventh Circuit has rejected inferences of specific criminal activity drawn\u00a0from the fact the defendant happened to be carrying a few hundred dollars at the time of his arrest.\u00a0 (For last week’s case, see my post here<\/a>.)<\/p>\n","protected":false},"excerpt":{"rendered":" The Seventh Circuit had\u00a0only one new opinion in\u00a0a criminal case last week, but, fortunately, it was an interesting one.\u00a0 Under 18 U.S.C. \u00a7 922(g), it is a federal crime for felons to\u00a0possess a firearm.\u00a0 Proof of the crime is easy enough when a felon is found actually carrying a gun.\u00a0 But what if the gun 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