My client is a convicted felon. He knows that it is illegal for him to possess a firearm. He lends his ex-wife his car.  She returns it to him after a couple of days but accidentally leaves behind a handgun she had intended to take to the pawn ship. She calls my client and tells him the firearm is in the car. Not wanting to call the police and not wanting to drive around with a firearm in his car, my client takes the firearm into his house for safekeeping until he can return it to her.  It is the next morning that the police execute a search warrant at his home in connection with other charges and confiscate the weapon.

The government will have no difficulty proving my client’s previous convictions.  The government also has my client’s testimony under oath at an earlier trial that he found the firearm and took it into his home.  As a result, the only issue at trial is going to be whether or not this possession was “knowing and intentional.”

In Pennsylvania, if I recall correctly, you don’t have to go far to find a definition of “knowing and intentional.”  Both terms are defined at the very beginning of the Pennsylvania Crimes Code.  Not so in Virginia.  Although this language is included in a number of statutes criminalizing certain behavior, nowhere in the statute are the terms “knowingly” and “intentionally” actually defined.

There is also no jury instruction.  The Committee on the Model Jury Instructions in Virginia may well have concluded, as did its counterpart in D.C., that defining many traditional legal terms, such as “general intent,” “specific intent” and “malice” could be more confusing to juries than helpful.  But, as I later argue to the judge at trial, a jury will want to know the definition of key terms of the offense with which the defendant has been charged.

I make a conscious decision not to force the issue before trial. The prosecutor has hundreds of other open cases he is thinking about.  I, on the other hand, have had six months to focus on this issue.  From the prosecutor’s response to my pre-trial motion to dismiss, I have also noticed that he seems to be kind of light on the law; I don’t want to give him time to prepare.  Finally, there is no guarantee in Prince William County that the judge who sits for the pre-trial motions will also preside at trial. I could succeed in bringing one judge around to my way of thinking only to have another judge sit at trial, all the while giving the prosecutor plenty of time to arm himself.

Instead, I plan to educate the judge on my legal theory during my “motion to strike” (Virginia’s version of a motion for judgment of acquittal) and then address the issue head on during our arguments on jury instructions.  But I am worried about the prosecutor objecting during my opening statement.  I craft my opening statement carefully so as to emphasize the plain language used in the statute without any hint of interpretation.

As it turns out, I am the one who objects during opening statements. Although it has seemed blatantly obvious to me what the issues will be at trial, the prosecutor has apparently not been able to anticipate our defense by the time trial begins. Perhaps distracted by some of the pre-trial motions I did make, he begins to tell the jury in his opening statement what the defendant’s argument is going to be.  I object.  The jury is excused and we debate.

The prosecutor is angry.  Why would I go to all the trouble of securing the admissibility of certain evidence during pre-trial motions if I never had any intention of introducing that evidence?  Why would I waste the court’s time like that?  I tell the judge that it is the defendant’s prerogative to change his mind.

The judge sustains my objection and brings the jury back in.  He tells them that the government has made a mistake in trying to anticipate evidence the defendant is not planning to introduce.  They are to disregard this statement.

The prosecutor proceeds with his case.  He calls eight witnesses to testify to things I have already conceded in my opening statement.  Detectives, police officers, and crime scene technicians all testify to the recovery of the firearm in a bureau of my client’s house along with his driver’s license, Visa card, and bank checks.  I ask only two questions on cross.  Otherwise I rise in my seat and say “no questions” every time the prosecutor concludes his direct.  Later my client gets on the stand and testifies:  yes, that was my home, my bedroom, my bureau, my driver’s license, my Visa card, and those were my checks.  And, yes, I put that firearm in the bureau.

When the jury is excused for lunch and we get to the jury instructions, the prosecutor argues that the use of “intentionally” in the statute requires only that the government prove “general intent”; that is, that the defendant acted “voluntarily and on purpose, not by mistake or accident.”  This means that, in order to meet its burden with respect to this element of the offense, the government will only need to prove that the defendant intended to pick up the firearm.

In fairness, the government’s interpretation is supported by a jury instruction on “actual and constructive” possession of a firearm. This instruction defines “knowingly and intentionally” as being “aware of the presence and of the firearm and [having] actual or physical possession or constructive possession.”  It is, as far as I can tell, the only definition of “knowing and intentional” anywhere in the jury instructions.  At the same time, this jury instruction – in addition to being circular and confusing – is completely unsupported by the case law it cites and, for whatever reason, the prosecutor does not include it in his list of proposed instructions.

I argue that, because the legislature does not modify “possession” in other sections of the firearms statute with these terms, thereby requiring only physical possession with respect to those provisions, it must have been thinking along the lines of “specific intent” when it used “knowingly and intentionally” in connection with possession of a firearm by a felon.  This means that the defendant must have actually intended the required result; that he must have wanted to possess the firearm.

Although there is no jury instruction on this, my argument is supported by case law.  In Young v. Commonwealth, 659 S.E. 2d 308, 310 (2008), for example, the Virginia Supreme Court held that actual or constructive possession was not sufficient to prove knowing and intentional possession in the context of controlled substances. The Court must therefore have had something more in mind than simple physical possession.  This argument is also supported by the statute’s legislative history, the Model Penal Code and Wayne LaFave’s authoritative treatise on criminal law.

The judge is not persuaded by the jury instruction I have cobbled together based on these authorities, even after taking a moment to read the case law.  The simple fact, he tells me, is that there is no instruction on the definition of the terms.  At the same time, in the interests of balance, he does agree to strike an instruction proposed by the government. This is the standard instruction that informs the jury it may infer that a person intends the natural consequences of his/her actions.

After listening to our arguments, the judge eventually decides not to deliver any instructions to the jury at all on the meaning of these terms.  But he allows us to argue our respective interpretations during closing.

Not surprisingly, when the closing arguments are completed and jurors retire to the jury room to deliberate, they come back after 20 minutes with two questions:  What is the definition of “intent”?  And what is the definition of “possession”?  After some more argument, the judge again refuses to instruct them one way or the other; they are to use common sense and their own experience in figuring this out for themselves.

I am convinced that it was their confusion over this issue – whether or not to believe the prosecutor’s version or my version – that led to the completely illogical compromise verdict they eventually arrived at.  Without any guidance from the court and not knowing what to do, they decided to split the difference:  The defendant was guilty but not that guilty.  A formal jury instruction on a key terms used in the statute could have avoided this confusion altogether.

My client can always appeal.  Virginia law is pretty clear on the importance of jury instructions. We had also litigated what I thought was a very strong motion to dismiss earlier in the process. Specifically, we had argued that the staggering of successive prosecutions against my client in order to gain tactical advantage had violated his constitutional protection against double jeopardy and his right to due process.

At the same time, acquitted of the more serious charge and now sitting at home with his family, it is unclear whether my client will choose to exercise this option. In fact, I suspect the judge may have had all of this in mind when he reduced the jury’s sentence to time-served. Pacifying a defendant through a more lenient sentence can sometimes prevent your decisions from coming back later on appeal.

Although Virginia juries have a reputation for being unforgiving, I have also been told that juries in Prince William County can be pretty unpredictable.

Going into trial yesterday, my client was facing a mandatory 5-year sentence for being a violent felon in possession of a firearm.  During execution of a search warrant at his home, police had recovered a firearm at his home.  The government also had my client’s sworn testimony that he put the firearm there.

The jury acquitted my client of being a violent felon in possession of a firearm but convicted him of the lesser-included charge of being a simple felon, a surprising development considering we had not challenged his previous convictions. They apparently decided that he was guilty but not that guilty.

My client’s acquittal as a violent felon eliminated the five-year mandatory and since his other felony was outside the 10-year-timeframe, the two-year mandatory was also gone. The jury then sentenced my client to twelve months, the judge reduced this to time-served, and my client walked out of the courtroom yesterday a free man.

The prosecution called eight witnesses to testify to things we conceded in our opening statement.  (We challenged the “knowing and intentional” part of the possession, not the possession itself.)  Of these eight witnesses, we asked a grand total of two questions on cross-examination.  I tell you, there is no better thing than that ability to say:  “No questions, Your Honor.”

But my favorite part of the trial – if you will indulge me yet again– came when, during his closing statement, the prosecutor forgot to include the “knowing and intentional” language from the statute when reviewing the law.  It was like he couldn’t bring himself to actually utter the words. After I made a big deal about this during my closing, the prosecutor got up for his rebuttal . . . and then referred to “knowing and intelligent” possession.

Yes, an outright acquittal would have been far better for my lawyer’s ego. Two other lawyers recently got my client acquitted on other charges. Referring to ourselves as his crack legal team, the three of us have gotten to be good friends, with all three of us attending each other’s trials for moral support, and I wanted to join that exclusive club of lawyers who have beaten cases on his behalf.

But today, as I clean up the papers that have sat on my office floor for the last six months, I decide I will have to settle for what we got.  I think of my client’s 10-year-old nephew who walked up to me in the hallway during the jury’s deliberations.  It was very important for him to know which car his uncle would drive home in – his mother’s or his sister’s – if the jury decided to let him go.  I guess we lawyers are supposed to know these things.

It is a story I have heard many times, or at least some version of it:  The defendant is walking through a playground when he notices a firearm lying by the jungle gym.  The defendant picks up the weapon to prevent it from falling into the wrong hands.  He is headed to the police station to turn it over when he is stopped by the police.

Sound far-fetched?

The innocent or momentary possession of a firearm is a valid defense in Washington, D.C.  However, even assuming you can overcome credibility problems with the judge or jury, it is by law a narrowly circumscribed defense. In fact, the D.C. Court of Appeals cases that deal with the defense are notable for all finding that the defendant failed to bring himself within the statutory exception.

Hines v. United States, 326 A.2d 247, sets out the current standard:   In order to assert the defense of innocent or momentary possession, the defendant must show “not only an absence of criminal purpose but also that his possession was excused or justified as stemming from an affirmative effort to aid and enhance social policy underlying enforcement.  This requirement is entirely consistent with the well-established principle that the showing of a legally valid excuse or justification will negate liability for doing of an act normally held criminal.”

The defendant in Hines testified that he had found a pistol in an alley near his apartment building and took it inside to show his girlfriend: “Well, I had to take it to somebody.  You don’t find things like that and not show it.”  His girlfriend panicked when she saw the gun and tried to grab it, causing the weapon to fire twice. Both the defendant and his girlfriend were injured, and the defendant tried to hide the gun on his person when a security guard responded to the shots.   In holding that the defendant had not met his burden, the court noted that the defendant’s actions of showing the firearm to his girlfriend did not serve any valid law enforcement purpose.

In Logan v. United States, 402 A.2d 822 (1979), the defendant claimed that he took a firearm and some drugs from his cousin because he was afraid his cousin would “do something to somebody, or whatever.” He said that he planned to store the gun at his home until the cousin was “in a better frame of mind.”  He also testified that he planned to throw the drugs away.  He was walking to his girlfriend’s house when police officers saw the gun sticking out from his waistband and arrested him, recovering both the firearm and the drugs.

The court held that “[a]lthough we can conceive of very limited circumstances in which a defendant properly might invoke the defense of innocent possession…, this is not one of them.”  The emergency created by his cousin’s possession of the gun vanished the moment the defendant left the house.  There was a “rigid limit” on the time the defendant had to turn the gun over to police, and as the defendant himself testified that he was planning to store the gun at his home, his request for a jury instruction on innocent possession was properly denied.

In Mitchell v. United States, 302 A.2d 216 (1973), the defendant claimed that he had found a pistol on the ground and put it in his waistband to prevent it from being used by others, with the intent of turning it over to the police at the first opportunity.  Significant to the court’s decision against the defendant in this case was the fact that the defendant was approaching a hostile group of people at the time of his arrest.

In Bieder v. United States, 707 A.2d 781 (1998), the defendant turned over a loaded gun to security guards at the U.S. Capitol. Licensed to carry the firearm in New York, the defendant was sight-seeing with his daughter in D.C. and did not want to leave his firearm in an attended vehicle.  Because the defendant put the weapon into a plastic bag and handed it to the security guard for safekeeping before attempting to enter the building, the court suggested it might have ruled in his favor had he not first loaded the weapon:

To carry a loaded pistol in this manner cannot be conceived of as aiding or enhancing the social policy underlying law enforcement.  To the contrary, once [the defendant] struck out on the public way, there was a new peril, that presented by [the defendant] to the community at large, resulting from the presence of a fully loaded, loosely concealed pistol on the grounds of the Capitol.  Our firearms statutes cannot be construed to excuse this sort of behavior.  (Citations and internal quotation marks omitted.)

Finally, in Carey v. United States, 377 A.2d 40 (1977), the court ruled against a defendant who had recovered a firearm from an aborted burglary of his apartment.  Significant to the court’s holding in this case was the fact that the defendant discussed the possibility with his friends of keeping the weapon and then “retained it for more than twelve hours, and then carried it, still loaded, on the street.”

So what about our guy who found the firearm by the jungle gym at the playground and who was heading down to the police station to turn it over when he was arrested?  Considering that his possession was momentary and his intentions were pure, he probably could satisfy the Hines standard.  His problem would be in getting a judge or jury to believe him.

Your client is charged with two misdemeanor firearm charges – possession of an unregistered firearm and possession of unregistered ammunition – and when you read the police report, you are surprised he isn’t facing more serious felony charges. According to the report, the police responded to a 9-1-1 call about an intruder in a home. When they arrived at your client’s house, he confronted them with an AK-47, pointing the assault weapon at one of them.

In other words, you are not sure why he is not also facing assault on a police officer with a deadly weapon.

Then you meet the client. Arriving at your office in Georgetown, he is a strikingly fragile-looking, 20-year-old white man with acne still on his face.  He is also walking with a cane. He was six and a half months into his first tour in Afghanistan when he was shot through the leg during a fire fight, the bullet severing the bone and crippling him. He is now in treatment at Walter Reed hospital – physical therapy for the wounded leg, which is now a couple of inches shorter than the other one, and psychiatric counseling for a serious case of post-traumatic stress disorder.  The night terrors that plague him every night are what caused his run-in with the police.

When you reach the prosecutor, there is none of that “let me check my file and get right back to you” thing.  The prosecutor knows your client’s name and situation immediately. We don’t want to screw this guy, the prosecutor says. We just to make sure he is in treatment.

So you email over copies of his medical records, along with information on his bronze star and other combat awards. You also bring hardcopies with you to court on the morning of the next listing. It’s a different prosecutor this time but he too knows your client’s name immediately.  He also confirms the terms of the agreement:  the client will plead guilty to one misdemeanor charge.  He will be put on 9 months of supervised probation, with the requirement that he continue psychiatric treatment through Walter Reed. Assuming your client completes the terms of the probation successfully, he will be able to get the conviction expunged from his record under D.C.’s Youth Rehabilitation Act.

Your client’s case is called, and you and your client approach the bar of the court. The judge is a kindly man who takes 15 minutes every morning to explain to people in the gallery exactly what will happen that day. While you have heard the same spiel again and again and occasionally find yourself looking at your watch, you know exactly why he does it. He is taking advantage of this teaching moment for the good of the community. He is engendering respect for our legal system.

As soon as the judge sees your client with his camouflage fatigues and cane, he calls you and the prosecutor to the bench for a private conference. What’s going on here, he wants to know.

Later, after accepting the plea, the judge turns to the gallery. The young man in front of me, he says, has served his country admirably. We all owe him a tremendous debt of gratitude. The judge then reduces the agreed upon sentence from nine months to six months.

The judge has already “stepped back” (i.e., taken into custody) three people that morning. While a sentence of six months’ probation is entirely reasonable for a first-time misdemeanor offender such as your client, the judge knows that he could be accused of preferential treatment.

You don’t hear anything from the gallery when the judge announces the sentence, but your client’s platoon sergeant tells you later that there was in fact some grumbling afterward.  The sergeant laughs.  “We’re not all that popular in some quarters,” he says.

You yourself don’t detect any signs of hostility. Another defense lawyer comes up to shake your client’s hand as you and the client leave the courtroom.  People stand aside respectfully in the hallway and hold every door for you as you go outside. Once on the street, the two of you are approached on the street by a man. You are thinking the man is going to ask for money. Which he does. But he also wants to shake your client’s hand and to thank him.

You are not able to pick and choose your clients as a public defender. While a private attorney does have this luxury, you still end up with people who may seem pretty unsavory to a judge or a jury. And that’s why you appreciate our people in uniform:  in addition to the personal gratitude you may feel towards them for their service, it makes your job so much easier. It is the same gratitude you feel toward a client who remembers to show up to court in a suit and tie.

Long after the attention and gratitude have passed, this young man will still be left to deal with the challenges of his physical impairment. But for the moment, his uniform and his disability have helped to cut him a small break:  a reduced sentence on a possibly reduced charge. Speaking on behalf of all of us, the judge who never misses a teaching moment knew enough to thank him. For that too you are grateful. There is something to be said for every small favor.

Disorderly conduct is a really annoying charge.

The first problem is that the offense is usually so broad and poorly defined that it is too easy for police to charge and too easy for the government to prove at trial.  For example, since intent to cause a “public inconvenience” is a major element of the offense in Pennsylvania, the problem I had in Philadelphia was that any police activity, any gathering of curious onlookers as a result of this activity, and anything less than absolute compliance by the suspect with the officer instructions inevitably resulted in the inclusion of this offense in the list of charges against a client.

The second problem with the offense is that, while it is only a minor misdemeanor, an arrest on this charge often serves as the legal basis for more serious charges.  For example, once the police arrest the suspect for disorderly conduct, they are now legally entitled to search him for weapons and contraband.  This means that an arrest for disorderly conduct often leads to felony drug and firearms charges.

The good news in this city is that the D.C. Court of Appeals issued a decision last week, In Re T.L., in which it narrowed the scope of the offense in the District.  Specifically, it held that, in order to satisfy the “breach of peace” requirement under the statute, the government must prove either that (1) the defendant’s speech or conduct was likely to trigger violence or (2) it was “unreasonably loud and disruptive.”

In D.C., the government must prove two elements in order to secure a conviction for disorderly conduct.  The government must first prove specific intent; in this case, that the defendant acted with intent to provoke a “breach of the peace” or under circumstances such that a breach of peace might occur.  Second, the government must prove that the defendant either: (1) acted in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others; (2) congregated with others on a public street and refused to move on when ordered by the police; (3) shouted or made a noise either outside or inside a building during the nighttime to the annoyance or disturbance of any considerable number of persons; (4) interfered with any person in any place by jostling against such person or unnecessarily crowding such person or by placing a hand in the proximity of such person’s pocketbook or handbag; or (5) caused a disturbance on public transportation.

In the case at hand, the Court was faced with situation in which the defendant had been stopped on the street by a police officer who confiscated a large sum of cash from the defendant.  When the defendant objected, calling out loudly for his mother to come help him, the officer placed him under arrest for disorderly conduct.  Upon searching the defendant incident to arrest, the officer discovered 24 ziplock bags of crack cocaine hidden in the defendant’s pants and placed him under arrest for possession of cocaine with the intent to distribute.

In denying the defendant’s pretrial motion to suppress the evidence, the trial court reasoned that, because the defendant “continued to scream and shout and began drawing a crowd of people to come out from the neighborhood,” the officer had probable cause to arrest him for disorderly conduct.  The recovery of the cocaine was then legally valid under the “search incident to arrest” exception to the Fourth Amendment requirement for a warrant.

In overturning this decision, and in vacating both the misdemeanor and felony charges, the Court of Appeals spelled out two ways in which the government could have proven the “breach of peace” requirement.

The first way would have been to prove that the defendant’s speech or conduct was likely to trigger violence.  A police officer who has “objective reason to believe that violence is imminent need not stand by and await its outbreak before he attempts to control the situation with a disorderly conduct arrest.”  However, in this case, the Court held that the government failed to meet this burden:  “[T]hough T.L. loudly protested Officer Elliott’s seizure of his money (and called upon his mother for help), he did not urge the onlookers to intervene on his behalf or otherwise manifest an intent to provoke them to violence.  And while T.L.’s yelling may have annoyed the neighbors who were attracted to the commotion, there is no evidence they were hostile or likely to become violent.”

The second way would have been for the government to prove that the defendant’s speech was “unreasonably loud and disruptive.”  “The government has a substantial interest in protecting its citizens from unwelcome noise, an interest that is perhaps at its greatest when government seeks to protect the well-being, tranquility, and privacy of the home.”

Again, however, the Court held that the government had not met this requirement in the T.L. case.  It was the police officer’s wrongful conduct – the confiscation of the defendant’s money without cause to do so – that created the disturbance in the first place. And the defendant’s yelling lasted only a few minutes before he was arrested.  The Court therefore held that the defendant’s “loud but peaceful protestations and calls for his mother’s help in reaction to [the officer’s] unjustified seizure of his money were a response to an emergency situation and were not unreasonable under the circumstances.”

Gilbert Arenas (Associated Press)

“Ur new story.  U were n the training rm when u got out there were 3 guns on ur chair with a note.  That said pick one.  Send to javaris ill take the Blame. He didn’t have a gun he didn’t do anything.  Ill come up with the story.  But that all he needs to say.”

This is the text message Washington Wizards basketball player Gilbert Arenas sent to another teammate on December 22, 2009.  This was a day after Arenas was involved in the locker room incident with fellow Wizard Javaris Crittendon that led to gun charges for both players.

You are reading these words here because the Washington Post had access to the text message.  So did the prosecution.  The prosecution is now using the text message as part of its argument that Arenas should serve some jail-time for his role in the incident.

The lesson?  Think of Richard Nixon and Watergate. Cover up efforts can often lead to more trouble than the original offense.  They can lead to additional criminal charges, such as obstruction of justice.  They can come in at trial as an acknowledgement of guilt on the original charges, thereby making life more difficult for your lawyer.  And, as Gilbert Arenas is finding out, they can complicate things for you during sentencing.

The Washington Post reported this morning that Gilbert Arenas of the Washington Wizards has pleaded guilty in D.C. Superior Court to the felony charge of Carrying a Pistol Without a License (CPWL).  The offense carries a maximum fine of $5,000 fine and up to 5 years in jail.  Sentencing in front of D.C. Superior Court Judge Robert Morin has been set for March 26, 2010.  According to the Post, the plea was part of a deal in which the prosecutors – the U.S. Attorney’s Office, which prosecutes this type of case in D.C. – have agreed not to ask for more than six months in jail.

Photograph by Associated Press

According to Section 22-4504(a) of the D.C. Code, it is illegal to carry a pistol without a license or any deadly or dangerous weapon that is capable of being concealed.  If the possession is outside the person’s “dwelling place,” business place or property, the crime is a felony.  Otherwise, it is a misdemeanor subject to a $1,000 and a maximum 1 year sentence.  (While still on the books in D.C., the misdemeanor charge  of possession within one’s home was recently struck down by the U.S. Supreme Court in District of Columbia v. Heller as violating the Second Amendment.)

Judge Robert Morin is known in D.C. as a very capable, pleasant and reasonable judge.   While he is not bound by the terms of the plea agreement, a point he reportedly emphasized to Arenas at the hearing, I think it is unlikely, absent some gross error or injustice, that he will tinker with an agreement that has been so carefully worked out by the two sides. Arenas is represented by Kenneth L. Wainstein, a partner and member of the White Collar Defense and Corporate Investigations Practice at O’Melveny & Myers LLP.

In “Gilbert Arenas’ Rush to Lose,” prominent New York lawyer and legal blogger Scott Greenfield criticizes Arenas and his lawyer for failing to challenge the charges under Heller.  Writes Greenfield:

“Almost all the stars were aligned in this case.  The only two stars out of place were Arenas and Wainstein.  And Arenas gave up without a fight.  We will never know whether he could have beat the case by challenging the law under Heller.  We will never know whether it was Wainstein or Arenas who made the decision, and whether it was a good choice or a bad choice.  It’s likely that Judge Morin is too good a judge to use the Arenas sentence to make an example of him rather than treat him like a human being, but we’ll never know whether Wainstein told Arenas how fortunate he was that, given a bad situation, he had the opportunity to fight.”

Gilbert Arenas' lawyer Kenneth L. Wainstein

While I have tremendous respect for Mr. Greenfield and am a regular reader of Simple Justice, I have to disagree with him on this one. First of all, Heller applies to firearms in one’s home, not the locker room where the Arenas incident took place.  Justice Scalia’s decision specifically emphasizes that the Second Amendment right is not unlimited, and I do not agree, as Greenfield suggests, that Arenas’ possession of the firearm in his place of business – the locker room – is a “tiny baby step from possession in the home.”  It is in fact an enormous step.

Second, based on my experience (and Greenfield acknowledges this), few clients want to become the poster child for anything.  Most clients are embarrassed by the criminal charges and just want to put the whole sorry matter behind them as quickly and as quietly as possible.  Even if Arenas could fight the case all the way up to the Supreme Court and win, could you blame Arenas for not wanting his name to become synonymous with firearm possession?

“Roe” was at best a very reluctant participant in Roe v. Wade, and later blamed the case for ruining her life.

When I practiced criminal law in Pennsylvania, there was a very famous pro-defendant suppression case called Commonwealth v. Marlon Banks.  You could hardly litigate a motion to suppress on a drug case without citing Banks. One of my colleagues was thus overjoyed when, who should walk into her office but the one and only Marlon Banks, facing yet another drug charge.  Banks was largely unaware that he had become such a celebrity.  He was also tremendously embarrassed by it.

How fun would it be to cite Banks while defending Banks?  The closest I ever came to that type of situation was when I used another famous Pennsylvania case — Commonwealth v. Dunlap — to argue a motion to suppress in front of the same trial judge who had been overturned on the case.  Coincidentally, the arresting officer was even the same and, damn, wouldn’t you know but he made the exact same mistake while arresting my client.  I walked up to the assistant district attorney after the motion and asked:  Am I the only person who noticed this coincidence?  The ADA smiled.  “I’m guessing the judge didn’t miss it,” she replied.

Since I’ve already digressed, I’ll conclude with a story my criminal procedure professor told us in law school.  When his mother found out that Ernesto Miranda of the famous Miranda v. Arizona case had died, she told her son:  “Oh, what a shame.  After all that man has done for our country!”  I’m thinking Miranda wasn’t too proud of his involvement in that case either.

A defendant can in some cases be convicted of a criminal offense in Washington, D.C. for doing nothing more than possessing a particular object or substance.

According to D.C. law, for example, it is illegal to possess marijuana, heroin, cocaine and other substances that are controlled under the D.C. Controlled Substances Act.  Possession of other substances, such as oxycontin and percoset, is illegal without a valid prescription.

In addition to certain drugs and other controlled substances, D.C. law restricts the class of people who may be in legal possession of firearms, guns, ammunition, and dangerous weapons.  It is, for example, illegal for a drug addict or person who has been convicted of a felony to possess a firearm.  D.C. law also restricts the methods, means or modes of carrying a firearm, gun or weapon.  For example, carrying a firearm without a valid license pistol would subject a person to the criminal charge of carrying a pistol without a license (CPWL).

For the purposes of D.C. law, there are two forms of possession:  (1) actual possession, and (2) constructive possession.

Actual possession is obvious.  This means that the person has physical possession of tangible property by, for example, holding it in his/her hand or by carrying it on his/her body or person.

“Constructive possession” is a little bit more complicated.

Courts will often “construe” legal terms, concepts or situations in order to achieve some type of judicial or equitable objective.  In the area of landlord-tenant relations, for example, a court might find that a tenant who is still in actual physical possession of a particular apartment has in fact been “constructively evicted” from the apartment due to unlivable conditions caused by the landlord’s neglect.  Likewise, in the area of trusts and estates, a court might find that a “constructive trust” exists even where there is no actual trust just because the court believes this would be the fair thing to do.

This is the same idea when applied to criminal law.  The defendant does not have to be in actual physical possession of the object if the prosecution can prove that the person both knew about the object and had the “power and intent at a given time to control” it.  A firearm in your bedroom closet or a packet of cocaine on a park bench next to where you are sitting can both be found to be in your constructive possession for purposes of criminal prosecution.

In addition, assuming both have the ability and intent to control the property, two or more people can be found to have joint constructive possession of a single object.  A court could find, for example, that the driver and front-seat passenger both have constructive possession of a firearm in the console between them.

However, merely being near an object or knowing of its location is NOT sufficient to prove possession.  As the D.C. Court of Appeals held in Rivas v. U.S., 783 A.2d 125, 128 (D.C. 2001)(en banc), intent to control the object, as well as the power to control it, is an essential element that the prosecution must prove beyond a reasonable doubt.  Specifically, the court held that “there must be something more in the totality of the circumstances – a word or deed, a relationship or other probative factor – that, considered in conjunction with the evidence of proximity and knowledge, proves beyond a reasonable doubt that the [person] intended to exercise dominion or control over the [object], and was not a mere bystander.”  Another opinion, Guishard v. U.S., 669 A.2d 1306, 1312 (D.C. 1995), has held that the person need to have “intended to guide its destiny.”