/f3d/57/0516-01

United States Court of Appeals for the Seventh Circuit · 1995-06-07

Original case on neochart.com

Case and law context

18 U.S.C. § 922(g)

Role: applied; posture: criminal; jury conviction for felon in possession of two handguns found in the bedroom of his girlfriend's house (plus a 21 U.S.C. 841 cocaine count annotated separately); defendant appeals sufficiency of the evidence on possession only; firearm conviction affirmed; result: claimant-won; claim: (g)(1)

21 U.S.C. § 841

Role: applied; posture: criminal; jury conviction for possession of cocaine with intent to distribute (reverse-buy sting); defendant appeals sufficiency of the evidence on possession only; result: claimant-lost; claim: (a)(1)

Instances and excluded annotation blocks

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopeVariantExact source quotations
/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Possession in or affecting commercesatisfied
Counted merits instance
applied / merits

basis: conceded; claim: (g)(1)

"Third element", expressly not contested (see the held line under status.g1); no facts given. CAVEAT: rests on that single uncontested sentence; the opinion says nothing about the firearms' origin or movement - thin as authority on what satisfies the commerce nexus.
prior-interstate-travel/uncontested-on-appeal
(3) that the firearm had traveled in or affected interstate commerce.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Knowledge of possessing the firearm or ammunitionnot_reached
Excluded from merits counts
applied / merits

claim: (g)(1)

Appears only inside the quoted definition ("knowingly has the power and the intention"); whether he knew the guns were in the bedroom is not separately discussed.
Unspecified variantNo source quotation recorded for this block.
/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Actual or constructive possessionsatisfied
Counted merits instance
applied / merits

basis: proved; claim: (g)(1); count: felon-in-possession count (.357 revolver and 9 mm pistol in a first-floor bedroom); theory: constructive possession through residence in the home; joint with the girlfriend; subject: count=felon-in-possession count (.357 revolver and 9 mm pistol in a first-floor bedroom); theory=constructive possession through residence in the home; joint with the girlfriend

Sufficiency upheld: residence in the home (his papers, gang bracelet, men's clothing in the same bedroom as the guns; phone number; sightings; paid for repairs) gives power to control firearms found there. Joint access by the girlfriend and his being in custody when the guns were seized (he was arrested at the drug deal earlier that day) are held immaterial. The opinion infers power to control from residence and does not separately analyse intention or knowledge of the guns.
constructive/firearm-in-bedroom-of-shared-residence
Both weapons were found in a bedroom on the first floor of the residence. The .357 magnum was discovered in the bed area, leaning up against the back of the headboard. The .9 millimeter was recovered from a dresser drawer along with an additional magazine of ammunition.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The search revealed, in addition to the firearms, a number of Kitchen’s possessions — his El Rukn bracelet, bills and papers bearing his name and various articles of men’s clothing.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In many of the recorded drug conversations with Kitchen, agents had reached him by calling the telephone number at that address. According to the government, Kitchen had stated that he lived at that address. Agents in fact saw Kitchen at that address on numerous occasions.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Kitchen argues that he in fact lived with his mother in Robbins, Illinois, and only visited Williams occasionally.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

It is not material, contrary to Kitchen’s assertions, that he was incarcerated at the time the agents actually seized the guns.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The fact that Williams, too, had access to the firearms fails to negate the inference that Kitchen did as well.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Constructive possession exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others....
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

If he in fact resided at Williams’s home, then he had the power to exercise control over the two firearms.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The jury might have determined that he lived at the residence and occupied the bedroom where the guns were located. Under these circumstances, we believe that Kitchen constructively possessed the guns in question.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Because the evidence established that Kitchen resided in the home in which the police located the firearms, it was sufficient to support Kitchen’s conviction for the possession of a firearm.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Conviction punishable by more than one yearsatisfied
Counted merits instance
applied / merits

basis: conceded; claim: (g)(1)

"First element" = previous felony conviction; the opinion gives no facts about it. CAVEAT: rests on a single sentence saying the element was not contested on appeal; no facts and no reasoning - thin as authority on what satisfies status.g1.
prior-felony/uncontested-on-appeal
Kitchen does not contest the first and third elements of his conviction, but he does contend that evidence supporting the second element is lacking.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Specific intent to manufacture, distribute, or dispense the possessed controlled substancenot_reached
Excluded from merits counts
applied / merits

claim: (a)(1)

Not contested on appeal; the court treats evidence of intent to purchase as irrelevant to possession.
Unspecified variantNo source quotation recorded for this block.
/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Mens rea: "knowingly or intentionally" (including knowledge that the substance is a controlled substance)not_reached
Excluded from merits counts
applied / merits

claim: (a)(1)

Not contested on appeal.
Unspecified variantNo source quotation recorded for this block.
/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Possession (actual, constructive, sole, or joint dominion and control)not
Counted merits instance
applied / merits

basis: no-evidence; claim: (a)(1); theory: actual possession (holding a kilogram for 2-3 seconds); subject: theory=actual possession (holding a kilogram for 2-3 seconds)

Sufficiency reversed: physical holding alone is not actual possession where the buyer in a reverse sting has neither paid nor assented; conduct was that of a prospective buyer inspecting goods. Court says payment, verbal assent, or acts consistent with carrying the drugs away would change the result.
actual/momentary-handling-during-inspection-before-assent
Kitchen showed Casali the money and then handed it to his coconspirator, Dow-dell. Casali admitted that at no point did either Kitchen or Dowdell offer Griffin or him the money or attempt to hand the money over.
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Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The government suggests that Kitchen picked up one of the kilograms of cocaine for “two or three seconds.”
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

All agree that Kitchen made a comment expressing concern about the drug’s purity — that he was worried about “slabs” (apparently one of the most desirable forms of cocaine). At that point, Casali and Fernandez placed Kitchen under arrest.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Casali admitted that Kitchen never stated that he would complete the transaction or made a similar affirmative comment to that effect.
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Evidence kind: fact; polarity: cuts-against; absent flag: 1; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

And here, the essential proof of possession that we require is some factor indicating that Kitchen had the authority or the ability to exercise control over the contraband.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

In most cases of actual possession, because the defendant physically holds or carries the narcotics, his control over them is presumed. But to state that control is presumed is not to suggest that actual possession can be established when it is completely absent.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Although Kitchen held the cocaine in his hand, he did not yet have a recognized authority to exert control over it.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Instead, Kitchen’s momentary holding was in the context of inspection, not delivery.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Possession (actual, constructive, sole, or joint dominion and control)not
Counted merits instance
applied / merits

basis: no-evidence; claim: (a)(1); theory: constructive possession (intent to purchase + cash in hand); subject: theory=constructive possession (intent to purchase + cash in hand)

Intent to buy (negotiations, prior dealing, arriving with $14,000) shows at most attempted possession; the court notes the case "fits more neatly into an attempt paradigm" (the jury had rejected attempt).
constructive/no-recognized-authority-over-sellers-drugs
After further negotiations, Kitchen agreed to purchase two kilograms of cocaine from Griffin.
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Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Instead, Kitchen left the money with Dowdell and proceeded to another location with Casali to examine the drugs.
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Evidence kind: fact; polarity: cuts-against; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

The constructive possession cases teach that a defendant must have ultimate control over the drugs. This requirement translates into the right, or the recognized authority within the “criminal milieu,” to possess the drugs in question.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Kitchen’s intent to purchase, without more, is insufficient to establish possession because it overlooks the required element of dominion or control.
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Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

We believe that although Kitchen held the drugs for a moment, he neither controlled them nor had recognized authority over them.
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Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995Controlled substance (21 U.S.C. §§ 802(6), 812 Schedules I-V) or counterfeit substance (§ 841(a)(2))not_reached
Excluded from merits counts
applied / merits

claim: (a)(1)

Unspecified variantNo source quotation recorded for this block.

Court interpretations recorded from this case

interpretation

And here, the essential proof of possession that we require is some factor indicating that Kitchen had the authority or the ability to exercise control over the contraband.

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995

And here, the essential proof of possession that we require is some factor indicating that Kitchen had the authority or the ability to exercise control over the contraband.
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Constructive possession requires power and intention to exercise dominion and control over the contraband (directly or through others); mere proximity, association, or unconsummated inspection prior to payment does not suffice.

interpretation

The constructive possession cases teach that a defendant must have ultimate control over the drugs. This requirement translates into the right, or the recognized authority within the “criminal milieu,” to possess the drugs in question.

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995

The constructive possession cases teach that a defendant must have ultimate control over the drugs. This requirement translates into the right, or the recognized authority within the “criminal milieu,” to possess the drugs in question.
Source: docroot/ir/caselaw/f3d_57.jsonl#/f3d/57/0516-01; Unicode character offsets [21871:22106] (end exclusive); SHA-256 a7a3d46a84cc2303b7c7dbcb7479d9ff89a79dde3020c53fd81a6149a8c41cb5.

Constructive possession requires power and intention to exercise dominion and control over the contraband (directly or through others); mere proximity, association, or unconsummated inspection prior to payment does not suffice.

interpretation

Kitchen’s intent to purchase, without more, is insufficient to establish possession because it overlooks the required element of dominion or control.

/f3d/57/0516-01 — United States Court of Appeals for the Seventh Circuit · 1995

Kitchen’s intent to purchase, without more, is insufficient to establish possession because it overlooks the required element of dominion or control.
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Constructive possession requires power and intention to exercise dominion and control over the contraband (directly or through others); mere proximity, association, or unconsummated inspection prior to payment does not suffice.