Knowing actual or constructive possession

AND · 18usc924:possession

Possession can be actual or constructive under applicable circuit law; a defendant must knowingly exercise the requisite control, rather than merely happen to be near a gun. The furtherance element is additional, not a substitute for possession.

Exact element source

or who, in furtherance of any such crime, possesses a firearm
Source: docroot/ir/usc/title18.jsonl#title18_sec924; Unicode character offsets [4660:4721] (end exclusive); SHA-256 899fad466e76614e7f7b0bb794089010ef0af034312bcd194c76394228dbfdc4.

Routes and case patterns

Curated routes and observed case patterns
RouteDefinitionMerits instance blocksDistinct merits casesExamples (up to 3 cases per count group)
_procedural
accepted; provisional (1 case)
The element is only the occasion for a procedural ruling.0
Satisfied 0; not satisfied 0; excluded context 1
0

Used only in non-merits blocks (1).

Excluded context examples:

United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — not reached · basis not recorded (18usc924: author: Fable · not independently reviewed) · rule-announced/procedural · not counted
Pattern: instruction-error/use-or-carry-charged-instead-of-possession

proximity-inference
provisional; provisional (1 case)
Whether possession is inferred from the gun's proximity to the defendant plus linking items.1
Satisfied 1; not satisfied 0; excluded context 0
1

United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — satisfied · proved (18usc924: author: Fable · not independently reviewed) · applied/merits · counted
Pattern: proximity-plus-matching-ammunition/gun-in-door-pocket-beside-passenger

How courts decided this element

Annotation blocks, including explicitly excluded context
CaseElementHolding and scopePatternExact source quotations
United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — satisfied · proved (18usc924: author: Fable · not independently reviewed)Knowing actual or constructive possessionsatisfied
Counted merits instance
applied / merits

basis: proved; claim: (c)(1)(A); party: Gómez (passenger); subject: party=Gómez (passenger)

The court does not say whether the possession was actual or constructive; the inference rests on the gun's position at the passenger's side plus matching ammunition, magazine and a Glock part on his person. The car was Alverio's. No cuts-against fact is discussed under this element (the missing fingerprint analysis is treated only as a Brady issue).
proximity-plus-matching-ammunition/gun-in-door-pocket-beside-passenger
Agent Alverio testified at trial that he saw a handgun in the “pocket” of the front passenger door when the defendants were arrested, and that Gómez was in the passenger’s seat.
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12124:12301] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Another government witness testified that the fanny pack that Gómez was wearing when he was arrested contained three .40 caliber bullets and a magazine containing fifteen more .40 caliber bullets, both of which could be used to fire the gun, a Glock .40 caliber pistol, as well as a slide back cover that “is the rear part of the Glock.”
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12302:12639] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Finally, Rodriguez testified at trial that he thought Gómez had a gun based on the way that Gómez was positioned.
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12640:12753] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: fact; polarity: supports; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

“the government must prove that the defendant! ] 1) committed a drug trafficking crime; 2) knowingly possessed a firearm; and 3) possessed the firearm in furtherance of the drug trafficking crime.”
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [11641:11838] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 1 (1 = tagged; 0 = not tagged)

This evidence was sufficient for a rational finder of fact to determine that Gómez knowingly possessed the firearm.
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [12754:12869] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: held; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

United States v. Alverio-Meléndez — 640 F.3d 412 (2011) · United States Court of Appeals for the First Circuit · 2011 — not reached (18usc924: author: Fable · not independently reviewed)Knowing actual or constructive possessionnot_reached
Excluded from merits counts
rule-announced / procedural

claim: (c)(1)(A); theory: same instruction error: jury told to find "use or carry" rather than possession; plain-error review; subject: theory=same instruction error: jury told to find "use or carry" rather than possession; plain-error review

A relation between elements (use and carry each entail possession) stated to dispose of an instruction challenge; not a finding about these defendants.
instruction-error/use-or-carry-charged-instead-of-possession
Instructing the jury regarding “use and carry” instead of “possession” was not reversible error because “use and carry” necessarily includes possession.
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [20423:20575] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

One also cannot “carry” a firearm without possessing it.
Source: docroot/ir/caselaw/f3d_640.jsonl#/f3d/640/0412-01; Unicode character offsets [20807:20863] (end exclusive); SHA-256 b0386972fcb35c1f10ba94cb15f3a9301336c12f44dac5815a6c3d160bbe41c8.

Evidence kind: rule; polarity: not recorded; absent flag: 0; quoted-rule flag: 0 (1 = tagged; 0 = not tagged)

Court interpretations