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The Scots had an expression for it: “possession is eleven points in the law, and they say there are but twelve.” But possession is not always a good thing – such as, for instance, if you’re one of a handful of Americans with a felony on your record (a mere 20 million people as of 2010).
In that case, federal law prohibits you from possessing a firearm. The statute in question – 18 USC 922(g) – is generally known as “felon-in-possession” although it’s more than that. The F-I-P statute is long on definitions as to what kind of crime is disqualifying, and what is a firearm – but the gist of it is that if you were ever convicted of a felony (or even some types of misdemeanors), you had better be standing on the twelfth point of the law. That is to say, you had better not be in possession of a firearm.
Which brings us to the story of Gilberto Ray Ramos. No doubt Gil is a man with a real problem. Earlier this week, the 8th Circuit upheld his conviction on multiple drug offenses. But in so doing, it reversed his conviction as a felon in possession.
Gil’s problems started with a fellow drug trafficker who, after being arrested for his own misdeeds, make the all-too-common and quite reasonable decision to help the police in hopes of reducing his sentencing. Among other tales the informant told the constabulary, he recounted that Gil had sent him a text message offering to sell him a .40 caliber handgun.
The authorities ultimately collected enough evidence to search Gil’s apartment, which he shared with a woman named Jasmyn. When they tossed the place, the police found a .45 caliber handgun in one of the two bedrooms, hidden under a mattress next to a pink vibrator. Men’s and women’s clothes were hanging in the closet. In the kitchen, the police found a water bill for the place, issued in Gil’s name.
When he was arrested, Gil was on parole from Arkansas. Before his trial in the federal case, Gil signed a waiver of hearing for Arkansas in which he admitted “that I have violated the following condition(s) of release as alleged[.]” Underneath, boxes labeled “#4 Laws” and “#5 Weapons” are marked.
The 8th Circuit held that the evidence wasn’t good enough. An F-I-P conviction may be based on constructive possession as well as actual possession. Constructive possession is where the felon knows the gun is present and can exercise control over the premises where the gun is located. Some cases have held that such dominion alone is good enough, because dominion permits the jury to infer the felon knew the gun was there.
But as the Circuit noted, dominion is not good enough to prove knowledge where the premises are occupied by more than one person. There, the government has to provide additional evidence of a link between the gun and the felon. “Otherwise,” the Court argued, “a father could be imprisoned for marijuana that his son has hidden in the house, or a wife could be jailed for her husband’s secret cache of illegal guns.”
Here, Gil jointly occupied the apartment with Jasmyn. As its extra evidence, the government pointed to the fact that there were men’s clothes in the closet of the bedroom where the gun was found. But, as the Circuit noted, “they also found women’s clothes in that closet and men’s clothes in the other bedroom’s closet. Further, the gun was found under the mattress next to a pink vibrator.”
The 8th concluded that “on this evidence, it is more than possible” that Gil was convicted for a gun Jasmyn had that he knew nothing about.”
The Court conceded that the government presented evidence that Gil had tried to sell a different gun to the informant and admitted in the Arkansas parole form that he violated a condition of parole involving “weapons.” But neither of those facts tied Gil to the particular gun – the .45 caliber pistol – that he was charged with possessing. “Although this evidence may demonstrate that Ramos had access to a gun,” the Court held, “it does not mean that he had access to this gun or that he even knew about it.”
United States v. Ramos, Case No. 16-1306 (8th Cir., Mar. 27, 2017)
– Thomas L. Root