The Shellow Collection: Firearm Violations (18 USC 921-930)

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
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Firearm Violations (18 USC 921-930)

    1.    Constructive Possession
    2.    Touching A Gun Is Not The Same As Possessing It
    3.    Circumstantial Evidence And Knowledge: Car Passenger
    4.    Mere Proximity Or Accessibility To Firearm Insufficient To Conclude
           Defendant Had Knowing Dominion And Control

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1. Constructive Possession

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

For you to find that the defendant "constructively possessed" a firearm not in (his/her) actual, physical possession, you must find beyond a reasonable doubt that the defendant knew of the firearm and that (he/she) intended to exercise dominion and control over it.

AUTHORITIES:

United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993) [18 USC 924(c)(1);18 USC 922(g)(1) case].

SAMPLE INSTRUCTION # 2:

Constructive possession of a firearm necessarily requires both dominion and control over the firearm and knowledge of the firearm's existence.

AUTHORITIES:

United States v. Brown, 3 F.3d 673, 680 (3d Cir. 1993) [21 USC 841 case]; United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992) [21 USC 841/846 case].

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Possession Of Firearm By Felon: Intoxication Defense.

RELATED NCJIC MATERIALS:

See NCJIC Chapter 56: Possession.

See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See NCJIC Federal Model Instructions by Offense: Firearms (Title 18, Chapter 44, Sections 921-930).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2. Touching A Gun Is Not The Same As Possessing It

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

You may not conclude merely from evidence that the defendant's fingerprints were found on a firearm that (he/she) possessed the firearm at the time of (his/her) arrest. Touching a gun is not the same as possessing it. In order to find the defendant guilty beyond a reasonable doubt, the state must prove that the defendant knew of the firearm's presence in the _____ (insert location e.g., car) at the time of (his/her) arrest and also that (he/she) had dominion and control over the firearm. You may consider the fingerprint evidence along with all the other evidence in the case in determining whether the defendant possessed the firearm.

AUTHORITIES:

United States v. Wilson, 922 F.2d 1336, 1339 (7th Cir. 1991) [18 USC 924 case]; United States v. Beverly, 750 F.2d 34 (6th Cir. 1984) [18 USC 922(h)(1) case]; United States v. Townley, 942 F.2d 1324 (8th Cir. 1991) [21 USC 841 case]; United States v. Vasquez-Chan, 978 F.2d 546 (9th Cir. 1992) [21 USC 841/846 case].

RELATED NCJIC MATERIALS:

See NCJIC Chapter 56: Possession.

See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See NCJIC Federal Model Instructions by Offense: Firearms (Title 18, Chapter 44, Sections 921-930).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3. Circumstantial Evidence And Knowledge: Car Passenger

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION:

    You may not find that the defendant possessed a firearm merely because a firearm allegedly was found in the car in which (he/she) was a passenger.

    You must find the defendant not guilty of possessing a firearm unless the state proves beyond a reasonable doubt that the defendant had both actual knowledge of the presence of the firearm in the car, and dominion and control over it.

    When the prosecution relies on circumstantial evidence to establish the defendant's knowledge, that is, that the defendant actually knew the firearm was in the car, such evidence must do more than raise a suspicion that the defendant had such knowledge. The circumstantial evidence must exclude all reasonable possibility that someone else could have placed the firearm in the car without (hi/her)s knowledge. Before you may find __________ (name of defendant) guilty on this sort of circumstantial evidence, you must unanimously find that every reasonable theory consistent with the defendant's lack of knowledge of the presence of the firearm in the car has been disproven beyond a reasonable doubt. If you are unable to make such a finding, you must find the defendant not guilty.

AUTHORITIES:

Commonwealth v. Chenet,373 A.2d 1107 (1977); State v. Haynes, 25 Ohio St. 2d 264, 267 N.E.2d 787 (1971); People v. Schriber, 34 A.D.2d 852, 310 N.Y.S.2d 551 aff'd 29 N.Y.2d 780, 327 N.Y.S.2d 68, 277 N.E.2d 187 (1971); Solanov v. State, 426 N.E.2d 705 (Ind. App. 1981); Pier v. State, 400 N.E.2d 209 (Ind. App. 1980); People v. Simpson, 104 Mich. App. 731, 305 N.W.2d 249 (1980); Willis v. State, 320 So. 2d 823 (Fla. App. 1973); Moreland v. State, 133 Ga. App. 723, 212 S.E.2d 866 (1975); People v. Wolski, 27 Ill. App. 3d 526, 327 N.E.2d 308 (1975); Griffin v. State, 276 So. 2d 191 (Fla. App. 1973); Osburn v. State, 497 P.2d 471 (Okla. Cir. 1972); Markman v. State, 210 So. 2d 486 (Fla. App. 1968); Frank v. State, 99 So.2d 117 (Fla. App. 1967).

RELATED SHELLOW MATERIALS:

See also THE SHELLOW COLLECTION: Circumstantial Evidence.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

RELATED NCJIC MATERIALS:

See NCJIC 25.12 [Circumstantial Evidence].

See NCJIC Chapter 47: Knowledge.

See NCJIC Chapter 56: Possession.

See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See NCJIC Federal Model Instructions by Offense: Firearms (Title 18, Chapter 44, Sections 921-930).

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4. Mere Proximity Or Accessibility To Firearm Insufficient To Conclude Defendant Had Knowing Dominion And Control

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

SAMPLE INSTRUCTION # 1:

Mere proximity or accessibility to a firearm will not support a conclusion that an individual had knowing dominion and control over it, and thus will not alone support a finding that the individual possessed the firearm. It is well established that the mere presence as a passenger in a car from which the police recover a weapon does not, in itself, establish possession of the weapon.

AUTHORITIES:

United States v. Blue, 957 F.2d 106, 108 (4th Cir. 1992) [18 USC 924(e) case]; United States v. Soto, 779 F.2d 558, 560 (9th Cir. 1986); United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993) [18 USC 924(c)(1);18 USC 922(g)(1) case].

SAMPLE INSTRUCTION # 2:

A defendant's knowledge of and proximity to a firearm is not enough to sustain a conviction for possession of the firearm if the evidence fails to establish beyond a reasonable doubt that the defendant had the power to exercise dominion and control over the firearm.

AUTHORITIES:

United States v. Brown, 3 F.3d 673, 682 (3d Cir. 1993) [21 USC 841 case], citing United States v. Vasquez-Chan, 978 F.2d 546, 550 (9th Cir. 1992) [21 USC 841/846 case]; United States v. Zeigler, 994 F.2d 845 (D.C. Cir. 1993) [18 USC 924(c)(1);18 USC 922(g)(1) case].

RELATED NCJIC MATERIALS:

See NCJIC Chapter 56: Possession.

See NCJIC 56.2 [Possession: Sufficiency Of Proof].

See NCJIC 56.3 [Momentary, Innocent, Justifiable, Unwitting Or Accidental Possession].

See NCJIC Federal Model Instructions by Offense: Firearms (Title 18, Chapter 44, Sections 921-930).

See NCJIC Chapter 106: Weapons Or Firearms: Possession, Transportation, Etc.

See NCJIC Federal Model Instructions by Offense: Firearms (Title 18, Chapter 44, Sections 921-930).