Sunday, June 4, 2017

Constructive possession & 404(b) evidence

Your client is charged with constructive possession of guns and marijuana (with intent to distribute) that were found in his shared house behind a deadbolt-locked bedroom door. Your client's prints were not on any of the drug packaging or guns. He had no key to the lock on the bedroom door. He admits that the house reeked of marijuana, but he says the drugs and guns were not his, and he did not have access to them.

Of what relevance are your client's prior convictions for possession of marijuana and possession with intent to distribute marijuana?

Very little, said the Fourth Circuit last week in a must-read 404(b)-treatise case, reversing the defendant's gun and drug convictions.

Just some of the highlights (note how the court walks through both the relevance and prejudice prongs of the analysis with respect to each category of prior conviction):

The defendant's prior possession conviction was inadmissible to prove his intent to distribute: "[A] defendant's prior conviction for possession of a drug is not relevant to establishing the defendant's intent to distribute a drug at a later time, absent some additional connection between the prior offense and the charged offense." Possession and distribution are "distinct acts" with different intents, purposes and risks.

The defendant's prior possession conviction was relevant to prove his knowledge that there was marijuana in the house (the whole house smelled of marijuana), but he did not contest his knowledge, and the prejudicial effect of the prior conviction far outweighed its probative value: "Due to the lack of evidence connecting Defendant to the drugs inside the locked bedroom and the minimal probative value of the prior possession conviction to establish Defendant's knowledge that the bedroom contained marijuana, there is a strong and unacceptable likelihood that the jury concluded Defendant 'had a propensity for [drug] trafficking and convict[ed] on that basis alone'—the precise result Rule 404(b) forbids."

The defendant's prior possession-with-intent-to-distribute convictions lacked factual similarity and temporal proximity to the charged conduct, and were not relevant to prove his intent to distribute. And, as with the possession conviction, their relevance to prove his knowledge of the presence of marijuana was outweighed by their prejudicial effect. Indeed, "Defendant's prior possession with intent to distribute convictions were arguably even more prejudicial than his prior possession conviction because ‘prejudicial impact is only heightened when character evidence is admitted in the form of a prior criminal conviction, especially a prior conviction for the same crime as that being tried.’"

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