MEMORANDUM

To: Sharee Laidlaw

From: Scott Roestenburg
April 15th, 2014
Re: Chuck Heston Case

The first issue is whether or not the jury was instructed correctly when they were told
that Mr. Heston could be found to have constructive possession simply by having
knowledge and access to the firearm.
As per United States v. Jameson, 478 F3d 1204 (10 th Cir. 2007), the following rule
provides clarity to the issue. Advising that merely being present with others who had
possession of the firearm did not constitute possession, adequately informed jury that
mere proximity to the firearm was not sufficient to establish constructive possession of
the firearm in prosecution for being a felon in possession.
In Hestons case, the jury was not instructed on the concept of constructive
possession. They were told that they could find Mr. Heston to have constructive
possession if he had knowledge of and access to the firearm. In United States v.
Ledford 443 F3d 702 (10th Cir. 2005) however, Mr. Ledford claims that the instruction
the court gave was invalid because it did not include language requiring a nexus
between the defendant and the firearm. The rule states He is right that a nexus is
necessary in cases of joint occupancy. However, Colonna squarely
{ "pageset": "S7f0

forecloses his argument that nexus is lacking here: we made it clear that knowledge
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and access together are sufficient to show nexus, and the jury was instructed on that
principle.
This research provides that as per Jameson, 478 F3d at 1204, the jury is required to
be instructed on the need for a nexus between the item and the Defendant: In joint
occupancy cases, knowledge, dominion, and control may not be inferred simply by
the defendant's proximity to a firearm. Instead, the government must present
evidence to show some connection or nexus between the defendant and the firearm.
This states that a nexus must be found, whereas in Ledford 443 F3d at 702, the rule
provides that the jury was instructed properly when advised that knowledge and
access together are sufficient to show nexus. We also learn in Ledford 443 F3d at 702,
that the district court instructed the jury, To prove constructive possession, the
government must prove that the defendant had knowledge of and access to the
firearm. We held that a specific nexus instruction was unnecessary where the
evidence clearly showed that the defendant had knowledge of and access to a firearm.
This is the same instruction given to Hestons jury and somewhat deflates our means of
defense.
After exposing these cases to our research, we find that the issue regarding the jury
instruction is not a formidable argument for appeal, especially when the specific
argument in one case has been directly contradicted by the other. Furthermore, In
Ledford 443 F3d at 702, the district court instructed the jury: To prove constructive
possession the government must prove that the defendant had knowledge of and
access to the firearm. We held that a specific nexus instruction was unnecessary
where the evidence clearly showed that the defendant had knowledge of and access to

a firearm. In light of this research, there are not sufficient grounds for a tangible
appeal under the jury instruction issue.
The second issue is whether or not Mr. Heston constructively possessed the weapon.
Mr. Heston was sitting in the same proximity of three other people in the car. There
were no fingerprints on the weapon or a serial number connecting him to it. He was
simply in proximity of the weapon, which in United States v. Jameson, 478 F3d 1204
(10th Cir. 2007) addresses the view of the court in a similar circumstance.
In the situation where the object is found in a place (such as a room or car)
occupied by more than one person, you may not infer control over the object based
solely on joint occupancy. Mere control over the place in which the object is found is
not sufficient to establish constructive possession. Instead, in this type of situation, the
government must prove some connection between the particular defendant and the
object.
The circumstances that exist in Jameson 478 F.2d at 1204, involve Mr. Jameson
located in the passenger seat in the front of a car that had been pulled over by police. He
was seen rummaging through the glove box while the police were approaching the
vehicle. After removing Jameson and the other occupants from the car, a weapon was
found where Mr. Jamesons feet would have been. As in Hestons case, there were no
fingerprints or serial numbers on the weapon which prompts us to review and utilize the
rule Mere control over the place in which the object is found is not sufficient to
establish constructive possession Jameson, 478 F3d at 1204.
Moreover, we find that in cases of joint occupancy, Where the government seeks to
prove constructive possession by circumstantial evidence, it must present evidence to
show some connection or nexus between the defendant and the firearm or other
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contraband. In most cases, dominion, control, and knowledge may be inferred where
a defendant has exclusive possession of the premises; however, joint occupancy alone
cannot sustain such an inference Ledford 443 F3d at 702.
In Ledfords case, Mr. Ledford fled his home (which he shared with his girlfriend)
after police were called to his residence for domestic violence issue. Upon arrival of the
police and in Lefords absence, Lefords girlfriend led the officer to the couples bedroom
where the officer found a 41 caliber handgun in the top drawer of a dresser. Again, joint
occupancy is a factor here and the nexus rule is used in the same context as it is in our
other relevant cases.
In order to bolster the view of the 10th circuit court on constructive possession, we
introduce yet another case, United States v. Pahulu No. 03-4238. (2004) where we
observe the nexus rule in this case in the following manner. To prevail in a joint
occupancy case, the government must present evidence to show some connection or
nexus between the defendant and the firearm or other contraband.
Mr. Pahulu and his passenger were pulled over in a van. During the search of the
van, the police found a knife and a shotgun w/ ammunition. Mr. Pahulu denied
ownership of the weapons and claimed the owner of the van was his mother.
Again, fingerprints were absent on the firearm or the knife and the proximity issue is
similar to Hestons. In the task of searching other circuit courts findings regarding
constructive possession we arrive at and extract a rule from: United States v. Sanders
341 F.3d 809 (8th Cir. 2003). To prove constructive possession, the government had to
present evidence that appellants had knowledge and ownership, dominion or control
over the contraband itself, or dominion over the vehicle in which the contraband is
concealed.
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James Sanders was a passenger in Jeremiah Shaulls vehicle. They were

subsequently pulled over by Police and a substantial amount of methamphetamine was
discovered on Shaulls person. Additionally, a large knife was found inside the car and
both men were arrested and charged with the drugs and the weapon. Mr. Sanders was
in mere proximity of the drugs (which were actually on Shaull) and the weapon which
isnt identical to our case but presents the critical similarities that will contribute to our
argument. Mr. Sanders was charged with the drugs and the weapon simply because
they were in the same car together.
Next, a case that was reversed due to the lack of a nexus is documented under United
States v. Griffen 684 F3d 691 (7th Cir. 2012). We have explained repeatedly that mere
proximity to contraband is not enough to establish a sufficient nexus to prove
constructive possession. Proximity to the item, presence on the property where the
item is located, or association with a person in actual possession of the item, without
more, is not enough to support a finding of constructive possession.
Cory Griffin appealed his conviction of possession of a firearm due to the lack of
nexus in his case. Griffin was simply present where firearms were and the government
offered no evidence that would convince a jury to find that he had constructive
possession. Heston was merely present (with three other people) in the same
environment as the weapon.
The State of Utah views constructive possession in an identical fashion compared to
the United States as this rule will show. People v. Layman 985 P.2d 911 (Ut.1999) In
order to prove constructive possession, there must be a nexus between the accused and
the drug sufficient enough to allow an inference that the accused had both the ability
and the intent to exercise dominion and control over the drug.
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Michael Laymen was pulled over with a female passenger after he had been drinking,
after searching both of the occupants, the police found methamphetamine on the female
passenger but nothing illegal on Mr. Layman.
They were both charged with possession and intent to distribute even though at no
time did the deputy see anything illegal in Mr. Laymans physical custody. This case will
be useful because the possession with intent charge on Mr. Layman was subsequently
reversed upon appeal for lack of a nexus.
To bolster the view of constructive possession in People v. Layman 985 P.2d at 911,
we find a similar Utah case under People v. Gonzales-Camargo 293 P.3d 1121 (Ut. 2012).
To establish constructive possession, the State must prove that there was a sufficient
nexus between the accused and the drug to permit an inference that the accused had
both the power and the intent to exercise dominion and control over the drug.
Ownership and/or occupancy of the premises upon which the drugs are found,
although important, are not alone sufficient to establish constructive possession,
especially when occupancy is not exclusive.
Mr. Gonzalez-Camargo was arrested for possession with intent, receiving stolen
property, and restricted possession of a firearm after police raided his jointly occupied
place of residence, revealing the weapon and a black box full of drugs on the bed. As in
Hestons case, there was no evidence tying the weapon or the drugs to him. The State
failed to establish his constructive possession of the methamphetamine or of the
shotgun, the state was also unsuccessful showing intent to distribute the
methamphetamine. The defendant was sharing the bedroom with another individual
and a nexus was absent from this similar case.

As a general rule, a jury is expected receive complete instructions that describe all of
the components of the rule in a specific case. If a nexus must be in the language that is
presented to the jury for instruction, then Hestons jury was deprived of that language
and Jameson, 478 F3d at 1204 will bolster that conclusion. However, Ledford 443 F3d
at 702 clearly states that a nexus is formed from the two elements that Hestons jury
found Heston to have, knowledge and access. With the quandary that emerges from
these two cases, the likelihood of presenting an effective argument under incorrect jury
instruction lacks enough integrity to refrain from appealing. However, enough cases
were researched regarding the constructive possession definition to conclude that there
is room for additional scrutiny to revisit the definition in the Heston case in the form of
an appeal. As in ninety nine percent of the cases we researched, all but one was
overturned due to the absence of a nexus between the item and the defendant. This is
enough to examine in further detail whether or not Mr. Heston was in constructive
possession of the weapon. He was not and we should appeal on these grounds.