What "Knowing Possession" Requires the Government to Prove.

Prosecutors must prove every offense element beyond a reasonable doubt. If the prosecution cannot meet this burden for any offense element, the defendant cannot be convicted of the alleged offense. To establish “knowing possession,” the prosecution must convince the jury (or the judge in a bench trial) beyond a reasonable doubt that the defendant:

• Knew the possessed item existed; and,
• Knowingly and willfully possessed the item.

Whether these requirements can be met is a factual question. Along with other evidence, the government typically presents evidence that includes:

• Statements from the defendant;
• Statements from individuals who encountered the defendant;
• Witness testimony;
• Evidence of control over the item;
• Evidence of intent to control over the item;
• Knowledge of the item’s existence; and,
• Evidence obtained during federal investigations.

It is important to note that a jury or judge can find evidence of “knowing possession” based on either actual possession or constructive possession. In this context, “actual possession” means that the defendant had physical possession of the item. While the prosecution cannot prove “knowing possession” by showing mere proximity to contraband, prosecutors can prove constructive possession by showing evidence that the defendant either:

• Had power and intent to control the item; or,
• Did not maintain physical possession but otherwise knowingly maintained control of the item.

It is also important to note that defendants can assert an “innocent possession” defense to federal charges. For example, while federal circuits differ on this defense with respect to 18 U.S.C. § 922(g), courts in various circuits have recognized an innocent-possession defense in cases involving unregistered firearms and controlled substances. Under this defense, if a defendant can show that they possessed the item without knowledge of its illegal nature, the prosecution cannot establish the necessary mental state (mens rea) for “knowing possession.”

When does possession become knowing possession?

Actual possession means that the defendant had physical custody of the item in question. Possession by physical custody is established if the defendant had physical control over the item. This can be in the form of the item being within the defendant’s pockets, bag, or otherwise within the defendant’s immediate control. For example, if the government finds a gun in a defendant’s pocket, this shows that the defendant has actual possession of the gun.

Actual possession can also be joint possession. Joint possession can be established when multiple people control the same item. For example, if three people are driving in a car and there is a small amount of drugs in the glove box, all three can be found in actual possession of the drugs if they all have access to and are aware of the drugs in the glove box.

Possession by dominion and control refers to constructive possession, which doesn’t require the defendant to have physical custody of the item. Instead, the government must show that the defendant had the power and the intent to control the item. For example, if the government finds contraband in a defendant’s home, the government can prove the defendant is in possession of the contraband even if the defendant is not present when the contraband is found.

However, knowledge of contraband alone does not prove dominion or control. If a defendant knows that someone else has drugs or guns in their home, but the defendant does not have the power or intent to exercise control over the item, then the defendant has not possessed the contraband through dominion and control.

Likewise, a defendant’s knowledge of the presence of contraband must coincide with the defendant’s possession. If the defendant knows about the presence of the contraband only after they have lost possession, this is not sufficient to prove knowing possession. The fact that the defendant discovers the presence of the contraband later does not show that they knew of the contraband at the time of the allegedly unlawful possession.

When a defendant’s ignorance is willful, federal courts treat this as knowledge for the purposes of establishing knowing possession. Willful blindness occurs when a defendant:

• Recognizes that there is a high probability that something (such as contraband) is in their possession; and,
• Makes a conscious effort to avoid learning the truth about whether they are in possession.

Because ignorance does not provide a defense when the ignorance is a result of willful blindness, the government can establish the defendant’s knowledge by showing that they were willfully blind to the presence of the contraband.

Finally, a defendant can be in actual possession of the contraband even if they have held the item only briefly. Even if a defendant’s custody is transitory, this can satisfy the actual possession element of the offense. Similarly, if a defendant gives up possession of the contraband, but does not give up the item voluntarily, this does not divest the defendant of possession. In short, a defendant can be in possession of the contraband even if they only briefly handle the contraband or only temporarily control the contraband.

What Evidence Proves the Intent to Control Contraband?

Constructive possession is often most frequently at issue in cases where contraband is discovered in shared vehicles or homes. When multiple people are associated with a home or vehicle, government prosecutors cannot establish possession by simply showing the item is present. Instead, they must provide evidence showing that the defendant possessed dominion and control over the item.

Where the contraband was found can be another critical piece of evidence as well. If the contraband was found in a place where it was hidden from easy view or access, it will be more difficult for prosecutors to establish the defendant’s knowledge and possession. For example, if drugs are taped to a car’s bumper, it makes it harder for the government to prove knowing possession than if the drugs were located on the passenger seat in plain sight.

Fingerprints, DNA, and blood samples can connect the defendant to the contraband and establish possession. While this evidence is most commonly used to prove actual possession, it can also play a role in constructive possession cases. For example, if the prosecution finds a small amount of drugs in a defendant’s bedroom, they could try to show constructive possession. However, if the defendant’s fingerprints are on the drug packaging, that could provide much stronger evidence that the defendant is in knowing possession.

Witness statements can also support or undermine the government’s claim that a defendant had dominion and control over the contraband. Statements from witnesses can be used to show (i) the defendant’s knowledge of the contraband, (ii) the defendant’s use of the contraband, (iii) the defendant’s role as a custodian of the contraband, (iv) the defendant’s control over the location where the contraband was found, or, (v) the defendant’s control over the contraband itself.

Digital evidence can be an important evidentiary tool in criminal defense litigation as well. If the government’s case is supported by digital photos or location data (e.g. evidence showing that the defendant was in the presence of the contraband), then the government’s evidence will be significantly more substantial.

Finally, exclusive control can be an important factor. For example, if a defendant is the sole keyholder to a residence or the sole registered owner of a vehicle, then jurors may infer possession of any contraband found in the residence or vehicle. However, while this may be a permissible inference, the fact itself does not constitute evidence of possession.

Must You Know What the Substance Actually Is?

If you are facing a federal charge for possession of a controlled substance, prosecutors must prove that you possess the drug. This means that the government must prove that the substance found in your possession was actually a controlled substance. Generally, establishing a defendant’s identity as a controlled substance requires laboratory or scientific evidence that verifies the identity of the substance.

However, if the government relies on field drug tests to provide proof, your drug defense lawyer may be able to cast doubt on this evidence. Field tests can produce false-positive results in many cases, and a skilled federal drug lawyer can challenge the validity of this evidence at trial.

Another critical aspect of the prosecution’s case is the chain of custody. Prosecutors must be able to verify the chain of custody for the drug evidence; this means they must prove that the drug in question was the same one found in your possession and was stored safely. If there are any gaps in the chain of custody, this can weaken the government’s case and provide your lawyer with an opportunity to cast doubt on the identity of the substance.

Depending on the substance and the circumstances, there may also be a defense based on a valid medical prescription. While a valid prescription does not defeat possession of an illegal drug, it can defeat possession of an illegal prescription drug. If you have a valid medical prescription for the prescription drug you were accused of possessing, the government will not be able to prove unlawful possession.

Finally, with respect to § 841(a)(1), in the case of McFadden v. United States, 576 U.S. 186, 135 S. Ct. 2298 (2015), the Supreme Court held that the charging offense under § 841(a)(1) does not require a defendant’s knowledge of the precise drug they were accused of possessing. Instead, it only requires a defendant’s knowledge that the substance they are in possession of is a “controlled substance.” Thus, if the government can show that you knew what the drug was a controlled substance, this will satisfy the requirement of possessing a controlled substance with the requisite mental state of knowing the nature of the substance.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What Must Prosecutors Prove in Firearm Possession Cases?

Under 18 U.S.C. § 922(g), it is illegal for several prohibited persons to possess “any firearm or ammunition.” This statute explicitly lists the nine specific groups of prohibited persons. However, as we have discussed above, prosecutors cannot convict an individual under § 922(g) simply by showing that an individual falls under one of these groups and is in possession of a firearm or ammunition. In other words, government prosecutors cannot establish strict liability under § 922(g). Instead, the government must prove “knowing possession” beyond a reasonable doubt.

In Rehaif v. United States, 588 U.S. 225, 139 S. Ct. 2191 (2019), the Supreme Court held that, in order to establish “knowing possession” under § 922(g), the government must establish the defendant’s knowledge as a prohibited person in addition to establishing the defendant’s possession of the firearm or ammunition. The Court reasoned that this is necessary to establish “scienter.” The Court made clear that knowledge of prohibited status is a separate element, so the fact that a defendant possessed a firearm does not by itself establish that he knew he belonged to a prohibited category. Therefore, to establish a prohibited person’s “knowing possession,” prosecutors will typically rely on the defendant’s physical possession, knowledge of the firearm’s identity as a firearm, and knowledge of prohibited status.

Section 922(g) also requires the government to prove that the firearm or ammunition “in commerce or interstate commerce.” At trial, the prosecution must prove beyond a reasonable doubt that the firearm or ammunition the defendant possessed had an “interstate commerce nexus.” This means that it must have been shipped across state lines at some point in the past. For example, in federal firearm possession cases involving firearms produced by foreign manufacturers, government prosecutors will attempt to establish interstate commerce by showing that the firearm was produced abroad and shipped into the United States; where the firearm was made domestically, they show it was manufactured in a different state from where the defendant possessed it.

While prosecution under § 922(g) focuses on firearm possession, section 922(g) allows for prosecution when an individual is found in possession of ammunition without a corresponding firearm. The statute states that individuals prohibited from firearm possession may not possess ammunition, whether or not they also possess a firearm. Although, to date, the government has rarely prosecuted individuals under § 922(g) solely based on ammunition possession, these cases are possible.

Under 26 U.S.C. § 5861(d), the government also needs to prove that a defendant was in “knowing possession” of any weapon or device that is owned or in actual, constructive, or joint possession of an individual. While this requires proof of possession, Staples v. United States, 511 U.S. 600 (1994) holds that “knowing possession” in federal criminal offenses involves a defendant’s awareness of certain features of the weapon. In other words, to prove “knowing possession” under 26 U.S.C. § 5861(d), the prosecution must show that the defendant knew of the features of the weapon that bring it within the scope of the National Firearms Act. In Rehaif, the Supreme Court noted that the requisite mental state under 18 U.S.C. § 922(g) does not include a defendant’s awareness that possessing the firearm constitutes a violation of federal law. Under 18 U.S.C. § 921(a)(3), the statute excludes antique firearms from the federal definition of firearms, meaning that antique weapons generally fall outside the scope of the statute prohibiting illegal possession of firearms.

What Does the Defense Have to Prove?

Although, it might sound misleading, the federal defense is generally not required to prove innocence. For example, if you are accused of possessing a controlled substance, you do not need to prove your innocence in exchange for pleading not guilty. Instead, the government must prove your guilt beyond a reasonable doubt. But, as previously discussed, there are various circumstances where the defense may have some limited burden of proof.

A primary example of a situation in which the defense may have a limited burden of proof is if the defense relies on an affirmative defense. While the government still bears the ultimate burden of proof in criminal trials, an affirmative defense can shift a limited portion of the proof burden onto the defense to establish a specific condition or fact. Depending on the defense, the defendant may need to produce evidence to persuade the judge or jury that they acted out of self-defense or in the belief that the conduct in question was justified under federal law.

Federal Rule of Criminal Procedure 11(b)(3) requires judges to satisfy themselves of a “factual basis” for accepting a defendant’s guilty plea. This means that the defendant must admit to facts that prove he is guilty of the offenses charged. If a defendant pleads guilty to an offense, this waives the government’s trial burden of establishing possession beyond a reasonable doubt. The fact, however, that federal judges must satisfy themselves with “factual basis” evidence when accepting a guilty plea does not make a defendant’s admission to criminal acts a prerequisite for accepting a guilty plea. Instead, the requirement of finding a factual basis for a defendant’s guilty plea ensures that defendants do not plead guilty to offenses they did not commit.

However, if a defendant accepts responsibility, this does not automatically equal a confession of guilt. Also, while judges must satisfy themselves that a “factual basis” exists for accepting a guilty plea, Rule 11(b)(3) does not mandate that the judge use the trial’s “beyond a reasonable doubt” standard when conducting this factual-basis inquiry. Consequently, judges may find that there is a factual basis to support a defendant’s guilty plea, even if they are not convinced beyond a reasonable doubt that the defendant is guilty.

What Evidence Must Prosecutors Disclose to the Defense?

Under federal rules of criminal procedure and controlling case law, prosecutors are required to disclose a significant amount of evidence to the defense in criminal trials. In addition to providing the defense with access to evidence that has been used against the defendant, the federal government must also provide the defense with evidence that are favorable to the defendant. As discussed above, there are several specific legal requirements under which prosecutors must disclose evidence:

• Under Brady v. Maryland, 373 U.S. 83 (1963), federal prosecutors must disclose material favorable evidence that may potentially cast doubt on the defendant’s guilt, assist the defense’s case, or reduce a defendant’s potential punishment. This is generally referred to as “Brady evidence.” This evidence includes evidence that proves innocence, that supports affirmative defenses, or evidence that could exonerate the defendant.
• Under Giglio v. United States, 405 U.S. 118 (1972), prosecutors must also disclose impeachment evidence related to their own witness testimony. This means that they must disclose anything related to their witnesses, such as promises of lenient punishment in exchange for testimony against a defendant, past criminal records, or other information that could potentially affect a witness’s credibility at trial.
• Under Rule 16, prosecutors must disclose defendant’s statements and tangible evidence. As discussed above, Rule 16 establishes several other specific requirements for disclosing evidence and other materials relevant to the charges brought against the defendant. Rule 16(a) requires prosecutors to disclose evidence related to test results, biological specimens, the substance found in the defendant’s possession, and more. For example, if you are accused of possessing an unregistered firearm under 26 U.S.C. § 5861, prosecutors are required to disclose any evidence obtained during searches or seizures.
• Under Rule 16(b), prosecutors must provide test reports, the results of an examination, or any other biological specimen results. These reports and tests are often conducted by federal agencies like the FBI and are important for establishing that the defendant was in knowing possession of a controlled substance.
• Under Rule 16(c), prosecutors must also provide expert summaries related to the investigation conducted by the government. As previously discussed, expert summaries help in establishing a defendant’s possession. Rule 16 also requires government prosecutors to disclose any other material that they know is contained in the files maintained by the prosecuting attorney.

Suppressed favorable evidence, whether the suppression is intentional or not, can violate the Constitution’s due process clause. This includes failure to provide evidence that could exonerate the defendant or provide evidence of innocence.

Speak With a Federal Defense Lawyer

If you are dealing with any part of what this article describes, the next step is a conversation with a lawyer who handles these cases. Spodek Law Group is a second generation criminal defense firm practicing since 1976, representing clients nationwide from offices in New York, Brooklyn, Queens and Los Angeles. Call 212-300-5196 to speak with our team.