Saturday, April 16, 2011

Case o' The Week: A Tucker-ed Out Defense, "Mere Presence" in the Ninth

"What happens in Vegas, stays in Vegas."

(Unless, of course, your thoroughly-disgruntled ex-girlfriend knows the phone number of your parole officer).
United States v. Tucker, 2011 WL 1441865 (9th Cir. Apr. 15, 2011), decision available here.

Players: Decision by Judge Callahan, joined by Judge Gould and visiting District Judge England.

Facts: Tucker, a felon, leased a Las Vegas apartment with his girlfriend and child. Id. at *1. The girlfriend called his parole/probation officer and reported that the couple had broke up, she had moved out, and there was a shotgun in a closet in the apartment. Id.

This officer and others searched the unoccupied apartment and found a shotgun in the closet of a master bedroom. Id. Also in this room were men’s clothes and prescription bottles belonging to Tucker. Id. Tucker showed up and said he was living there with a roommate. Id. at *2. Tucker seemed to know about the gun, denied it was his, said his fingerprints might be on it but explained he had briefly handled it with some (unidentified) friends days before. Id.

At the jury trial, the district court refused to give the defense “mere presence” instruction, which explained that mere proximity, brief touching, or brief handling of a gun was insufficient to “possess” the gun. Id. at *5. Tucker was convicted and appealed.

Issue(s): “Tucker argues that his only link to the firearm was his presence in the apartment and his statements that he had briefly handled the firearm on an earlier date, and therefore the district court should have issued a ‘mere presence’ or ‘mere handling’ jury instruction.” Id. at *11.

Held: “We conclude that the district court did not err in refusing to give the mere presence instruction, particularly as the jury was properly instructed on the elements of the felon in possession statute . . . Pursuant to these instructions, the jury could not find Tucker guilty based on his mere presence or handling of the shotgun. . . . We conclude that the jury instructions adequately covered Tucker’s theory of the defense, ad therefore the district court did not commit reversible error.” Id. at *12.

Of Note: Judge Callahan concedes that there is a spectrum of fact-bound cases involving the mere-presence instruction, from Negrete-Gonzales to Howell. Id. at 11. Comparing the facts of Tucker to cases on this spectrum, she concludes that because Tucker was the only adult occupant, the gun was in the room Tucker was using, near his personal effects, that Tucker knew of the gun when confronted by the officers, and that he’d handled the gun in the past and thought his fingerprints might appear on it, the “evidence goes beyond ‘mere presence’ and makes a mere presence instruction unnecessary.” Id. at *11. It is a disappointing outcome, and again illustrates that the right to a “mere presence” instruction remains fuzzy law that is very fact-bound.

How to Use: Should you go to trial on a “mere presence” defense? These fact-bound opinions make that decision a tough call, made even tougher by the fact that most district courts defer on deciding whether to give the defense instruction until the evidence comes in at trial (when those good pretrial deals are distant memories, and the “acceptance of responsibility” points are long gone). The best one can do is collect the opinions and compare the facts to your case – and a good (or rather, informative) place to start is the Ninth’s notorious decision in United States v. Nevils, 598 F.3d 1158 (2010) (en banc), reversing what had been a great case on mere presence by Judge Paez.

For Further Reading: Is there a category for Ninth Circuit decisions that are, “most sympathetic to the defense, with ultimate win to the government?” If so, that distinction goes to last week’s decision in United States v. Apodaca, 2011 WL 1365794 (9th Cir. Apr. 12, 2011). CD Cal AFPD Josh Libby has the panel acknowledging that the guidelines for possession of child porn are nutty – and dissenting Judge W. Fletcher pens the best-written attack on those guidelines ever published in an opinion. Nonetheless, the panel still upholds lifetime supervision for a schlub with a two-year sentence for child porn possession!?!

Frustrating loss, but the case is a great resource for future deconstruction attacks on guidelines that have become completely unmoored from the criminal conduct at issue.

Image of the Las Vegas sign from

Steven G. Kalar, Senior Litigator N.D. Cal FPD. Website at


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