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Merger: Interruption Required for Separate Possession Convictions

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By Robyn Hagan Cain on March 29, 2013 4:14 PM

Nathaniel Benjamin was arrested while on parole and living with his fiancée, Stacy Esprit. Benjamin’s parole officer, who knew that Benjamin’s license had been suspended, observed Benjamin driving, and he organized a search of Esprit’s home, where Benjamin was residing.

That search turned up way more than we can detail in one post: drugs, a pit bull in a cage, etc. We’re just going to focus on the gun from the search.

Esprit directed the officers executing the search to a loaded 9 millimeter Kel-Tec handgun in the basement. She said that she knew that Benjamin wasn't allowed to be in the vicinity of a gun, and explained that she always carried the gun with her and had loaded it with ammunition that day because she was planning on going to the shooting range. She claimed that she had the gun to protect herself from an abusive ex.

Under 18 U.S.C. § 922(g)(1), it is illegal "for any person ... who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.

Based on the gun in the house, and testimony that Benjamin had fired two clips at the shooting range, a jury later convicted Benjamin on two counts of possession of a firearm by a convicted felon. Both convictions rested on a theory of constructive possession.

On appeal, Benjamin argued that if the evidence was sufficient to convict him of gun possession in the house, then his conviction on that count should have merged with his conviction on another felon-in-possession charge involving the same gun at a gun range. The Third Circuit Court of Appeals agreed.

Because the felon-in-possession crime is continuing, charging and punishing a defendant twice for the same firearm requires an interruption in continuity of possession.

Here, the jury did not hear evidence that Benjamin's possession of the gun was ever interrupted, and the government cannot simply rely on the fact that Esprit and Benjamin were not always at home together to show an interruption in possession that would permit a second conviction. Without evidence that Benjamin relinquished constructive possession of the gun, there could be only one possession conviction.

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