Possession charge effectively covered “mere presence” issue; Prosecutor asking why officers would risk careers was not improper vouching.

U.S. v. Weatherly, No. 07-1019, 2008 WL 850005, (3d Cir., Mar.31, 2008)(published May 13, 2008). Weatherly was charged with being a felon in possession of a firearm. It was alleged that the gun was found on Weatherly as he was being arrested on another matter. At trial, Weatherly contested the issue of possession, arguing that the officers found the firearm in the alley nearby, assumed it was his, and lied about where it was actually found. Counsel pointed out discrepancies in the officers’testimony and offered evidence that it was common to find abandoned guns in the alley where he was arrested. He also offered witnesses who testified that Weatherly was not carrying a gun while in their presence earlier that day.

In closing argument, Weatherly conceded that he was only contesting the issue of whether he “possessed” the gun, and argued that his guilt hinged upon the credibility of the officers. In rebuttal, the government argued that Weatherly failed to show any reasons why the officers would lie and asked “Why would Officer Ryel and Detective Medina risk their 32-34 years of experience on the police force over this case?”

Weatherly submitted a proposed “mere presence” jury instruction to explain the legal justification for his defense theory: “Mere presence in the area of any contraband, including a firearm, or awareness of its location is not sufficient to establish possession.” The judge refused the instruction, finding it was not relevant. The court gave, in part, the following possession instruction:

To possess means to have something within your control. This does not necessarily mean that you must hold it physically, that is to have actual possession of it. As long as the firearm is within your control, you would possess it. Knowingly is defined as knowledge, voluntarily and intentionally, and not because of mistake or accident or other innocent reason. . . .Now, to
possess means to have it within the person's control. That does not mean, and I said earlier, it doesn't have to be held physically. It doesn't even have to be on the person. But in this case, the proofs and the allegations are that the defendant had it on his person [and] had actual possession of it. In other words, you can be in possession of a weapon in your car and you can be 25-50
feet from the car. But that's not this case. That's all I'm saying. This case, the allegation is that the defendant had possession of it, actual possession on his person.

The jury returned a guilty verdict. On appeal, Weatherly argued that the possession instruction failed to instruct that the defendant had to “intend to exercise dominion and control” over the firearm and did not cover his requested “mere presence” instruction. He argued that the jury could have found him guilty even if they believed his defense, because the instruction defined possession to include the situation where the firearm was simply near him or susceptible to his control.

The Circuit found that the district court did not err in refusing the mere presence instruction because the possession instruction substantially covered the issue; the jury could not find that Weatherly knowingly possessed the firearm under the actual jury instructions due simply to his mere presence in the area of any contraband because it required knowledge and control. Moreover, even if the actual jury instructions did not substantially cover Weatherly's proposed mere presence instruction, the court did not err because omission of the “mere presence” instruction did not prejudice Weatherly. At trial, the Government's theory was that Weatherly actually possessed the firearm and the court's jury instructions made it clear that this case was about actual possession, not constructive possession, making the mere presence instruction irrelevant.

Weatherly also argued that the prosecutor improperly vouched for the credibility of the government witnesses when he asked why the officers would risk their careers on his case. The Circuit held that although in some cases such a statement would be improper vouching, in this case they were proper because they were based on evidence in the record (the government asked one of the officers what would be taken into consideration by his superiors in making promotion decisions, part of his answer included disciplinary actions), and the statement was a reasonable response to allegations of perjury by Weatherly's attorney, who argued at closing that the police officers found a gun near the defendant, conspired with each other to lie about the incident, and then proceeded to perjure themselves in court.