Tuesday, June 29, 2010

Conviction for Possession of a Weapon in a Prison affirmed

In United States v. Holmes, No. 09-2846 (W.D.PA 06/07/10), the Court of Appeals affirmed Mr. Holmes conviction for possession of a weapon in a prison.

Holmes was a prisoner at FCI - Loretto who was searched by prison guards and found to be in possession of a utility-knife blade. Holmes was subsequently charged with one count of possessing a weapon in a prison in violation of 18 U.S.C. § 1791.

Holmes proceeded to trial, was convicted and sentenced to 24 months incarceration. On appeal he made the following three claims: 1) the evidence at trial was insufficient for the jury to conclude the blade was a “weapon” within the meaning of 18 U.S.C. § 1791; 2) that the statute requires the government prove Holmes “knew” the blade was a weapon; and 3) that the district court erred when it refused to charge him with misdemeanor possession of a “prohibited object” as a lesser included offense.

As to the first claim, that the evidence was insufficient for the jury to conclude the blade was a “weapon,” Holmes argued that the definition of weapon should be an object whose primary purpose is for use in combat or an object that is inherently a weapon. Based on the invited error doctrine, the Court of Appeals rejected this argument, finding that this definition on appeal was much narrower than the definition proposed and adopted at trial. Specifically, trial counsel proposed a jury instruction which the district court adopted and advised the jury that the definition of a weapon is a “question of fact for you alone to decide.” Because the definition of “weapon” on appeal varied from the definition adopted at trial, the Court of Appeals declined to consider whether the definitions on appeal were correct. The Court then conducted a plenary review of the trial record in a light most favorable to the verdict winner and found the evidence to be sufficient - that blades are restricted items, that Holmes had no legitimate use for the blade the morning he possessed it, that he lied to the officers when asked if he had anything sharp, that he was hiding the blade, and that the prison guards testified they thought the item constituted a weapon. As a result the sufficiency claim was rejected.

As to the second claim, that the statute requires the government prove Holmes “knew” the blade was a weapon, the court of Appeals found that section 1791 had no scienter requirement but noted both parties agreed that a scienter requirement should be implied. The government argued that the statute requires only knowing possession of the object. In contrast, Holmes argued that he could only violate the statute if he knowingly possessed an object he knew was a weapon. The Court of Appeals rejected Holmes’ argument finding no support in the statute, that it lacked the support of congressional intent, and ignored the notion of the need for prison security - that prison security is threatened every time an inmate possesses a blade, regardless of whether or not the inmate “knows” it’s a weapon.

Finally, the Court of Appeals rejected Mr. Holmes third claim, that the district court erred when it refused to charge Holmes with misdemeanor possession of a “prohibited object” as a lesser included offense. The Court conducted a textual comparison between possession of a weapon in prison (§ 1791(d)(1)(B)) and possession of a prohibited object (§ 1791(d)(1)(F) - in doing so the Court found that § 1791(d)(1)(F) applies only to “any other object that threatens the order ... of a prison.” The Court determined that the use of “other” in this subsection meant that it “expressly exclude[d] items discussed in other subsections of § 1791(d)(1).” Because the elements of the misdemeanor offense were not a subset of the charged offense it could not be considered lesser included. AFFIRMED.

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