922(g)(1) is a continuing offense so possession must be relinquished to support two convictions; constructive possession of gun and drugs; parole status was “helpful background” under 404(b)

In United States v. Benjamin, 11-2906 (3d Cir. March 26, 2013), Benjamin was convicted of possession with intent to distribute crack and marijuana and two counts of being a felon in possession. The same weapon supported the two felon-in-possession convictions: Benjamin used it at a gun range and it was also found in his house. On appeal, Benjamin did not challenge that he possessed the gun at a gun range. The Third Circuit affirmed that there was sufficient evidence for the drugs and gun possession under a theory of constructive possession. Constructive possession is established by dominion and control (“more” evidence), not mere proximity. The gun was found in the basement where Benjamin worked, a gun box was found under a shared bed, and ammunition was found in a shared closet. The government also argued evidence Benjamin was involved in the drug trade strengthened his connection to the gun. The drugs were found in a secreted location in the basement, an expert testified a book next to Benjamin’s bed was a drug ledger, and nitrile gloves (that an expert testified parolees use to avoid detection when packaging narcotics) were found in the kitchen and in Benjamin’s car. The Court found that entry of two convictions for being a felon in possession was error and the second conviction had to be vacated. The Court held that 18 U.S.C. § 922(g)(1) is a continuing offense so there must be an interruption in continuity and possession – relinquishment of actual and constructive possession – to charge it twice. There was no evidence that Benjamin’s constructive possession was ever interrupted, and evidence that Benjamin and his fiancée were not always home at the same time was insufficient. The Court also found this error was plain, affected Benjamin’s substantial rights because there are adverse consequences even when a defendant is sentenced to concurrent terms, and it was appropriate for the Court to use its discretion and grant relief. The Court found that continued reference to Benjamin’s parole status was admitted for the proper purpose of being “helpful background” under Federal Rule of Evidence 404(b). The references were essential to the trial and were also relevant to Benjamin’s motive for using an alias, using gloves to hide drug trafficking, and to explain Benjamin’s fiancée’s testimony about hiding the gun. Moreover, the court minimized the prejudice by precluding evidence that Benjamin had underlying drug trafficking convictions.