Updated: 01-07-16
This section will contain short summaries and commentary pertaining to State and Federal firearm related cases. Normally cases regarding felons charged with possession of firearms will not be covered on this site because, as one learned Judge observed: “Cases involving felons charged with possessing firearms are generally mundane. In the typical case, a felon, with a gun in his car is stopped for a traffic violation. If the evidence isn’t suppressed, the inevitable conditional plea follows, with the search issue reserved for appellate review.” See U.S. v. Cleo C. Ross, 412 F. 3d 771, Justice Evans commenting.
However, because of the search and seizure issues, some of these cases are noteworthy and warant reporting, especially those involving questionable search tactics that can have a profound effect upon the average Joe Citizen.
Other cases reported in this section will focus on unusual factual scenarios and/or instances where a Judge may make an observation or state an opinion about gun control.
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United States vs. Reginald Guice,  2006, WL 2583723 (Northern Dist.  Ill. ) (Slip opinion. Only the Westlaw citation is currently available.)   Sept. 6, 2006.

This case before the  U.S. District Court for the Northern District of Illinois, Eastern Division, was tried before a jury, and the Defendant moved for a new trial subsequent to his felony conviction of unlawfully possessing a firearm.(18 U.S.C. 922(k)) .Defendant’s filed a motion for acquittal under Federal Rule of  Procedure 29(c) , and in the alternative for a new trial pursuant to Rule 33. Defendant challenged the sufficiency of the evidence presented at trial. Although not an appellate case, and categorized among those mundane cases dealing with a felon  found to be in possession of a firearm, this case states  numerous case authorities that clearly demonstrate the 7th Circuit’s hard-nose position regarding firearm cases. .

Facts: This case as reported has no factual concerning why and under what circumstances the defendant and his car were searched. However, the officers’ testimony is addressed insofar as it showed that defendant had two firearms in the trunk of his car, and that another gun was found under Defendant’s thigh during a pat-down search inside the vehicle. Defendant initially told the officers he was a security guard, that he had fallen asleep in the car and was not the driver. The car was shown to be his and that he had been discharged from the guard position a month earlier.

Decision: From the onset the Court points out that by challenging the sufficiency of the evidence, it is said that the Defendant "faces a nearly insurmountable hurdle.  See U.S. v. Gougis. 432 F. 3d 735, 743-744. The Court must consider the evidence in the light most favorable to the prosecution, drawing all reasonable inferences in the government’s favor," and a  '[r]eversal is appropriate only when, after viewing the  evidence in such a manner, 'no rational jury could have found the defendant to have committed  the essential elements of the crime. U.S. v. Macari,  453 F. 3d 926, 936 (7th Cir. 1999)"'

The Court  had this to say, in pertinent part, regarding Defendant’s challenge to the sufficiency of the evidence:

 " The testimony of the officers regarding discovery of the gun [under defendant's thigh] did not include facts that were physically impossible or that could be deemed incredible as a matter of law.  See U.S. v. Griffen, 194 F. 3d 808, 817 [7th Cir. 1999] (stating also that '[t]o make the necessary showing that certain evidence is incredible as a  matter of law or  unbelievable on its face,  [the defendant]  must demonstrate that it would have been physically impossible for the witness to observe what he described, or it was impossible under the law of nature for those events to have occurred at all'" ) (quoting United States v. Alcantar, 83 F. 3d 185, 189 (7th Cir. 1996). Therefore, Guice has failed to show that no rational jury could have found all the elements of the charge in Count One were proven against him beyond a reasonable doubt and we deny the motion for judgment of acquittal on the jury verdict on count one."   

Defendant also objected to the Court’s refusal to give a "mere presence instruction” by which the jury would be instructed that “[a] defendant’s mere presence in the proximity of firearms without more is insufficient to show possession of those firearms.  A defendant’s mere association with those who may have possessed firearms without more is insufficient to show possession of firearms."

Addressing this issue the Court stated that  " . . . in the instant action, the mere presence instruction was not applicable because there was ample evidence, besides Guice's proximity to the [firearms], to show constructive possession of the [firearms]. Not only were the firearms found in Guice's  presence, but evidence was presented that Guice owned the car in which the firearms were found. The Government also presented evidence showing that Guice had the gun concealed under his thigh and evidence showing that Guice gave implausible statements to the arresting officers when they approached the car. Thus, the mere presence instruction did not reflect a theory in the case that was applicable in light of the evidence presented at trial .

". . .  In addition, Guice’s instruction is not supported by the law .The Seventh Circuit has specifically ‘rejected the contention that possession instructions must includes a qualifier that mere proximity is not possession'  and has held that a District Court's instructions coupled with the defendant’s ability to argue his theory to the jury adequately  presented his theory of defense. U.S. v. Hendricks, 319 F. 3d 993,1005-06 (7th Cir. 2006) (quoting U.S. v. Rice, 995 F. 2d 719,725 (7th Cir. 1993)). 

". . .   See U.S. v. Lee, 439 F. 3d 381, 387 (7th Cir. 2006) (stating that a 'district court is afforded substantial discretion with respect to the precise wording of instructions so long as the final result, read as a whole, completely and correctly states the law'). . . . Based on the  foregoing analysis, we deny Guice’s motion for judgment of acquittal notwithstanding the jury verdict and we deny Guice’s motion for a new trial."

U.S. v. Ross, 412 F 3d 771, C.A. 7 (Ill.), 2005
The 7th Circuit Court of Appeals reversed and remanded where the defendant was convicted in the U.S. District Court for the Central District of Illinois of the offense of possession of a firearm by a felon. There was a four year difference from the “on or about” date of the offense as charged in the indictment and the start of the date range that the jury was instructed to consider the defendant being in possession of a firearm. This was the turning point of the basis for remand.
The defendant had been charged in the indictment as possessing “a firearm on or about 9/8/02.” However, the jury was instructed that defendant could be found guilty if he possessed the shotgun “on or after May 22, 1998” to conform to the evidence at the trial, and to defeat a possible statute of limitations defense. At trial it was alleged that defendant had shown a shotgun to his lady friend in the summer of 2001, and admitted it was his, while other facts revealed the firearm involved in a tryst which gave rise to the allegations that supported the indictment was a pistol.
The appeals court held that there was an unreasonable departure from the charging language in the indictment. Justice Evans, writing for the majority, noted that this case, at least the factual scenario, was unlike the usual mundane felony possession case, and he made a candid observation--that is, “Realistically, federal grand juries today provide little protection for criminal suspects whom a U.S. Attorney wishes to indict. Nevertheless, that is not a realism to which Judges are permitted to yield.

U.S. v. Darius Williams, 436 F. 3d 767 (No. 052380). C.A. 7 (2/06)
The 7th Circuit Court of Appeals affirmed a Southern District of Illinois Federal District Court decision in a firearm case where the guidelines for sentencing followed by the District Judge was challenged. The defense argued that “the guidelines range is only one of several factors listed in section 3553(a), and although the district court mentioned several of the other factors, it did not give them meaningful consideration.”
The appeals court found that the trial court viewed the mitigating circumstances of the defendant’s traumatic childhood and psychiatric problems, and came to the correct decision regarding sentencing based on “reasons that are logical and consistent with the factors set forth in section 3553(a).” The Court went on to note: “Nonetheless, the court decided that a sentence within the guidelines range would be appropriate not only to deter [defendant] from possessing a gun in the future, but to send a message to the community to stop carrying firearms. The court stated that the sentence was consistent with Congress’s policy on guns and avoiding disparate sentences.” [Emphasis added.]

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