[00:00:00] Speaker 05:
Turn to 23-1047, U.S.

[00:00:03] Speaker 05:
versus Curry.

[00:00:36] Speaker 05:
May proceed, Mr. Pinkus.

[00:00:38] Speaker 04:
Thank you, Your Honor.

[00:00:40] Speaker 04:
May it please the Court, my name is Howard Pinkus from the Federal Public Defender and I represent Ray Jean Curry.

[00:00:46] Speaker 04:
Mr. Curry was driving in a car that he and his mother jointly owned and in which there was a backpack on the front seat that contained his mother's gun.

[00:00:54] Speaker 04:
There was nothing that linked Mr. Curry to either the backpack or the gun.

[00:00:59] Speaker 04:
There was therefore insufficient evidence that Mr. Curry possessed the gun.

[00:01:03] Speaker 04:
and his felon in possession of conviction must therefore be vacated.

[00:01:08] Speaker 03:
It's basically shared.

[00:01:09] Speaker 05:
Is it, to say there's nothing that connected him.

[00:01:13] Speaker 05:
I thought the argument was there was, clearly it's connected to him, it's seen next to him.

[00:01:19] Speaker 05:
Your argument is that it was also evidence connecting him to someone else and as a result you can't tell

[00:01:25] Speaker 05:
beyond the reasonable doubt that it's his, but you can't say that there's nothing connecting him to a gun that's sitting next to him.

[00:01:31] Speaker 04:
Well, there's proximity, but there's not the nexus that we require in a joint occupancy case.

[00:01:36] Speaker 04:
There's nothing that connects him to the backpack or the gun within it.

[00:01:43] Speaker 04:
There's stuff that connects him to the space, but that's not what we require in a joint occupancy case.

[00:01:49] Speaker 04:
And this is a joint occupancy case because this is shared space.

[00:01:53] Speaker 04:
And that requires the government to present.

[00:01:55] Speaker 05:
But his mother wasn't in the car.

[00:01:57] Speaker 05:
No.

[00:01:58] Speaker 05:
You're saying that it's joint occupancy because the mother owned the car, was the co-owner of the car.

[00:02:05] Speaker 05:
The co-owner of the car, yes.

[00:02:06] Speaker 04:
And the normal presumption from that is that people who own things use those things.

[00:02:12] Speaker 04:
If they jointly owned it, there's a presumption that she used it.

[00:02:15] Speaker 00:
Can I just stop there, though?

[00:02:17] Speaker 00:
So are you relying on a presumption?

[00:02:19] Speaker 00:
Or is that?

[00:02:20] Speaker 00:
You used the word presumption.

[00:02:24] Speaker 00:
I'm wondering if there's any actual evidence that she ever used the car.

[00:02:29] Speaker 04:
There is not evidence she actually used the car.

[00:02:31] Speaker 04:
None.

[00:02:32] Speaker 00:
Zero.

[00:02:33] Speaker 00:
There's nothing in the record that she ever used the car.

[00:02:36] Speaker 04:
No.

[00:02:37] Speaker 04:
There's evidence that they both owned it and that he was driving.

[00:02:40] Speaker 04:
There's no evidence that he used the car before that.

[00:02:43] Speaker 04:
There's no evidence on that point at all.

[00:02:45] Speaker 04:
The normal import of owning something.

[00:02:51] Speaker 01:
Well, he did say it was his car.

[00:02:53] Speaker 01:
I'm sorry?

[00:02:54] Speaker 01:
You didn't say it was his car.

[00:02:55] Speaker 01:
I mean, you could draw an inference from that, couldn't you, that he'd used it before?

[00:03:00] Speaker 04:
Well, you certainly could draw an inference that he used it.

[00:03:03] Speaker 04:
It's not enough to overcome the legal status that it is jointly owned.

[00:03:07] Speaker 04:
It doesn't show that only that it was his car in that sense.

[00:03:11] Speaker 04:
Maybe it can get you to he thought he... Well, first of all, when somebody refers to it as my car, that's a shorthand way.

[00:03:21] Speaker 04:
of referring to things that is pretty common, even if you share with somebody else, and even if you're speaking to that other person.

[00:03:28] Speaker 04:
And later in that conversation, he said, the car.

[00:03:32] Speaker 04:
In any event, it doesn't overcome the legal status of the car.

[00:03:36] Speaker 04:
And at best, it might be taken as some evidence of his more predominant use.

[00:03:42] Speaker 04:
But all that matters here is that the ordinary course would be that she

[00:03:50] Speaker 04:
his mother used the car as well.

[00:03:53] Speaker 04:
And the government would have to show that that's not the case to overcome that.

[00:03:58] Speaker 04:
They didn't present anything about prior abuse by anybody.

[00:04:03] Speaker 05:
This is such a legal argument, and I always thought these issues were common sense, the sort of fact-finding jurors make.

[00:04:11] Speaker 05:
And when we talk about joint possession cases, we have two people sharing a room.

[00:04:18] Speaker 05:
Okay?

[00:04:19] Speaker 05:
And they search and they find something in the room.

[00:04:22] Speaker 05:
And who's it linked to?

[00:04:24] Speaker 05:
And maybe if that person's ID is in there or letters to that person, then we draw that inference.

[00:04:35] Speaker 05:
But it's all based essentially on common sense, not some legal construct, isn't it?

[00:04:43] Speaker 04:
Well, usually there's not much doubt that there is joint occupancy.

[00:04:47] Speaker 04:
Two people are in the car together.

[00:04:49] Speaker 04:
People are sharing a home.

[00:04:51] Speaker 04:
Typically, there's clear evidence that there's joint occupancy or shared space.

[00:04:57] Speaker 04:
But if you look at the house example, if Mr. Curry and his mother both joined me on the home, we would assume she was living there as well.

[00:05:05] Speaker 04:
And it's for the government in this case to show that something takes this case out of the joint occupancy context.

[00:05:16] Speaker 05:
Why isn't that something someone can draw an inference from?

[00:05:21] Speaker 04:
Well, being in the car at the time does not mean that you're the only one who uses the car.

[00:05:28] Speaker 04:
Look at Samara and many other cases of this court.

[00:05:32] Speaker 04:
Where somebody has borrowed a car, this court recently did it in Samuels, I believe, in the rental car context.

[00:05:39] Speaker 04:
The point is that there was somebody else who naturally would be taken to use the car and who could have left something in there.

[00:05:47] Speaker 05:
And a jury can say, how likely is it that the mother has a backpack with a gun that she puts in this car?

[00:05:57] Speaker 05:
And think that's just not the way things work.

[00:06:00] Speaker 04:
That's a different question about the nexus.

[00:06:02] Speaker 04:
But to focus on what makes this a joint occupancy case, all that should be required in this context is some evidence of joint occupancy.

[00:06:12] Speaker 04:
burden to overcome that because the whole point of the joint occupancy construct is to avoid imposing criminal liability on somebody when there's a chance that somebody else left the item in the car or brought the item into the car.

[00:06:26] Speaker 05:
We certainly have that here.

[00:06:35] Speaker 05:
It's just so legalistic when it's such a common sense type of thing.

[00:06:40] Speaker 05:
Was it his gun?

[00:06:41] Speaker 05:
Was he the one who was in charge of that gun that was in that backpack?

[00:06:47] Speaker 05:
And some people think people don't just leave a backpack with a gun, my backpack and gun in the car, and have someone drive off with it with the kid in the backseat.

[00:07:02] Speaker 05:
That's not relevant?

[00:07:04] Speaker 04:
Oh, it's relevant, but does that provide sufficient evidence once we're in joint occupancy context?

[00:07:08] Speaker 04:
I'm focusing first on the joint occupancy context, but you also need to look at who's gun it is.

[00:07:14] Speaker 04:
It's his mother's gun.

[00:07:16] Speaker 04:
There's nothing that connects him to the gun itself.

[00:07:18] Speaker 04:
There's no DNA evidence.

[00:07:19] Speaker 04:
There's no fingerprints.

[00:07:22] Speaker 04:
When you talk about leaving something in a car that somebody else might therefore access, this is a mother and son.

[00:07:29] Speaker 04:
She would feel no reason to withdraw her personal items from the car merely because her son might let her use it.

[00:07:36] Speaker 04:
There's not the risk of discovery that the government already knows.

[00:07:39] Speaker 05:
Did the jury know that he was a convicted felon who couldn't own a gun?

[00:07:46] Speaker 05:
The government knew that?

[00:07:47] Speaker 05:
I mean, the jury knew that, yes.

[00:07:50] Speaker 05:
So he couldn't buy a gun?

[00:07:51] Speaker 04:
He couldn't buy a gun, correct.

[00:07:55] Speaker 04:
But his mother swore on the purchase form that this was for her use.

[00:08:01] Speaker 04:
There's no reason to think that she's committing a criminal act by blindly for somebody else.

[00:08:07] Speaker 04:
She has just as much a right to own a gun as anybody else.

[00:08:11] Speaker 04:
And her leaving a backpack in a car that she shouldn't have.

[00:08:15] Speaker 05:
That could explain why the gun was in her name, even though it was his gun.

[00:08:20] Speaker 05:
There was a very good reason why the gun would be in her name, even though he's the one

[00:08:25] Speaker 05:
uses the gun and she lies about it.

[00:08:27] Speaker 04:
There's no evidence that he uses the gun.

[00:08:29] Speaker 04:
Their evidence is she bought the gun.

[00:08:32] Speaker 04:
There's no reason to disbelieve that.

[00:08:33] Speaker 04:
That's not a firm proof that it's his gun.

[00:08:36] Speaker 04:
We need something that connects him to the backpack if it's a shared space.

[00:08:41] Speaker 04:
And all we have is proximity.

[00:08:43] Speaker 04:
We don't have anything connecting him to anything other than the joint space.

[00:08:48] Speaker 04:
The government points to, for example,

[00:08:50] Speaker 04:
sweatshirts and beanies and things like that that were in the car.

[00:08:54] Speaker 04:
Leave aside the fact that they could just as easily belong to his mother, who on the firearms form indicates she's five foot five and 220 pounds.

[00:09:06] Speaker 04:
So the fact that it's an adult sweatshirt, that it's large, yet it's not his daughter's who's in the car, six year old daughter, but doesn't at all suggest that it's his versus hers.

[00:09:16] Speaker 04:
And the fact that it's

[00:09:18] Speaker 04:
There's stuff in the car that best connects him to the car, which his driving the car and his joint ownership of the car already does.

[00:09:27] Speaker 04:
It doesn't do anything to connect him to the backpack itself or to the gun within it.

[00:09:32] Speaker 04:
And that's what we need in a joint occupancy case is some nexus between him and not just the space generally, because there's always that in a joint occupancy case, but to the contrary.

[00:09:42] Speaker 01:
So the things we're talking about, I mean, his mother didn't testify, right?

[00:09:47] Speaker 01:
Correct.

[00:09:47] Speaker 01:
OK.

[00:09:48] Speaker 01:
So we don't know if she'd ever been in the car.

[00:09:52] Speaker 04:
Well, we know that she owned it.

[00:09:54] Speaker 01:
No, I know that.

[00:09:55] Speaker 01:
Hold on, hold on.

[00:09:57] Speaker 01:
You're changing the facts on me.

[00:09:59] Speaker 03:
We don't know specifically.

[00:10:00] Speaker 01:
There's no evidence that she was ever in the car.

[00:10:03] Speaker 01:
Other than her ownership?

[00:10:04] Speaker 01:
Yes.

[00:10:04] Speaker 01:
Yes.

[00:10:05] Speaker 01:
And your presumption that if you own something, you're going to use it.

[00:10:08] Speaker 04:
Well, then we should be working with the ordinary case and not the outlier case where somebody buys something and then doesn't use it.

[00:10:15] Speaker 01:
Well, I mean, it wouldn't necessarily be an outlier, would it?

[00:10:18] Speaker 01:
I own a vehicle.

[00:10:21] Speaker 01:
My son drives the vehicle.

[00:10:23] Speaker 01:
My son basically prohibits me from driving the vehicle.

[00:10:26] Speaker 01:
And so it wouldn't be a little disingenuous for me to say it's not his car if he got in trouble.

[00:10:34] Speaker 01:
Those are different facts.

[00:10:37] Speaker 01:
Those are different facts.

[00:10:38] Speaker 01:
I get.

[00:10:41] Speaker 01:
But what we know is that there was no evidence that his mother ever drove the car.

[00:10:47] Speaker 01:
There was... No evidence because the government never presented any evidence.

[00:10:49] Speaker 01:
No, I understand.

[00:10:51] Speaker 01:
I understand.

[00:10:51] Speaker 01:
I'm just talking about what's there.

[00:10:52] Speaker 01:
Yes.

[00:10:54] Speaker 01:
No evidence that the mother ever drove the car.

[00:10:57] Speaker 01:
No evidence that the mother put the backpack in the car.

[00:11:00] Speaker 01:
No evidence that the mother put the gun in the car.

[00:11:03] Speaker 01:
I mean,

[00:11:04] Speaker 01:
We don't know precisely how this all occurred.

[00:11:12] Speaker 01:
And that's sort of your point, right?

[00:11:14] Speaker 04:
That is my point.

[00:11:14] Speaker 04:
And by the same token, we don't have any evidence that she bought the gun for him.

[00:11:19] Speaker 04:
We have evidence that she bought the gun.

[00:11:21] Speaker 04:
We have evidence that she swore that she was the purchaser and not buying it for somebody else.

[00:11:26] Speaker 04:
There's no reason to doubt that.

[00:11:28] Speaker 04:
It's the government's burden to prove its case.

[00:11:30] Speaker 04:
take this case out of what is naturally a joint occupancy case and take it into the sole occupancy case where the only person who has control over that space is Mr. Curry and not his mother who's the joint owner and which her gun is found in a backpack.

[00:11:47] Speaker 04:
There's nothing in the backpack that identifies the two.

[00:11:50] Speaker 04:
Mr. Curry, there's just nothing here that connects him to that backpack specifically.

[00:11:55] Speaker 04:
The government points to, tries to make something out of this reach to the

[00:12:00] Speaker 04:
to the side by claiming he was putting four items on top of a backpack in two seconds, which frankly is just, there's no way that could happen.

[00:12:10] Speaker 04:
There aren't just shoulder wounds that would make it happen.

[00:12:13] Speaker 04:
And the government's argument is, well, this stuff was by the side of the seat.

[00:12:17] Speaker 04:
And if you look at the very picture in their brief, as well as the video from which it comes, you can see that there's very little space there, and it's implausible that that stuff was

[00:12:29] Speaker 04:
laying there.

[00:12:31] Speaker 04:
And in any event, it just couldn't physically happen.

[00:12:35] Speaker 04:
They also make the argument that he engaged in suspicious conduct in one way by saying, by moving towards the car when one of the officers started to search it.

[00:12:51] Speaker 04:
We didn't cite her brief.

[00:12:52] Speaker 04:
We did cite defense exhibit O, which is in supplemental record.

[00:12:54] Speaker 04:
But if you look at that,

[00:12:57] Speaker 04:
104 to 121 of that video tape, you can see that this is at the very moment when his daughter is being removed from the car.

[00:13:07] Speaker 04:
And when they tell him, don't go near there, he stops.

[00:13:09] Speaker 04:
There's nothing at all suspicious in his behavior at any time.

[00:13:12] Speaker 04:
I encourage the court to look at the videos that we cited in the briefs.

[00:13:17] Speaker 04:
There's just nothing here that connects him to the gun or the backpack, his mother's gun,

[00:13:25] Speaker 04:
in a backpack where its outline couldn't be observed and there was no reason for him to know that there was a gun inside of it.

[00:13:32] Speaker 04:
We therefore asked the court to vacate his 922G conviction and remanded the instructions to dismiss the indictment.

[00:13:55] Speaker 02:
Morning again, Your Honours, and may it please the Court, Rajiv Mohan for the United States.

[00:14:08] Speaker 02:
This Court should affirm, because it was not unreasonable for the jury to infer that the driver, sole adult occupant, and co-registered owner of a car he described as his own constructively possessed a firearm inside of a backpack located on the front passenger seat.

[00:14:26] Speaker 02:
And I'd like to start with this question of joint occupancy versus exclusive control, because I think these are not necessarily rigid categories.

[00:14:35] Speaker 02:
Ultimately, the meaning of constructive possession is the same in both categories.

[00:14:41] Speaker 02:
And what this court's cases reflect is that in a case of exclusive control, we can typically infer constructive possession based on that fact alone.

[00:14:50] Speaker 02:
But when we introduce the joint occupant, typically something more is necessary.

[00:14:54] Speaker 02:
And I think here a reasonable jury could infer based on Mr. Curry's degree of control by itself that he constructively possessed the firearm inside.

[00:15:06] Speaker 02:
But however this court views the case, there was sufficient evidence.

[00:15:09] Speaker 02:
I want to highlight some of the facts that I think go most directly to the question of whether the backpack belonged to Mr. Curry or his mom.

[00:15:19] Speaker 02:
And I'd like to start with the items in the backpack itself.

[00:15:24] Speaker 02:
marijuana, the cash, the scale, and of course the fully loaded firearm with a round in the chamber.

[00:15:30] Speaker 02:
And I think a jury could be reasonably skeptical of the notion that Mr. Curry's mom would leave behind a fully loaded firearm in a car she shared with her convicted felon son, in which he used to transport his six-year-old daughter.

[00:15:46] Speaker 02:
Now I also want to emphasize one specific point about the marijuana.

[00:15:52] Speaker 02:
When Mr. Curry's mom purchased the firearm, she filled out ATF paperwork, which was admitted at trial as Defense Exhibit S. And on that paperwork, she represented that she was not a user of any controlled substance, including marijuana.

[00:16:09] Speaker 02:
So I think that marijuana is a strong indication that the backpack did not belong to her and did belong to Mr. Curry.

[00:16:18] Speaker 02:
I also think the location of the backpack is important.

[00:16:21] Speaker 02:
I think a jury could reasonably conclude that the front passenger seat is a natural place for the driver to leave his or her personal belongings.

[00:16:32] Speaker 02:
And the fact that Mr. Curry felt comfortable putting other items on top of it supported an inference that he felt comfortable doing so because the backpack belonged to him.

[00:16:43] Speaker 02:
I also want to say a few words about the reach.

[00:16:45] Speaker 02:
Mr. Curry has a lot to say about what he could or could not have done within two seconds.

[00:16:51] Speaker 02:
I think that's ultimately beside the point.

[00:16:53] Speaker 02:
I think the reach by itself, regardless of what Mr. Curry was able to accomplish, supported a connection to the items on the front passenger seat.

[00:17:03] Speaker 02:
And I would probably give this court's decision in United States versus Michelle, which is cited in our brief, which involved a similar reach and where the officer

[00:17:12] Speaker 02:
could not see how close the defendant got to the gun, or even whether he was specifically reaching for it, and still the reach supported an inference of constructive possession.

[00:17:24] Speaker 02:
So for all of those reasons, we believe that the evidence was sufficient here.

[00:17:27] Speaker 02:
However, this court used the case because a reasonable jury could conclude that Mr. Curry had the power and intent to exercise control over the firearm, which is the ultimate question, whether joint occupancy

[00:17:40] Speaker 02:
or exclusive control, and we would therefore ask the court to affirm.

[00:17:46] Speaker 05:
You didn't point to what, maybe I misunderstand the evidence, but when he was talking to his mother, he said, they stopped me in my car.

[00:17:55] Speaker 05:
Yes.

[00:17:58] Speaker 05:
I mean, it wasn't just that he said my car to the officers.

[00:18:01] Speaker 05:
He's saying it to the person who's the co-owner of the car.

[00:18:05] Speaker 05:
Didn't say our car or your car or something like that.

[00:18:09] Speaker 02:
That's right, Your Honor.

[00:18:10] Speaker 02:
And I think, to the extent you later referred to, the car, a jury could sort that out and take him at his word as he initially put it to his mom.

[00:18:22] Speaker 02:
Question?

[00:18:24] Speaker 02:
Thank you.

[00:18:29] Speaker 05:
You just got about two minutes.

[00:18:30] Speaker 05:
Is that right?

[00:18:34] Speaker 05:
You have to talk fast.

[00:18:35] Speaker 05:
You don't have quite two minutes.

[00:18:37] Speaker 05:
It's just 1.58.

[00:18:42] Speaker 03:
Starting with the my car.

[00:18:47] Speaker 03:
Yeah.

[00:18:51] Speaker 04:
Judge Carson is talking about a car that his son used.

[00:18:55] Speaker 04:
My wife and I own a car together.

[00:18:57] Speaker 04:
She'll refer to it as her car.

[00:18:59] Speaker 04:
She'll refer it that way to me.

[00:19:01] Speaker 05:
Because that's the one teacher.

[00:19:02] Speaker 05:
Oh, you drive it as much as you see.

[00:19:04] Speaker 04:
I drive the car a lot.

[00:19:07] Speaker 05:
When you talk to a

[00:19:08] Speaker 05:
Well, I shouldn't ask what you say if you want.

[00:19:12] Speaker 04:
She would say, my car.

[00:19:13] Speaker 04:
She were talking to me.

[00:19:15] Speaker 04:
And it may reflect predominant use.

[00:19:16] Speaker 04:
It might.

[00:19:17] Speaker 04:
It doesn't change the fact that it's jointly occupied, jointly used, and that we both might leave things in there.

[00:19:25] Speaker 04:
And that's the fact that he put stuff on the backpack or anything of the kind, or the backpack was in the front seat.

[00:19:35] Speaker 04:
It's his mother legend.

[00:19:37] Speaker 04:
the backpack in the car.

[00:19:38] Speaker 04:
There's no reason to think he would be at all uncomfortable putting the Happy Meals that he had just had with his daughter on top.

[00:19:44] Speaker 04:
It doesn't show a connection to the backpack.

[00:19:46] Speaker 04:
It shows his comfort in putting something there.

[00:19:50] Speaker 04:
That's all that shows.

[00:19:51] Speaker 01:
Could a reasonable juror infer that someone, whether it be his mother or someone else who was presumably trafficking narcotics with a scale

[00:20:06] Speaker 01:
marijuana, and cash, and a gun, that they wouldn't just leave that in their car.

[00:20:14] Speaker 01:
Could a reasonable juror infer that?

[00:20:17] Speaker 04:
Well, first of all, there's no evidence of what that red powder was.

[00:20:21] Speaker 04:
Second of all, the marijuana was remnants.

[00:20:23] Speaker 04:
And the government, the money that it refers to, it was $100, about $100, what it referred to in its nation as a little bit of money.

[00:20:31] Speaker 04:
So we don't know what the situation was with his mother.

[00:20:35] Speaker 01:
The notion is only Mr. Curry could have had... Okay, so I'll take your factual recitation as the straight up on what it is.

[00:20:45] Speaker 01:
Could a reasonable juror infer that she wouldn't leave that in the car?

[00:20:52] Speaker 04:
Is it possible she wouldn't leave it in the car?

[00:20:54] Speaker 01:
Yes, but... No, I want to know if a reasonable juror could infer that.

[00:20:58] Speaker 04:
I don't think it tells us one way or the other.

[00:21:00] Speaker 04:
She might feel perfectly comfortable because it's her son who's going to be driving the car, her son who she has no fear of discovery from.

[00:21:08] Speaker 04:
Or she may have simply forgotten it when she got out of the car.

[00:21:11] Speaker 04:
This is a car that's jointly owned and presumably jointly used.

[00:21:15] Speaker 04:
And that fact needs to inform this court's decision.

[00:21:18] Speaker 04:
And in fact, the government could have presented evidence that shows that it was unlikely that the mother used the car.

[00:21:24] Speaker 04:
But they didn't present anything like that.

[00:21:28] Speaker 04:
Judge Carson, you were talking about your son who was living with you.

[00:21:31] Speaker 04:
If you look at the precincts report, they were actually living together at the time.

[00:21:36] Speaker 05:
Just wanted to remind you, you're over a minute.

[00:21:38] Speaker 04:
Oh, I am, yes.

[00:21:39] Speaker 05:
Thank you, Your Honor.

[00:21:40] Speaker 05:
Thank you.

[00:21:41] Speaker 05:
Case is submitted, and the counsel are excused.

[00:21:45] Speaker 05:
Thank you.