Criminal

Unlawful Possession of a Weapon Part 2

Here we got another case; Anarchist cook book again! And here they, the bomb goes off and they think that Walter is responsible. So they go to Walter’s house, bust down his door and inside his house they find the ‘anarchist cook book’ which has instructions on how to build a bomb. So, they say,” this shows knowledge!” ok. Well, it seems superficially attractive. If he as instructions on how to build a bomb in his house, and a bomb goes off! Well i guess the logic is attractive. Yeah sure I can see how that might be relevant. But does it fit under 404; is it, is possession of this book another act? I would submit to you that the other act would have to be not possession of the book, not having it on your coffee table. But rather having read the book. Reading a book is an act, having it on your coffee table; I don’t know that that is really considered an act. They say,” no but it shows intent!” I would submit to you that they would have to show that he read it, rather than just possessed it.

Now, this is another case where intrinsic evidence and knowledge evidence sort of overlap each other. Here on the top left and the top right, you’ve got the client, in the middle you’ve got the lawyer and at the bottom you have my favorite movie lawyer of all time clientele from [inaudible] and this is a case about a lawyer, whose worst nightmare comes true. He finds himself named on the same indictment with his clients. And the government wants to introduce evidence that the attorney used cocaine with his clients and accepted cocaine as payment, for services rendered. And the prosecution was for conspiracy to possess with intent to distribute cocaine!

And of course the defense try to keep it out and they said,” No, if you used cocaine with the defendant then you know that he was in possession cocaine and if you accepted cocaine for your services then you advanced the conspiracy. You know and here we go again; is this intent or this an intrinsic offense? Here they called it intent. No I’m sorry; here they called it extrinsic, intrinsic! The question is; but couldn’t it just have easily been intent. And here we go again with, or knowledge! They make it sound like knowledge, you knew that they had cocaine because you were doing cocaine with them. And so, this is one of those instances where it’s difficult to differentiate between things like intent and intrinsic offenses. So, as I said; if you’re confused by these things its ok. It’s supposed to be confusing. This 404B is more of an art than science. It’s a, for me, I kind of, it’s like voodoo or golf or something, I can practice it for years and I’ll never really understand it. I feel like it’s not as scientific as some of the other parts of law are. It’s truly more of an art than anything.

So watch out for the back door. Any time you’re dealing with intent, understand that the prosecutors can always try and pull the rug out from you and call it intrinsic evidence and avoid rule 404B altogether.

Francisco Hernandez

Author Francisco Hernandez

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