Clients frequently come to our office and claim that the government has charged them with possession of either illegal drugs or firearms. Many believe that the charges are baseless because the police did not find any of the items in question on their person at the time of arrest. It is important to understand that if the government is not able to prove that a person actually possessed an illegal item, it may demonstrate constructive possession of such items by showing that one had control over the item or intended to exercise control over the item.
A constructive possession analysis requires that a Court exam the totality of the circumstances surrounding the arrest. A Court may convict a defendant for illegal possession under a constructive possession theory where it appears, under the totality of the circumstances, the person exercised conscious dominion and control over it. A Court may also convict a defendant where the government can demonstrate that a defendant intended to exercise control over the item.
The government may prove constructive possession by circumstantial evidence. Further, knowledge and intent may be inferred by an examination of the totality of the circumstances surrounding the arrest. Courts use the same analysis for the constructive possession of a firearm as they do for the constructive possession of illegal drugs or some other illegal substance. It is important to understand that even if the government cannot charge you with constructive possession, they still may successfully prosecute you for criminal conspiracy. Frequently, when our clients are charged along with others (codefendants) criminal conspiracy is listed as one of the offenses. A court can find you guilty of criminal conspiracy if the prosecution can demonstrate that you agreed with one or more persons to commit a crime. You are also guilty of conspiracy if you provide aid to someone in planning or committing a crime. It is also important to understand that if you are found guilty of criminal conspiracy you may be found guilty for more than you realize.
If, for example, the prosecution is able to show that you knew a person was conspiring with others in addition to yourself, you could be found guilty of conspiring with everyone. Criminal conspiracy therefore typically subjects an individual to harsh punishments and consequences that they never thought possible. Criminal conspiracy does not have its own sentencing grading and if you are convicted of conspiracy you face the same grading as the actual crime. While the consequences of a conspiracy charge are serious, it is important to keep in mind that the burden remains on the prosecution.
The prosecution must establish that you had an agreement with at least one other person and that you took a substantial step toward completing the actual conspiracy. You can also not be found guilty of conspiracy if you can demonstrate a renunciation to the act. Renunciation means that upon becoming aware of the criminal nature of the act you affirmatively disengage from the group. In closing, it is important to keep in mind that the government may prosecute you criminally despite a lack of actual possession of any illegal item. If you are charged with either criminal conspiracy or constructive possession it is important that you hire an experienced defense attorney to represent your interests. For more information contact our office and speak with either Alfonso Gambone, Esq. or Joseph P. Capone, Esq. regarding your options in these cases. Early preparation with your attorney is critical to your success.