stating that “the fact that a defendant took evasive action in response to the presence of police can be considered in inferring constructive possession” and finding evidence supported possession of gun in car by driver who “made a gesture toward the weapon immediately following an evasive turn of the car when confronted by a police cruiser”
How later courts described this case
- stating that “the fact that a defendant took evasive action in response to the presence of police can be considered in inferring constructive possession” and finding evidence supported possession of gun in car by driver who “made a gesture toward the weapon immediately following an evasive turn of the car when confronted by a police cruiser”
- holding that the challenged evidence violated Rule 403 because it was only a “slightly refined version of guilt by association,” not legitimately admissible proof
- defendant’s indecipherable shouting at an earlier fight inadmissible as evidence of motive to possess unregistered gun
- “[I]f proximity is coupled with a gesture toward the contraband, suggesting an ability to control the item in question, constructive possession might be inferred”
Written by the judges who cited it.
The opinion
DAVIS, Circuit Judge,
concurring in part and dissenting in part:
I join the court in affirming Hernandez’s conviction and in all of Judge Wright’s opinion except for the holding that Lopez-Leyva’s conviction must be reversed (and his case remanded for a new trial) because he was unduly prejudiced by the admission as to him of the evidence of a “prior bad act.” Instead I would affirm the conviction of Lopez-Leyva as well as that of Hernandez.
In my view, the evidence as to the fight with Price was properly admissible as to Lopez-Leyva because (a) whether or not he was himself as directly involved in that fray as was Hernandez and whether he was encouraging the actual fighters, there was substantial evidence that Lopez-Leyva was a friend of both Hernandez and Funes, but not of Price, (b) a reasonable inference from his “participation” is that he was quite aware of the fight and of the line-up of the parties to that struggle (Hernandez and Funes vs. Price), and (c) the extent of his “participation” in the fight — whether it was encouragement to his friends or an attempt to get them to stop fighting— presented a reasonable motive for his later activities in the car which were found by *123 the jury to be illegal possession of a firearm in connection with an effort to take vengeance on Price. And in view of the evidence before the jury (Lopez-Leyva was shouting “something” unknown in Spanish and did not partake in the fight), I fail to see any undue prejudice to him in allowing the jury to consider the fight evidence as to him. For Lopez-Leyva the only relevance of the admission of the fight evidence was that it showed that he clearly knew about the incident and that his friends were aligned against Price. That was enough to show his motive but was not prejudicial to him in any true sense.