Hunter Biden and Constructive Possession for Firearm Offenses

On June 26, the Supreme Court decided Snyder v. United States, holding that the federal criminal bribery statute extends only to anticipatory bribes and not post-hoc gratuities.  The majority emphasized the importance of fair notice and that reading the statute to criminalize both bribes and gratuities would “not identify any remotely clear lines separating an innocuous or obviously benign gratuity from a criminal gratuity.” 

Hunter Biden’s attorneys have seized on Snyder in post-trial briefing in the District of Delaware following Biden’s conviction on three federal gun charges (see this earlier post for analysis of other legal questions surrounding the case).  Biden argued in a June 27 filing that the decision highlights “even more significant lack of fair notice issues” present in Biden’s case.  The first piece of the notice argument is one that Biden’s attorneys have harped on throughout the case and at trial: that the federal law criminalizing possession of firearms or ammunition as an unlawful drug user is fatally vague in failing to specify a required time nexus between drug use and gun possession.  In other words, Biden argues that the statute itself provided notice only that it was illegal for him to possess a gun at the same time as he was under the influence of drugs, not that it was also illegal—as most courts have held and as the jury in the case was instructed—to possess a gun within days or weeks of drug use.  In 2022, a case raising related issues about the meaning of “unlawful user” in 922(g)(3) was appealed to the Supreme Court and attracted some amicus support, but the Court ultimately denied cert. (The issue in Carnes v. United States was whether one-time drug use, as opposed to regular recurring use over a period of time, qualified someone as an “unlawful user.”)

Here, I’d like to focus on the second part of the notice argument in Biden’s supplemental Snyder filing.  The brief argues:

Those same fair notice problems persist with Section [9]22(g)(3)’s definition of gun possession.  While that term is clear when restricted to actual physical possession, it defies fair notice when construed as to the constructive possession concepts permitted by the Court’s instructions and the Special Counsel’s arguments that mere ownership is sufficient. . . .

The constructive possession concept becomes a ‘trap for the unwary,’ as 44% of American adults live in a home with a firearm. Thus, a person could run afoul of this prohibition by being able to possess a gun simply because their spouse or roommate owns a gun, or simply by visiting nearly half of the homes in America where such a gun could be obtained.  This potential outcome is substantially broader than the criminal statute that caused concern in Snyder because it implicates far more citizens than merely those who exchange gratuities with public officials.

Biden goes on to assert that notice deficiencies in his case are more acute because “Mr. Biden’s conduct implicates his constitutional Second Amendment rights.”  In a short response, the government argues that “Snyder plainly has no relevance to this case” and that Biden had waived his arguments by failing to raise them in his initial post-trial motion for acquittal.

At first glance, the Biden prosecution seems like an ill-suited case in which to raise fair notice issues regarding constructive possession—or, at least, the constructive possession arguments seem much weaker than the temporal nexus arguments from a notice perspective.  For one, Biden purchased the gun himself and wrote about buying and possessing it in his memoir.  It’s also not clear that the legal concept of constructive possession stretches nearly as far as Biden asserts in his supplemental filing.  Most legal disputes over constructive possession in this context involve the sale or disposition of firearms—for example, may someone who becomes a convicted felon dispose of his or her firearms for profit after the conviction without also violating the law by constructively possessing the guns during the transaction?  

In 2015, a unanimous Supreme Court held in United States v. Henderson that a convicted felon was permitted to transfer his guns to a dealer or third party—including for a future sale from which the felon could profit—so long as the felon was not able to direct or control that person’s use of the guns.  The Court observed that, “[b]y its terms, §922(g) does not prohibit a felon from owning firearms [but] interferes with a single incident of ownership . . . by preventing the felon from knowingly possessing his (or an-other person’s) guns.”  Thus, so long as the transferee is not “willing to give the felon access to them or to accede to the felon’s instructions about their future use,” the felon does not maintain constructive possession of the firearms.  The focus, then, is on whether the transfer is legitimate or a “sham,” and the Court rejected the government’s broad theory that even selecting the initial recipient automatically puts the felon into constructive possession.  This theory, the Court said, “would also extend §922(g)’s scope far beyond its purpose” because a felon would in fact be prevented from disposing of his guns and accomplishing 922(g)’s intended outcome of felon dispossession.

Henderson holds that ownership itself isn’t equivalent to possession.  But, of course, ownership plus possession (even for a short period of time) is barred by 922(g)—and that appears to be the situation in the Biden case.  The outcome in Henderson, and its unanimity, further suggest that the sweep of unlawful “possession” under 922(g) is not nearly as broad as Biden posits in his supplemental filing.  In a 2022 case, for example, the D.C. Circuit roundly rejected the idea that “mere proximity” to a firearm is dispositive because “[f]inding constructive possession based on proximity alone might permit ‘unwitting roommates or housemates’ to be convicted of a serious crime.”  Rather, the court said, constructive possession is a fact-specific inquiry that requires “some action, some word, or some conduct that links the individual to the contraband and indicates that he had [] some power over it.”  In that case, for example, a gun was found under the driver’s seat while the defendant was driving and made a “bulge” in the floor mat, the defendant had been driving that car for a week, and “the jury [] heard evidence indicating [the defendant] knew about the gun.” 

That’s how it works for other types of contraband too, like illegal drugs.  Mere presence or mere proximity to contraband, by itself, is simply never enough to establish constructive possession without additional facts suggesting the defendant actually had the power to control the use or disposition of the contraband.  And the case law can be nuanced in this area.  For example, even drugs found in a common area of the defendant’s own residence are not automatically within the defendant’s constructive possession absent a showing that the contraband was in “plain view” or further evidence linking the defendant specifically to the contraband.  While Biden’s case is a tough one to defend, possibly necessitating the use of creative legal arguments, the idea that visiting a home with a gun would place one in constructive possession is simply inconsistent with the case law.