Friday, February 08, 2019

Gun Defendant Gets New Trial Because Jury Instructions Incorrect

US v. Scott, 2018 WL 4182114 (10th Cir. 8/30/18) (unpublished): On plain error review, the Court reverses a conviction for felon in possession of a firearm because the jury instructions failed to include the element that the defendant intended to control the firearm. The error was not harmless because the gun was found in a car with defendant and three other individuals, none of whom claimed the gun. The circumstantial evidence was unpersuasive. The gun's location in the car meant it was easily available to another passenger and awkwardly placed for the defendant. The DNA evidence was inconclusive, as the defendant's DNA was one of three profiles on the gun and the government expert admitted the DNA was "trace DNA or touch DNA," so it could have been put on the gun through secondary transfer. A red bandana next to the gun could have belonged to anyone in the vehicle. The case is remanded for a new trial.