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1/22/2020 12:12:56 PM
Posted: 9/4/2009 12:49:59 AM EST
Can anyone show me the federal statute that makes "constructive intent" an illegal act? I was under the impression that all criminal charges had a statute that accompanied the charges. I've never been able to find the actual number of the statute for "constructive intent". Does it exist?
Link Posted: 9/4/2009 1:09:24 AM EST
It is most likely in the form of a regulation and not a statute, if it exists at all. Maybe it only exists in case law.
Link Posted: 9/4/2009 2:09:57 AM EST
Eihter way it has to have a numbered regulation/statute accompanying the charge. I don't believe there is such a crime or violation of any regulation or statute.
Link Posted: 9/5/2009 4:44:53 AM EST
[Last Edit: 9/5/2009 4:52:11 AM EST by Lexington]
Then case law is where you might find the invention and application of the legal theory. Precedents are not codified, and constructive intent is certainly a matter of interpretation.

Google: law "constructive intent"

ETA: Constructive intent appears to be a standard construct in legal theory. It means "intentional by appearance".

I don't like the fact that what appears to be circumstantial can be used against me in a Thought Police kind of way, but there you have it. The body of law considers it.
Link Posted: 9/8/2009 1:12:49 AM EST
Isn't "constructive intent" just the slant that a presecutor would take in a case, not the actual charge? It seems as though "constructive intent" would be the argument made in front of the jury. The actual charge would probably be along the lines of "conspiracy to possess an illegal SBR" or something like that, depending on the item.
Link Posted: 9/10/2009 9:04:16 AM EST
The statute you would be charged with is possession of fill in the blank. The theory is that if you have all of the parts to make something, it's the same as if you've done so.
Link Posted: 9/11/2009 2:33:11 AM EST
There is no "law" that defines Constructive Intent.
Link Posted: 9/11/2009 2:48:19 AM EST
Originally Posted By TANGOCHASER:
Can anyone show me the federal statute that makes "constructive intent" an illegal act? I was under the impression that all criminal charges had a statute that accompanied the charges. I've never been able to find the actual number of the statute for "constructive intent". Does it exist?


There is none.

Remember our argument? The BATFE don't need a statute. They get to interpret the law how they see fit, and now that guy in Florida will probably get fucked.
Link Posted: 9/11/2009 3:02:07 AM EST
No law to quote...it is as others are saying here...it is a regulation put up by ATF. And they will charge you and prosecute you at will should they get a hold of any info they can use against you.
ATF makes cases every day that rest in the "gray" area of legality. And if they do not like what you are doing but have no grounds, all they have to do is change their position and issue a new ruling to incorporate any parameters they wish should you not fall into that "gray" area (or use zip ties, lubricants, and what ever else they want to manufacture a reason). Then, most who do not either subject themselves to confiscation or a plea deal, ATF counts on wearing them down with expensive legal battles that drag out for years...Ask Cav Arms...they know.
Link Posted: 9/11/2009 3:07:05 AM EST
They basically charge you with possession of an item, and use constructive intent to say its true.
Link Posted: 9/11/2009 5:21:30 PM EST
Originally Posted By TANGOCHASER:
Can anyone show me the federal statute that makes "constructive intent" an illegal act? I was under the impression that all criminal charges had a statute that accompanied the charges. I've never been able to find the actual number of the statute for "constructive intent". Does it exist?


The correct term is "constructive possession". One meaning is that if you have all the parts to make the prohibited item, then you can be prosecuted even if it is not, or ever has been, assembled. Intent has nothing to do with it.

twidget
Link Posted: 9/11/2009 9:17:37 PM EST
Constructive intent is what's called a legal construct. It's an assembly of "logical" arguments that basically says when items or people which share common reasons, motivations or uses are together, they're not there by chance.

IE, if an officer finds you stumbling to the front door of your house while drunk, with your friend's car in the driveway and your friend's keys in your pocket, they will charge you with DUI and argue that by constructive intent, while the officer did not actually see you drive drunk, and it's not your car, your friend's car being there and you having the keys is not just coincidence.

It really is thoughtcrime, but it's also part of the heritage of our common law system. One of the stupid parts. Unfortunately, because it's a tool of power the government really likes having, they will never willingly give it up or abolish it.
Link Posted: 9/16/2009 7:37:31 PM EST
There is also no regulation or statute for "constructive possession". You are either in possession or you are not.

ATF doesn't prosecute. They only arrest. They also do not arrest without talking to the Federal Prosecutor to make sure the arrest is something the prosecutor thinks he can successfully prosecute.

Link Posted: 9/17/2009 6:36:49 AM EST
There's two primary situations where you see constructive possesson. 1.) The possession of an item not immedately on your body; and 2.) the possession of an item by having possession of the pieces sufficient to create the item.

Regarding the first:

"'Constructive' possession is commonly defined as the power and intention to exercise control, or dominion and control, over an object not in one's 'acutal' possession."

Examples: You "can possess an object while it is hidden at home in a bureau drawer, or while held by an agent, or even while it is secured in a safe deposit box at the bank and can retrieve it only when a bank official opens the vault."

Taken from US v. Maldonado, 23 F.3d 4 (1st Cir. 1994).

Generally, you have to have proximity to an object and control. Proximity without control generally is not sufficient. See US v. Jenkins, 90 F.3d 814 (3rd Cir. 1996).

So, the next question is what is an "intention to exercise control." Well, if the item in question is your property, you are displaying an intention to control it. Similarly, if you're the bailee of property, you're in control. Ex. I ask you if I can leave my M16 at your house. You're in possession because you intend to control that firearm. You intend to lay a supperior claim to the firearm to all but me and my agents.

Regarding the second:

This is really just an extension of the first concept. You have the pieces, you therefore have the control and a prima facie case of intent can be shown merely by your possession of the pieces to assemble the prohibited item.

There isn't really a codified constructive possession statute, as others have stated, it's something that has evolved in the common law. You won't be charged with constructive possession rather, you'll be charged with possession and the government's theory for the fact finder will be that you constructively possessed the object in question.

Moral of the story - if you think you're in possession, you probably are. Hell, you probably are even when you don't think you are. Don't be around illegal stuff or possess the parts to make illegal stuff.
Link Posted: 9/18/2009 1:23:37 AM EST
There's two primary situations where you see constructive possesson. 1.) The possession of an item not immedately on your body; and 2.) the possession of an item by having possession of the pieces sufficient to create the item.

Regarding the first:

"'Constructive' possession is commonly defined as the power and intention to exercise control, or dominion and control, over an object not in one's 'acutal' possession."

Examples: You "can possess an object while it is hidden at home in a bureau drawer, or while held by an agent, or even while it is secured in a safe deposit box at the bank and can retrieve it only when a bank official opens the vault."

Taken from US v. Maldonado, 23 F.3d 4 (1st Cir. 1994).

Generally, you have to have proximity to an object and control. Proximity without control generally is not sufficient. See US v. Jenkins, 90 F.3d 814 (3rd Cir. 1996).

So, the next question is what is an "intention to exercise control." Well, if the item in question is your property, you are displaying an intention to control it. Similarly, if you're the bailee of property, you're in control. Ex. I ask you if I can leave my M16 at your house. You're in possession because you intend to control that firearm. You intend to lay a supperior claim to the firearm to all but me and my agents.

Regarding the second:

This is really just an extension of the first concept. You have the pieces, you therefore have the control and a prima facie case of intent can be shown merely by your possession of the pieces to assemble the prohibited item.

There isn't really a codified constructive possession statute, as others have stated, it's something that has evolved in the common law. You won't be charged with constructive possession rather, you'll be charged with possession and the government's theory for the fact finder will be that you constructively possessed the object in question.

Moral of the story - if you think you're in possession, you probably are. Hell, you probably are even when you don't think you are. Don't be around illegal stuff or possess the parts to make illegal stuff.


In these court cases, was "constructive possession" the actual law violation or was the defendant charged with "possession". If the charge was "constuctive possession", what is the accompanying statue number for that charge?
Link Posted: 9/18/2009 7:08:25 AM EST
[Last Edit: 9/18/2009 7:19:27 AM EST by Addicted2Fish]
Under constructive intent, Nancy Pelosi is a prostitute. All the required functional components are there:

A. Female (Presumably...I will not volunteer to check)
B. Spend most of her time with politicians
C. Regularly accepts money in exchange for favors
D. Has a paid staff to coordinate her travel and meeting schedules
E. Has little or no demonstrable moral structure
F. Has cosmetic surgery for career enhancement reasons
G. Has advertising seen from time to time on street corners

I say we put her in jail for it.
Link Posted: 9/18/2009 7:24:08 AM EST
[Last Edit: 9/18/2009 7:25:31 AM EST by markm]
Contstructive Intent is an internut fantasy perpetuated by retards.

Constructive Possession has actually been used as a tack on charge when a guy was already facing other serious charges... I forget the name of the guy/case. It may have even been posted on that fear mongering law firm's website.. princelaw or whatever, so the whole thing could be horse shit.

I've NEVER seen an example of a federal charge of constructive possession as a stand alone charge against someone with no other charges. The Florida case is the first stand alone example I've seen, but it's not the Feds trying to persue this nonsense. It's the Sheriff's office.

I can't see the Florida case making it very far at all. It's a joke.
Link Posted: 9/18/2009 9:51:22 AM EST
In these court cases, was "constructive possession" the actual law violation or was the defendant charged with "possession". If the charge was "constuctive possession", what is the accompanying statue number for that charge?


In Maldonado the charge was possession of cocaine with intent to distribute.

In Jenkins the charges were possession of cocain with intent to distribute and use of a firearm in connection with a drug trafficking crime.

You wouldn't be charged with constructive possession, you would be charged with possession.

When you try to claim that you weren't in possession either because the object was not on your person or not assembled (in the case of machine gun parts), the prosecution will respond by showing that you were in possession because you were in proximity and expressed intent to control the object (or assemble it). Constructive possession IS possession. It just means you didn't have the object in your hand or otherwise immediately on your person.

Link Posted: 9/18/2009 10:03:15 AM EST
Originally Posted By davewvu86:

When you try to claim that you weren't in possession either because the object was not on your person or not assembled (in the case of machine gun parts), the prosecution will respond by showing that you were in possession because you were in proximity and expressed intent to control the object (or assemble it). Constructive possession IS possession. It just means you didn't have the object in your hand or otherwise immediately on your person.



That makes sense if you had an illegally BUILT weapon in your closet... or in your shed out back... but where it gets gray is when you have an extra NFA upper half that's not mounted to anything.... For example, guys who buy their SBR upper when the paperwork is still pending.
Link Posted: 9/18/2009 11:14:19 AM EST
[Last Edit: 9/18/2009 11:16:13 AM EST by davewvu86]
While you could make an argument citing the Thompson Center case 504 U.S. 505, I wouldn't buy a SBR upper if I have any lowers laying around that are not part of a complete and assembled rifle.

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