Conviction in Felon-in-Possession Case Upheld

U.S. v. Ledford, 2005 WL 3047956 (11/15/05)(previously unpublished, but now published) - In a felon-in-possession case, testimony by an officer about the defendant's girlfriend's statement to him that the defendant threatened to kill her was inadmissible as a state-of-mind hearsay exception, because the reason for her scared state of mind does not fit the exception. But, the statement was admissible on two other grounds: (1) as non-hearsay to show why she took the police to the dresser drawer where the defendant's gun was, [certainly not to show what a bad guy the defendant was]; and (2) as an excited utterance, since the girlfriend was still under the excitement prompted by the threat 35 minutes after the threat in that the defendant threatened to kill her if she talked to the police and she was at that very moment talking to the police. Anyway, any error was harmless, given the defendant's problematic statements regarding his relationship with the gun.

It was okay that the trial court instructed the jury the government was only required to prove the defendant's knowledge of and access to the gun. The government did not have to prove the defendant intended to exercise dominion and control over the gun in a joint occupancy situation. It was also okay that the court did not instruct on the necessity to prove a nexus between the defendant and the gun. The 10th said it might have to consider the need for such an instruction in a future case, but not here where the nexus was apparent. That initially the 10th Circuit's proposed pattern instructions contained an intent requirement doesn't matter because they do not constitute an "adjudicative approval of the content of the instructions" and, in any event, the proposed instructions were changed to eliminate the intent requirement,