Felon-In-Possession and ACCA Sentence Affirmed
U.S. v. Nevels, --- F.3d ----, 2007 WL 1620509 (10th Cir. June 06, 2007)
The defendant was sentenced as an armed career criminal (ACCA) after being convicted by a jury of possession of a firearm as a felon and possession of a firearm with an altered serial number.
1. Trial court did not abuse its discretion in allowing testimony of a government witness who was disclosed only 3 days before trial. There was no court order directing disclosure, the witness did not exculpate the defendant so it was not Brady material, and Jencks requires disclosure of witness statements only after cross examination. Moreover, the government learned of the witness and interviewed her only a few hours before they disclosed her identity to the defense, along with a summary of her statement. There was no lack of diligence by the government, no prejudice to defendant, and defendant did not request a continuance, and so a sanction of not permitting the witness to testify would be extreme.
2. Not plain error for trial court to admit crime scene reconstruction testimony that the defendant used the firearm to shoot a person in his home at close range 7 times. It was relevant since defendant argued that he legitimately possessed the firearm because he acted in self-defense. Although prejudicial to the defendant, the court cannot say that in weighing the evidence under Evid. Rule 403, the district court abused its discretion in determining that the probative rebuttal value of the evidence outweighed any prejudice.
3. The district court correctly applied the categorical approach to determine whether the defendant’s previous juvenile convictions for aggravated robbery committed when he was 11 years old qualified as “violent felonies” under ACCA (he admitted to both acts of delinquency in the same proceeding). The Colorado statute under which he was adjudicated categorically is a COV. Defendant’s argument that the court should have determined whether a gun actually was involved in one of the robberies and whether the other juvenile and not defendant had possessed it was without merit–the same categorical analysis under ACCA applies whether the offense is adult or juvenile (besides, Colo. makes it a juvenile offense to aid and abet another, so it is immaterial that D’s juvenile co-D had the gun). Finally, the Taylor categorical approach applies to any prior offense, not just to burglaries.
The defendant was sentenced as an armed career criminal (ACCA) after being convicted by a jury of possession of a firearm as a felon and possession of a firearm with an altered serial number.
1. Trial court did not abuse its discretion in allowing testimony of a government witness who was disclosed only 3 days before trial. There was no court order directing disclosure, the witness did not exculpate the defendant so it was not Brady material, and Jencks requires disclosure of witness statements only after cross examination. Moreover, the government learned of the witness and interviewed her only a few hours before they disclosed her identity to the defense, along with a summary of her statement. There was no lack of diligence by the government, no prejudice to defendant, and defendant did not request a continuance, and so a sanction of not permitting the witness to testify would be extreme.
2. Not plain error for trial court to admit crime scene reconstruction testimony that the defendant used the firearm to shoot a person in his home at close range 7 times. It was relevant since defendant argued that he legitimately possessed the firearm because he acted in self-defense. Although prejudicial to the defendant, the court cannot say that in weighing the evidence under Evid. Rule 403, the district court abused its discretion in determining that the probative rebuttal value of the evidence outweighed any prejudice.
3. The district court correctly applied the categorical approach to determine whether the defendant’s previous juvenile convictions for aggravated robbery committed when he was 11 years old qualified as “violent felonies” under ACCA (he admitted to both acts of delinquency in the same proceeding). The Colorado statute under which he was adjudicated categorically is a COV. Defendant’s argument that the court should have determined whether a gun actually was involved in one of the robberies and whether the other juvenile and not defendant had possessed it was without merit–the same categorical analysis under ACCA applies whether the offense is adult or juvenile (besides, Colo. makes it a juvenile offense to aid and abet another, so it is immaterial that D’s juvenile co-D had the gun). Finally, the Taylor categorical approach applies to any prior offense, not just to burglaries.
posted by Anonymous at 9:58 AM
<< Home