Tuesday, January 27, 2009

Conviction for Felon-in-possession-of-ammo Upheld

US v. Turner, -- F.3d --, 2008 WL 161737 (10th Cir. 1/26/09) - affirmance of conviction for possession of ammunition by a previously convicted felon. District court properly denied motion to suppress results of search that followed arrest of Mr. Turner for driving with a suspended license. Mr. Turner argued that officers lacked probable cause to proceed after their search of a bag suspected to contain drugs was found to contain ammunition and they decided not to charge him on the suspended license after learning the feds wanted to charge on the ammunition. Officers merely needed reason to believe that any crime occurred. It did not matter that possession of ammunition is not a crime under state law. State law does not determine the reasonableness of a seizure under the 4th Amendment.

Jury instruction on joint occupancy and constructive possession properly stated that mere proximity to the ammunition did not establish knowledge of and access to it. There was insufficient evidence to support a "momentary or transitory control" instruction.

District court properly restricted cross-examination of Mr. Rucker, who brought to Mr. Turner the bag containing the ammunition, re: contents of ATF form Mr. Rucker filled out with the assistance of Mr. Turner's attorney. There was significant danger the jury would confuse the issue of counsel's credibility with Mr. Turner's guilt.