IAD Request Sent to AUSA Ineffective; Felon-in-Possession Charge Affirmed
United States v. Washington, ___ F.3d ___ , 2010 WL 611789 (10th Cir. 2010)
1. Defendant’s pro se request for disposition of his federal charges under the Interstate Agreement on Detainers was ineffective because he sent it only to the US attorney (USA) and then to ATF (charge against him was felon in possession of firearm), and not to the appropriate district court. Although he sent the USA two requests, with one addressed to the “department of justice, court” to the USA address (but USA was not same building as court) this was not good enough (surprise! USA did not forward the court the court’s copy). Fex v. Mich., 507 US 43 (1993) has no good faith exception when a third party negligently or maliciously fails to deliver.
2. Court of Appeals states that it does not adopt defense of fleeting possession (in spite of 10th Cir. Pattern JI on defense), but even if it did, the evidence in this case on charge of felon in possession of a firearm did not support the instruction. It only applies to momentary possession of contraband either with no knowledge that it is contraband or with a legally justifiable reason for possessing it. He told police that he knew he had handled a gun.
3. No abuse of discretion in allowing trial exhibit of transcript of Defendant’s state probation admission of having handled the guns going to the jury during deliberations. All exhibits went to the jury, so no over-emphasis of this one, and other sources besides Defendant’s admission were in front of the jury with Defendant’s statements about handling the guns (cop, people in the car with him at the time of the stop).
1. Defendant’s pro se request for disposition of his federal charges under the Interstate Agreement on Detainers was ineffective because he sent it only to the US attorney (USA) and then to ATF (charge against him was felon in possession of firearm), and not to the appropriate district court. Although he sent the USA two requests, with one addressed to the “department of justice, court” to the USA address (but USA was not same building as court) this was not good enough (surprise! USA did not forward the court the court’s copy). Fex v. Mich., 507 US 43 (1993) has no good faith exception when a third party negligently or maliciously fails to deliver.
2. Court of Appeals states that it does not adopt defense of fleeting possession (in spite of 10th Cir. Pattern JI on defense), but even if it did, the evidence in this case on charge of felon in possession of a firearm did not support the instruction. It only applies to momentary possession of contraband either with no knowledge that it is contraband or with a legally justifiable reason for possessing it. He told police that he knew he had handled a gun.
3. No abuse of discretion in allowing trial exhibit of transcript of Defendant’s state probation admission of having handled the guns going to the jury during deliberations. All exhibits went to the jury, so no over-emphasis of this one, and other sources besides Defendant’s admission were in front of the jury with Defendant’s statements about handling the guns (cop, people in the car with him at the time of the stop).
posted by Anonymous at 11:22 AM
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