The State of Construction Possession Law Reviewed
U.S. v Bagby , 2012 WL 4902919 (10/17/12) (Okl.) (Published) - Mr. Bagby was allowed to represent himself with his 3rd lawyer as standby counsel. Mr. Bagby made incriminating statements to the police which sealed his fate. Under 851 he received a mandatory life sentence. This case provides a succinct review of 10th circuit law regarding constructive possession. There must be evidence of an ability to guide the destiny of the drug, provable with circumstantial evidence, showing control through another tied to defendant, with some connection of the place where found to the defendant. This final nexus can be shown with plausible inferences the defendant had knowledge or access to the drugs location. Here there was sufficient evidence of knowing possession, including the defendant’s response to the question: “have you thought about the food you’ve taken from the mouths of children because their parents are addicted to cocaine?”; and “Would you know about all the food I’ve provided because I sell cocaine?” An effective rejoinder in a debate. Not so helpful at trial.
The 10th finds the admission of a penitentiary pack, which contained evidence of Mr. Bagby’s prior drug-related convictions, to prove Mr. Bagby’s felon status [the pro se defendant refused to stipulate] did not affect his substantial rights under the plain error standard, given the strong evidence and that the government didn’t argue the nature of the priors. But helpfully the 10th does say that, even if a defendant refuses to stipulate to his felon status, evidence concerning the nature of a predicate crime in a felon in possession case is irrelevant and prejudicial and should be excluded if possible by redaction.
It was not error to join the drug and felon-in-possession counts, even though the police found the ammo three months after the discovery of the drugs. The 10th points out officers found the ammo in the same safe as they found lots of money 3 months before, which could have been drug money. The judge’s failure to follow § 851 and tell Mr. Bagby he had to challenge any prior conviction before sentence was imposed was harmless because the defendant did not claim any of those convictions was invalid.
The 10th finds the admission of a penitentiary pack, which contained evidence of Mr. Bagby’s prior drug-related convictions, to prove Mr. Bagby’s felon status [the pro se defendant refused to stipulate] did not affect his substantial rights under the plain error standard, given the strong evidence and that the government didn’t argue the nature of the priors. But helpfully the 10th does say that, even if a defendant refuses to stipulate to his felon status, evidence concerning the nature of a predicate crime in a felon in possession case is irrelevant and prejudicial and should be excluded if possible by redaction.
It was not error to join the drug and felon-in-possession counts, even though the police found the ammo three months after the discovery of the drugs. The 10th points out officers found the ammo in the same safe as they found lots of money 3 months before, which could have been drug money. The judge’s failure to follow § 851 and tell Mr. Bagby he had to challenge any prior conviction before sentence was imposed was harmless because the defendant did not claim any of those convictions was invalid.
posted by Anonymous at 10:17 AM
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