Home   Federal Cases   State Cases   News   Search   Cart   Log In 
 
Search 591,296 Cases and Articles on TJV!
 
Federal Case Categories







Felon Caught with a Firearm Loses Appeal

U.S. v. Washington, Case No. 09-3091 (C.A. 10, Feb. 23, 2010)

Defendant-appellant Ladale F. Washington was indicted in November 2007 on two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). After a trial by jury, Mr. Washington was found guilty and sentenced to thirty months in prison and two years of supervised release. He now appeals his conviction, arguing that the district court erroneously (1) denied his motion to dismiss the indictment based on a violation of the Interstate Agreement on Detainers (“IAD”), (2) refused to instruct the jury on “fleeting possession,” and (3) permitted the prosecution’s exhibit of certain prior testimony to be sent to the jury during deliberation. We have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

On May 30, 2007, Sergeant White and Officer Henning of the Wichita Police Department were on patrol in separate cars in Wichita, Kansas, when they heard gun shots. The officers both saw a white car speeding toward them and immediately began following the vehicle. Sergeant White initiated a traffic stop after the vehicle failed to signal a turn properly. As the vehicle pulled to a stop, the right front passenger jumped from the car and began fleeing on foot. Sergeant White pursued the passenger in his patrol car while Officer Henning continued to pursue the vehicle, which had since sped away.

Ultimately, the front passenger was apprehended, the vehicle was stopped, and the other five occupants of the vehicle, including Mr. Washington, were handcuffed and searched. Police found a .45 caliber pistol in the waistband of a woman passenger who had been seated either next to Mr. Washington or on his lap in the back seat. A different passenger stated that Mr. Washington had told the woman passenger to hide the gun in her waistband because the police officers would not search a woman. Police also found a silver .22 caliber semi-automatic pistol under the right front passenger seat. The officer who found the pistol testified that “anybody from the back or the front [seat] could have gotten to it.” Additionally, Mr. Washington told Officer Henning during a post-arrest interview that “I handled the .45 yesterday and the silver .22 just today.”

On November 15, 2007, a federal grand jury indicted Mr. Washington on two counts of being a felon in possession of a firearm. At the time, however, Mr. Washington was in the custody of the Kansas Department of Corrections (“KDOC”) for a probation violation based on the same events. Thus, the United States, through the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), lodged a detainer with the KDOC on November 21.
 

 

Jurisdiction: U.S. Court of Appeals, Tenth Circuit
Circuit Court Judge(s)
Stephen Anderson
Mary Briscoe
Deanell Tacha

 
Appellant Lawyer(s) Appellant Law Firm(s)
John K. Henderson, Jr. Office of the Federal Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Brent I. Anderson US Attorney's Office

 

CUSTOM EMAIL ALERTS!

With your FREE registration, you can select an unlimited number of Alert categories for daily, weekly or monthly deliveries of the Federal and State Cases most relevant
to you!

Click Here to sign up.

 



Click the maroon box above for a formatted PDF of the decision.
counts. invoke his rights under the iad, which provides that a prisoner in the custody of plaintiff - appellee, id. at 5052. other circuits have followed fex's clear instructions on this point. testimony. "it is within the discretion of the trial judge to decide what exhibits lacked knowledge that he possessed contraband or had a legally justifiable reason tenth circuit to possess it temporarily. united states v. adkins, 196 f.3d 1112, 1115 (10th cir. no. 09-3091 argument is foreclosed by fex. there, the supreme court specifically required the united states attorney because "even if delivery of the notice is delayed due guilty and sentenced to thirty months in prison and two years of supervised heard gun shots. the officers both saw a white car speeding toward them and defender for the district of kansas, wichita, kansas, appearing for appellant. ultimately, the front passenger was apprehended, the vehicle was stopped, because the evidence, at best, would support a favorable finding as to only the demand under the iad to the district court, it did not do so. because actual instruct the jury that "fleeting possession" is insufficient to support a conviction that the submission of the exhibit to the jury was prejudicial. he argues that the ladale f. washington, application to the district court or that the kdoc sent a copy of the application to constitutes delivery to the district court for purposes of the iad. nevertheless, "fleeting possession," and (3) permitted the prosecution's exhibit of certain prior united states v. daily, 488 f.3d 796, 797, 801 (8th cir. 2007) (same, in case disposition of the charges on which the detainer is based. see 18 u.s.c. app. 2 "final disposition of detainer" which stated that he was "filing a 180-day writ." first element of a fleeting possession defense, the district court did not abuse its actual delivery of a request to both the prosecutor and the court, and it refused to b. fleeting possession instruction and his request for a final disposition to be made of the indictment, exercise dominion and control over [the] firearm." united states v. mccane, 573 delivered to the prosecuting officer and the appropriate court a request for final to negligence or malice on the part of prison authorities, the iad's clock does not in wichita, kansas. the mailing was confirmed as delivered on january 7, 2008, during the continuance of the term of imprisonment there is pending two firearms. the court admitted the transcript of the testimony as an exhibit, the jury." we do not agree. officer henning testified that mr. washington told building at 301 n. main in wichita, received both documents on december 12. in addition, momentary or transitory control of an object is not explaining that "[w]hile this may be a strict rule, the supreme court's decision in are permitted in the jury room and this court will not overturn the trial court's elisabeth a. shumaker - 2 - possessed it. reached it. thus, even without the transcript the jury had sufficient evidence to furthermore, even if we were to adopt the defense--which we do not do today--it (d. ct. no. 6:07-10205-web-1) v. defendant-appellant ladale f. washington was indicted in november 2007 immediately began following the vehicle. sergeant white initiated a traffic stop a third party had negligently or maliciously prevented delivery from occurring. on december 18, mr. washington submitted a form application through the forwarded the request addressed to "department of justice, court" to the district admitted into evidence as an exhibit in the trial, and the district court sent it and complaint on the basis of which a detainer has been lodged against would not search a woman. police also found a silver .22 caliber semi-automatic pistol under the right front passenger seat. the officer who found the pistol united states of america, 2 art. ii(a), iii(a); fex v. michigan, 507 u.s. 43, 4445 (1993). he mailed one iad, but it is beside the point because the iad, as it presently reads, doesn't police department were on patrol in separate cars in wichita, kansas, when they testified that "anybody from the back or the front [seat] could have gotten to it." see tenth circuit pattern jury instruction 1.31, 6. appeal from the united states district court ("atf"), lodged a detainer with the kdoc on november 21. the parties do not dispute that mr. washington was attempting in the document to testimony at his probation violation hearing, during which he made inculpatory alterations omitted). united states v. fields, 516 f.3d 923, 950 (10th cir. 2008) (quotations and 1999), overruled on other grounds by chambers v. united states, 129 s. ct. 687 him he had handled the firearms, another passenger testified she heard mr. statement of the law. id. united states court of appeals carve a "fairness" exception to the express language of the iad in cases in which the right front passenger jumped from the car and began fleeing on foot. sergeant "even where a prisoner has made a good-faith effort to invoke his rights under the se requests to the usao's mailing address and the kdoc sent his request only to white pursued the passenger in his patrol car while officer henning continued to fex explicitly contemplated a more egregious error on the part of the warden and states, through the bureau of alcohol, tobacco, firearms and explosives did not know he was handling the guns or that he had a legally justifiable reason - 6 - copy of a particular witness's trial testimony. rather, the transcript had been tenth circuit . . . until actual delivery occurred, the 180-day period did not start to run."). possession. you should not find that the defendant possessed the testimony to be sent to the jury during deliberation. we have jurisdiction under (2009). no possible interpretation of the evidence presented in this case could handcuffed and searched. police found a .45 caliber pistol in the waistband of a deliberation. id. at 1408. furthermore, the hernandez court was concerned that here, despite the fact that the usao could have forwarded mr. washington's 28 u.s.c. 1291, and we affirm. and a notation was made on the delivery confirmation stating "7/7/08 deadline." officer's jurisdiction written notice of the place of his imprisonment seventh circuit has explained, this "might be a good argument for rewriting the sent the application through certified mail to the atf field office at 301 n. main instruction for an abuse of discretion. see united states v. turner, 553 f.3d 1409. in mr. washington's case, however, the court did not give to the jury a johnson, 196 f.3d 1000, 1002 (9th cir. 1999) ("under fex, it does not matter two counts of being a felon in possession of a firearm. at the time, however, mr. address of 301 n. main in wichita. he mailed a second copy of the document to and the other five occupants of the vehicle, including mr. washington, were all exhibits to the jury. thus, the risk of undue emphasis identified in hernandez theory of defense if it is supported by sufficient evidence and is a correct whenever a person has entered upon a term of imprisonment in a mr. washington first argues that the district court should have dismissed the denial of a motion to dismiss the indictment based on the iad, reasoning that washington's request for final disposition because mr. washington sent both pro support acquittal under this theory. mr. washington has never contended that he objection, the court also permitted the jury to review the exhibit during their - 3 - the prisoner, he shall be brought to trial within one hundred and only applies if the defendant (1) momentarily possessed contraband and (2) either see, e.g., united states v. dooley, 580 f.3d 682, 685 (8th cir. 2009) (affirming copy of the document to "department of justice, issuing prosecutor" with an he either actually or constructively possessed the two firearms at issue in this information, or complaint . . . . there is no evidence in the record that the atf forwarded mr. washington's where prison officials had refused to deliver prisoner's request under the iad to found dismissal of the charges to be an inappropriate remedy"); united states v. simply is not present in this case. - 5 - what the prisoner may or may not have done in an attempt to cause such delivery . ("kdoc") for a probation violation based on the same events. thus, the united ninth circuit explained that because allowing the rehearing of trial testimony may but that case is distinguishable. in united states v. hernandez, 27 f.3d 1403 (9th mr. washington's objection. mr. washington contends that allowing the clerk of court cir. 2008) (affirming the denial of a motion to dismiss the indictment based on washington moved to dismiss the indictment based on a violation of the iad. although this circuit has discussed a fleeting possession defense, we have "department of justice, court" with the same mailing address of 301 n. main in as the united states itself, are parties to the iad. id. 2; 2 art. ii(a). release. he now appeals his conviction, arguing that the district court erroneously february 23, 2010 washington instruct a fellow passenger to hide the gun, and one of the guns was (1) denied his motion to dismiss the indictment based on a violation of the that "i handled the .45 yesterday and the silver .22 just today." transcript was "particularly harmful in this case where the only real incriminating defendant - appellant. on november 15, 2007, a federal grand jury indicted mr. washington on a "fleeting possession" instruction. specifically, mr. washington requested that on december 5, mr. washington, acting pro se, drafted a document titled the defendant "possessed" the firearm. 18 u.s.c. 922(g)(1). possession can be court. start running until the notice is actually received by both the prosecutor and the mr. washington was not brought to federal court until july 25, 2008, when mr. washington cites one ninth circuit opinion in support of his position, states attorney, with him on the brief), office of the united states attorney for additionally, mr. washington told officer henning during a post-arrest interview the indictment under the iad. article iii of the iad provides: united states court of appeals [iad], he is not entitled to relief unless adequate notice was actually received"); lap in the back seat. a different passenger stated that mr. washington had told to support a conviction under 922(g)(1), the government must prove that likelihood that "its final decision turned on [the requested] testimony." id. at for the foregoing reasons, we affirm. penal or correctional institution of a party state, and whenever and the court allowed the exhibit to go to the jury during their deliberations over john k. henderson, jr., assistant federal public defender, office of the public mr. washington argues that he is entitled to relief because the usao should have open court rather than submit a partial trial transcript to the jury during have the tendency to "repeatedly replay crucial moments" in the trial and under 922(g). on january 14, 2009, mr. washington was convicted on both - 8 - f.3d 1037, 1046 (10th cir. 2009). mr. washington does not appear to contest that washington was in the custody of the kansas department of corrections the district of kansas, wichita, kansas, appearing for appellee. allow for that possibility." brewington, 512 f.3d at 997. therefore, the district the atf office. nor do we think that delivery to the usao or the atf office eighty days after he shall have caused to be delivered to the for the district of kansas pursue the vehicle, which had since sped away. added). here, it is undisputed that the district court never received mr. jurisdiction that lodged the detainer against him." fex, 507 u.s. at 52 (emphasis therefore place "undue emphasis" on them, it is preferable to rehear testimony in ii. discussion after the vehicle failed to signal a turn properly. as the vehicle pulled to a stop, object if he possessed it only momentarily, or did not know that he tacha, circuit judge. different address. brought to trial on the federal charges within 180 days after he has caused to be we review a district court's decision on whether to give a particular jury before tacha, anderson, and briscoe, circuit judges. never recognized one. see united states v. baker, 508 f.3d 1321, 1326 n.2 (10th the usao kept both documents in its file and did not forward the copy addressed to do so. his defense at trial was that he handled them momentarily or not at all. to go to the jury room during deliberation. c. transcript of prior testimony copy of his request to the court as required by the iad. in any other party state any untried indictment, information, or i. background interstate agreement on detainers ("iad"), (2) refused to instruct the jury on case. instead, he argues that the district court should have provided the jury with moreover, mr. washington has not shown, as he must under our case law, court did not err in denying mr. washington's motion to dismiss. against him has actually been delivered to the court and prosecuting officer of the the supreme court has held that the 180-day timeframe under the iad at trial, the court admitted into evidence a transcript of mr. washington's evidence was the statement mr. washington made in the transcripts provided to deliberations. also over mr. washington's objection, the district court refused to - 10 - found beneath the seat in front of mr. washington where he could easily have find that mr. washington at the very least constructively possessed the firearms. 922(g)(1) and 924(a)(2). after a trial by jury, mr. washington was found statements regarding his possession of the two firearms. over mr. washington's while we are not unsympathetic to mr. washington's position, his the district court denied the motion, citing mr. washington's failure to deliver a requirements--notice to the prosecutor--was fulfilled in this case. as the iii. conclusion woman passenger who had been seated either next to mr. washington or on his cir. 1994), the district court submitted to the jury during their deliberation the brent i. anderson, assistant united states attorney (lanny d. welch, united a. interstate agreement on detainers at trial, the government introduced mr. washington's testimony from his exercise of discretion absent a clear showing of abuse and resulting prejudice." since the jury requested that particular transcript, there was an increased - 7 - wichita. the united states attorney's office ("usao"), which is located in the court"); united states v. jones, 454 f.3d 642, 64748 (7th cir. 2006) (same, - 4 - any federal official at all); united states v. brewington, 512 f.3d 995, 997 (7th discretion by refusing to so instruct the jury. entire transcript of a key prosecution witness's trial testimony. id. at 1405. the a state who is the subject of a detainer lodged by the united states must be the iad when state prison officials allegedly sent the speedy trial request only to the district court. indictment should have been dismissed because the purpose of the iad's on two counts of being a felon in possession of a firearm in violation of 18 u.s.c. does not begin until "the prisoner's request for final disposition of the charges 18 u.s.c. app. 2 2 art. iii(a). all jurisdictions within the united states, as well on may 30, 2007, sergeant white and officer henning of the wichita - 9 - transcript to go to the jury was error and resulted in undue emphasis on the prior there was no violation of the iad. similarly, fex also undermines mr. washington's suggestion that the delivery was not accomplished with regard to both the court and the prosecutor, control over [the] firearm," or he must "knowingly hold[] the power and ability to the woman passenger to hide the gun in her waistband because the police officers prosecuting officer and the appropriate court of the prosecuting cir. 2007); united states v. al-rekabi, 454 f.3d 1113, 1126 (10th cir. 2006). the court provide the following instruction contained in tenth circuit pattern jury the district court therefore did not abuse its discretion in allowing the transcript instruction 1.31: - 11 - to "department of justice, court" to the district court, which is located at a filed state court probation violation hearing in which he stated that he had handled the kdoc requesting a final disposition of detainer. see id. art. iii(b). the kdoc either actual or constructive; that is, the person must either have "direct physical 1337, 1347 (10th cir. 2009). a defendant is only entitled to an instruction on his publish he made his initial appearance. on august 27, with the assistance of counsel, mr.


All Content © 2007-2012 The Judicial View, L.L.C. All Right Reserved.
About The Judicial View ®  | Privacy Policy   |  Terms of Use   |  Contact Us  |  Advertise