UNITED STATES OF AMERICA, Plaintiff - Appellee, v. LADALE F. WASHINGTON, Defendant - Appellant.
No. 09-3091
UNITED STATES COURT OF APPEALS TENTH CIRCUIT
February 23, 2010
PUBLISH
TACHA, Circuit Judge.
John K. Henderson, Jr., Assistant Federal Public Defender, Office of the Public Defender for the District of Kansas, Wichita, Kansas, appearing for Appellant.
Brent I. Anderson, Assistant United States Attorney (Lanny D. Welch, United States Attorney, with him on the brief), Officе of the United States Attorney for the District of Kansas, Wichita, Kansas, appearing for Appellee.
Before TACHA, ANDERSON, and BRISCOE, Circuit Judges.
TACHA, Circuit Judge.
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
I. BACKGROUND
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 сar 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 othеr 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 statеd that Mr. Washington had told
On November 15, 2007, a federal grand jury indicted Mr. Washington on two counts of being a felon in possession of a firеarm. 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.
On December 5, Mr. Washington, acting pro se, drafted a document titled “Final Disposition of Detainer” which stated that he was “filing a 180-day writ.” The parties do not dispute that Mr. Washington was attempting in the document to invoke his rights under the IAD, which provides that a prisoner in the custody of a state who is the subject of a detainer lodged by the United States must be brought to trial on the federal charges within 180 days after he has caused to be delivered to the prosecuting officer and the appropriate court a request for final disposition of the charges on whiсh the detainer is based. See
On December 18, Mr. Washington submitted a form application through the KDOC requesting a final disposition of detainer. See
Mr. Washington was not brought to federal court until July 25, 2008, when he made his initial appearance. On August 27, with the assistance of counsel, Mr. Washington moved to dismiss the indictment based on a violation of the IAD. The district court denied the motion, citing Mr. Washington‘s failure to deliver a copy of his request to the court as required by the IAD.
At trial, the court admitted into evidеnce a transcript of Mr. Washington‘s testimony at his probation violation hearing, during which he made inculpatory statements regarding his possession of the two firearms. Over Mr. Washington‘s objection, the court also permitted the jury to review the exhibit during their deliberations. Also over Mr. Washington‘s objection, the district court refused to instruct the jury that “fleeting possession” is insufficient to support a conviction under
II. DISCUSSION
A. Interstate Agreement on Detainers
Mr. Washington first argues that the district court should have dismissed the indictment under the IAD. Article III of the IAD provides:
Whenever a pеrson has entered upon a term of imprisonment in a penal or correctional institution of a party State, and whenever during the continuance of the term of imprisonment there is pending in any other party State any untried indictment, information, or complaint on the basis оf which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer‘s jurisdiction written nоtice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information, or complaint . . . .
The Supreme Court has held that the 180-day timeframe under the IAD
While we are not unsympathetic to Mr. Washington‘s position, his argument is foreclosed by Fex. There, the Supreme Court specifically required actual delivery of a request to both the prosecutor and the court, and it refused to carve a “fairness” exception to the express language of the IAD in cases in which a third party had negligently or maliciously prevented delivery from occurring. Id. at 50-52. Other circuits have followed Fex‘s clear instructions on this point. See, e.g., United States v. Dooley, 580 F.3d 682, 685 (8th Cir. 2009) (affirming the denial of a motion to dismiss the indictment based on the IAD, reasoning that “even where a prisoner has made a good-faith effort to invoke his rights under the [IAD], he is not entitled to relief unless adequate notice was actually received“);
Similarly, Fex also undermines Mr. Washington‘s suggestion that the indictment should have been dismissed because the purpose of the IAD‘s
B. Fleeting Possession Instruction
To support a conviction under
In addition, momentary or transitory control of an object is not possession. You should not find that the defendant possessed the object if he possessed it only momentarily, or did not know that he possessed it.
See Tenth Circuit Pattern Jury Instruction 1.31, ¶ 6.
We review a district court‘s decision on whether to give a particular jury instruction for an abuse of discretion. See United States v. Turner, 553 F.3d 1337, 1347 (10th Cir. 2009). A defendant is only entitled to an instruction on his theory of defense if it is supported by sufficient evidence and is a correct statement of the law. Id.
Although this circuit has discussed a fleeting possession defense, we have never recognized one. See United States v. Baker, 508 F.3d 1321, 1326 n.2 (10th Cir. 2007); United States v. Al-Rekabi, 454 F.3d 1113, 1126 (10th Cir. 2006). Furthermore, even if wе were to adopt the defense—which we do not do today—it only applies if the defendant (1) momentarily possessed contraband and (2) either lacked knowledge that he possessed contraband or had a legally justifiable reason to possess it temporarily. United States v. Adkins, 196 F.3d 1112, 1115 (10th Cir. 1999), overruled on other grounds by Chambers v. United States, 129 S. Ct. 687 (2009). Nо possible interpretation of the evidence presented in this case could support acquittal under this theory. Mr. Washington has never contended that he did not know he was handling the guns or that he had a legally justifiable reason to do so. His defense at trial was that he handled thеm momentarily or not at all. Because the evidence, at best, would support a favorable finding as to only the first element of a fleeting possession defense, the district court did not abuse its discretion by refusing to so instruct the jury.
C. Transcript of Prior Testimony
Mr. Washington cites one Ninth Circuit opinion in support of his position, but that case is distinguishable. In United States v. Hernandez, 27 F.3d 1403 (9th Cir. 1994), the district court submitted to the jury during their deliberation the entire transcript of a key prosecution witness‘s trial testimony. Id. at 1405. The Ninth Circuit explained that because allowing the rehearing of trial testimony may have the tendency to “repeatedly replay crucial moments” in the trial and therefore place “undue emphasis” on them, it is preferable to rehear testimony in open court rather than submit a partial trial transcript to the jury during deliberation. Id. at 1408. Furthermore, the Hernandez court was concerned that since the jury requested that particular transcript, there was an increased
Moreover, Mr. Washington has not shown, as he must under our case law, that the submission of the exhibit to the jury was prejudicial. He argues that the transcript was “particularly harmful in this case where the only real incriminating evidence was the statement Mr. Washington made in the transcripts provided to the jury.” We do not agree. Officer Henning testified that Mr. Washington told him he had handled the firearms, another passenger testified she hеard Mr. Washington instruct a fellow passenger to hide the gun, and one of the guns was found beneath the seat in front of Mr. Washington where he could easily have reached it. Thus, even without the transcript the jury had sufficient evidence to find that Mr. Washington at the very least constructively possessed the firearms. The district court therefore did not abuse its discretion in allowing the transcript to go to the jury room during deliberation.
III. CONCLUSION
For the foregoing reasons, we AFFIRM.
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