06-2175 - United States of America v. David S. Moran, Appellant
U.S. Tenth Circuit Court of Appeals
(March 9, 2007)

Briefs

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Case Summary (prepared at Washburn Law)

Relevant Procedure

Defendant appeals his conviction after jury trial of felon in possession of a firearm. The trial court denied his pre-trial suppression motion and declined to include two of his proposed jury instructions covering "fleeting possession" and "mistaken possession." During trial, the court allowed the introduction of a previous conviction for felon in possession as proof of lack of mistake under 404(b).

Facts

Mr. Moran is a resident of rural New Mexico who enjoys bow hunting. He and his wife together drive two vehicles, a black SUV and a white Jeep. His wife owns a hunting rifle and she is the owner of the black SUV. Moran has a previous felony conviction related to possession of firearms (1994).

The Fergusons and the Pattersons are neighbors who live on the outskirts of a national forest. The easiest access to the forest is through their property. Moran was hunting in the forest on the day in question, and crossed both the Fergusons' and the Pattersons' properties that day. Ferguson complained twice in one day that Moran was trespassing on their property. Criminal trespass is a misdemeanor under New Mexico law. During their investigation of the second complaint, sheriff's deputies observed a black SUV leaving the area. They conducted a traffic stop to investigate the completed trespassing misdemeanor complained of by Ferguson. When one deputy approached the black SUV, he observed a rifle in plain view in the back seat. Moran was driving the SUV and claimed that he did not know the rifle was in the truck. During the traffic stop, Moran stated that he knew the rifle was loaded and that he always kept a rifle in his truck. At trial, his wife testified that she had left the rifle in the truck the day before after sport shooting. Moran's bow-hunting buddy also testified that he, the buddy, had handled the bows that day, so Moran would not have had opportunity to observe the contents of the back seat.

Issues

I. Whether the Fourth Amendment allows police to conduct traffic stops to investigate completed misdemeanors.

II. Whether the introduction of Moran's previous firearm-related conviction was improper FRE 404(b) evidence of lack of mistake since the evidence was more prejudicial than probative under FRE 403.

III. Whether the trial court improperly instructed the jury when it omitted two of Moran's proposed jury instructions covering mistaken possession and fleeting possession.

Arguments of the Parties

Issue I

Moran moved to suppress the evidence obtained during the stop because he says the fourth amendment does not allow police to conduct traffic stops to investigate completed misdemeanors. According to Moran, the sheriffs would have been justified in approaching him at his home, but because they were merely "assuming" that he was driving the black SUV and because they were not investigating an ongoing crime or a felony, police were unjustified in stopping him. Moran also says the deputies did not have reasonable suspicion that he was the driver of the SUV until they stopped him, and the stop was unjustified by reasonable suspicion on those grounds.

The government labels Moran a "serial trespasser," and likens his actions that day to a series of ongoing crimes. Since police would have been justified in investigating an ongoing crime, because the information sheriffs had included a black SUV, and because the sheriffs knew that Moran was involved and sometimes drove a black SUV, the government says the traffic stop was justified. The government also argues that even if police should not be allowed to conduct traffic stops to investigate completed misdemeanors, the deputies knew Moran was the driver, and they were simply trying to expedite their investigation. Therefore, the stop was reasonable by Fourth Amendment standards.

Issue II

Moran's main complaint about the introduction of his previous conviction is that once they heard that he had already been convicted of felony possession of firearms, the jury probably concluded that he was guilty in this case as well. He claims that this is the improper inference that 404 is meant to prevent, and that even if the conviction was admissible under a 404(b) exception, its introduction was still overly prejudicial per 403, and therefore should have been prevented.

The government claims that the conviction was relevant to show lack of mistake and also to show motive, and therefore the evidence was admissible. It claims that because 403 works in favor of admitting evidence, the conviction was not overly prejudicial.

Issue III

Moran complains that he was not allowed to present his theory of defense to the jury because the court omitted instructions. He claims that because evidence was adduced at trial that tended to support his theory of defense, the jury should have been instructed on fleeting possession (an absolute defense to the possession element of the crime) and on mistaken possession (a defense to the specific intent element of the crime). He claims that the Tenth Circuit recognizes both of these defense theories, and therefore the trial court's contrary ruling is error.

The government contends that the jury was properly instructed because either: 1) the jury received instructions covering Moran's theories of defense; 2) the Tenth Circuit does not recognize his defense theories, so their exclusion was not error; or 3) even if the Tenth Circuit recognizes Moran's defenses, because the evidence against Moran was so overwhelming, the exclusion of his proposed instructions was harmless error.