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Twenty years for picking up ammo on Halloween

By Randall Hodgkinson

The Tenth Circuit affirmed a felon in possession conviction in U.S. v. Baker, No. 07-3002 (10th Cir. Dec. 7, 2007), rejecting the defendant's request for an innocent possession instruction. Here is the take on the record by Judge Holloway in his dissent:

on this Halloween night, in spite of the very late hour, there were children out and about at the apartment complex where he found the ammunition and that he took the contraband away from that place out of concern for safety; that he intended to take the ammunition to a police station; that he made one short stop on the way to accommodate one of his companions; and that he had been in possession of the ammunition for only ten minutes. His testimony that he approached Officer Bachman with the intention of turning the ammunition over to him was partially corroborated by the officer, who testified that Baker was approaching him before he ordered Baker to stop. Thus Baker?s testimony, which should be accepted in determining if Baker made a viable innocent possession showing, demonstrated that he did not possess the ammunition for illicit purposes.

The majority?s holding is that, even if the jury believed every part of Baker?s testimony, it is in keeping with Congressional intent that Baker serve nearly 20 years in prison for his conduct. I cannot agree that Congress intended such "a harsh and absurd result.?

Of course the majority asserts that injustice like that asserted by Mr. Baker can't happen because "if the safeguard against liability for being a Good Samaritan is not provided by statute, it is found in the exercise of sound prosecutorial discretion." Wow, I feel safer already. In fact, under this rationale, why even have jury trials at all? The prosecutor exercising "sound prosecutorial discretion" won't ever wrongfully charge anyone.

Full post as published by Kansas Defenders on December 07, 2007 (boomark / email).