FILED

United States Court of Appeals

Tenth Circuit

February 23, 2010

Elisabeth A. Shumaker

Clerk of Court

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v.

LADALE F. WASHINGTON,

Defendant - Appellant.

No. 09-3091

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D. Ct. No. 6:07-10205-WEB-1)

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), Office 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 18 U.S.C.

§§ 922(g)(1) and 924(a)(2). After a trial by jury, Mr. Washington was found

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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.

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 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

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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. 

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 which the detainer is based. See 18 U.S.C. App. 2

§ 2 art. II(a), III(a); Fex v. Michigan, 507 U.S. 43, 44–45 (1993). He mailed one

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copy of the document to “Department of Justice, Issuing prosecutor” with an

address of 301 N. Main in Wichita. He mailed a second copy of the document to

“Department of Justice, Court” with the same mailing address of 301 N. Main in

Wichita. The United States Attorney’s Office (“USAO”), which is located in the

building at 301 N. Main in Wichita, received both documents on December 12. 

The USAO kept both documents in its file and did not forward the copy addressed

to “Department of Justice, Court” to the district court, which is located at a

different address.

On December 18, Mr. Washington submitted a form application through the

KDOC requesting a final disposition of detainer. See id. Art. III(b). The KDOC

sent the application through certified mail to the ATF field office at 301 N. Main

in Wichita, Kansas. The mailing was confirmed as delivered on January 7, 2008,

and a notation was made on the delivery confirmation stating “7/7/08 Deadline.” 

There is no evidence in the record that the ATF forwarded Mr. Washington’s

application to the district court or that the KDOC sent a copy of the application to

the district court.

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. 

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At trial, the court admitted into evidence 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 § 922(g). On January 14, 2009, Mr. Washington was convicted on both

counts. 

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 person 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 of 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 notice of the place of his imprisonment

and his request for a final disposition to be made of the indictment,

information, or complaint . . . .

18 U.S.C. App. 2 § 2 art. III(a). All jurisdictions within the United States, as well

as the United States itself, are parties to the IAD. Id. § 2; § 2 art. II(a). 

The Supreme Court has held that the 180-day timeframe under the IAD

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does not begin until “the prisoner’s request for final disposition of the charges

against him has actually been delivered to the court and prosecuting officer of the

jurisdiction that lodged the detainer against him.” Fex, 507 U.S. at 52 (emphasis

added). Here, it is undisputed that the district court never received Mr.

Washington’s request for final disposition because Mr. Washington sent both pro

se requests to the USAO’s mailing address and the KDOC sent his request only to

the ATF office. Nor do we think that delivery to the USAO or the ATF office

constitutes delivery to the district court for purposes of the IAD. Nevertheless,

Mr. Washington argues that he is entitled to relief because the USAO should have

forwarded the request addressed to “Department of Justice, Court” to the district

court.

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”);

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United States v. Daily, 488 F.3d 796, 797, 801 (8th Cir. 2007) (same, in case

where prison officials had refused to deliver prisoner’s request under the IAD to

any federal official at all); United States v. Brewington, 512 F.3d 995, 997 (7th

Cir. 2008) (affirming the denial of a motion to dismiss the indictment based on

the IAD when state prison officials allegedly sent the speedy trial request only to

the United States Attorney because “even if delivery of the notice is delayed due

to negligence or malice on the part of prison authorities, the IAD’s clock does not

start running until the notice is actually received by both the prosecutor and the

court”); United States v. Jones, 454 F.3d 642, 647–48 (7th Cir. 2006) (same,

explaining that “[w]hile this may be a strict rule, the Supreme Court’s decision in

Fex explicitly contemplated a more egregious error on the part of the warden and

found dismissal of the charges to be an inappropriate remedy”); United States v.

Johnson, 196 F.3d 1000, 1002 (9th Cir. 1999) (“Under Fex, it does not matter

what the prisoner may or may not have done in an attempt to cause such delivery .

. . . Until actual delivery occurred, the 180-day period did not start to run.”). 

Here, despite the fact that the USAO could have forwarded Mr. Washington’s

demand under the IAD to the district court, it did not do so. Because actual

delivery was not accomplished with regard to both the court and the prosecutor,

there was no violation of the IAD.

Similarly, Fex also undermines Mr. Washington’s suggestion that the

indictment should have been dismissed because the purpose of the IAD’s

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requirements—notice to the prosecutor—was fulfilled in this case. As the

Seventh Circuit has explained, this “might be a good argument for rewriting the

IAD, but it is beside the point because the IAD, as it presently reads, doesn’t

allow for that possibility.” Brewington, 512 F.3d at 997. Therefore, the district

court did not err in denying Mr. Washington’s motion to dismiss.

B. Fleeting Possession Instruction

To support a conviction under § 922(g)(1), the government must prove that

the defendant “possessed” the firearm. 18 U.S.C. § 922(g)(1). Possession can be

either actual or constructive; that is, the person must either have “direct physical

control over [the] firearm,” or he must “knowingly hold[] the power and ability to

exercise dominion and control over [the] firearm.” United States v. McCane, 573

F.3d 1037, 1046 (10th Cir. 2009). Mr. Washington does not appear to contest that

he either actually or constructively possessed the two firearms at issue in this

case. Instead, he argues that the district court should have provided the jury with

a “fleeting possession” instruction. Specifically, Mr. Washington requested that

the court provide the following instruction contained in Tenth Circuit Pattern Jury

Instruction 1.31:

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. 

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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 we 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). No 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 them 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

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At trial, the government introduced Mr. Washington’s testimony from his

state court probation violation hearing in which he stated that he had handled the

two firearms. The court admitted the transcript of the testimony as an exhibit,

and the court allowed the exhibit to go to the jury during their deliberations over

Mr. Washington’s objection. Mr. Washington contends that allowing the

transcript to go to the jury was error and resulted in undue emphasis on the prior

testimony. “It is within the discretion of the trial judge to decide what exhibits

are permitted in the jury room and this court will not overturn the trial court’s

exercise of discretion absent a clear showing of abuse and resulting prejudice.” 

United States v. Fields, 516 F.3d 923, 950 (10th Cir. 2008) (quotations and

alterations omitted). 

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

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likelihood that “its final decision turned on [the requested] testimony.” Id. at

1409. In Mr. Washington’s case, however, the court did not give to the jury a

copy of a particular witness’s trial testimony. Rather, the transcript had been

admitted into evidence as an exhibit in the trial, and the district court sent it and

all exhibits to the jury. Thus, the risk of undue emphasis identified in Hernandez

simply is not present in this case.

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 heard 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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