United States v. Douglas Paul Breitkreutz

8 F.3d 688 38 Fed. R. Evid. Serv. 1288 UNITED STATES of America, Plaintiff-Appellee, v. Douglas Paul BREITKREUTZ, Defendant-Appellant. No. 91-30285. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 1, 1992. Decided Oct. 29, 1993. James E. Siebe, Siebe, Landeck, Westberg & Judge, Moscow, ID, for defendant-appellant Douglas Paul Breitkreutz. Kim R. Lindquist, Asst. U.S. Atty., Boise, ID, for plaintiff-appellee U.S. Appeal from the United States District Court for the District of Idaho. Before: FARRIS, NORRIS and KOZINSKI, Circuit Judges. KOZINSKI, Circuit Judge: 1 We consider how the government may go about proving a defendant's prior crimes when they are an element of the charged offense. Background 2 A jury convicted Breitkreutz of being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g), and the court sentenced him to 15 years in prison as a career criminal pursuant to 18 U.S.C. § 922 (e). When he was arrested, Breitkreutz was driving a pickup truck that had been reported stolen. Behind the seat of the truck was a rifle. He denied knowledge of the weapon when police found it, and he told the arresting officer he had…

We consider how the government may go about proving a defendant’s prior crimes when they are an element of the charged offense.

Background

A jury convicted Breitkreutz of being a felon in possession of a firearm in violation of 18 U.S.C. § 922 (g), and the court sentenced him to 15 years in prison as a career criminal pursuant to 18 U.S.C. § 922 (e). When he was arrested, Breitkreutz was driving a pickup truck that had been reported stolen. Behind the seat of the truck was a rifle. He denied knowledge of the weapon when police found it, and he told the arresting officer he had borrowed the truck from one David Du-val. Breitkreutz wasn’t charged with the theft of the truck, but with possessing the rifle, a much more serious matter for someone like Breitkreutz with three prior felony convictions.

The government proceeded under a constructive possession theory: Because Breit-kreutz was driving a truck with a rifle behind the seat, it could be inferred he possessed the rifle. The owner of the truck testified he did not put the rifle in it; a woman, who was *690 in the truck with Breitkreutz at the time of his arrest, testified she had no knowledge of the rifle; Breitkreutz…

concurring:

I concur in the judgment and in all but part IIA of the majority’s opinion. I agree with the majority that the admission of Breit-kreutz’s three prior felonies was error and that the error was not harmless. I write separately, however, to express my disagreement with the majority’s view that the government is entitled to put into evidence the complete record of a prior conviction to prove that the defendant was a convicted felon at the time he was in possession of a firearm.

I

The majority assumes without discussion that the nature of the past conviction is relevant to prove the crime of possession of a firearm by a convicted felon under § 922(g). In so doing, the majority creates a conflict with United States v. Barker, 1 F.3d 957 , 959 n. 3 (9th Cir.1993) (“The underlying facts of the prior conviction are completely imlevant under § 922(g)(1); the existence of the conviction itself is not” (emphasis added)). Barker held that a prosecution for the offense of being a convicted felon in possession of a firearm may not be bifurcated into two separate proceedings, one for each element of the offense, because the government must be permitted to prove each element to a…