constructive possession

[SkyHawk]

Nguyen was not deposed, and there's nothing in the record showing that he did testify at trial.

Even if the evidence showed that he intended to build a featureless firearm, he still would be committing a felony.

What would be the felony?? Perhaps it all happened during the weird time when anything AK was AW? I am really confused and curious what I have missed.

A whole bunch of us built unserialized featureless AR and AK from 80% or just bare receivers. We even registered them with our own issued serial numbers during the serial number reg window?? This was all pre-the requirement to get approval first.

And I was referring to his statements given to LE on the scene, which IIRC were part of the court record.

https://www.leagle.com/decision/incaco20130118046

After that, Chapman asked defendant if he had any other weapons, and defendant told him he was building an AK-47. Defendant took Chapman to a box of AK-47 parts. Again, the receiver had no serial number or manufacturer name. Defendant explained that he had purchased an AK-47 flat receiver, and he opined that when one purchases an AK-47 flat receiver that has yet to be bent into shape, one does not have to register the firearm. He pulled up the AK-Builder.com Web site on his computer and showed Chapman the AK-47 flat receivers for sale. Defendant had already bent his flat receiver into shape for assembly, by using a vise or a flat bending die set.

Chapman asked defendant if he knew it was wrong for him to have and make his own AK-47. Defendant admitted knowing it was wrong.

[RickD427]

What would be the felony?? Perhaps it all happened during the weird time when anything AK was AW? I am really confused and curious what I have missed.

A whole bunch of us built unserialized featureless AR and AK from 80% or just bare receivers. We even registered them with our own issued serial numbers during the serial number reg window?? This was all pre-the requirement to get approval first.

And I was referring to his statements given to LE on the scene, which IIRC were part of the court record.

https://www.leagle.com/decision/incaco20130118046

Nguyen would have committed a felony violation of PC 29800(a)(1) if he built a bare receiver, or featureless rifle (at the time of his original offense).

[OlderThanDirt]

[TheGood]

Nguyen was not deposed, and there's nothing in the record showing that he did testify at trial.

Even if the evidence showed that he intended to build a featureless firearm, he still would be committing a felony.

OK, but you left out the part about Nguyen being a felon, which is the only reason he couldn't legally build or possess ANY TYPE of firearm. This has nothing to do with constructive possession for a non-prohibited person. Constructive possession was used against Nguyen because it could be proven that he had the ability to illegally possess a firearm if it was completed.

After that, Chapman asked defendant if he had any other weapons, and defendant told him he was building an AK-47. Defendant took Chapman to a box of AK-47 parts. Again, the receiver had no serial number or manufacturer name. Defendant explained that he had purchased an AK-47 flat receiver, and he opined that when one purchases an AK-47 flat receiver that has yet to be bent into shape, one does not have to register the firearm. He pulled up the AK-Builder.com Web site on his computer and showed Chapman the AK-47 flat receivers for sale. Defendant had already bent his flat receiver into shape for assembly, by using a vise or a flat bending die set.

Chapman asked defendant if he knew it was wrong for him to have and make his own AK-47. Defendant admitted knowing it was wrong.

His admissions of guilt to the police officer were made without his being read his Miranda Rights? Why was he being questioned about possible felony activity without being read his 'right to remain silent'?


The main felony he was in violation of was possession of a functional .50 BMG while being a felon. This also has nothing to do with the right/ability to build an AK pattern rifle by a non-prohibited person.

[johncage]

miranda rights are read when they intend to arrest him. looks like at that point he was just giving the cops a guided tour of his illegal gun factory lol

[TheGood]

miranda rights are read when they intend to arrest him. looks like at that point he was just giving the cops a guided tour of his illegal gun factory lol

And I'm not sure why his defense attorney felt the need to re-publish the "guided tour" to the appeals court. It seems that those statements by Nguyen made to Chapman should have been considered hear-say at the trial and not used as quoted evidence in an appeal, much less from his own defense lawyers.

[RickD427]

OK, but you left out the part about Nguyen being a felon, which is the only reason he couldn't legally build or possess ANY TYPE of firearm. This has nothing to do with constructive possession for a non-prohibited person. Constructive possession was used against Nguyen because it could be proven that he had the ability to illegally possess a firearm if it was completed.

I didn't "leave anything out." If you presume to undertake a discussion about Nguyen, then it's really incumbent on you to know the facts of the case.

You're quite correct that the being a prohibited person is irrelevant to a non-prohibited person constructing a firearm, but we're not discussing a non-prohibited person, we're discussing Nguyen.

As to knowing the facts of the case, it's important to note that "Constructive Possession" was not used against Nguyen, nor did the elements of "Constructive Possession" ever enter into the Nguyen case.

His admissions of guilt to the police officer were made without his being read his Miranda Rights? Why was he being questioned about possible felony activity without being read his 'right to remain silent'?

Because there was no legal requirement to read him his rights under the circumstances.

The main felony he was in violation of was possession of a functional .50 BMG while being a felon. This also has nothing to do with the right/ability to build an AK pattern rifle by a non-prohibited person.

True, but see my comments on this point above.

[RickD427]

And I'm not sure why his defense attorney felt the need to re-publish the "guided tour" to the appeals court. It seems that those statements by Nguyen made to Chapman should have been considered hear-say at the trial and not used as quoted evidence in an appeal, much less from his own defense lawyers.

Please make sure that you understand what "Hearsay" is, and is not.

Also make sure that you understand the "Admission Against Interest" exception to the Hearsay Rule. That one is highly applicable to your point.

[pacrat]

And I'm not sure why his defense attorney felt the need to re-publish the "guided tour" to the appeals court. It seems that those statements by Nguyen made to Chapman should have been considered hear-say at the trial and not used as quoted evidence in an appeal, much less from his own defense lawyers.

Rick has valid point relative to a "hearsay finding".

those statements by Nguyen made to Chapman should have been considered hear-say

Constitutes "first hand knowledge'. And admissible as such.

Hearsay example, would be if a Third Party told Chapman that Nguyen had made the statement.

[TheGood]

it's important to note that "Constructive Possession" was not used against Nguyen, nor did the elements of "Constructive Possession" ever enter into the Nguyen case.

OK, I guess the Nugyen case was an aside and not relevant to the title of this thread and discussion about constructive possession? My apologies I thought that case was a primary reference in this discussion with the quoted text and bold sections about illegal 80% builds. I had not read the entire appeal which explains why he was arrested, it was a long night last night and I guess I got confused about the talking point of this discussion relative to the Nugyen case.


Mods, if you could delete my posts from this thread and responses to my posts to clean up this discussion please do.


I apologize Rick, as I said before I had a long night and apparently I was not thinking clearly about this subject.

[RickD427]

OK, I guess the Nugyen case was an aside and not relevant to the title of this thread and discussion about constructive possession? My apologies I thought that case was a primary reference in this discussion with the quoted text and bold sections about illegal 80% builds. I had not read the entire appeal which explains why he was arrested, it was a long night last night and I guess I got confused about the talking point of this discussion relative to the Nugyen case.


Mods, if you could delete my posts from this thread and responses to my posts to clean up this discussion please do.


I apologize Rick, as I said before I had a long night and apparently I was not thinking clearly about this subject.

No apologies needed. Respectful banter about this stuff helps other folks to better understand what's going on.

Nguyen is a really important case for folks to be aware of. It was a very skillful approach by the prosecutor to fang Nguyen for what was essentially a Constructive Possession case, but without actually going down the Constructive Possession road. The prosecutor filed "Attempted Possession" charges which were closely, but not exactly, the same. Under Penal Code 664 governing criminal attempts, the prosecution had to show that Nguyen made an ineffective attempt to possess the assault weapon, as opposed to simply showing that he had the parts to do so. Nguyen's statements were a key element of the successful prosecution.

[Dvrjon]

Well, since I seem to have kicked this off with Nguyen, as we wrap this up, there may be some loose ends to tie:

History/Timeline:
2000: “Evil Features” were banned as assault weapons.
2007: Prince releases the “Bullet Button”.
2010: Nguyen is arrested.
2017: BBAW takes effect; “featureless” features (Pistol grip fins, etc) are introduced.

Nguyen’s arrest:
-The box of parts contained everything necessary to build a complete, semi-auto center fire rifle.

-No bullet button was present. From the Appellate Court record:

At trial, Schuch was asked to look at defendant's box of AK-47 parts. He opined that all the parts were present to build an AK-47-type weapon. More specifically, he said they would create a semiautomatic, centerfire rifle, with "the capacity to accept a detachable magazine."

At the time, the bullet button made the magazine fixed and might have saved his butt, if it was present.

-Fins didn’t exist, so Nguyen could not have easily assembled it into a non-pistol grip featureless rifle, nor could he claim that was his intent. Not installing the pistol grip would not have saved him. Nothing was complete, yet everything was there. That was “intent”.

-Nguyen stated he was building the gun…also intent.

-The court essentially found that the act of bending the receiver changed intent to attempt.

Once in possession of the parts, defendant bent the flat receiver so that the weapon could be assembled. Thus, he went beyond mere preparation, and took direct action towards the construction of the weapon, inasmuch as he obtained the parts and took at least one step towards assembly. He was prevented from completing the construction of the weapon by the police, who confiscated the parts. The evidence is sufficient to support a conviction for attempted manufacture of an assault weapon.

-Nguyen’s status as a felon never touched the charges of attempt to manufacture and attempt to possess. He pled to two other charges based on his felon status: possession of a firearm (not the AK) by a felon and possession of ammunition by a prohibited person. If Nguyen’s status as a felon bore on the AW charges, it’s reasonable to presume they would have been on the charge sheet. They weren’t because it’s irrelevant. Attempts to violate laws by felons and non felons are the same. Felon/non felon status would most likely have impact in the sentencing phase (strikes).

Legal Counsel:

Jason Davis was counsel of record. Without personal experience with him, I can say nothing more than he appears to have a solid background, and currently is “of counsel” to the Michel firm.

Best.

[pacrat]

As Rick aptly noted;

Nguyen's statements were a key element of the successful prosecution.

Remember people. "Anything you say can, and will, be used against you in a court of law".

Once LE and DA decide to paint a bullseye on your back. STFU, and only speak with an attorney well versed in the possible charges they may bring.

[RickD427]

Well, since I seem to have kicked this off with Nguyen, as we wrap this up, there may be some loose ends to tie:

History/Timeline:2010: Nguyen is arrested.bending the receiver changed intent to attempt.Legal Counsel:

Jason Davis

A pretty good summary above.

But it's important to note that the charges filed by the prosecutor did include the attempted possession of a firearm by a felon. Nguyen pled guilty to that charge. He went to trial on the attempted possession, and attempted manufacture, of an Assault Weapon charges and was convicted on both.

While it is true that his status as a felon didn't enter into the Assault Weapon charges, the reason is that there is no separate offense for a felon manufacturing or possessing an Assault Weapon. The criminal liability for such conduct lies in the statute governing felons and firearms.

That being the case, if there had been a "Bullet Button" in the batch of parts that Nguyen was caught with, it would have mattered little in the outcome. We don't know the judge's state of mind in fixing Nguyen's sentence. He gave six years on the Assault Weapon charges and four years on the charges to which Nguyen pled guilty (to be served concurrently). In the "best case" view, the bullet button would only have shaved two years off the six year sentence.

[Dvrjon]

A pretty good summary above.

Thanks.

But it's important to note that the charges filed by the prosecutor did include the attempted possession of a firearm by a felon. Nguyen pled guilty to that charge. [...]
While it is true that his status as a felon didn't enter into the Assault Weapon charges, the reason is that there is no separate offense for a felon manufacturing or possessing an Assault Weapon. The criminal liability for such conduct lies in the statute governing felons and firearms.

I agree, and thought I'd covered that aspect, but perhaps it wasn't clear. The firearm which he pled guilty to possessing (and its ammunition) as a felon was not the AK he was building. In fact, it couldn't have been, as the AK wasn't a completed AW...just a box of parts...which he was attempting to turn into an AW. If "constructive possession" actually bore on this case, he would have gotten the "felon in possession" of a firearm tag twice. Instead, he was attempting possession.

That being the case, if there had been a "Bullet Button" in the batch of parts that Nguyen was caught with, it would have mattered little in the outcome. We don't know the judge's state of mind in fixing Nguyen's sentence. He gave six years on the Assault Weapon charges and four years on the charges to which Nguyen pled guilty (to be served concurrently). In the "best case" view, the bullet button would only have shaved two years off the six year sentence.

True, but that feels like a LEO viewpoint ...he's still going away.

I would think that, from the point of view of the guy inside for 6 years, a 4-year term, is a big matter, especially when looking at early release/parole. Being inside for two simple possession counts for a non-assault weapon and ammo has got to go better than 4 counts, including attempting to manufacture and possess an AW.

Regardless, it wasn't there, so the issue couldn't be argued, and the only way the box of parts could have been assembled was into an AW.

Best.