United States v. De Leon

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 14, 1999
• Docket: 98-40509
• Status: Published

Opinion

Revised April 12, 1999

UNITED STATES COURT OF APPEALS For the Fifth Circuit __________________________________________

No. 98-40509 _________________________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

THOMAS DE LEON,

Defendant-Appellant.

__________________________________________

Appeal from the United States District Court for the Southern District of Texas __________________________________________ March 17, 1999

Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

I. FACTUAL AND PROCEDURAL BACKGROUND

In 1995, agents of the Bureau of Alcohol, Tobacco and

Firearms (“ATF”) began investigating possible violations of

firearms laws by Thomas De Leon (“De Leon”). This investigation

was based upon information received that De Leon, a convicted

felon, had been seen with an assault rifle and was a member of a

street gang. After De Leon was identified as the driver in a

drive by shooting, the ATF obtained a search warrant of Lisa

Cordova’s home, De Leon’s girlfriend. The agents found hidden in a dresser in the home several incriminating items. The articles

included: a box containing 85 rounds of .22 caliber ammunition, a

Texas State Parole Board document referring to De Leon and some

men’s clothing. De Leon’s partial fingerprint was lifted from

the box of ammunition and introduced into evidence by the

government.

Based on this information, De Leon was charged with two

counts under Title 18 U.S.C. § 922(g)(1). The first count

charged him with possession of a firearm by a convicted felon.

The second count charged him with possession of ammunition by a

convicted felon. De Leon was tried on the possession of

ammunition by a convicted felon charge only. The jury found De

Leon guilty, and he was subsequently sentenced to forty-six

months in prison and a three-year term of supervised release.

This appeal followed.

II. DISCUSSION

De Leon challenges his conviction on five separate grounds:

(1) that the evidence was insufficient to establish that he was

in possession of the ammunition; (2) that the admission into

evidence of his parole document was irrelevant and prejudicial;

(3) that the district court erred by refusing to instruct the

jury that mere touching is insufficient to establish constructive

possession of an item; (4) that the government’s power to

penalize a felon’s possession of ammunition is unconstitutional;

2 and (5) that the district court erred by refusing De Leon’s

proposed jury instruction requiring proof that the ammunition had

an “explicit connection or substantial effect on” interstate

commerce.

1) Sufficiency of the Evidence

De Leon argues that the thumbprint on the box containing the

85 rounds of .22 caliber ammunition was insufficient to establish

that he was in possession of the box. He alleges that the

government failed to prove that he had dominion or control over

the house where the box was discovered and the evidence used to

prove constructive possession was therefore insufficient.

De Leon twice filed motions for judgment of acquittal

challenging the sufficiency of the Government’s evidence. The

first motion was filed at the close of the Government’s case-in-

chief and the second at the close of all evidence. Thus, this

appeal is directed to the denial of these motions.

This Court reviews the denial of a motion for a judgment of

acquittal de novo. United States v. Greer, 137 F.3d 247,249 (5th

Cir.), cert. denied, 118 S.Ct. 2305 (1998). In doing so, we

consider “whether, viewing the evidence in the light most

favorable to the government, a rational trier of fact could have

found the essential elements of the offense beyond a reasonable

doubt.” Id.

3 In order to obtain a conviction under 18 U.S.C. § 922(g)(1),

the Government must prove that De Leon had been previously

convicted of a felony, that he knowingly possessed the ammunition

and that the ammunition traveled in or affected interstate

commerce. United States v. Jones, 133 F.3d 358, 362 (5th Cir.),

cert. denied, 118 S.Ct. 1854 (1998). Possession may be actual or

constructive and may be proved by circumstantial evidence. Id.

Constructive possession is the ownership, dominion or control

over an illegal item itself or dominion or control over the

premises in which the item is found. United States v. Munoz, 150

F.3d 401, 416 (5th Cir.), cert. denied, 119 S.Ct. 887 (1999);

United States v. Valencia, 44 F.3d 269, 274 (5th Cir. 1995).

During the trial, ATF agent Elias Mora testified that no one

was at the house when the search warrant was executed. He also

testified that there was no evidence that De Leon owned the home,

that there were no utility bills or mail in De Leon’s name and

that he did not know how the ammunition got into the house.

Raul Cabaza, Cordova’s neighbor, testified that De Leon

began visiting Cordova shortly after she had been widowed. He

did not recall seeing him during the month of June of 1995, when

the search warrant was issued. He did, however, recall seeing De

Leon regularly during the months of February and March of that

year.

The Government’s final witness, Officer Edilberto Vigil of

4 the City of McAlister, Texas, testified that the thumbprint

lifted from the box containing the 85 rounds of .22 caliber

ammunition belonged to De Leon.

In United States v. Onick, 889 F.2d 1425, 1430 (5th Cir.

1989), this Court found the defendant, Tolliver, in constructive

possession of the drugs found within a house. The presence of

his personal belongings, including his papers, clothes and

prescription medicines were enough to prove that he had dominion

and control over the house. Onick, the other defendant, was not

found in constructive possession of the drugs. Id. at 1429. The

fact that Onick only visited Tolliver for the night was one of

the factors considered in determining whether she also exercised

dominion and control over the house. Id. There was no evidence

suggesting that Onick knew about the drugs or that she exercised

control over the house. Based on the insufficiency of evidence,

this Court reversed her conviction. Id. We stated clearly,

however, that the fact that she did not live at the house was not

determinative of the dominion and control issue. Id. at 1431, n.

2; United States v. Morgan, 117 F.3d 849, 856 (5th Cir.), cert.

denied, Ryan v. United States, 118 S.Ct. 454 (1997).

In determining what constitutes dominion and control over an

illegal item, this Court considers not only the defendant’s

access to the dwelling where the item is found, but also whether

the defendant had knowledge that the illegal item was present.

5 Guzman v. Lensing, 934 F.2d 80, 84 (5th Cir. 1991). The mere

fact that the defendant had a key to an apartment where cocaine

was found is insufficient to establish that he exercised dominion

or control over the cocaine. Id.

In United States v. Mergerson, 4 F.3d 337, 349 (5th Cir.),

cert. denied, 510 U.S. 1198 (1994), we determined that control

over the place in which contraband or an illegal item is

discovered is insufficient by itself in establishing constructive

possession when there is joint occupancy of a place. We have

found constructive possession in such cases only when there was

“some evidence supporting at least a plausible inference that the

defendant had knowledge of and access to” the illegal item. Id.

We hold that a reasonable jury could not find that De Leon

actually possessed the ammunition, but could infer that he

constructively possessed the ammunition. The discovery of the

parole document, an item of a sensitive and highly personal

nature, indicates that De Leon was more than a casual visitor.

It can be reasonably inferred from this evidence that De Leon had

authority to keep personal belongings in the house. Raul

Cabaza’s testimony indicates that De Leon slept there up to a

week at a time. When viewed as a whole, the evidence strongly

suggests that De Leon could come and go as he pleased and that he

exercised dominion and control over the house.

The thumbprint on the box of ammunition would also lead a

6 jury to reasonably infer that De Leon knew that the box was there

and that he possessed control over it. The fact that it was

found in a child’s dresser can also indicate a desire to conceal

the existence of the ammunition. The suspicious location of the

ammunition may be used to infer that De Leon had control over the

house and that he knowingly possessed control over the

ammunition. United States v. Anchondo-Sandoval, 910 F.2d 1234

(1990).

When taken as a whole, the evidence suggests that De Leon

was in constructive possession of the ammunition. As we

previously stated in United States v. Cardenas, 748 F.2d 1015,

1020 (5th Cir. 1984), the sum of the evidence may be greater than

the individual factors. After a careful consideration of all the

evidence presented to the jury, we conclude that a jury could

have reasonably inferred that De Leon was in constructive

possession of the ammunition in violation of § 922(g)(1).

2) Admission of the Parole Document

De Leon asserts that the admission of the parole document

was unfairly prejudicial in violation of FED. R. EVID. 403 and is

irrelevant under FED. R. EVID. 402. We review evidentiary rulings

for abuse of discretion. United States v. Robles-Vertiz, 155

F.3d 725, 729 (5th Cir. 1998); Snyder v. Trepagnier, 142 F.3d

791, 801 (5th Cir. 1998).

7 De Leon contends that his willingness to stipulate that he

was a convicted felon rendered the parole document wholly

prejudicial. De Leon cites Old Chief v. United States, 117 S.Ct.

644 (1997), in support of his assertion. However, De Leon’s

reliance upon Old Chief is misplaced. In Old Chief, the Supreme

Court determined that the admission of the nature of the prior

conviction was erroneous because it involved the possession of a

gun by a felon. Id. at 652. The Court reasoned that under those

circumstances there was a high probability that the jury would

convict the defendant on the basis of his bad character. Id. at

652-653. Given that there was valid evidence of the defendant’s

prior conviction that was devoid of the risk of undue prejudice

(i.e., the defendant’s willingness to stipulate to his felon

status), the Court concluded that admission of the nature of the

prior conviction was unnecessary. Id. at 647-648.

A review of the lower court’s proceedings reveals that the

admission of the parole document was neither irrelevant nor

prejudicial and therefore did not constitute an abuse of

discretion. The nature of the offense, with regards to the

parole document, was purposely omitted so as to prevent a

prejudicial effect. De Leon contends that the document was still

overly prejudicial after it was redacted because the words “Most

Watched Program” remained on the version seen by the jury. The

Government, however, never mentioned that De Leon was in the

8 “Most Watched Program” during the trial and it is unlikely that

this isolated reference lured the jury to convict De Leon

principally on the basis of bad character. Consequently, this

point is unavailing.

This Court has held that when the probative value of the

evidence exceeds any possible prejudicial effect, the district

court’s admission of such evidence does not constitute an abuse

of discretion. Robles-Vertiz, 115 F.3d at 730. Thus, we hold

that because the document was highly probative of De Leon’s

dominion and control over Cordova’s house, its admission did not

violate Rules 403 or 402 of the Federal Rules of Evidence.

3) Instructing the Jury on Constructive Possession

De Leon contends that the district court erred by refusing

to instruct the jury that mere touching is insufficient to

establish constructive possession of an item. In support of his

position, he cites United States v. Beverly, 750 F.2d 34 (6th

Cir. 1984). In Beverly, the Sixth Circuit held that mere

touching of one of the guns in question was insufficient to

establish constructive possession of the weapon. Id. at 37.

It is firmly established that this Court affords district

courts substantial latitude in formulating jury charges. United

States v. Garcia Abrego, 141 F.3d 142, 153 (5th Cir.), cert.

denied, 119 S.Ct. 182 (1998). Therefore, we review a district

9 court’s refusal to give a proposed jury instruction only for an

abuse of discretion. Id. Reversal of the district court’s

refusal to give the proposed jury instructions is appropriate

only if the rejected instruction (1) is substantively correct;

(2) is not substantially covered in the charge given; and (3)

pertains to an important point in the trial such that failure to

give the instruction impairs the defendant’s ability to present a

given defense effectively. Id.; see United States v. Pipkin, 144

F.3d 528, 535 (5th Cir. 1997).

Relying upon Beverly, De Leon requested that the court

instruct the jury as follows:

If you find that Mr. De Leon merely touched the box, but did not have constructive possession, that is that he did not knowingly have the power or intention to exercise dominion or control over the cartridges, I instruct you that you must return a verdict of “Not Guilty” as to count two of the indictment.

The district court’s refusal to include an express statement

stating that “mere touching” was insufficient to establish

constructive possession was unnecessary because the instructions

already required proof that De Leon exercised “dominion and

control” over the box of ammunition. By instructing the jury in

this manner, the district court implicitly instructed the jurors

that they could not conclude De Leon constructively possessed the

ammunition if they found that the defendant had simply touched

the ammunition on one occasion.

10 We conclude that the district court did not abuse its

discretion by refusing to include the express language requested

by De Leon. The district court’s instruction substantively

covered De Leon’s proposed instruction. Thus, its decision did

not impair De Leon’s ability to present his defense effectively.

4) The Constitutionality of Title 18 U.S.C. § 922(g)(1)

In his final two points, De Leon argues that § 922(g) is

unconstitutional due to the lack of a sufficient nexus between

the act it prohibits and interstate commerce. Relying on United

States v. Lopez, 514 U.S. 549 (1995), De Leon argues that the

mere fact that the ammunition in question traveled through

interstate commerce in the past is insufficient to implicate

Congress’s power under the Commerce Clause. De Leon

concomitantly urges that the district court erred in refusing to

provide a jury instruction requiring proof that the ammunition

had an “explicit connection or substantial effect on” interstate

De Leon admits that he did not raise this issue in the

district court. Citing cases from other Circuits, however, he

asserts that the constitutionality of a statute may be challenged

for the first time on appeal.

This court has repeatedly emphasized that the

constitutionality of § 922(g)(1) is not open to question. See

11 United States v. Gresham, 118 F.3d 258, 264 (5th Cir.), cert.

denied, 118 S.Ct. 702 (1998). Indeed, this court has expressly

stated that “neither the holding in Lopez nor the reasons given

therefor constitutionally invalidate § 922(g)(1).” United States

v. Rawls, 85 F.3d 240, 242 (5th Cir. 1996). Thus, De Leon’s

constitutional challenge is foreclosed by Circuit precedent.

Because De Leon’s constitutional challenge is directly

precluded by precedent, his requested jury instruction requiring

proof that the ammunition had an “explicit connection or

substantial effect on” interstate commerce is an incorrect

statement of the law. Accordingly, the district court did not

err in refusing to give this instruction. Thus, this issue is

also meritless. See Garcia Abrego, 141 F.3d at 153.

III. CONCLUSION

For the aforementioned reasons, we AFFIRM the district

court’s decision in all respects.