United States v. Dominguez

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 25, 2001
• Docket: 00-51190
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-51190 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DANIEL DOMINGUEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Texas (SA-99-CR-371-ALL)

July 20, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Convicted on two counts of bank robbery and one count of being

a felon in possession of a firearm, Daniel Dominguez maintains

first that the evidence was insufficient to convict him of the

latter offense because the Government failed to prove that he

possessed, or constructively possessed, the firearm found in his

girlfriend’s closet.

Dominguez moved for a judgment of acquittal at the close of

the Government’s case, and he renewed his motion at the close of

the evidence. Accordingly, his sufficiency-challenge is reviewed

de novo, applying the same standards as the district court. See

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. United States v. De Leon, 170 F.3d 494, 496 (5th Cir.), cert.

denied, 528 U.S. 863 (1999).

A reasonable jury could have found Dominguez had constructive

possession of the firearm. His possession of a key to the house

and the presence of other items belonging to Dominguez in the house

and closet indicate that Dominguez had dominion over the premises

where the firearm was found. Additionally, the jury could

reasonably have inferred that Dominguez was responsible for the

firearm because his hair was found on clothing inside the bag in

which the firearm was found, and Dominguez admitted ownership of

the firearm to an inmate who testified at trial. Moreover, even

accepting Dominguez’s assertion that the evidence established that

he was not the only person with access to the house, the jury need

not have excluded every reasonable hypothesis of innocence in order

to find Dominguez guilty. See United States v. Ferguson, 211 F.3d

878, 882 (5th Cir.), cert. denied, 121 S. Ct. 258 (2000).

Dominguez’s second, and final, contention is that his right to

due process was denied in connection with the photographic array

presented to the witnesses. He maintains: the district court

abused its discretion by failing both to make any factual findings

in rejecting his challenge to the array and to hold an evidentiary

hearing on the issue; and that the array was impermissibly

suggestive.

Dominguez’s assertion that he was denied an opportunity to

present facts in support of his challenge to the array is without

merit. The facts surrounding the suggestiveness vel non of the

photographic array were brought forth during the suppression hearing held by the district court. Moreover, Dominguez does not

allege any additional facts which, if proven, would justify relief.

Cf. United States v. Mergist, 738 F.2d 645, 648 (5th Cir. 1984)

(“an evidentiary hearing [regarding voluntariness of testimony] is

required when the defendant alleges sufficient facts which, if

proven, would justify relief” (internal quotation marks omitted)).

With regard to the suggestiveness of the array, “[a]

conviction based upon an eyewitness identification at trial

following a pretrial photographic identification must be set aside

only if the identification procedure was so impermissibly

suggestive as to give rise to a very substantial likelihood of

misidentification”. United States v. Fletcher, 121 F.3d 187, 194

(5th Cir. 1997) (internal quotation marks omitted), cert. denied,

522 U.S. 1063 (1998).

The photographic array was not impermissibly suggestive. All

of the subjects were roughly the same age and appeared to be

Hispanic. Contrary to Dominguez’s assertion, their complexions are

not greatly varied. All the subjects are wearing similar disguises

(fake goatee and mustache and dark glasses), and several of the

subjects are about the same size and height as Dominguez.

Dominguez’s jacket is only slightly lighter color than the others.

In addition, one of the other subjects also has a large nose, as

does Dominguez. See United States v. Credit, 95 F.3d 362, 364 (5th

Cir. 1996) (despite defendant’s challenge to photo array on grounds

he was only heavyset subject with rounded face, concluding spread

was not impermissibly suggestive because all men were about same

age and skin tone), cert. denied, 519 U.S. 1138 (1997). Because the array was not impermissibly suggestive, we need not proceed

further to consider the likelihood of misidentification.

AFFIRMED