United States v. Molina

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 28, 2000
• Docket: 99-51094
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-51094 Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

FRANCISCO JAVIER MOLINA,

Defendant-Appellant.

-------------------- Appeal from the United States District Court for the Western District of Texas USDC No. EP-99-CR-323-ALL-H -------------------- July 26, 2000

Before JONES, DUHÉ, and STEWART, Circuit Judges.

PER CURIAM:1

Francisco Javier Molina (Molina) has appealed his convictions

on two counts of possessing firearms as a convicted felon, 18

U.S.C. § 922(g)(1). We affirm.

Molina contends, first, that the district court erred by

denying his Fed. R. Crim. P. 29 motion for a judgment of acquittal

on Count One. He argues that the handgun found in his truck was

not in plain view and that there was insufficient evidence that he

knew it was there.

1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. Molina’s contention lacks merit because a police detective

testified that the handgun was partially in plain view in Molina’s

truck, right by the driver’s bucket seat. Furthermore, Molina was

the truck’s sole occupant when the officer stopped him on July 3,

1997. Based on this evidence, a rational juror could find, beyond

a reasonable doubt, that Molina had constructive possession of the

handgun which was found in his truck on that date. See United

States v. Richardson, 848 F.2d 509, 512-14 (5th Cir. 1988); United

States v. Posner, 868 F.3d 720, 722-24 (5th Cir. 1989).

Molina contends that the district court erred by denying his

motion for judgment of acquittal on Count Two, which alleges that

on or about October 16, 1998, he possessed another handgun. An

officer found this handgun on that date, in a barroom where Molina

was present. Molina argues, as he did relative to Count One, that

the handgun was not in plain view and that there was insufficient

evidence that he knew it existed.

The barroom’s owner, Martha Carzoli, had been Molina’s

girlfriend. She testified that when she hugged Molina, she felt

the handgun in his waistband at the small of his back. Carzoli

also testified that she saw Molina place the handgun on the sink in

back of the bar. Shortly thereafter, Carzoli showed a police

officer where the handgun was, partially wrapped in a towel, and he

retrieved it. This is direct evidence that Molina had actual

possession of a handgun, which amply supports his conviction under

Count Two. See United States v. Gresham, 118 F.3d 258, 265 (5th

Cir. 1995). Molina’s argument to the effect that the jury should

2 have rejected the Government’s evidence and credited his evidence

is frivolous. See United States v. Robles-Pantoja, 887 F.2d 1250,

1254 (5th Cir. 1989).

Molina contends that he is entitled to reversal on grounds

that his trial counsel provided ineffective assistance in several

respects. The Government preliminarily asserts that the record is

inadequately developed for these claims to be adjudicated. The

court has determined, however, that the record shows conclusively

that Molina is not entitled to relief on these claims.

Molina faults his counsel for not having objected to the

prosecutor’s eliciting an officer’s testimony that when he first

talked with Molina after the barroom incident, Molina did not want

to say anything. Molina argues that counsel’s failure to object

permitted the prosecutor to adduce evidence that he had invoked his

right to remain silent, in violation of Doyle v. Ohio, 426 U.S. 610

(1976). Doyle is inapplicable, however, because the record shows

that Molina then proceeded to answer the officer’s questions. See

United States v. Cardenas Alvarado, 806 F.2d 566, 573 (5th Cir.

1986).

Molina contends that his counsel was ineffective for having

failed to object to hearsay which the prosecutor elicited from

another officer relative to Count Two. Molina asserts that the

introduction of this hearsay testimony violated his Sixth Amendment

right to confront the witnesses against him. Admission into

evidence of most of the hearsay was harmless because it was

cumulative of properly admitted evidence. See United States v.

3 Lage, 183 F.3d 374, 388 (5th Cir. 1999), cert. denied, 120 S. Ct.

1179, 1180 (2000).

Without objection, the prosecutor also adduced testimony from

the officer that Carzoli had said that in the past, Molina had told

patrons of her barroom that he was a federal agent. Insofar as

this testimony tended to prove that Molina had impersonated a

“federal agent,” it was inadmissible hearsay. See Fed. R. Evid.

801(c). However, even if the question had not been asked or the

answer given, it is highly unlikely that the jury would have

acquitted Molina on either count. Accordingly, Molina is not

entitled to reversal on grounds of ineffective assistance of

counsel. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

AFFIRMED.