UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10825
_____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALBERT PALOMO,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
(4:97-CR-6-1-A)
_________________________________________________________________
October 15, 1998
Before JOLLY, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Albert Palomo appeals his conviction for being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
challenging, inter alia, the district court’s comments, during voir
dire, regarding Texas community property law, in conjunction with
the potential jurors (venire) being questioned by defense counsel
about ownership of firearms. We AFFIRM.
*
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that this opinion should not be published and is not precedent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.
I.
Palomo, arrested in March 1996, was convicted approximately 13
months later. The district court sentenced him to 210 months
imprisonment, followed by a five-year term of supervised release.
II.
Palomo contends that the district court reversibly erred by
commenting on Texas community property law during voir dire and by
later refusing to cure the claimed error by including Palomo’s
requested instruction in the jury charge; that it erroneously
instructed the jury on the interstate commerce element of the
offense; and that the felon in possession of a firearm statute is
unconstitutional, the indictment defective, and the evidence
insufficient, because the statute did not require the Government to
allege and prove a substantial effect on interstate commerce.
A.
In March 1996, Fort Worth, Texas, police officers stopped a
car driven by Palomo, and discovered that the passenger, Melissa
Monroe (Palomo’s common-law wife), was sitting on a firearm.
During voir dire for this one-day trial, defense counsel asked if
any members of the venire owned handguns; two responded that their
spouses did. The district court commented:
This is a community property state, and
everything one of you owns, the other owns,
unless you had it before you got married or
inherited it....
Defense counsel objected and moved for a mistrial, stating that
the evidence in this case will show that
Melissa Monroe and Albert Palomo were in a car
together.... The evidence will also show they
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were married. The defense in this case is
that the gun belonged to and was in the sole
possession of Melissa Monroe. What [the
court] just said makes my client guilty even
under that theory.
The court overruled the objection and denied a mistrial,
explaining that it had to instruct the venire on Texas community
property law so that they could accurately answer defense counsel’s
question. Counsel requested that the court also then instruct that
“it’s not sufficient for the government to prove that either spouse
owned a weapon in order to prove that my client possessed the
weapon”; the court responded that it would handle the matter later.
Officer Burnette testified that, as he was walking toward
Palomo’s vehicle after stopping it, he observed Palomo reach under
the front seat, reach over to a female passenger, and place
something under her left leg; that he saw the butt of a gun
sticking out from the passenger’s left leg; and that Palomo later
stated, “I should have shot you when I got the chance”. Officer
Clowers testified that he also observed Palomo reaching across the
seat, and that it looked as if he were placing something under the
passenger’s left leg.
Neither Palomo nor Monroe testified. But, Palomo presented
evidence that the firearm was sold to Monroe several years prior to
Palomo’s arrest; and that Monroe had pawned the weapon four times.
Monroe’s sister testified that, when Palomo and Monroe left her
home on the evening of Palomo’s arrest, Monroe had the firearm in
her pocket; and that she (Monroe’s sister) did not think Palomo
knew that Monroe had a gun.
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Later in the day, at the close of the evidence, Palomo’s
counsel requested that the court instruct the jury that Texas
community property law was irrelevant to Palomo’s guilt or
innocence. The court responded that such an instruction did not
seem necessary, but allowed counsel to submit a proposed
instruction. Palomo requested the following:
I had informed you during Voir Dire that Texas
is a community property state, and that under
Texas law if one spouse owns a gun, so does
the other. You have heard evidence that the
defendant and Melissa Monroe may have had a
common law marital relationship. Whether or
not you find that the defendant and Melissa
Monroe had this common law relationship, their
marital status, whatever it might have been,
has no bearing on the outcome of this case.
The community property laws of the State of
Texas are part of the Texas Family Code to
establish certain rights and privileges for
Married people in state civil matters, such as
divorces. This is a Federal Criminal case.
The issue is whether the defendant possessed
the weapon on or about March 22, 199[6]. His
legal status as a spouse of Melissa Monroe is
not evidence that he possessed the weapon in
this case, and must not be relied upon by you
as proof that he did.
Palomo’s counsel agreed with the court that the first sentence
of the proposed instruction would aggravate the problem. The court
agreed to give the second and third sentences, but refused to give
the remainder, stating that it was not an accurate statement of the
law. Accordingly, the jury was instructed as follows:
You have heard evidence that the defendant and
Melissa Monroe may have had a common-law
marital relationship. Whether or not you find
that the defendant and Melissa Monroe had this
common-law relationship, their marital status,
whatever it might have been, has no bearing on
the outcome of this case.
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The jury was instructed that, to find Palomo guilty of
violating 18 U.S.C. § 922(g)(1), the Government was required to
prove, beyond a reasonable doubt:
First, that [Palomo] knowingly possessed
a firearm, as charged.
Second, that before [Palomo] possessed
the firearm, [Palomo] had been convicted of a
crime punishable by imprisonment for a term in
excess of one year; that is, a felony offense.
The government and [Palomo] have stipulated
that this second element is true.
Third, that the possession of the firearm
was in or affecting interstate commerce.
Knowing possession was defined as follows:
The word “knowingly,” as that word is
used from time to time in these instructions,
means that the act was done voluntarily and
intentionally, not because of mistake or
accident.
Possession, as that term is used in this
case, may be of two kinds: actual possession
and constructive possession. A person who
knowingly has direct physical control over a
thing, at a given time, is then in actual
possession of it.
A person who, although not in actual
possession, knowingly has both the power and
the intention, at a given time, to exercise
dominion or control over a thing, either
directly or through another person or persons,
is then in constructive possession of it.
Possession may be sole or joint. If one
person alone has actual or constructive
possession of a thing, possession is sole. If
two or more persons share actual or
constructive possession of a thing, possession
is joint.
During deliberations, the jury asked the court to “provide ...
the definition of both kinds of possession in writing, since we
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need clarification on constructive possession in particular”. In
response, the court repeated its instructions on possession. The
request by Palomo’s counsel that the jury also be instructed again
that the possession must be “knowing” was denied.
Palomo contends that the “knowing possession” element was
removed from the jury’s consideration when the court earlier told
the venire that Texas community property law imputed one spouse’s
ownership of items to the other spouse; and that the court failed
to cure the error by giving the requested instruction. The jury’s
note asking for clarification on constructive possession
demonstrates, according to Palomo, that the comments on Texas
community property law affected the verdict.
It goes without saying that “a trial judge has broad
discretion in the conduct of voir dire”. United States v. Garcia,
86 F.3d 394, 401 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117
S. Ct. 752 (1997) (internal quotation marks and citation omitted).
“We will only overturn a conviction based upon the scope and
conduct of voir dire if we find both that the trial court abused
its discretion and that the rights of the accused have been
prejudiced by that abuse.” Id.
In reviewing jury instructions, we “determine whether the
court’s charge, as a whole, is a correct statement of the law and
whether it clearly instructs jurors as to the principles of law
applicable to the factual issues confronting them”. United States
v. Allibhai, 939 F.2d 244, 251 (5th Cir. 1991) (internal quotation
marks and citation omitted), cert. denied, 502 U.S. 1072 (1992).
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“A trial judge is given substantial latitude in tailoring
instructions so long as they fairly and adequately cover the issues
presented.” Id.
A party appealing the refusal to give a requested instruction
must show that it “(1) is substantively correct; (2) was not
substantially covered in the charge actually delivered to the jury;
and (3) concerns an important point in the trial so that the
failure to give it seriously impairs the defendant’s ability to
effectively present a given defense”. United States v. Pipkin, 114
F.3d 528, 535 (5th Cir. 1997) (internal quotation marks and
citations omitted). “Refusal to give a particular instruction is
reviewed only for abuse of discretion.” United States v. Lokey,
945 F.2d 825, 839 (5th Cir. 1991).
The court did not abuse its discretion by commenting on Texas
community property law. Palomo’s counsel raised the issue of
handgun ownership while questioning the venire. Two women having
stated that their husbands owned handguns, the court’s comment was
an appropriate clarification, so that the venire could accurately
respond to Palomo’s counsel’s inquiry.
Even assuming the remarks were improper, they were cured by
the instruction, given at Palomo’s request, that any relationship
between Monroe and Palomo had “no bearing on the outcome of this
case”. The court’s refusal to give the remainder of the requested
instruction was not an abuse of discretion, because the charge, as
a whole, including the instructions on knowing possession,
adequately instructed on the applicable law.
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B.
Next, Palomo asserts that, by instructing that a firearm’s
movement from one State to another satisfies the interstate
commerce element of the offense, the district court effectively
removed that element from the jury’s consideration, in violation of
United States v. Gaudin, 515 U.S. 506, 522-23 (1995) (“The
Constitution gives a criminal defendant the right to have a jury
determine, beyond a reasonable doubt, his guilt of every element of
the crime with which he is charged”).
With respect to the interstate commerce element, the court
instructed:
“Interstate commerce” means ... commerce
or travel between one state, territory, or
possession of the United States and another
state, territory, or possession of the United
States, including the District of Columbia.
Commerce includes travel, trade,
transportation, and communication.
The court further instructed:
If you believe beyond a reasonable doubt
that before [Palomo] possessed the firearm, if
he did possess it, it had traveled at some
time from one state to another, then you are
instructed that the interstate commerce
element ... has been satisfied.
Palomo objected on the grounds that the instruction removed the
interstate commerce element from the jury’s consideration, in
violation of Gaudin; and that it violated United States v. Lopez,
514 U.S. 549 (1995), because it did not require the jury to find a
“substantial effect” on interstate commerce.
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Palomo acknowledges that our court has held that a similar
jury instruction on the interstate commerce element in a Hobbs Act
prosecution did not violate Gaudin. See United States v. Parker,
104 F.3d 72, 73 (5th Cir.) (en banc), cert. denied, ___ U.S. ___,
117 S. Ct. 1720 (1997). The instruction approved in Parker stated
that the interstate commerce element was satisfied if the jury
believed the Government’s evidence that cash proceeds obtained from
the operations of the store robbed by the defendant “were routinely
wired or electronically transferred from the State of Texas for
deposit in a bank in another state”. United States v. Parker, 73
F.3d 48, 50 (5th Cir. 1996), aff’d in part & rev’d in part, 104
F.3d 72 (5th Cir.) (en banc), cert. denied, ___ U.S. ___, 117 S.
Ct. 1720 (1997). See also United States v. Miles, 122 F.3d 235,
239 (5th Cir. 1997) (Gaudin not violated by instruction that
interstate commerce element was satisfied if jury believed
Government’s evidence that stores robbed by defendants “bought and
sold merchandise that had traveled from another state to Texas, or
that the robberies affected sales by the stores of such
merchandise, or that the money proceeds from these stores moved in
interstate commerce, or that these stores served customers who
travel in interstate commerce”), cert. denied, ___ U.S. ___, 118 S.
Ct. 1201 (1998); United States v. Hebert, 131 F.3d 514, 521-22 &
n.6 (5th Cir. 1997) (district court did not violate Gaudin by
instructing that “the necessary effect on interstate commerce has
been shown” if jury found Government proved that “the entities
cited in the Hobbs Act counts actively engaged in interstate
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commerce, and their assets were depleted by defendant’s acts of
robbery, thereby curtailing their potential as purchasers of goods
in the stream of interstate commerce”), cert. denied, ___ U.S. ___,
118 S. Ct. 1571 (1998).
Under the analyses used in Parker, Miles, and Hebert, the
instruction, which equated the movement of the firearm from one
State to another with the interstate commerce element, did not
violate Gaudin. See Hebert, 131 F.3d at 522 n.6.
C.
The indictment alleged that Palomo had possessed the firearm
“in or affecting interstate commerce”; and the Government
introduced evidence that the firearm had traveled in interstate
commerce. Consistent with his claim in part II.B., Palomo
maintains that, under Lopez, § 922(g) is unconstitutional because
it does not require showing a “substantial effect” on interstate
commerce; that the indictment is deficient because it fails to
allege such an effect; and that the evidence was insufficient to
establish a violation of the statute, because the mere movement of
a firearm from one State to another, at some undetermined time in
the past, is insufficient to prove a substantial effect on
interstate commerce.
Palomo concedes that these claims are foreclosed by circuit
precedent; they are raised only to preserve them. “The ‘in or
affecting commerce’ element [of § 922(g)(1)] can be satisfied if
the firearm possessed by a convicted felon had previously traveled
in interstate commerce.” United States v. Rawls, 85 F.3d 240, 242-
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43 (5th Cir. 1996). See also United States v. Kuban, 94 F.3d 971,
973 (5th Cir. 1996), cert. denied, ___ U.S. ___, 117 S. Ct. 716
(1997); United States v. Dickey, 102 F.3d 157, 163 (5th Cir. 1996).
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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