Revised April 12, 1999
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
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No. 98-40509
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
THOMAS DE LEON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
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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;
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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.
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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
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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.
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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
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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).
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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
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“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
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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.
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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
commerce.
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
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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.
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