IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-10332
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MALCOLM DEMOND CURRY,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
December 14, 2001
Before GARWOOD, JONES and STEWART, Circuit Judges.
PER CURIAM*:
Malcolm Demond Curry appeals his convictions following a bench
trial for being a felon in possession of a firearm and carrying and
possessing a firearm in relation to a drug trafficking crime.
Curry argues that the Government failed to prove that he knowingly
possessed the firearm found in a duffle bag that he was holding
when the police entered a marijuana stash house.
*
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opinion should not be published and is not precedent except under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.
The sole issue presented on appeal is whether the evidence is
sufficient to prove beyond a reasonable doubt that Curry knowingly
possessed the firearm. Possession may be either actual or
constructive; actual possession means knowing direct physical
control over a thing at a given time; constructive possession means
knowing ownership, dominion, or control over a thing or over the
premises where it is found. E.g., United States v. Munoz, 150 F.3d
401, 416 (5th Cir. 1998).
Viewing the evidence in the light most favorable to the
Government, the fact finder could reasonably infer that Curry
knowingly possessed the firearm. Curry was holding the duffle bag
when officers entered the stash house, and then dropped it; “it
fell with the lid open.” The duffle bag was unzipped and stuffed
with marijuana packaged for distribution, a shoe box containing
unpackaged marijuana, and a large firearm sitting on top of the
shoe box just inside the duffle bag. Given that Curry was alone in
the house distributing bags of marijuana to would-be purchasers and
he himself possessed a bag of marijuana packaged in the same manner
as those found in the duffle bag, the fact finder could reasonably
infer beyond a reasonable doubt that Curry was distributing the
drugs from the duffle bag and knew of the gun’s presence in the bag
as it was plainly visible inside the bag. Accordingly, the
judgment of the district court is
AFFIRMED.
2