Case: 10-30744 Document: 00511660560 Page: 1 Date Filed: 11/09/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 9, 2011
No. 10-30744 Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff – Appellee
v.
MICHAEL MELANCON, also known as Kevin Melancon; DAVID
MELANCON,
Defendants – Appellants
Appeals from the United States District Court
for the Eastern District of Louisiana
Before JONES, Chief Judge, HAYNES, Circuit Judge, and CRONE, District
Judge.*
HAYNES, Circuit Judge:
Michael Melancon (“Michael”) and his nephew, David Melancon (“David”),
appeal their convictions following a jury trial. David also appeals his sentence.
We AFFIRM.
I. Facts and Background
We briefly review the facts pertinent to this appeal. David was the driver
of a car in which Jamar Higgins was a passenger when Arnold Wyatt began
shooting at the car. Viewing the evidence in the light most favorable to the jury
*
District Judge of the Eastern District of Texas, sitting by designation.
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verdict, David picked up a gun and began returning fire. Miraculously, neither
was killed, but David was wounded. When the shooting stopped, Higgins pulled
David into the back seat and drove him to the emergency room. Because Higgins
knew he was a felon who could not possess a gun, he then threw the gun out the
window, an event captured by the hospital’s security cameras.
David was charged with possessing a firearm as a felon. Higgins gave a
statement implicating David. Higgins later briefly served time in prison for an
unrelated charge. Michael was in the same prison on other charges and acted
as inmate counsel for various fellow prisoners. When he learned of Higgins’s
statement (apparently by receiving a copy of it), he went to Higgins, who then
signed an affidavit providing a version of events that exculpated David. It was
highly disputed whether Higgins wrote the affidavit of his own accord and then
Michael merely typed it for Higgins’s signature, or whether Michael prepared a
false typed affidavit, got Higgins to sign it, and then had Higgins copy the typed
affidavit in his own handwriting.
When the Higgins affidavit came to the attention of authorities, they
decided to investigate whether this new version was accurate. ATF agent
Suzanne Pecora and Assistant United States Attorney Maurice Landrieu went
to the prison and interviewed Michael in a warden’s office. They contend that
they told Michael he was free to leave and was not required to answer their
questions. Michael allegedly said in response that, as inmate counsel for several
years, he knew his rights and would cooperate. During the course of the
interview, he said that Higgins had prepared the handwritten affidavit and that
Michael had only typed it. He claimed a hazy memory as to whether he had seen
Higgins’s factual statement implicating David. During the interview, he left to
obtain documents as requested by the two questioners.
When a search revealed a marked-up factual statement in Michael’s
possession, the questioners began to doubt Michael’s protestations of innocence
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(and ignorance). In what Michael characterized as an “opening statement,”
Landrieu told Michael that he may have committed a crime. At that point,
Michael terminated the interview and requested counsel.
Michael was charged with several counts stemming from the Higgins
affidavit and the interview with Pecora and Landrieu. He moved to suppress the
statements made at the interview. Following a two-day evidentiary hearing, the
district court denied the motion to suppress.
David and Michael proceeded to a jury trial at which those statements
were admitted. David was convicted of possessing a firearm as a felon, and
Michael was convicted of making and using a false document that was presented
to a federal agent and of obstruction of justice. The jury was either unable to
reach a verdict or acquitted David and Michael on several other counts.
On appeal, Michael challenges the denial of his motion to suppress and the
sufficiency of the evidence on the false document charge. David challenges the
court’s jury instruction on constructive possession and also brings a foreclosed
issue as to his sentence.
II. Standard of Review
In reviewing a ruling on a motion to suppress, we view the evidence in the
light most favorable to the prevailing party, reviewing factual findings for clear
error and legal conclusions de novo. United States v. Oliver, 630 F.3d 397, 405
(5th Cir. 2011). We review a denial of a motion for acquittal challenging the
sufficiency of the evidence de novo, viewing the evidence in the light most
favorable to the jury’s verdict. United States v. Winkler, 639 F.3d 692, 696 (5th
Cir. 2011). We review alleged errors in the jury charge under an abuse of
discretion standard. United States v. Rios, 636 F.3d 168, 171 (5th Cir. 2011).
III. Discussion
A. Michael
1. Motion to Suppress
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Michael contends that the district court erred in denying his motion to
suppress because he was in custody at the time of the Pecora/Landrieu
questioning and, therefore, was entitled to receive full Miranda1 warnings. The
Government contends that Michael was not “in custody” and, therefore, was not
entitled to the warnings. It also argues that, even if Michael had been in
custody, Miranda does not immunize statements that themselves are criminal.
A suspect is in custodial interrogation for purposes of Miranda “when
placed under formal arrest or when a reasonable person in the suspect’s position
would have understood the situation to constitute a restraint on freedom of
movement of the degree which the law associates with formal arrest.” United
States v. Bengivenga, 845 F.2d 593, 596 (5th Cir. 1988) (en banc). The question
is an objective one – the subjective intent of the questioners and the subjective
fear of the questioned person are irrelevant. See Stansbury v. California, 511
U.S. 318, 326 (1994). “[A] prison inmate is not automatically always ‘in custody’
within the meaning of Miranda,” although the “prison setting may increase the
likelihood that an inmate is in ‘custody’ for Miranda purposes.” United States
v. Smith, 7 F.3d 1164, 1167 (5th Cir. 1993) (citations omitted).2
Michael argues that the recent decision in Maryland v. Shatzer, 130 S. Ct.
1213 (2010), undercuts our precedent and compels a conclusion that
interrogation of a prisoner in a separate room at the prison is “custodial.” In
Shatzer, however, no one contended that the defendant in that case was not “in
custody” during the two interrogations. Id. at 1224. Thus, it does not present
a basis to overrule our prior precedent. We have, instead, characterized it as
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
In a habeas case now before the Supreme Court, the Sixth Circuit recently held that
a prisoner questioned in a separate room is always “in custody” for purposes of interrogation
about activities occurring outside of the prison. Fields v. Howes, 617 F.3d 813, 823 (6th Cir.
2010), cert. granted, 131 S. Ct. 1047 (2011). Because Michael was questioned about conduct
occurring within the prison, this “bright line rule” would not apply here. Id. at 822-23.
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clarifying “the outer bounds of when Miranda is needed in a prison setting: the
mere fact of the prison setting alone is insufficient to trigger the Miranda
requirements, whereas a traditional police interrogation of an inmate does
trigger the Miranda requirements.” Wilson v. Cain, 641 F.3d 96, 101 (5th Cir.
2011).
Following a lengthy evidentiary hearing, the district court issued a
detailed and careful opinion. United States v. Melancon, 2010 U.S. Dist. LEXIS
8669 (E.D. La. 2010). For substantially the same reasons given in that opinion,
we conclude that, construing the evidence at the suppression hearing in the light
most favorable to the Government, the district court’s decision does not warrant
reversal.
Even if we concluded otherwise and determined that Michael was “in
custody” at the time of his discussion with Pecora and Landrieu, we agree with
the Government that the statements would have been admissible at his trial
because they were themselves a criminal act. See United States v. Kirk, 528 F.2d
1057, 1062 (5th Cir. 1976) (“[N]o fifth amendment problem is presented when a
statement is admitted into evidence which is not confessional in nature, but in
and of itself constitutes the crime charged.”). Hence, Michael was not free to lie
to the questioners and be absolved from the consequences of those lies because
of the absence of warnings. The exclusionary rule does not act as a bar to the
prosecution of a crime where the statements themselves are the crime. See
Smith, 7 F.3d at 1167 n.6 (citing United States v. Mitchell, 812 F.2d 1250, 1253
(9th Cir. 1987)). Because the statements he made were themselves charged as
criminal conduct, they were properly admitted as the key evidence on the counts
of making false statements. Cf. id. at 1167 (“On remand, the alleged Miranda
error does not preclude the government from introducing evidence of, or
prosecuting Smith for, the threats made during the October 25 interview.”).
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Having concluded that the evidence was properly admitted at the time of trial,
the later failure to obtain a conviction on those counts (Counts 6, 7, and 8)3 does
not change the calculus. In sum, we AFFIRM the denial of the motion to
suppress.
2. Sufficiency of the Evidence
Michael claims that the evidence was insufficient to show that he knew the
affidavit he helped Higgins prepare was false. Higgins originally told
investigators that the gun was in the car on the center console and that he heard
shooting from within the car (where only he and David were sitting) after Wyatt
opened fire. The Government presented evidence at trial that supported
Higgins’s story. In the affidavit prepared by Michael, however, Higgins stated
that Wyatt threw the gun into the car after the shooting incident. If the jury
credited Higgins’s testimony, it could reasonably conclude that Michael added
the information about Wyatt throwing the gun in the car and that he did not get
that information from Higgins. We conclude that the “knowledge of falsity” issue
comes down to a credibility question which was for the jury to resolve. See, e.g.,
United States v. Martinez, 975 F.2d 159, 161 (5th Cir. 1992).
B. David
The charge to the jury included an instruction on constructive possession.4
David argues that this instruction was erroneous because it was not applicable
to the facts and confused the jury. He argued that the Government’s case was
3
The jury could not reach a verdict as to these counts.
4
“Possession may be of two kinds: What we call actual possession and what we call
constructive possession. . . . A person who, although not in actual possession, knowingly has
both the power and the intention at any given time to exercise dominion or control over a thing
. . . either directly or through someone else is then considered to be in constructive possession.
. . . You may find that the element of possession, as that term is used in these instructions, is
present if you find beyond a reasonable doubt that David Melancon had actual or constructive
possession of the gun . . . .”
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that David actually possessed the gun based upon Higgins’s testimony that he
heard David return fire when Wyatt started shooting. Forensic evidence also
indicated that a gun was shot from the driver’s side (where David was), and
DNA evidence indicated that both Higgins and Wyatt had not fired the gun
(although it failed to establish conclusively that David had fired it). David
argues that the district court overlooked the fact that Higgins was also in the car
before the gun was found and, therefore, that David’s dominion over the car in
which the gun was located was insufficient to establish constructive possession.
David further argues that the allegedly erroneous inclusion of this instruction
was not harmless because the jury sent a question to the court asking whether
possession meant physically touching or having on one’s person. He concludes
that this question indicates some jurors were considering constructive possession
as a basis for conviction.
Error in giving an instruction on one theory of guilt is harmless when
there is substantial evidence to support a conviction under a different, properly
given instruction. Cf. United States v. Cartwright, 6 F.3d 294, 301 (5th Cir.
1993) (holding that a district court’s deliberate ignorance instruction was
harmless error given substantial evidence of actual knowledge). “Actual
possession means the defendant knowingly has direct physical control over a
thing at a given time. 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. Jones, 484 F.3d 783, 788 n.11 (5th
Cir. 2007) (internal quotation marks and citations omitted). Where two people
jointly occupy a space, dominion over the space is not enough by itself to
establish constructive possession. See United States v. Fields, 72 F.3d 1200,
1212 (5th Cir. 1996).
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We agree that this case was primarily an actual possession case. The
Government, however, presented testimony that David was in a car rented on
his behalf, that a gun was on the center console, and that the only other person
present in the car did not possess the gun. We thus conclude that no reversible
error was committed by including the constructive-possession instruction.
David also challenges sentencing enhancements based upon conduct for
which he was acquitted. He acknowledges that his challenges are foreclosed, see
United States v. Watts, 519 U.S. 148, 156-57 (1997), but seeks to preserve them
for further review. We agree with David that we are not free to overrule
Supreme Court precedent and, thus, affirm his sentence.
AFFIRMED.
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