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Full Opinion
United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 11, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-60983
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SAMMY TATE,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Mississippi
(3:02-CR-13-BN-1)
Before HIGGINBOTHAM, DAVIS, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
A jury convicted Sammy Tate of possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Tate
asserts on appeal (1) that there is insufficient evidence to
support the verdict and (2) that the district court plainly erred
by admitting his disputed admission of ownership of the firearm,
which he asserts was taken in violation of his Miranda rights. In
response, the government contends that the evidence was sufficient
*
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this opinion should not be published and is not precedent except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.
to support the conviction, and any error by admitting Tate’s
disputed admission cannot satisfy the plain error standard of
review. For the following reasons, we AFFIRM.
I
In reviewing a sufficiency of evidence claim of error, we view
the evidence in the light most favorable to the government and draw
all reasonable inferences in favor of the jury’s verdict.1 “[W]e
determine whether any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”2 It is
the “sole province of the jury to weigh evidence and credibility of
the witnesses.”3 Although prior constructive possession cases are
illustrative, we must independently examine the merits of
constructive possession cases using a “commonsense, fact-specific
approach.”4
A
To convict a defendant under 18 U.S.C. § 922(g)(1), the
government must prove (1) that the defendant had been convicted of
a felony; (2) that he knowingly possessed the firearm; and (3) that
1
United States v. Smith, 930 F.2d 1081, 1085 (5th Cir. 1991).
2
Id.
3
United States v. Davis, 752 F.2d 963, 968 (5th Cir. 1985).
4
Smith, 930 F.2d at 1086; United State v. Mergerson, 4 F.3d
337, 349 (5th Cir. 1993).
2
the firearm traveled in or affected interstate commerce.5 The
possession may be actual or constructive.6 “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.”7 Constructive possession may be proven through
circumstantial evidence.8
Dominion or control over the premises may be shown by the
presence of the defendant’s personal belongings in the house.9 The
presence of documents that are “sensitive and highly personal in
nature,” like a parole document, and evidence that a defendant
could “come and go as he pleased” can indicate dominion over a
residence.10 That a defendant does not live at the residence does
not necessarily negate constructive possession.11 Dominion or
control over the illegal item may be shown by “the defendant’s
access to the dwelling where the item is found, [and] whether the
defendant had knowledge that the illegal item was present.”12
5
18 U.S.C. § 922(g)(1); United States v. De Leon, 170 F.3d
494, 496 (5th Cir. 1999).
6
De Leon, 170 F.3d at 496.
7
Id.
8
Id.
9
United State v. Onick, 889 F.2d 1425, 1430 (5th Cir. 1989).
10
De Leon, 170 F.3d at 497.
11
Id. at 496; Onick, 889 F.2d at 1431 n.2.
12
De Leon, 170 F.3d at 497.
3
Proving constructive possession is more difficult when a
residence is occupied by multiple people. “[M]ere control or
dominion over the place in which contraband or an illegal item is
found by itself is not enough to establish constructive possession
when there is joint occupancy of a place.”13 Constructive
possession is established in joint-occupancy cases “only when there
was some evidence supporting at least a plausible inference that
the defendant had knowledge of and access to the weapon or
contraband.”14 The presence of a firearm in plain view may indicate
the requisite knowledge and access for constructive possession.15
B
Tate concedes that he is a felon and that the gun traveled in
interstate commerce. The only issue is whether a reasonable trier
of fact could have found constructive possession beyond a
reasonable doubt. Tate contends that a reasonable trier of fact
could not have found constructive possession, asserting that the
only evidence presented on the issue was that he occasionally
visited the residence where the gun was found, sometimes spent the
night, and allegedly admitted ownership of the gun. Tate relies on
United States v. Mergerson, a joint-occupancy case, asserting that
13
United States v. Mergerson, 4 F.3d 337, 349 (5th Cir. 1993).
14
Id.
15
United States v. McKnight, 953 F.2d 898, 902 (5th Cir.
1992); Smith, 930 F.2d at 1086.
4
the panel there found insufficient evidence to convict the
defendant as a felon-in-possession largely because the defendant
was not the owner of the gun. He seeks the same result because he
was not the owner of the gun. Given that he did not own the gun and
that the evidence indicated his infrequent stays at the house, Tate
asserts that there is legally insufficient evidence to support his
conviction.
A review of the testimony and evidence illustrates that Tate
is understating the amount of evidence presented to the jury. In
addition to evidence that Tate occasionally stayed at the house and
his disputed admission of ownership of the rifle, the jury
considered (1) Tate’s admission that he knew the gun was brought
into the home; (2) that the rifle was found in plain view; (3) that
Tate received official mail at the house, including one piece sent
by the Social Security Administration arriving two days before the
search; and (4) that Tate’s mail was found in the same room as the
rifle.
A reasonable trier of fact could find that Tate had dominion
over the premises.16 It is undisputed that Tate came and went as
he pleased. He received personal mail at the house and listed the
house as his address when applying for disability payments. His
girlfriend testified that he kept some personal belongings there.
16
Onick, 889 F.2d at 1430-31; De Leon, 170 F.3d at 496-97.
5
Despite Tate’s claim that his lack of ownership of the home is
dispositive, Mergerson does not support his argument. The panel in
Mergerson first noted that the weapon at issue was concealed under
a bedroom mattress, unlike the weapons in Smith and McKnight that
were in plain view.17 The court also noted that a receipt for the
weapon indicated that the defendant’s girlfriend bought the weapon
before Mergerson moved into the apartment.18 The court held the
evidence to be legally insufficient to support the conviction
because “the weapon was not in plain view and there were no other
circumstantial indicia that established that Mergerson even knew of
the weapon.”19
In contrast, the evidence in this case could lead a reasonable
trier of fact to conclude that Tate knew of and had access to the
weapon. By his own admission, Tate knew the rifle was brought to
the home by his nephew and that ownership of the rifle passed to
his son when his nephew died. He knew that his son, the owner of
the rifle, continued to live in the house. The evidence also
indicated that the rifle was not hidden in any way; it was lying
against the outside door of a closet. Further, the weapon is a
rifle, not a handgun, making it less likely that one could stay in
the house but not have knowledge of its presence. The rifle was in
17
Mergerson, 4 F.3d at 349.
18
Id at 348-49.
19
Id. at 349.
6
plain view, indicating Tate’s access to and knowledge of the
weapon.20 The rifle was located next to a stack of Tate’s personal
mail.
The jury considered this evidence and Tate’s testimony,
including the disputed admission of ownership and his alleged
ignorance of the gun’s presence. It is for the jury to make
credibility determinations and weigh the evidence. Considering the
evidence in its totality and keeping the standard of review in
mind, the evidence presented in this case could lead a reasonable
trier of fact to find constructive possession beyond a reasonable
doubt.
II
Tate’s second claim of error is that the district court
plainly erred in admitting Detective Harris’s testimony regarding
Tate’s admission of ownership of the rifle. Tate asserts that his
alleged admission occurred during a custodial interrogation, but
before he was informed of his Miranda rights. He contends that the
improper admission of his alleged statement resulted in reversible,
plain error.
Tate did not object to the admission of Detective Harris’s
testimony at trial; therefore, we review for plain error.21 To
20
See McKnight, 953 F.2d at 902-03; see also Smith, 930 F.2d
at 1086.
21
Industrias Magromer Cueros y Pieles S.A. v. Louisiana Bayou
Furs Inc., 293 F.3d 912, 921 (5th Cir. 2002).
7
satisfy the plain error standard, “there must be (1) ‘error,’ (2)
that is ‘plain,’ and (3) that ‘affects substantial rights.’”22 To
affect a defendant’s substantial rights, the error “must have
affected the outcome of the district court proceedings.”23 The
question becomes “whether there was any evidence to support the
jury verdict.”24 If these conditions are met, we may consider the
error if it “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.”25
We need not resolve whether the statement was erroneously
admitted because Tate cannot satisfy the plain error standard of
review. Tate provides only conclusory assertions that the error
must have affected the outcome of the case. He does not explain
why the remaining evidence of (1) his occasional residence at the
house, (2) his knowledge that the rifle was brought to the house by
his nephew and then passed to his son, (3) the gun’s presence in
plain view, and (4) his personal mail located in the same room as
the rifle cannot support the conviction. This accumulation of
evidence appears sufficient to support the jury’s conclusion that
Tate had knowledge of and access to the rifle. Furthermore, Tate
does not explain why this error, even if plain and affecting
22
United States v. Cotton, 535 U.S. 625, 626 (2002) (internal
quotation marks omitted).
23
Id.
24
Industrias, 293 F.3d at 921.
25
Cotton, 535 U.S. at 626.
8
substantial rights, affects the fairness, integrity, and public
reputation of judicial proceedings.
Given that the plain error standard of review cannot be
satisfied, Tate’s second point of error does not justify reversal.
III
For these reasons, we AFFIRM Tate’s conviction.
9