USA v. Malcom Fomby

Filing

Opinion issued by court as to Appellant Malcom Muhammad Fomby. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 16-10216

Date Filed: 05/23/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10216
Non-Argument Calendar
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D.C. Docket No. 4:14-cr-00274-AKK-JEO-1

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MALCOM MUHAMMAD FOMBY,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
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(May 23, 2017)

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Before HULL, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Malcolm Fomby appeals his conviction for possession of a firearm by a
convicted felon. Fomby contends insufficient evidence existed to support the
jury’s verdict. He also asserts the district court violated his right to a complete
defense by excluding the testimony of his sister for failing to obey the district
court’s sequestration order and by refusing to grant him a one-day continuance to
obtain an absent witness.1 After review, we affirm Fomby’s conviction.
I.
Fomby first contends insufficient evidence existed to support the jury
verdict. We review de novo challenges to the sufficiency of the evidence to
support a conviction, viewing the evidence and all reasonable inferences in the
light most favorable to the government. United States v. Baldwin, 774 F.3d 711,
721 (11th Cir. 2014). The evidence presented will be found to be sufficient if a
reasonable trier of fact could find that it established the defendant’s guilt beyond a
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Fomby cursorily raises two additional issues in his brief, which we deem waived. First,
Fomby states in the “Summary of the Argument” section the district court erred in admitting a
photo of the firearm in question beside a scale. Second, Fomby states in the “Statement of the
Issues” and “Summary of the Argument” sections he was erroneously prohibited from showing
photographs of a separate bed at 501 Milton Street where he slept. Neither argument is included
in the “Argument” section of his brief or includes citations to relevant legal authority. Moreover,
his brief does not connect the law cited to the exclusion of the picture of his bed. Because he has
not elaborated on the merits of these arguments, they are considered waived. See Fed. R. App. P.
28(a)(8); Greenbriar, Ltd. v. City of Alabaster, 881 F.2d 1570, 1573 n.6 (11th Cir. 1989)
(“Although [the appellant] refers to the district court’s dismissal of its amendment in its
Statement of the Case in its initial brief, it elaborates no arguments on the merits as to this issue
in its initial or reply brief. Accordingly, the issue is deemed waived.”).
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reasonable doubt. United States v. Calhoon, 97 F.3d 518, 523 (11th Cir. 1996).
Accordingly, it is not enough for a defendant to put forth a reasonable hypothesis
of innocence, as the issue is not whether a reasonable jury could have acquitted but
whether a reasonable jury could have found the defendant guilty. See United
States v. Mieres-Borges, 919 F.2d 652, 656 (11th Cir. 1990).
Conviction under § 922(g)(1) requires that a jury find: (1) that a defendant
was a convicted felon, (2) that he was in knowing possession of a firearm, and
(3) that the firearm was in or affecting interstate commerce. United States v.
Deleveaux, 205 F.3d 1292, 1296-97 (11th Cir. 2000). Possession of a firearm can
be proven through either actual or constructive possession. United States v.
Derose, 74 F.3d 1177, 1185 (11th Cir. 1996). Constructive possession of a firearm
is shown if the government proves, either through direct or circumstantial
evidence, that the defendant: (1) knew or was aware of the firearm’s presence and
(2) “had the ability and intent to later exercise dominion and control” over the
firearm. United States v. Perez, 661 F.3d 568, 576 (11th Cir. 2011).
The evidence presented at trial and reasonable inferences drawn from it
support the jury verdict. See United States v. Mendez, 528 F.3d 811, 814 (11th Cir.
2008) (stating if the government relied on circumstantial evidence, “reasonable
inferences, not mere speculation, must support the conviction”). Because Fomby
stipulated to the other elements of § 922(g)(1), the sole issue at trial was whether
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Fomby was in knowing possession of the firearm found in the bedpost of 501
Milton Street. See Deleveaux, 205 F.3d at 1296-97. The evidence presented at
trial demonstrated that Fomby had lived at 501 Milton Street for a couple of years
prior to the execution of the search warrant, that he sometimes paid the utility bills
during that period, that he was staying alone at the home the night before the
warrant was executed, and that he was not home when the police executed the
search warrant but his car was in the driveway. Two police officers testified that
only one bedroom in the house had a bed in it. The bedroom with the bed in it also
contained a dresser, which had a utility bill addressed to Fomby on top of it. The
firearm was found hidden in the bedpost.
These facts alone are sufficient to establish that Fomby knew of the
firearm’s presence and had the ability and intent to later exercise dominion and
control over it. Perez, 661 F.3d at 576; United States v. Harris, 20 F.3d 445, 454
(11th Cir. 1994) (noting unrestricted access to a home allows the reasonable
inference of constructive possession of items in that home). Because the jury
necessarily rejected Fomby’s testimony, that testimony can qualify as additional
substantive evidence against him. See United States v. Hughes, 840 F.3d 1368,
1385 (11th Cir. 2016) (“[A] statement by a defendant, if disbelieved by the jury,
may be considered as substantive evidence of the defendant’s guilt.”). This
testimony has special force because Fomby’s knowledge regarding the firearm was
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a “highly subjective” element and other evidence corroborated his guilt, including
the fact that he lived at 501 Milton Street occasionally for several years. See
United States v. Brown, 53 F.3d 312, 314-15 (11th Cir. 1995) (stating at least
where some other corroborative evidence of guilt exists, the rule that a defendant’s
testimony may be considered substantive evidence of guilt applies with special
force when highly subjective elements of a crime, such as intent or knowledge, are
involved).
II.
Fomby also asserts the district court violated his right to a complete defense
by excluding the testimony of his sister, Theresa Good, for failing to obey the
district court’s sequestration order. We engage in a two-step analysis when
assessing a defendant’s claims under the Fifth and Sixth Amendments to call
witnesses in his defense. United States v. Hurn, 368 F.3d 1359, 1362 (11th Cir.
2004). First, we examine whether the right in question was actually violated. Id.
Second, we look to whether the error was harmless beyond a reasonable doubt. Id.
at 1362-63. Error is constitutionally harmful if it substantially influences or
injuriously affects the jury’s verdict. De Lisi v. Crosby, 402 F.3d 1294, 1301 (11th
Cir. 2005). Trial errors can be assessed in the context of the other evidence
presented. Id. In the presence of other supporting evidence, the exclusion of

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additional, cumulative evidence that only corroborates that evidence is harmless
error. United States v. Hock, 995 F.2d 195, 197 (11th Cir. 1993).
Any potential error in excluding Good’s testimony was harmless beyond a
reasonable doubt. Fomby asserts only that Good would have testified to Fomby
and his father’s relationships to the house and the bed. Because Fomby and his
mother already testified on those subjects, Good’s testimony would have been
cumulative. The exclusion of Good’s testimony was therefore harmless error.
Hock, 995 F.2d at 197.
III.
Finally, Fomby asserts the district court violated his right to present a
complete defense by refusing to grant him a one-day continuance to obtain an
absent witness. We consider the following factors when evaluating a claim of
error in the denial of a continuance to obtain a witness: (1) the diligence of the
defense in interviewing the witness and procuring her presence, (2) the probability
of obtaining the testimony within a reasonable time, (3) the amount of specificity
with which the defense could describe the witness’s expected testimony, and
(4) how favorable the testimony was expected to be for the defendant and how
unique or cumulative the testimony would be. United States v. Costello, 760 F.2d
1123, 1126 (11th Cir. 1985). We review a district court’s denial of a continuance
for abuse of discretion. United States v. Wuagneux, 683 F.2d 1343, 1355-56 (11th
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Cir. 1982) (noting that an appellant must show “specific, substantial prejudice in
order to obtain relief”).
Applying the four-factor test in Costello, we hold that the district court did
not abuse its discretion in denying Fomby a continuance to obtain an absent
witness. 760 F.2d at 1126. With regard to the first element, there is no evidence
indicating whether or not Fomby was diligent in interviewing and procuring the
witness. See id. This factor therefore does not weigh in favor of either party.
The district court’s refusal to allow the continuance rested primarily on the
second element; namely, whether the witness’s testimony could be obtained within
a reasonable time. See id. The district court stated repeatedly that, having
participated in the first trial, Fomby should have anticipated the Government’s
case-in-chief would be short and that his witness might be needed early. It
therefore considered an extra day to be an unreasonable delay. Given that the
Government presented similar evidence in Fomby’s first trial, the shortness of its
case was predictable. Thus, the district court’s determination that extending the
trial for an additional day was unreasonable was not an abuse of discretion, and
this factor weighs against Fomby.
Finally, with regard to the last two factors, Fomby did not indicate either at
trial or in his appellate briefing what the nature and importance of the witness’s
testimony would have been. See id. Although Fomby did provide some detail
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about the nature of her testimony in a post-trial motion, he failed to highlight the
importance of that testimony. Given the ease with which Fomby could have
outlined the obvious importance of the witness’s testimony, Fomby’s failure to do
so weighs heavily against a determination that the district court abused its
discretion in denying him a continuance. In addition, although Fomby refers to the
witness’s testimony as “exculpatory” in his brief, he never identifies the specific,
substantial prejudice he has suffered by her exclusion. Nor did he identify any
such prejudice to the district court.
Therefore, because the factors above are neutral or weigh against Fomby and
because Fomby has failed to make a showing of specific, substantial prejudice,
Wuagneux, 683 F.2d at 1355-56, we hold that the district court did not abuse its
discretion in refusing to grant Fomby a continuance to secure an absent witness.
AFFIRMED.

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