USA v. Reginald Hodge

Filing

UNPUBLISHED OPINION FILED. [10-10157 Affirmed ] Judge: TMR , Judge: JLD , Judge: EBC Mandate pull date is 01/04/2011 for Appellant Reginald Baxter Hodge [10-10157]

USA v. Reginald Hodgese: 10-10157 Ca

Document: 00511321292 Page: 1 Date Filed: 12/14/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-10157 S u m m a r y Calendar December 14, 2010 Lyle W. Cayce Clerk

U N IT E D STATES OF AMERICA, P la in t if f -A p p e lle e v. R E G I N A L D BAXTER HODGE, D e fe n d a n t -A p p e lla n t

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:09-CR-109-1

B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* R e g in a ld Baxter Hodge challenges his jury-trial conviction for being a fe lo n in possession of a firearm. He asserts that there was insufficient evidence t o sustain his conviction because the evidence did not establish that he exercised o w n e r s h ip over the firearms or the house in which the firearms were recovered. Hodge argues that there was no evidence linking him to the guns, and there thus w a s insufficient evidence to support a finding of constructive possession.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 10-10157 Document: 00511321292 Page: 2 Date Filed: 12/14/2010 No. 10-10157 B e c a u s e Hodge moved for a judgment of acquittal at the close of the G o v e r n m e n t 's case, we review the sufficiency of the evidence de novo, see United S ta te s v. Ferguson, 211 F.3d 878, 882 (5th Cir. 2000), and determine whether a r a t io n a l juror could have found the elements of the offense proved beyond a r e a s o n a b le doubt. See United States v. Percel, 553 F.3d 903, 910 (5th Cir. 2008), c e r t. denied, 129 S. Ct. 2065 and 2067 (2009). The evidence is considered "in the lig h t most favorable to the government, with all reasonable inferences and c r e d ib ilit y choices made in support of the jury verdict." Id. (internal quotation m a r k s and citation omitted). I n order to return a verdict of guilty, the jury had to determine that the G o v e r n m e n t proved that Hodge was previously convicted of a felony and k n o w in g ly possessed a firearm that was in or affected interstate commerce. See U n ite d States v. Anderson, 559 F.3d 348, 353 (5th Cir.), cert. denied, 129 S. Ct. 2 8 1 4 (2009); 18 U.S.C. §§ 922(g)(1). Hodge challenges only the sufficiency of the e v id e n c e proving his knowing possession of a firearm. Possession of a firearm may be actual or constructive. United States v. P a tte r s o n , 431 F.3d 832, 837 (5th Cir. 2005). "Constructive possession is defined a s ownership, dominion or control over the [firearm] itself or dominion or control o v e r the premises in which the [firearm] is [present]." United States v. Fields, 7 2 F.3d 1200, 1212 (5th Cir. 1996) (internal quotation marks, brackets, and c it a t io n omitted). In cases where there is joint occupancy of a dwelling,

c o n s t r u c t iv e possession may be established only where there is evidence s u p p o r t in g a plausible inference that the defendant had knowledge of, and a c c e s s to, the item. See United States v. De Leon, 170 F.3d 494, 496-97 (5th Cir. 1 9 9 9 ). T h e Government presented sufficient evidence to establish that Hodge c o n s t r u c t iv e ly possessed the firearms by having knowledge of and access to the w e a p o n s . The guns were found during a search of a home at which Hodge r e g u la r ly was seen, including on the day of the search, and at which there was 2

Case: 10-10157 Document: 00511321292 Page: 3 Date Filed: 12/14/2010 No. 10-10157 s u b s t a n t ia l indicia of his regular presence. Officers specifically found a shotgun b e h in d the sole entrance to the master bedroom, in which officers located, inter a lia , items of mail (e.g., a water bill) addressed to Hodge at the home, an e m p lo y e e identification badge bearing his name and picture, and a closet full of c lo t h in g designed for a man of Hodge's size and stature. The shotgun, which was e a s ily visible and conveniently accessible, was located next to body armor and o t h e r clothing that the evidence supported were attributable to Hodge. Officers a ls o separately recovered a rifle from a closet that contained clothing designed fo r a large male similar in size to Hodge. Hodge proffers no evidence linking the g u n s to another person nor explaining the presence of the weapons in locations a s s o c ia t e d with him within a home over which he exercised some control. A r a t io n a l juror therefore could have found beyond a reasonable doubt that Hodge w a s guilty of knowingly possessing a firearm. See Percel, 553 F.3d at 910. H o d g e also argues that the district court wrongly admitted testimonial h e a r s a y from out-of-court witnesses in contravention of the Confrontation C la u s e . He specifically contends that a Government witness testified concerning s t a t e m e n t s that out-of-court witnesses made while they were detained for c u s t o d ia l interrogation. He asserts that the witnesses particularly testified that t h e y did not live at the home in which the firearms were found and that Hodge liv e d at the residence. H o d g e did not object to the admissibility of the disputed evidence at trial. Accordingly, review is for plain error. See United States v. Acosta, 475 F.3d 677, 6 8 0 (5th Cir. 2007). An error or defect is plain if it was clear or obvious and a ffe c t e d the defendant's substantial rights. Puckett v. United States, 129 S. Ct. 1 4 2 3 , 1429 (2009). To demonstrate that the error affects substantial rights, a d e f e n d a n t must show a reasonable probability that but for the Confrontation C la u s e violation, the result of the proceeding would have been different. United S ta te s v. Martinez-Rios, 595 F.3d 581, 587 (5th Cir. 2010). If such a showing is m a d e , this court may exercise its discretion to remedy the error only if it 3

Case: 10-10157 Document: 00511321292 Page: 4 Date Filed: 12/14/2010 No. 10-10157 " s e r io u s ly affects the fairness, integrity, or public reputation of judicial p r o c e e d in g s ." Puckett, 129 S. Ct. at 1429. U n d e r the Sixth Amendment, a criminal defendant has the right "to be c o n fr o n te d with the witnesses against him." Coy v. Iowa, 487 U.S. 1012, 1015 (1 9 8 8 ). In Crawford v. Washington, 541 U.S. 36, 54-56, 68 (2004), the Supreme C o u r t held that out-of-court testimonial statements are barred by the Sixth A m e n d m e n t 's Confrontation Clause unless the witness is unavailable and the d e fe n d a n t had a prior opportunity to cross-examine the witness. Although the C o u r t did not specifically define "testimonial statements," the Court did a r t ic u la t e a "core class" of testimonial statements, including, inter alia, " s t a t e m e n t s that were made under circumstances that would lead an objective w it n e s s reasonably to believe that the statement would be available for use at a later trial." Id. at 51-52. The record does not establish definitively whether the disputed statements a r e testimonial in nature, i.e., the record is ambiguous whether the contested c o m m e n ts were intended to establish or prove past events potentially relevant t o a subsequent prosecution or to ascertain information related to an ongoing, p o t e n t ia lly exigent circumstance. However, even if the disputed statements are t e s t im o n ia l, and their admission violated Hodge's Confrontation Clause rights, H o d g e has not shown a reasonable probability that the outcome of his trial w o u l d have been different but for the admission of the statements. See

M a r tin e z -R io s , 595 F.3d at 587. Hodge principally has not shown that, given the s u b s t a n t ia l evidence proving his knowledge of and access to the firearms, the in t r o d u c tio n of evidence suggesting his possible residence at the home affected t h e outcome of his trial. Hodge's residency was not determinative of whether he h a d control over the house and knowledge of its contents. See De Leon, 170 F.3d a t 497. Because Hodge has not shown that the introduction of the disputed s t a t e m e n t s contributed to the jury's verdict or that its exclusion likely would a lt e r the trial's outcome, he has not shown that the admission of the evidence 4

Case: 10-10157 Document: 00511321292 Page: 5 Date Filed: 12/14/2010 No. 10-10157 a ffe c t e d his substantial rights and rose to the level of plain error. See MartinezR io s , 595 F.3d at 587. Hodge further contends that the district court erroneously denied his m o t io n for acquittal on the ground that the Government did not establish a s u ffic ie n t nexus between the recovered firearms and interstate commerce. As H o d g e correctly acknowledges, his argument is foreclosed by circuit precedent. United States v. Daugherty, 264 F.3d 513, 518 (5th Cir. 2001); United States v. D a n c y , 861 F.2d 77, 80-81 (5th Cir. 1988). This court is bound to follow this p r e c e d e n t absent an intervening contrary or superseding decision by this court s it t in g en banc or by the United States Supreme Court. R o d r ig u e z -J a im e s , 481 F.3d 283, 288 (5th Cir. 2007). A F F IR M E D . United States v.

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