United States v. Sandoval ( 1997 )


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  •                                                                             F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    OCT 2 1997
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.                                                       No. 97-2025
    (D.C. No. CR-95-636-JP)
    FERNANDEZ SANDOVAL,                                      (Dist. N.M.)
    Defendant-Appellant.
    ORDER AND JUDGMENT *
    Before BRORBY, EBEL and KELLY, Circuit Judges.
    Fernandez Sandoval (“Sandoval”) and co-defendant Robert D. Gerold
    (“Gerold”) were indicted for two bank robberies occurring in Albuquerque, New
    Mexico. Sandoval was convicted of armed bank robbery, use of a firearm during
    commission of bank robbery, and of felon in possession of a firearm. Sandoval
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
    ordered submitted without oral argument. This order and judgment is not binding
    precedent, except under the doctrines of law of the case, res judicata, and collateral
    estoppel. The court generally disfavors the citation of orders and judgments;
    nevertheless, an order and judgment may be cited under the terms and conditions of 10th
    Cir. R. 36.3.
    here appeals his convictions for use of a firearm during commission of a bank
    robbery and for being a felon in possession of a firearm. Sandoval also
    challenges the propriety of the district court’s admission of evidence of
    Sandoval’s prior armed robbery convictions and raises a claim that ineffective
    assistance of counsel resulted in an unfairly prejudicial trial. Upon review we
    determine that there was no reversible error committed at trial.
    BACKGROUND
    Both of the robberies for which Sandoval was convicted involved what is
    commonly known as the “takeover” approach to bank robbery. (Tr. Rec. at 268-
    69.) In a takeover robbery, the robber enters the bank, announces the robbery,
    and prominently displays one or more weapons. (Id.) At trial, witnesses testified
    that both Sandoval and his co-defendant carried and displayed weapons during the
    course of the two robberies. In both robberies Sandoval held witnesses at
    gunpoint, some of whom were so close to Sandoval that they testified that they
    could have reached out and touched his weapon if they had been so inclined.
    In the course of investigating the robberies, police obtained a warrant to
    search Sandoval’s residence. (Tr. Rec. at 266.) Sandoval lived with co-defendant
    Gerold and Gerold’s girlfriend. In Sandoval’s room police found a pistol. The
    government admits that this pistol was purchased subsequent to the robberies and
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    thus could not have been used by Sandoval in either of the robberies. (Aplee. Br.
    at 16.)
    Sandoval was arrested and indicted with two counts of armed bank
    robbery, in violation of 
    18 U.S.C. § 2113
    (b); two counts of use of a firearm
    during commission of a bank robbery, in violation of 18 U.S. C. § 924(c); and one
    count of felon in possession of a firearm in violation of 
    18 U.S.C. § 922
    (g)(1).
    Sandoval admitted at trial to committing the robberies. (Tr. Rec. at 14.) The jury
    found Sandoval guilty of all charges.
    Here, Sandoval claims that because he used toy guns during the robberies
    instead of real ones and because the gun found in his room did not belong to him,
    his convictions for use of a firearm during commission of a robbery and for felon
    in possession of a firearm were in error. He also claims the district court erred in
    admitting evidence of his previous armed robbery convictions. Furthermore, he
    asserts that ineffective assistance of counsel deprived him of a fair trial.
    DISCUSSION
    I.
    Sandoval first asserts that insufficient evidence was adduced at trial to
    support the jury’s finding that, beyond a reasonable doubt, he used a real gun in
    committing the two robberies. Sandoval’s attorney raised this issue before the
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    district court below when he moved for judgment of acquittal. (Tr. Rec. at 275-
    76.) The district court overruled this motion and left the question to the jury.
    (Id.)
    We will uphold a jury’s evidentiary determination “if a reasonable jury,
    granting all favorable inferences to the government, could have concluded beyond
    a reasonable doubt” that Sandoval used a real gun. United States v. Russell, 
    109 F.3d 1503
    ,1505 (10th Cir. 1997). In short, we review the evidence in a light most
    favorable to the government and accept the jury’s finding so long as it is within
    the bounds of reason. See United States v. Ramirez, 
    63 F.3d 937
    , 945 (10th Cir.
    1995).
    In order to be found guilty of use of firearm during commission of a bank
    robbery under 18 U.S. C. § 924(c), the jury must find that the defendant used or
    carried a “firearm” during the course of the crime. 
    18 U.S.C. § 924
    (c)(1)(West
    Supp. 1997). A “firearm” is defined as “any weapon (including a starter gun)
    which will or is designed to or may readily be converted to expel a projectile by
    the action of an explosive.” 
    18 U.S.C. § 921
    (a)(3) (1976). While toy guns
    qualify as “dangerous weapons” under other criminal statutes they do not qualify
    as “firearms” under § 921(a)(3). See United States v. McCall, 
    85 F.3d 1193
    ,
    1197-98 (6th Cir. 1996); cf. United States v. Gilkey, 
    118 F.3d 702
    , 704 n.1 (10th
    Cir. 1997)(applying the same analysis to the Sentencing Guidelines).
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    At trial for armed robbery, the Government is under no burden to produce
    the actual weapon or weapons used. Witness identification of the weapon as a
    firearm is sufficient. See United States v. Hamilton, 
    992 F.2d 1126
    , 1129 (10th
    Cir. 1993) (citing United States v. Gregg, 
    803 F.2d 568
    , 571 (10th Cir. 1986)).
    During Sandoval’s trial one witness clearly described Sandoval’s weapon as
    appearing to be “fake.” (Tr. Rec. at 133.) 1 However, four witnesses testified that
    the gun used by Sandoval during the robberies appeared to be real (Tr. Rec. at 40-
    55; 62-70; 90; 106-108; 121) as did Sandoval’s co-defendant Gerold. (Id. at 107,
    205-208, 222). Because of this perceived “confusion” among the witnesses,
    Sandoval urges us to hold that no reasonable jury could have found, beyond a
    reasonable doubt, that the guns he used were “firearms” under the statute.
    Taking the evidence adduced at trial in the light most favorable to the
    government, we disagree. The four witnesses who testified that the guns were real
    all were positioned close enough to Sandoval to get very good looks at the
    weapon in his hand. (Id. at 37; 54; 88; 107.) One witness had the gun pointed
    1
    Two other witnesses testified as to the fake appearance of weapons used in the
    crimes, but it is not clear from the portions of the record supplied by Sandoval whether
    those witnesses’ testimony was about Gerold’s weapon or Sandoval’s. (Aplt. Br. at 7-8.)
    The Government asserts that their testimony was to the appearance of Gerold’s gun, not
    Sandoval’s. (Aplee. Br. at 15-16.) Sandoval fails to address this issue in his Reply Brief.
    Therefore, we assume that the only witness’s testimony as to the “fake” appearance of
    Sandoval’s gun was that of Cathryn Collins. The Government does not dispute this
    testimony. (Aplee. Br. at 15.)
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    right in her face while another observed the gun resting on the counter close
    enough that she could have picked it up. (Id. at 54-56.) By contrast, the witness
    who testified that Sandoval’s gun appeared to be fake was positioned farther away
    from the locus of the action than were the others. (Id. at 134). What’s more, two
    of the witnesses who testified that Sandoval used a real weapon have significant
    experience with the care and handling of guns. (Id. at 40-41; 107.) The witness
    who testified that the gun looked fake stated that she does not. ( Id. at 133.)
    Based on this evidence a reasonable jury could have concluded that the guns used
    by Sandoval were real. We affirm the jury’s conviction.
    II.
    Sandoval also challenges his conviction under 
    18 U.S.C. § 922
    (g)(1) for
    being a felon in possession of a firearm. As this issue is raised for the first time
    on appeal we review it under the “plain error” standard. See Federal Rule of
    Criminal Procedure 52(b). Under this standard, we may only correct an error that
    is “plain and that affects substantial rights” and “seriously affects the fairness,
    integrity or public reputation of judicial proceedings.” United States v. Spring, 
    80 F.3d 1450
    , 1465 (10th Cir. 1996).
    It is a crime for a convicted felon to “possess . . . any firearm.” 
    18 U.S.C. § 922
    (g)(1)(Supp. 1997). In order to convict under § 922(g)(1), the Government
    must prove beyond a reasonable doubt that (1) the defendant is a convicted felon,
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    (2) the defendant knowingly possessed a firearm after the conviction, and (3) the
    possession was in or affecting interstate commerce. See United States v. Wilson,
    
    107 F.3d 774
    , 779 (10th Cir. 1997). Sandoval only claims that the Government
    failed to prove the second element of knowing possession.
    Under § 922(g)(1) it is sufficient for the finder of fact to determine that a
    convicted felon was in constructive possession of a firearm. United States v.
    Mills, 
    29 F.3d 545
    , 549 (10th Cir. 1994). “In cases of joint occupancy . . . [the
    Government] must present evidence to show some connection or nexus between
    the defendant and the firearm.” 
    Id.
     What’s more, “[a] conviction based upon
    constructive possession will be upheld ‘only when there is some evidence
    supporting at least a plausible inference that the defendant had knowledge of and
    access to the weapon.” 
    Id.
     (quoting United States v. Mergerson, 
    4 F. 3d 337
    , 349
    (5th Cir. 1993)).
    The gun in question was found in Sandoval’s room in an apartment he
    shared with Gerold and Gerold’s girlfriend. At trial, Gerold testified that the gun
    belonged to him and that he kept it in a locked gun case in the closet in
    Sandoval’s room in order to keep it out of the hands of Gerold’s children. (Tr.
    Rec. at 201, 249-50.) Relying on Mills, Sandoval argues that based on this
    testimony the jury could not find that he constructively possessed the gun.
    However, Mills is readily distinguishable from the case at hand. In Mills, a third
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    party had hidden guns in a common area of the shared dwelling unbeknownst to
    the defendant. We held that on those facts the jury could not find that the
    defendant had constructive possession of the weapons. Mills, 
    29 F.3d at 550
    .
    Sandoval argues that the Government failed to prove he had knowledge of the
    whereabouts of the gun. (Aplt. Br. at 12-13.) However, at trial Gerold testified
    that he placed the gun in Sandoval’s closet with Sandoval’s full knowledge. (Tr.
    Rec. at 199) On at least one occasion Sandoval and Gerold both fired the gun at a
    practice range. (Id.) Sandoval had a key to the locking gun case. (Id. at 200.)
    One police officer testified that the gun was found behind Sandoval’s television,
    not in his closet where Gerold testified he kept it. (Id. at 267.) The facts adduced
    at trial were more than sufficient to support “at least a plausible inference that the
    defendant had knowledge of and access to the weapon.” Mills, 
    29 F. 3d at 550
    .
    The jury’s finding that Sandoval was in possession of the gun was not plain error.
    III.
    Sandoval next claims that the district court erred by allowing evidence of
    his prior felony conviction for armed robbery. The event Sandoval complains of
    occurred when the Government called Sandoval’s parole officer to testify as to
    his felony conviction, as part of its proof for the §922(g)(1) charge. In response to
    the prosecutor’s question, the officer testified that he met Sandoval when
    Sandoval was on parole for “one count of armed robbery and three counts of false
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    imprisonment with a firearm enhancement.” (Tr. Rec. at 164.) Not only did
    Sandoval’s counsel not object to this statement, he welcomed it in the interest of
    “being candid and letting everything out so that [Sandoval] doesn’t lose
    credibility.” (Id. at 165-66.) What’s more, in his opening statement Sandoval’s
    counsel mentioned Sandoval’s previous armed robbery conviction. (Tr. Rec. at
    13.) We deem that this failure to object and willful use of his prior conviction as
    part of his trial strategy amount to a waiver of the issue and thus we do not review
    it. See United States v. Jones, 
    44 F.3d 860
    , 875 (10th Cir. 1995).
    IV.
    Finally, Sandoval claims he was denied his Sixth Amendment right to a fair
    trial due to ineffective representation by his lawyer. (Aplt. Br. at 20.)
    Specifically, Sandoval claims that he was prejudiced because his attorney failed
    to (a) stipulate to Sandoval’s prior conviction, (b) object to the admission of the
    name, nature and circumstances of that conviction, and (3) move for severance of
    the armed robbery and felon in possession of a firearm counts. (Id. at 20-25.)
    As a general rule, this Circuit does not consider claims of ineffective
    assistance of counsel on direct criminal appeal. United States v. Galloway,
    
    56 F.3d. 1239
    , 1240, 1242 (10th Cir. 1995)(en banc). Instead, the criminal
    defendant should bring a claim of ineffective assistance of counsel in a collateral
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    proceeding such as a writ of habeas corpus under 
    28 U.S.C. § 2255
    . 
    Id. at 1240
    .
    This rule allows the reviewing court to make a considered determination based
    upon a complete record and the district court’s determinations. Only if the record
    is unusually complete will we consider a claim of ineffective assistance of
    counsel on direct appeal. 
    Id.
     Such instances are rare. 
    Id. at 1241
    .
    In his appeal Sandoval raises issues, most notably trial counsel’s decision
    not to request severed trials of Sandoval’s armed robbery and felon in possession
    of a firearm charges, for which there is no record for us to review. Therefore,
    under Galloway we decline to consider Sandoval’s ineffective assistance of
    counsel claims.
    For the above reasons the district court’s conviction is AFFIRMED for all
    counts. The mandate shall issue forthwith.
    ENTERED FOR THE COURT
    David M. Ebel
    Circuit Judge
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