United States v. Solomon ( 1994 )

UNITED STATES COURT OF APPEALS
for the Fifth Circuit
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No. 93-5313
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
DAVID JAMES SOLOMON, a/k/a DAVIS JAMES CORMIER,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Louisiana
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(August 10, 1994)
Before WISDOM, DAVIS, and DUHÉ, Circuit Judges.
PER CURIAM:
Defendant-Appellant David James Solomon was convicted of four
counts of possession with intent to distribute crack cocaine, two
counts of using a gun in relation to drug trafficking, and two
counts of being a felon in receipt of firearms. We affirm the
convictions.
I. Evidence of "Use" of Firearm (Count VI)
Solomon first argues that the evidence fails to show that he
knowingly used the revolver found in a poolhall office in relation
to any drug trafficking crime as is required for a conviction under
§ 924(c)(1) (Count VI). Thirty-five minutes after an informant
made a controlled buy of crack cocaine from Solomon in the
poolhall, police entered the poolhall office and discovered a
revolver, bullets, crack cocaine, and money all within two steps of
each other. The office was at the rear of the poolhall, which in
turn was behind a hair salon. There was no evidence that Solomon
had entered the office itself when making the sale. When the
police arrived Solomon fled the premises, was apprehended nearby,
and had the purchase money in his pocket.
Solomon disavows any connection with the gun or even with the
office, arguing that the evidence does not therefore support an
inference that he used the gun in relation to drug trafficking.
We hold that the evidence regarding the quantity of crack sold
to the informant sufficiently connects Solomon to the crack cache
in the office and to the nearby gun. That Solomon actually sold
crack and fled the premises showing consciousness of guilt is no
longer disputed. Considering that no additional crack was found on
Solomon's person or elsewhere in the premises, the jury could have
reasonably inferred that his source for the drug transaction was
the drug cache, which was close to the firearm. This evidence
establishes Solomon's control over the drugs, regardless of who
controlled the business.1 See United States v. Thompson, 700 F.2d
944, 952 (5th Cir. 1983) (recognizing that constructive possession
1
Solomon contends that under United States v. Onick, 889 F.2d
1425 (5th Cir. 1989), the Government must show dominion and control
over the premises to show constructive possession of the weapon.
Onick recognized the principle that we do not lightly impute
dominion and control to a person found in another person's house.
Id. at 1429. Assuming, without deciding, that the same principle
would apply to control of business premises, we find sufficient
evidence to support an inference of Solomon's dominion and control
over things in the office. Though Solomon's brother signed as
lessee of the premises, Solomon himself negotiated the lease and
had the right to come and go as he pleased. Accordingly, even
under an Onick analysis, sufficient evidence suggests Solomon's
knowing use of the gun in relation to the drug offense.
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may be sufficiently proved by either ownership, dominion, or
control over the drugs themselves, or dominion over the premises in
which the drugs are concealed). This connection to the drugs and
the nearby gun provides sufficient evidence to support the
conviction for use of a firearm in relation to drug trafficking.
See United States v. Molinar-Apodaca, 889 F.2d 1417, 1424 (5th Cir.
1989) (to show "use" of the firearm, the Government need only prove
that the gun was available to defendant to provide protection in
connection with drug trafficking).
II. Evidence of "Receipt" of Firearms (Counts III and VII)
Solomon also argues that because possession is necessary to
"receipt,"2 the conviction for being a felon who "received" the
revolver should also fail (Count VII). Having found sufficient
evidence to establish Solomon's possession of the revolver, we
reject this argument.
Solomon also challenges both of his "receipt" convictions on
the basis that the Government failed to prove when or where Solomon
received both firearms. In addition to the revolver in the
poolhall incident (Count VII), Solomon was convicted of being a
felon in receipt of a firearm based on a pistol found during a
vehicle stop on Interstate 10 (Count III). Both of these receipt
convictions require proof that he received a firearm which had been
shipped in interstate commerce while he was a convicted felon. 18
U.S.C. § 922(g).
Defendant challenges the sufficiency of the evidence that he
2
See Ball v. United States, 470 U.S. 856, 862 (1985).
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took possession of these firearms after committing the predicate
felony, that the receipt of the firearm occurred within the statute
of limitations, and that he received the firearms within the venue
of the district court.
As for the evidence that Solomon took possession after
committing the predicate felony, we note that the auto stop
incident occurred in 1988 and the poolhall incident in 1991. The
Government offered an armed robbery conviction of Solomon in 1981
to show that Solomon was a felon when he received both firearms.
Also, he was in prison))and therefore not in possession of either
firearm))in 1981. Even if he possessed the guns before his term of
imprisonment, his taking repossession after serving his time
constituted "receipt." See United States v. Robbins, 579 F.2d
1151, 1153-54 (9th Cir. 1978) (defendant's regaining possession of
his gun constituted receipt). Accordingly, the evidence amply
established that Defendant took possession of the guns after
committing the predicate felony.
Defendant also challenges the sufficiency of evidence
establishing that receipt of the firearms occurred within the five-
year statute of limitations for non-capital offenses (18 U.S.C. §
3282), and that he received the firearms within the venue of the
district court. Because Solomon made no objection at the close of
all the evidence, his objection to venue is waived. See United
States v. Black Cloud, 590 F.2d 270, 272 (8th Cir. 1979) (if
indictment contains proper allegation of venue, venue objection is
preserved for appeal if made at close of Government's case); see
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generally 2 Charles A. Wright, Federal Practice and Procedure § 306
(2d ed. 1982).
The defendant's objection based on the statute of limitations
is also waived by the defendant's failure to raise and develop it
at trial. United States v. Arky, 938 F.2d 579, 581-82 (5th Cir.
1991), cert. denied, 112 S. Ct. 1268 (1992). Accordingly, we do not
address the merits of the alleged error based on § 3282. Arky, 938
F.2d at 581 (rejecting the position that the statute of limitations
is a jurisdictional question which can be noticed for the first
time on appeal).
III. Jury Charge; Receipt (Counts III and VII)
Counts III and VII charged Solomon with "receipt" of a firearm
by a felon, but the court instructed the jury on "possession" of a
firearm by a felon. Although Solomon lodged no objection to this
charge, we may review the issue under the plain error doctrine.
United States v. Mize, 756 F.2d 353, 355 (5th Cir. 1985). Reversal
is required if the court's charge "constitutes a constructive
amendment of the indictment," that is, if "the jury [wa]s permitted
to convict the defendant upon a factual basis that effectively
modifies an essential element of the offense charged." United
States v. Young, 730 F.2d 221, 223 (5th Cir. 1984).
"Receipt" is knowingly taking possession. United States v.
Clark, 741 F.2d 699, 703 (5th Cir. 1984). The only essential
discrepancy between the instructions and the indictment is the
element that defendant while a felon actually took possession
rather than simply remained in possession. See United States v.
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Martin, 732 F.2d 591, 592-93 (7th Cir. 1984) (venue is not an
essential element); United States v. Winship, 724 F.2d 1116, 1124-
25 (5th Cir. 1984) (failure to instruct on venue is reversible only
when trial testimony puts venue in issue and the defendant requests
the instruction); United States v. Bowman, 783 F.2d 1192, 1197 (5th
Cir. 1986) (time the offense was committed is not essential
element).
The evidence of Solomon's constructive possession of the
firearms which had travelled in interstate commerce is
circumstantial evidence of his prior receipt. Martin, 732 F.2d at
592 (one cannot possess a firearm without receiving it); see also
United States v. Beverly, 750 F.2d 34, 36 (6th Cir. 1984); United
States v. Craven, 478 F.2d at 1329, 1336-37 (6th Cir.), cert.
denied, 414 U.S. 866 (1973). With the stipulation that the
firearms were not manufactured in Louisiana and had travelled in
interstate commerce (4 Rawle 115) and the uncontroverted evidence that
Solomon was in jail in 1981, the evidence precludes any possibility
that Solomon possessed the firearms as a felon without having
received them as a felon. Cf. Ball, 470 U.S. at 862 n.9 (a felon
may possess a firearm without receiving it if he manufactured the
gun himself); Craven, 478 F.2d at 1336-37 (one cannot possess a
firearm without having received it unless the possessor
manufactures it himself).
United States v. Ylda, 653 F.2d 912, 914 (5th Cir. Unit A Aug.
1981), held that a jury charge requiring proof of receipt or of an
agreement to receive money did not constructively amend the
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indictment for receipt, because the evidence contained no
suggestion that defendant merely agreed to receive, without
actually receiving the money. Similarly the evidence contained no
suggestion that Solomon possessed without having earlier received
the firearms. Additionally, as in Ylda, the district court charged
the jury that it was to decide whether Solomon was guilty or not
guilty and that he was being tried "only for the specific offenses
alleged in the indictment." 6 Rawle 64; cf. Ylda, 653 F.2d at 915.
Also, the district court provided the jury with copies of the
indictment. See 6 Rawle 66; cf. Ylda, 653 F.2d at 915. Accordingly,
the court's charge resulted in no uncertainty about whether the
jury convicted Solomon of an offense not charged in the indictment.
See Ylda, 653 F.2d at 915. The discrepancy between the jury charge
and the words of the indictment was therefore "merely another of
the flaws in trial that mar its perfection but do not prejudice the
defendant." Ylda, 653 F.2d at 914; Young, 730 F.2d at 223 (quoting
Ylda); see also Mize, 756 F.2d at 355 (if no constructive amendment
occurred, reversal is warranted only if discrepancy prejudices
substantial rights of defendant).3
3
This case involves no possible prejudice to Defendant by his
suffering cumulative punishment for convictions for both receipt
and possession. Cf. Ball, 470 U.S. at 862-64 (requiring district
court to vacate either conviction); Martin, 732 F.2d at 592-93
(requiring that either receipt conviction or possession conviction
be vacated because the offenses are the same); United States v.
Burton, 629 F.2d 975, 977-78 (4th Cir. 1980) (holding that
cumulative punishment for convictions for felon's possession and
receipt of the same gun is not authorized where possession was
incidental to receipt), cert. denied, 450 U.S. 968 (1981).
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IV. Prosecutorial Statement (Counts I and II)
Solomon notes that he possessed a small enough quantity (7.8
gr.) of drugs when arrested from the car that the district court
charged the jury on simple possession as well as distribution for
that count (Count I). A simple possession conviction on Count I
would have eliminated the related conviction for use of a firearm
in relation to drug trafficking (Count II). See § 924(c)(2)
(limiting definition of "drug trafficking crime" to felonies).
Solomon argues that a misstatement by the prosecutor prevented the
jury from returning the verdict of simple possession on Count I and
acquitting on Count II.
The officers in the auto-stop incident ordered Solomon out of
the car for a patdown. Solomon handed the driver a bundled T-
shirt, explaining, "[H]ere, hold this while they search me." The
shirt blew open revealing a pouch containing crack cocaine. The
prosecutor argued during closing that actual distribution occurred
when Solomon handed the T-shirt to the driver.
Solomon did not object to the statement, so we review only for
plain error. United States v. Blankenship, 746 F.2d 233, 238 n.1
(5th Cir. 1984). Plain error is "an error so obvious that our
failure to notice it would seriously affect the fairness,
integrity, or public reputation of [the] judicial proceedings and
result in a miscarriage of justice." United States v. Fortenberry,
914 F.2d 671, 673 (5th Cir. 1990), cert. denied, 499 U.S. 930
(1991).
The error, if any occurred, is not so obvious. We can reverse
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only if, considering the remark in the context of the entire trial,
the argument "seriously affected the fairness of the proceeding and
resulted in a miscarriage of justice." United States v. Knezek,
964 F.2d 394, 400 (5th Cir. 1992). Based on our review of the
record, we hold that the prosecutor's statement regarding a
distribution did not constitute plain error.
The judgment of the district court is
AFFIRMED.
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