United States v. Vincente Botello-Segundo ( 2015 )

Case: 14-40754 Document: 00513147812 Page: 1 Date Filed: 08/10/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40754
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
August 10, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
VINCENTE BOTELLO-SEGUNDO, also known as Vicente Botello Segundo,
Defendant-Appellant
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:12-CR-225-1
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Vincente Botello-Segundo was convicted of illegal reentry of a previously
deported alien (Count One) and being an alien in possession of a firearm and
ammunition (Count Two). He was sentenced to 78 total months in prison and
three years of supervised release.
Botello-Segundo maintains that the district court contravened the Sixth
Amendment by barring him from offering evidence in support of his defense.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 14-40754
He argues that the district court precluded him from calling his brother, Joel
Botello (Joel), to testify that the firearms and ammunition that underlie Count
Two were owned by him and were found in a home that he owned and at times
occupied. Botello-Segundo further contends that the Government exploited the
district court’s error by obtaining a jury instruction regarding possession that
incorporated the concept of ownership and raising the issue of ownership in its
closing argument.
Even if the district court erred by excluding Joel’s testimony, any error
was harmless because it did not affect the jury’s determination of his guilt. See
United States v. Skelton, 514 F.3d 433, 438 (5th Cir. 2008); United States v.
Haese, 162 F.3d 359, 364 (5th Cir. 1998); FED. R. CRIM. P. 52(a). The proposed
testimony would not implicate Botello-Segundo’s possession of the
ammunition, which alone would sustain his conviction pursuant to 18 U.S.C.
§ 922(g)(5), and would be irrelevant to whether he possessed the guns. Joel’s
ownership would not be dispositive of Botello-Segundo’s possession, which may
be joint possession. See United States v. DeLeon, 170 F.3d 494, 497 (5th Cir.
1999); United States v. Jones, 133 F.3d 358, 362 (5th Cir. 1998); United States
v. McKnight, 953 F.2d 898, 901-02 (5th Cir. 1992). The trial evidence otherwise
reflects that Botello-Segundo had constructive possession of the firearms and
ammunition because he had dominion and control over the home in which the
items were recovered, see United States v. Ybarra, 70 F.3d 362, 366 (5th Cir.
1995), had knowledge of, and access to, the items, which were found in his
bedroom, see United States v. Meza, 701 F.3d 411, 421 (5th Cir. 2012), and
advised law enforcement that the items were his and that he intended to retain
them, see De Leon, 170 F.3d at 496. The jury instructions and the
Government’s closing argument appropriately explained the law concerning
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No. 14-40754
possession and correctly discussed the potential relevance of Botello-Segundo’s
ownership of the items. See De Leon, 170 F.3d at 496
Accordingly, the judgment of the district court is AFFIRMED.
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