United States v. Felan , 339 F. App'x 499 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 6, 2009
No. 08-50633
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
GARY CHRISTOPHER FELAN,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:06-CR-282-1
Before KING, STEWART and HAYNES, Circuit Judges.
PER CURIAM:*
Gary Christopher Felan appeals his conviction following a bench trial for
aiding and abetting in the possession of cocaine with intent to distribute in
violation of 18 U.S.C. § 2; 21 U.S.C. § 841(a)(1) and (b)(1)(B). He challenges the
sufficiency of the evidence to support his conviction.
The Government had to prove that Felan knowingly possessed the cocaine
with the intent to distribute. United States v. Mata, 491 F.3d 237, 242 (5th Cir.
*
Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
No. 08-50633
2007). A defendant’s intent to distribute may be inferred from the possession of
a large quantity of the drug. Ramos-Cardenas, 524 F.3d at 605. Possession of
narcotics may be “actual or constructive, may be joint among several defendants,
and may be proven by direct or circumstantial evidence.” United States v.
Ramos-Cardenas, 524 F.3d 600, 605 (5th Cir. 2008) (citation omitted). This
court’s definition of constructive possession includes dominion over the premises
in which the contraband is found. United States v. Hinojosa, 349 F.3d 200, 203
(5th Cir. 2003) (citations omitted). In cases of joint occupancy, to prove
constructive possession, there must be some evidence supporting at least a
plausible inference that the defendant had knowledge of and access to the illegal
item. Id. at 204.
Felan argues that nothing connects him to the tote bag that contained the
bulk of the cocaine, and he relies on evidence that his codefendant, Norma
Bianca Puenta, occupied the apartment with him to support his argument that
the evidence was insufficient to convict him. Constructive possession of a drug,
however, need not be exclusive. See United States v. Patterson, 431 F.3d 832,
837 (5th Cir. 2005). Trial testimony established that men’s clothing was in the
closet where the cocaine was found and that personal documents bearing Felan’s
name were stored in the master bedroom where the closet was located. The
bathroom containing the cocaine was part of the master bedroom. Thus, there
is some evidence to support a plausible inference that Felan had knowledge of
and access to the cocaine in the closet of the master bedroom and in the
bathroom See Hinojosa, 349 F.3d at 204. This evidence, viewed in the light
most favorable to the verdict, is sufficient to show that Felan constructively
possessed the cocaine. See United States v. Serna-Villarreal, 352 F.3d 225, 234
(5th Cir. 2003).
AFFIRMED.
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