United States v. Efrain Campa-Fabela ( 2000 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 99-2939
___________
United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the Southern
* District of Iowa.
Efrain Campa-Fabela, *
*
Appellant. *
___________
Submitted: January 11, 2000
Filed: April 28, 2000
___________
Before WOLLMAN, Chief Judge, FLOYD R. GIBSON and MURPHY, Circuit
Judges.
___________
FLOYD R. GIBSON, Circuit Judge.
A jury convicted Efrain Campa-Fabela of illegal reentry into the United States
and possession with intent to distribute methamphetamine in violation of 8 U.S.C §
1326 and 21 U.S.C. § 841(a)(1). The district court1 sentenced Campa-Fabela to two
concurrent terms of one hundred and eighty months, eight years supervised release and
a $200.00 special assessment. Campa-Fabela appeals his conviction, challenging the
1
The Honorable Harold D. Vietor, United States District Judge for the Southern
District of Iowa.
sufficiency of the evidence, the admission of certain testimonial evidence and claiming
ineffective assistance of trial counsel. We affirm.
I.
Narcotics Enforcement Officers stopped Campa-Fabela after observing him
driving erratically. After initially giving a false identity, Campa-Fabela provided the
officers with his correct name and date of birth. He provided the address of his
girlfriend, Jennifer Murphy, as his residence. Campa-Fabela lacked any identifying
documentation and thus offered to take the officers to Murphy's address so that she
could corroborate his identity. Although married, Campa-Fabela neglected to
communicate this or to provide the officers with his wife's address.
The officers, suspicious of Campa-Fabela's alien status, contacted the office
of Immigration and Naturalization Services (INS). INS informed the officers that
Campa-Fabela had previously been deported for illegal re-entry and requested that
he be detained. Campa-Fabela was taken to Polk County Jail, where $2700.00 in
cash was discovered on his person and seized.
The INS also informed the officers of Campa-Fabela's marital status and
provided them with his wife's address. During Campa-Fabela's detention, the
officers proceeded to his wife's address. When they arrived, they found his wife and
her fourteen year-old son, Allan Kennedy, leaving the residence. Kennedy was
carrying a loud speaker. The officers asked for and received Mrs. Campa-Fabela's
consent to search the premises for illegal drugs.
In their search, the officers discovered identification cards inside the house
containing Campa-Fabela's name. Inside the loud speaker, the officers found 471.65
grams of methamphetamine, 443.51 grams of amphetamine, and 195.88 grams of
cocaine. Campa-Fabela was charged with illegal re-entry in to the United States,
-2-
conspiracy to distribute methamphetamine, and possession with intent to distribute
methamphetamine. Campa-Fabela pleaded not guilty to all charges and proceeded
to jury trial.
At trial, Allan Kennedy testified that Campa-Fabela had stayed at his mother's
residence occasionally over the preceding six months. He further testified that the
loud speaker containing the drugs belonged to Campa-Fabela and was typically
located in his mother's bedroom, which was shared by Campa-Fabela when he
stayed at the residence. Additionally, Jennifer Murphy testified that Campa-Fabela
had provided her with user amounts of cocaine and methamphetamine on several
occasions throughout the course of their six-month relationship. Campa-Fabela
made no objection at trial to the admission of Murphy's testimony. Mrs. Campa-
Fabela refused to testify, claiming marital privilege.
II.
On appeal, Campa-Fabela first contends that the evidence supporting his
conviction is legally insufficient. We review questions of sufficiency of the
evidence de novo. See United States v. Brooks, 174 F.3d 950, 954 (8th Cir. 1999).
"In reviewing the sufficiency of the evidence to support a guilty verdict, we look at
the evidence in the light most favorable to the verdict and accept as established all
reasonable inferences supporting the verdict." United States v. Davis, 154 F.3d
772, 786 (8th Cir. 1998), cert. denied, 525 U.S. 1161 (1999)(quoting United States
v. Plenty Arrows, 946 F.2d 62, 64 (8th Cir. 1991)). "We will reverse only if 'no
reasonable jury could have found the defendant guilty beyond a reasonable doubt.'"
United States v. Escobar, 50 F.3d 1414, 1419 (8th Cir. 1995) (quoting United States
v. Frayer, 9 F.3d 1367, 1371 (8th Cir. 1993)).
Specifically, Campa-Fabela challenges the sufficiency of the evidence
establishing knowing possession of methamphetamine. "Constructive possession of
-3-
drugs can be established if a person has 'ownership, dominion or control over the
contraband itself, or dominion over the premises in which the contraband is
concealed.'" See United States v. McCracken, 110 F.3d 535, 541 (8th Cir.
1997)(quoting United States v. Ojeda, 23 F.3d 1473, 1475 (8th Cir. 1994)). Proof
of constructive possession satisfies the element of knowing possession. See id.
We have no difficulty reconciling the evidence presented at trial with the
jury's determination that Campa-Fabela constructively possessed the
methamphetamine in issue. The methamphetamine was discovered in a loud
speaker at the residence of Campa-Fabela's wife. Evidence linked Campa-Fabela
to this residence, the loud speaker and generalized participation in drug activity.
First, Campa-Fabela's identification was found at the residence. Second, Allan
Kennedy testified that Campa-Fabela lived, at least in part, at this residence, that he
brought the loud speaker into the residence and kept it in the bedroom Campa-
Fabela shared with his wife. Third, Jennifer Murphy testified that Campa-Fabela
had recently provided her with cocaine and methamphetamine. Finally, the large
quantity of cash discovered on Campa-Fabela's person is circumstantially consistent
with drug trade. Based on this evidence, we conclude that sufficient evidence
supported Campa-Fabela's conviction.
We turn next to Campa-Fabela's argument that the district court erred in
admitting Jennifer Murphy's trial testimony regarding Campa-Fabela's previous
provision to her of user amounts of cocaine and methamphetamine. Campa-Fabela
posits that Murphy's testimony constituted impermissible propensity evidence under
Federal Rule of Evidence 404(b). We disagree.
Typically, evidentiary rulings under Rule 404(b) are reviewed for an abuse of
discretion. See United States v. Sumner, 119 F.3d 658, 660 (8th Cir. 1997).
However, because Campa-Fabela failed to object to Murphy's testimony at trial,
reversal is warranted only in the presence of plain error. See United States v. Pena,
-4-
67 F.3d 153, 155 (8th Cir. 1995)(reviewing admission of testimony for plain error in
the absence of objection at trial). "Plain error occurs if (1) there is an error, (2) the
error is obvious, and (3) the error affects a defendant's substantial rights." United
States v. Hill, 91 F.3d 1064, 1072 (8th Cir. 1996)(citing United States v. Ryan,41
F.3d 361, 366 (8th Cir. 1994)(en banc)). "However, even if there has been plain
error affecting the defendant's substantial rights, whether this Court will notice the
error is a matter of discretion, and we reverse for plain error only where the error
seriously affects the fairness, integrity, or public reputation of judicial proceedings."
See United States v. Robinson, 110 F.3d 1320, 1324 (8th Cir. 1997)(citing United
States v. Olano, 507 U.S. 725, 736 (1993)). The party asserting plain error bears
this burden. See Ryan, 41 F.3d at 366.
Rule 404(b) is a rule of inclusion, permitting admission of other crimes
evidence unless the evidence tends to prove only the defendant's criminal
disposition. See United States v. Dobynes, 905 F.2d 1192, 1195 (8th Cir. 1990).
Moreover, the district court has broad discretion to admit evidence of other crimes
or bad acts under Federal Rule of Evidence 404(b) and its "decision will be
overturned only when it is clear that the evidence had no bearing on the case." See
United States v. Sykes, 977 F.2d 1242, 1246 (8th Cir. 1992). Such is not the
situation in the present case. Given Campa-Fabela's denial of possession, Jennifer
Murphy's testimony was relevant to showing that Campa-Fabela knowingly
exercised dominion and control over, and thus possessed, the methamphetamine.2
See United States v. Pena, 67 F.3d 153, 155 (8th Cir. 1995). Accordingly, we
cannot say that the district court committed plain error in admitting this testimony.
2
Although the district court failed to issue a jury instruction prohibiting
improper propensity inferences, none was requested by the defense. As such, we find
no error. See United States v. McGuire, 45 F.3d 1177, 1188 (8th Cir. 1995)(holding
that "[t]he trial court need not issue a prior crimes limiting instruction sua sponte").
-5-
Finally, Campa-Fabela argues that his trial counsel was constitutionally
ineffective. We decline, however, to consider this argument. As we have stated
frequently, claims of ineffective assistance of counsel are generally more
appropriately raised during a collateral proceeding under 28 § U.S.C. 2255. See
United States v. Bowers, 21 F.3d 843, 844 (8th Cir. 1994)(per curiam).
For the reasons set forth above, the judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-6-