United States v. Foster

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 27, 2008
No. 07-51146
Summary Calendar Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
KODELL VALENTINO FOSTER,
Defendant–Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 6:07-CR-17-1
Before KING, DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
Kodell Valentino Foster appeals his jury conviction for possession with
intent to distribute cocaine within 1000 feet of a public school, possession with
intent to distribute marijuana within 1000 feet of a public school, possession of
a firearm in furtherance of a drug trafficking crime, and possession of a firearm
by a convicted felon.
Foster argues that the district court violated his Sixth Amendment rights
by refusing to allow him to call a witness or to inform the jury, during closing
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-51146
arguments, that one of the Government’s subpoenaed witnesses failed to testify.
He asserts that the jury could infer the witness’s guilt from her failure to appear
in response to a subpoena. Although criminal defendants have a fundamental
right under the Sixth Amendment to present witnesses in their own defense, this
right is not unfettered. Taylor v. Illinois, 484 U.S. 400, 408-10 (1988). In
addition, the Sixth Amendment does not mandate that a defendant be allowed
to call the jury’s attention to a reluctant witness’s absence. United States v.
Griffin, 66 F.3d 68, 71 (5th Cir. 1995). Therefore, the district court did not
violate Foster’s Sixth Amendment rights.
When there is no Sixth Amendment violation, this court addresses
whether the district court abused its discretion in excluding evidence. United
States v. Ragsdale, 426 F.3d 765, 774 (5th Cir. 2005). The decision whether to
admit testimony or other evidence is within the sound discretion of the district
court. United States v. Virgen-Moreno, 265 F.3d 276, 295 (5th Cir. 2001). It is
well settled that it is impermissible to draw inferences from a party’s failure to
call a witness equally available to both sides. Id. at 291. However, “[w]hen a
witness is controlled by one party, failure to call the witness, if his testimony
would elucidate facts in issue, creates an inference which the jury is permitted
to draw against that party.” United States v. Chapman, 435 F.2d 1245, 1247
(5th Cir. 1970). Foster has not shown that the witness, his live-in girlfriend, was
in the Government’s control to create an inference to be drawn against the
Government. Moreover, an attorney is not permitted to state in closing
arguments that he could have called additional witnesses whose testimony
would have supported his theory of the case. United States v. Vaglica, 720 F.2d
388, 394 (5th Cir. 1983). Finally, any error was harmless because Foster has not
demonstrated that the failure to call the jury’s attention to the absence of the
witness’s testimony was harmful error with a “substantial and injurious”
influence on the jury’s verdict. See United States v. Lowery, 135 F.3d 957, 959
(5th Cir. 1998).
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No. 07-51146
Foster also argues that there was insufficient evidence to prove that he
had knowledge of either the drugs or the weapon. The knowledge element for
possession of contraband is rarely proven by direct evidence. United States v.
Lopez, 74 F.3d 575, 577 (5th Cir. 1996). However, knowledge can be established
by inference and circumstantial evidence. United States v. Garcia-Flores, 246
F.3d 451, 454 (5th Cir. 2001).
Testimony established that a search of Foster’s vehicle revealed the
presence of a large, partially unzipped black duffle bag containing a loaded pistol
rifle, twenty-six pounds of marijuana, and twenty-one grams of cocaine. The
weapon was pointed up, out of the duffle bag, and the marijuana emitted a very
strong odor throughout the interior of the vehicle. Although Foster was not the
registered owner of the vehicle, he was listed as an approved driver on the
insurance and admitted that he had been in possession of the vehicle for at least
one month. Because the contraband was not hidden in a compartment, the jury
could have inferred knowledge simply from Foster’s control over the vehicle. See
id. Other circumstantial evidence of guilty knowledge included Foster’s initial
reluctance to grant the police request to search the vehicle but resulting lack of
surprise when the contraband was discovered; the presence on Foster’s person
of a large sum of money in small denominations, indicative of drug dealers; and
the presence of drug paraphernalia discovered during a subsequent search of
Foster’s residence. See United States v. Ortega Reyna, 148 F.3d 540, 544 (5th
Cir. 1998) (per curiam). There was sufficient evidence to sustain a
determination that Foster had knowledge of the drugs and weapon.
AFFIRMED.
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