United States v. Duncan , 254 F. App'x 201 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-5006
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RAYSHARD D. DUNCAN,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge.
(CR-04-370-RWT)
Submitted: October 24, 2007 Decided: November 16, 2007
Before NIEMEYER, MICHAEL, and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Sherri Keene, Staff Attorney, Greenbelt,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Emily N. Glatfelter, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Rayshard Duncan appeals the jury verdict convicting him
of being a felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (2000). Duncan was subsequently sentenced to
fifty-seven months’ imprisonment. On appeal, Duncan asserts two
challenges to his conviction, but does not appeal his sentence.
Duncan first asserts the district court erred in denying his motion
to suppress the inculpatory statement Duncan offered to a police
officer upon his arrest. Duncan also challenges the instruction
given the jury regarding constructive possession. For the reasons
set forth below, we reject both assignments of error and affirm.
Taken in the light most favorable to the Government,
United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005), the
evidence presented at the hearing on the motion to suppress
established the following facts. On the morning of March 24, 2004,
Corporal Travis Fowble of the Prince George’s County, Maryland,
Police Department observed a vehicle drive toward the end of a dead
end street located in a high crime area. After learning the
vehicle’s registration had been suspended, as had the driver’s
license issued to Duncan, the registered owner of the vehicle,
Fowble initiated a traffic stop. Fowble approached the vehicle and
spoke with the driver, later identified as Duncan. Because another
officer observed what appeared to be a marijuana cigarette on the
vehicle’s dashboard, the officers asked Duncan and his two
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passengers to exit the vehicle and handcuffed them. After
confirming their suspicions that the cigarette was in fact
marijuana, the officers placed all three men under arrest. The
officers did not apprise Duncan of his Miranda1 rights. In
conducting an inventory search of the vehicle, Fowble discovered a
loaded .9 mm handgun under the driver’s seat.
While transporting Duncan to the precinct, Fowble
received a radio communication from Corporal Price, one of the
other officers who had assisted on the scene, inquiring whether
Fowble recovered any firearms from the vehicle. Fowble responded
that he had in fact seized a firearm, that he believed the firearm
had been stolen, and that he further believed the firearm had
recently been fired. Immediately after Fowble articulated his
response to Price, Duncan spontaneously stated: “That gun has not
been shot. I’ve had that gun for a long time.” Fowble did not
respond in any way, and Duncan made no further statements.
In support of his motion to suppress this statement,
Duncan asserted the discourse in Fowble’s police cruiser amounted
to the functional equivalent of interrogation and further posited
the conversation between Fowble and Price was designed to elicit an
incriminating statement from Duncan. Citing Rhode Island v. Innis,
446 U.S. 291 (1980), the district court concluded Miranda was not
implicated because there had been no express interrogation or the
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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functional equivalent thereof. Moreover, the district court
categorically rejected Duncan’s contention that the conversation
between Price and Fowble was orchestrated to induce Duncan to offer
an inculpatory statement.
After losing his suppression motion, Duncan proceeded to
trial. At the conclusion of Duncan’s second jury trial,2 the
district court provided the following instruction regarding the
possession element of the charged offense:
“To possess” means to have something within a person’s
control. This does not necessarily mean that the
defendant must hold it physically. That is having actual
possession of it. As long as the firearm was within the
defendant’s control, he possesses it.
If you find that the defendant either had actual
possession of the firearm, or that he had the power and
intention to exercise control over it, even though it was
not in his physical possession, you may find that the
government has proven possession. . . .
Proof of ownership of the firearm is not required. To
satisfy this element, you must also find that the
defendant knowingly possessed the firearm. This means
that he possessed the firearm purposely and voluntarily
and not by accident or mistake.
Duncan raised no objection to this instruction. The jury
subsequently found Duncan guilty.
2
Duncan’s first trial ended in a mistrial.
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I. Denial of Motion to Suppress
As he argued in the district court, Duncan asserts on
appeal that his inculpatory statement to Fowble resulted from the
functional equivalent of a custodial interrogation, conducted
without Duncan being properly informed of his Miranda rights.
Statements that result from interrogation by officers are
subject to suppression. A person is “interrogated” for Miranda
purposes not only when police expressly question him, but also when
the police use any words or actions (other than those normally
attendant to arrest and custody) that they should know are
reasonably likely to elicit an incriminating response. See Innis,
446 U.S. at 301. However, “since the police surely cannot be held
accountable for the unforeseeable results of their words or
actions, the definition of interrogation can extend only to words
or actions on the part of police officers that they should have
known were reasonably likely to elicit an incriminating response.”
Id. at 301-02.
This court reviews the district court’s factual findings
underlying a motion to suppress for clear error, and the district
court’s legal determinations de novo. Ornelas v. United States,
517 U.S. 690, 699 (1996); United States v. Kimbrough, 477 F.3d 144,
147 (4th Cir. 2007). “The reviewing court should take care both to
review findings of historical fact only for clear error and to give
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due weight to inferences drawn from those facts by resident judges
and local law enforcement officers. Ornelas, 517 U.S. at 699.
The district court properly denied Duncan’s motion to
suppress his statement regarding his possession of the firearm
because it was not the product of either express interrogation or
the functional equivalent of interrogation. Duncan offered his
statement after overhearing Fowble’s discussion with Price
regarding the firearm Fowble recovered from Duncan’s vehicle. At
no point did Fowble direct any comments regarding the firearm to
Duncan. As we explained in United States v. Payne, 954 F.2d 199,
202 (4th Cir. 1992), “the Innis definition of interrogation is not
so broad as to capture within Miranda’s reach all declaratory
statements by police officers concerning the nature of the charges
against the suspect and the evidence relating to those charges.”
As was the case in Payne, the statement here, which was made by one
police officer to another, was simply an “innocuous” statement to
which no response from the defendant was sought or required. Id.3
3
Although Duncan attempts to distinguish his case from Payne
by emphasizing that the defendant in Payne had in fact been read
his Miranda rights, this is a distinction without substance.
Miranda warnings are required only when a suspect is in custody and
subjected to interrogation. Innis 446 U.S. at 300. As the
district court properly concluded, the custody prong was clearly
satisfied here. However, because there was no express
interrogation or the functional equivalent thereof, Miranda was not
triggered and thus there was no basis for suppressing the
incriminating statement Duncan spontaneously and voluntarily
offered.
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II. Jury Instructions
Duncan next challenges the district court’s instructions
regarding the possession element of the felon-in-possession charge.
Although Duncan concedes the district court’s instructions
accurately stated the law on constructive possession, he maintains
these instructions were insufficient because of the prosecution’s
erroneous statements to the jury pertaining to this issue.
The decision whether to give a jury instruction, and the
content of that instruction, are reviewed for an abuse of
discretion. United States v. Burgos, 55 F.3d 933, 935 (4th Cir.
1995). Where, as here, the appealing party does not object to the
jury instruction (or lack thereof) in the district court, this
court will review only for plain error. Fed. R. Crim. P. 52(b);
United States v. Olano, 507 U.S. 725, 731-32 (1993). Under the
plain error standard, Duncan must show: (1) there was error; (2)
the error was plain; and (3) the error affected his substantial
rights. Olano, 507 U.S. at 732-34. When these conditions are
satisfied, we may exercise our discretion to notice the error only
if the error “seriously affect[s] the fairness, integrity or public
reputation of judicial proceedings.” Id. at 736 (internal
quotation marks omitted).
Duncan fails to carry his burden of demonstrating plain
error. We agree with Duncan that the district court’s instruction
on constructive possession comported with governing law. As we
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explained in United States v. Blue, 957 F.2d 106, 107 (4th Cir.
1992), “to establish constructive possession, the government must
produce evidence showing ownership, dominion, or control over the
contraband itself or the premises or vehicle in which the
contraband is concealed.” (alteration and citations omitted). The
district court’s instruction encompassed these principles.
Further, we reject Duncan’s contention that the
Government’s closing argument so grossly misstated these principles
such that the district court was obligated to further instruct the
jury. The Government’s closing argument essentially restated the
instruction presented by the district court: that control over the
contraband itself or control or ownership of the vehicle in which
the contraband is found is sufficient to establish the individual’s
constructive possession of the contraband.4
We thus affirm the district court’s judgment. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
4
Duncan’s contention that the Government’s evidence
established nothing more than Duncan’s “mere presence” in the
vehicle, thus entitling him to “mere presence” instruction, is
belied by the record. As established by Fowble’s testimony both at
the suppression hearing and at trial, the vehicle was registered to
Duncan, Duncan was driving the vehicle, and the firearm was found
under the driver’s seat, easily within Duncan’s reach and control.
These facts fit squarely within the parameters of constructive
possession as established in Blue.
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