United States v. Molina ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-51094
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
FRANCISCO JAVIER MOLINA,
Defendant-Appellant.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-99-CR-323-ALL-H
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July 26, 2000
Before JONES, DUHÉ, and STEWART, Circuit Judges.
PER CURIAM:1
Francisco Javier Molina (Molina) has appealed his convictions
on two counts of possessing firearms as a convicted felon, 18
U.S.C. § 922(g)(1). We affirm.
Molina contends, first, that the district court erred by
denying his Fed. R. Crim. P. 29 motion for a judgment of acquittal
on Count One. He argues that the handgun found in his truck was
not in plain view and that there was insufficient evidence that he
knew it was there.
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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that this opinion should not be published and is not precedent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.
Molina’s contention lacks merit because a police detective
testified that the handgun was partially in plain view in Molina’s
truck, right by the driver’s bucket seat. Furthermore, Molina was
the truck’s sole occupant when the officer stopped him on July 3,
1997. Based on this evidence, a rational juror could find, beyond
a reasonable doubt, that Molina had constructive possession of the
handgun which was found in his truck on that date. See United
States v. Richardson, 848 F.2d 509, 512-14 (5th Cir. 1988); United
States v. Posner, 868 F.3d 720, 722-24 (5th Cir. 1989).
Molina contends that the district court erred by denying his
motion for judgment of acquittal on Count Two, which alleges that
on or about October 16, 1998, he possessed another handgun. An
officer found this handgun on that date, in a barroom where Molina
was present. Molina argues, as he did relative to Count One, that
the handgun was not in plain view and that there was insufficient
evidence that he knew it existed.
The barroom’s owner, Martha Carzoli, had been Molina’s
girlfriend. She testified that when she hugged Molina, she felt
the handgun in his waistband at the small of his back. Carzoli
also testified that she saw Molina place the handgun on the sink in
back of the bar. Shortly thereafter, Carzoli showed a police
officer where the handgun was, partially wrapped in a towel, and he
retrieved it. This is direct evidence that Molina had actual
possession of a handgun, which amply supports his conviction under
Count Two. See United States v. Gresham, 118 F.3d 258, 265 (5th
Cir. 1995). Molina’s argument to the effect that the jury should
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have rejected the Government’s evidence and credited his evidence
is frivolous. See United States v. Robles-Pantoja, 887 F.2d 1250,
1254 (5th Cir. 1989).
Molina contends that he is entitled to reversal on grounds
that his trial counsel provided ineffective assistance in several
respects. The Government preliminarily asserts that the record is
inadequately developed for these claims to be adjudicated. The
court has determined, however, that the record shows conclusively
that Molina is not entitled to relief on these claims.
Molina faults his counsel for not having objected to the
prosecutor’s eliciting an officer’s testimony that when he first
talked with Molina after the barroom incident, Molina did not want
to say anything. Molina argues that counsel’s failure to object
permitted the prosecutor to adduce evidence that he had invoked his
right to remain silent, in violation of Doyle v. Ohio, 426 U.S. 610(1976). Doyle is inapplicable, however, because the record shows
that Molina then proceeded to answer the officer’s questions. See
United States v. Cardenas Alvarado, 806 F.2d 566, 573 (5th Cir.
1986).
Molina contends that his counsel was ineffective for having
failed to object to hearsay which the prosecutor elicited from
another officer relative to Count Two. Molina asserts that the
introduction of this hearsay testimony violated his Sixth Amendment
right to confront the witnesses against him. Admission into
evidence of most of the hearsay was harmless because it was
cumulative of properly admitted evidence. See United States v.
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Lage, 183 F.3d 374, 388 (5th Cir. 1999), cert. denied, 120 S. Ct.
1179, 1180 (2000).
Without objection, the prosecutor also adduced testimony from
the officer that Carzoli had said that in the past, Molina had told
patrons of her barroom that he was a federal agent. Insofar as
this testimony tended to prove that Molina had impersonated a
“federal agent,” it was inadmissible hearsay. See Fed. R. Evid.
801(c). However, even if the question had not been asked or the
answer given, it is highly unlikely that the jury would have
acquitted Molina on either count. Accordingly, Molina is not
entitled to reversal on grounds of ineffective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668, 694 (1984).
AFFIRMED.
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