U.S. v. Fambro

• Decision Date: 02 May 2008
• Docket Number: No. 06-10847.,06-10847.
• Citation: 526 F.3d 836
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bobby Dwaine FAMBRO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

526 F.3d 836

UNITED STATES of America, Plaintiff-Appellee, v. Bobby Dwaine FAMBRO, Defendant-Appellant.

No. 06-10847.

United States Court of Appeals, Fifth Circuit.

May 2, 2008.

Charles William Brown, Dallas, TX, for U.S.

David Shaughnessy, Boston, MA, for Fambro.

Appeal from the United States District Court for the Northern District of Texas.

Before HIGGINBOTHAM, SMITH and OWEN, Circuit Judges.

OWEN, Circuit Judge:

Bobby Dwaine Fambro was convicted by a jury of being a felon in possession of a firearm¹ and was sentenced to 327 months' imprisonment. Regarding his conviction, Fambro argues in this appeal that: (1) there was insufficient evidence of his possession of the firearm; (2) the prosecutor violated his due process right to freedom from self-incrimination by commenting on Fambro's failure to deny knowledge or ownership of the firearm when questioned after his arrest; and (3) the prosecutor violated his due process rights by tainting prospective jurors with "commitment" questions during voir dire. Regarding his sentence, Fambro argues that the district court: (1) improperly applied the relevant conduct provisions of the federal Sentencing Guidelines; (2) erred in determining that Fambro was an Armed Career Criminal; and (3) violated Fambro's Sixth Amendment right to trial by jury by enhancing his sentence on the basis of facts not found by a jury beyond a reasonable doubt. We affirm the conviction and sentence.

I

Law enforcement officers executed a warrant to search Fambro's home and encountered Fambro in his bedroom, walking from his bed toward the bedroom door and pulling on his pants. Laura MacArthur was lying in the bed. A subsequent search revealed a .22-caliber semi-automatic pistol in a dresser drawer near the bed from which Fambro had arisen.

Fambro was indicted and tried for the offense of being a felon in possession of a firearm. A jury convicted him, and at sentencing, the district court concluded that Fambro was an armed career criminal.² His base offense level was determined to be 34, and the district court concluded that he had a criminal history category of VI, which resulted in an advisory sentencing guidelines range of 262 to 327 months' imprisonment. Pursuant to 18 U.S.C. § 924(e), the statutory range of imprisonment was 15 years to life. The district court sentenced Fambro to 327 months in prison. Fambro has appealed.

II

We first consider Fambro's contention that there is insufficient evidence to support the finding that he possessed the firearm found in the bedroom he was sharing with MacArthur when the search was performed. "The standard of review in assessing a challenge to the sufficiency of the evidence in a criminal case is whether a `reasonable trier of fact could have found that the evidence established guilt beyond a reasonable doubt.'"³ We view "all evidence and all reasonable inferences drawn from it in the light most favorable to the government."⁴

The government proceeded under a theory of joint constructive possession of the pistol. "In general, a person has constructive possession if he knowingly has ownership, dominion, or control over the contraband itself or over the premises in which the contraband is located. Constructive possession need not be exclusive, it may be joint with others, and it may be proven with circumstantial evidence."⁵ In challenges to the sufficiency of the evidence establishing constructive possession, we use a "commonsense, fact-specific approach."⁶ Control or dominion over the place in which a weapon is found is not by itself sufficient to establish constructive possession when there is joint occupancy.⁷ "We have found constructive possession in such cases only when there was some evidence supporting at least a plausible inference that the defendant had knowledge of and access to the weapon or contraband."⁸

As the officers entered Fambro's bedroom, he was walking toward the doorway and dressing. MacArthur was still in bed. Fambro was approximately five to six feet from the dresser drawer in which the weapon was subsequently found. The dresser was approximately three to four feet from the bed. The weapon was discovered surrounded by several pairs of white socks. One of the officers testified at trial that he thought the socks were men's because of their size and thickness. The jury was shown a video of the gun surrounded by the socks. In another dresser drawer, men's gloves were found. There were no fingerprints on the gun, and its magazine clip was missing. The clip was found in MacArthur's purse.

After Fambro had been arrested and the Miranda warnings had been read to him, he responded to questions by one of the officers. Fambro said he and MacArthur were present when the pistol was purchased in Louisiana several months before, although he did not indicate which of them actually bought the weapon. He said they brought it with them from Louisiana to Clyde, Texas, where Fambro's home is located, in an automobile.

From these facts, a reasonable jury could infer beyond a reasonable doubt that Fambro had joint dominion and control over the weapon. Fambro knew of the gun's existence from the time it was purchased. The gun was with him and MacArthur as they traveled from Louisiana to Texas. The gun was found in Fambro's home, in a dresser drawer in close proximity to him. The fact that the gun's magazine clip was in MacArthur's purse does not mean that it was inaccessible to him particularly in light of their intimacy. Additionally, the gun was stored in a drawer containing items of clothing that the jury saw on a videotape and could reasonably infer belonged to a male rather than a female.

III

Fambro contends that the prosecutor impermissibly commented on his failure to deny knowledge or possession of the weapon after he had been apprised of his Miranda rights. He contends that his Fifth Amendment due process rights and privilege against self incrimination were violated. Fambro failed to object at trial, so we review for plain error.⁹

There are three limitations on appellate authority under Rule 52(b).¹⁰ There must be an error,¹¹ that error must be plain, which means clear or obvious,¹² and the error must affect substantial rights, which means in most cases¹³ that it was prejudicial in that it affected the outcome of the district court proceedings.¹⁴ However, "Rule 52(b) is permissive, not mandatory .... [T]he court of appeals has authority to order correction, but is not required to do so."¹⁵ We "should correct a plain forfeited error affecting substantial rights if the error `seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.'"¹⁶

As noted above, after Fambro had been arrested and the Miranda warnings had been read to him, he answered several questions from an arresting officer about the pistol. He said he and MacArthur were present when it was purchased in Louisiana, and they brought the gun to Clyde, Texas. The officer asked Fambro to give a taped interview to repeat these statements, but Fambro declined. Fambro said that he did not want to give any type of statement, and the officer terminated the interview. At trial, the officer was asked to recount what Fambro said about the firearm and was asked whether Fambro at that time denied knowing of its existence. In closing argument, the prosecutor told the jury that when Fambro spoke to the officer after he was arrested, he did not deny knowledge or possession of the firearm.

Fambro cites Doyle v. Ohio for the proposition that a criminal defendant's silence following receipt of Miranda warnings may not be used as direct or substantive evidence of his guilt at trial.¹⁷ The Supreme Court has explained "that Doyle rests on `the fundamental unfairness of implicitly assuring a suspect that his silence will not be used against him and then using his silence to impeach an explanation subsequently offered at trial.'"¹⁸ Fambro did not testify at trial. But the principles of Doyle apply even if a defendant does not take the stand in his own defense thereby subjecting himself to potential impeachment.¹⁹ A defendant is entitled to rely on the assurance when he is "Miranda-ized" that his silence will not be used against him.²⁰ The Miranda warnings are deemed to have induced the silence.²¹

The Supreme Court has recognized, however, that "a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all."²² This conclusion was reached in a case in which a defendant was cross-examined about prior, inconsistent, post-Miranda-warning statements.²³ But as support for this conclusion, the Supreme Court cited the First Circuit's decision in United States v. Goldman.²⁴ The analysis in Goldman did not concern cross-examination or impeachment. The issue was whether the prosecutor was entitled to introduce into evidence the defendant's post-Miranda statements in response to questioning, or to comment on those statements in summation.²⁵ During his post-Miranda interview, the defendant in Goldman had given an exculpatory statement but did not respond to certain questions regarding the names and addresses of witnesses he had mentioned or questions about blank checks in his possession.²⁶ The First Circuit reasoned that the defendant had waived his Miranda rights²⁷ and held: "Because the defendant waived his rights and made a statement, the prosecutor was entitled to introduce that statement at trial and comment on it during summation."²⁸ The court did not attempt to parse information provided in the defendant's statements from his failure to respond to certain questions:

Here, however, as in Vitali v. United States, 383 F.2d 121 (1st Cir.1967), the defendant did not stand on his rights. After hearing the Miranda warnings, he chose to make an exculpatory statement, and he answered most of the agent's questions probing that statement. We...