U.S. v. Smith, 78-5167

Decision Date22 March 1979
Docket NumberNo. 78-5167,78-5167
Citation591 F.2d 1105
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Walter Richard SMITH, a/k/a Bobby Smith, Defendant-Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

Frank K. Martin, Columbus, Ga., for defendant-appellant.

Barry E. Teague, U. S. Atty., D. Broward Segrest, Asst. U. S. Atty., Montgomery, Ala., for plaintiff-appellee.

Appeal from the United States District Court for the Middle District of Alabama.

Before MORGAN, RONEY and VANCE, Circuit Judges.

VANCE, Circuit Judge:

On June 14, 1977 a federal magistrate in the Middle District of Alabama issued a search warrant authorizing the search of appellant's residence in Phenix City, Alabama, on a finding that there was probable cause to believe that gambling records and paraphernalia were concealed on the premises. The warrant was executed on June 16, 1977, by federal agents. During the search a substantial number of firearms were found.

More than four years before the search Smith had been convicted of violating 18 U.S.C. § 371, a felony. Title 18 U.S.C. App. § 1202(a) proscribes the receipt, possession and transportation of a firearm in interstate commerce by a convicted felon. Following the June 16, 1977 discovery and seizure of the firearms at Smith's home, he was indicted in four separate counts for violating § 1202(a). Count 1 related to his alleged possession of a Rohm 38 caliber revolver. Count 2 involved a Smith and Wesson 38 special revolver. Count 3 charged possession of a Remington 12 gauge shotgun, and Count 4 charged possession of a Winchester 22 caliber rifle. Smith was tried before a jury on December 5th and 6th, 1977. All four counts were submitted to the jury as a single charge, and the jury found Smith guilty. He was sentenced to imprisonment for a term of one year to be served consecutive to the sentence he had received in a gambling conspiracy case that also followed the search of his premises.

On appeal Smith presents eleven claims of error. We have considered all eleven but will discuss only his six most substantial claims.

I.

Smith first contends that he was entitled to a judgment of acquittal because the government failed to prove his possession of the guns as charged. His contention has two aspects: the government did not prove that he resided in the premises where the guns were found, and even if he did reside at that place, the government did not prove that he, rather than his wife, possessed the guns.

The first part of this contention is simply at variance with the record. The premises in question was a double-wide trailer located at 1307 Third Street South in Phenix City. In his opening statement Smith's attorney outlined the evidence he thought would show "how some of these guns came to be in Mr. Smith's trailer where he and his wife lived." During the trial Smith's counsel stated that the guns "were simply found in a domicile where he shares joint occupancy with another adult who can lawfully possess items in question." F.B.I. Agent Oliver testified that the premises searched was the residence of Walter Richard Smith, Jr. When Smith's sister, who testified as a defense witness, was asked whose residence the trailer was, she answered "That's where my brother lives, but it's on our property, my mother and stepdaddy's property." The suggestion that the government should have proved that Smith had legal title to the premises or that he spent the night preceding the search in the trailer is not persuasive. Smith's attorney conceded in his opening statement, the government proved, and at no time during trial did anyone dispute that the trailer was Smith's residence.

Smith argues, however, that even if the weapons were in the place where he resided, they were not in his possession. The two pistols were found fully loaded in the top drawer of a night stand beside the bed in the master bedroom. The shotgun, loaded with three shells of buckshot, was propped against a wall in the dining room in plain view. The 22 caliber rifle, which was unloaded, was in a closet in the living room area.

Like any other fact in issue, possession may be proved by circumstantial as well as direct evidence. The law also recognizes that possession may be either actual or constructive. The defendant had constructive possession if he had the intent and the power to exercise dominion and control over the weapons as charged. United States v. Virciglio, 441 F.2d 1295 (5th Cir. 1971); United States v. Scarborough, 539 F.2d 331 (4th Cir. 1976), Aff'd., 431 U.S. 563, 97 S.Ct. 1963, 52 L.Ed.2d 582 (1977). "In order 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 contraband is concealed." United States v. Ferg, 504 F.2d 914, 916-917 (5th Cir. 1974). Smith's dominion and control over his own residence, in which the guns were found, is a sufficient basis for the jury's inference of constructive possession. The guns were either in plain view or in places where they could hardly have escaped his knowledge. Smith claims, however, that the government has not disproved his contention that the guns were in the possession of his wife. In United States v. Ransom, 515 F.2d 885 (5th Cir. 1975), Cert. denied, 424 U.S. 944, 96 S.Ct. 1412, 47 L.Ed.2d 349 (1976), this court approved a charge containing the following statement: "The law recognizes also that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, possession is joint." 515 F.2d at 890-91. See also, United States v. Jones, 514 F.2d 648 (5th Cir. 1975); United States v. Ferg, supra ; United States v. Verciglio, supra ; Garza v. United States, 385 F.2d 899 (5th Cir. 1967). The facts in the present case are similar to those in United States v. Scarborough, supra. We have no more difficulty than did the Scarborough court in concluding that evidence of "the defendant's 'control and dominion' over the weapons was quite sufficient to support the verdict." 539 F.2d at 334.

II.

Smith next contends that the trial court erred in submitting a single issue of guilt or innocence to the jury when Smith was charged in four separate counts. This contention is an outgrowth of Smith's original motion to dismiss the indictment in which he alleged that the indictment improperly stated four separate counts but charged only one offense against the United States. The latter contention is supported by United States v. Rosenbarger, 536 F.2d 715 (6th Cir. 1976), Cert. denied, 431 U.S. 965, 97 S.Ct. 2920, 53 L.Ed.2d 1060 (1977); and United States v. Kinsley, 518 F.2d 665 (8th Cir. 1975), in which the courts held that simultaneous possession of several weapons constitutes only one offense under Section 1202(a). The trial judge agreed that only one offense was charged and instructed the jury accordingly. Smith's present complaint is directed to the manner in which he instructed the jury, but his position is inconsistent with the position taken by his counsel at trial. Although his counsel tried to preserve his original objection with respect to the multiplicity of the indictment, he expressed approval of the court's charge The only objection we have is that from the first motion forward we have contended this is all multiplicious prosecution. The government made four charges out of one charge. At this point we do not want to waive our past objection, but if the court is asking that we try to give anything we thought it might be helpful, without waiving our objection, We think the way the judge phrased it best deals with the problem. I don't think I could say much more than that because I don't want to get into a contradictory position when the jury goes out and we begin to make objections. I don't want to appear contradictory but I think the way we stand now if the judge thinks it should perhaps be left that way, all right, but we don't want to be considered participating in a waiver at this point. (Emphasis added.)

The principal danger of a multiplicitous indictment is that the defendant may receive multiple sentences for the same offense. We also recognize that a second danger arises; namely, an adverse psychological effect on the jury may result from the suggestion that several crimes have been committed. United States v. Hearod, 499 F.2d 1003 (5th Cir. 1974). One authority takes the position that charging a single offense in several counts remains permissible, but the federal rules of procedure are designed to discourage the practice. 1 C. Wright, Federal Practice and Procedure, § 142, at 311 (1969) (citing United States v. Universal CIT Credit Corp., 344 U.S. 218, 221, 43 S.Ct. 227, 97 L.Ed. 260 (1952) and United States v. Bent, 175 F.2d 397, 400 (8th Cir.), Cert. denied, 338 U.S. 829, 70 S.Ct. 79, 94 L.Ed. 504 (1949)). Professor Wright correctly states, however,

An indictment or information charging the same offense in more than one count is multiplicitous, but this also is not fatal and does not require dismissal of the indictment. Defendant may move to have the prosecution elect, and the counts will be consolidated and all but the one elected dismissed, but even this is discretionary with the court. The principal danger in multiplicity is that defendant will be given multiple sentences for the same offense. A remedy is available at any time if defendant is given multiple sentences.

1 C. Wright, Federal Practice and Procedure, § 145, at 336 (1969) (citations omitted).

In this case defendant moved only for a dismissal to which he was not entitled. The trial judge agreed with defendant that only one offense was charged. With defendant's express agreement he so instructed the jury. Defendant did not object to the form of the verdict. We cannot perceive a basis for any suggestion that in this very simple,...

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