U.S. v. Hernandez, LOPEZ-LEYV

• Decision Date: 10 January 1986
• Docket Number: A,84-5801 and 85-5298,Nos. 84-5800,LOPEZ-LEYV,s. 84-5800
• Parties: , 19 Fed. R. Evid. Serv. 1028 UNITED STATES of America v. Roberto HERNANDEZ, Appellant. UNITED STATES of America v. Joseppellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 113

780 F.2d 113

251 U.S.App.D.C. 5, 19 Fed. R. Evid. Serv. 1028

UNITED STATES of America v. Roberto HERNANDEZ, Appellant.

UNITED STATES of America v. Jose LOPEZ-LEYVA, Appellant.

Nos. 84-5800, 84-5801 and 85-5298.

United States Court of Appeals, District of Columbia Circuit.

Argued Nov. 15, 1985.

Decided Jan. 10, 1986.

Appeals from the United States District Court for the District of Columbia (D.C. Criminal No. 84-235).

J. Herbie DiFonzo, Washington, D.C. (appointed by this court) for appellant in No. 84-5800.

Adam Ambrose, Silver Spring, Md. (appointed by this court) for appellant in Nos. 84-5801 and 85-5298.

Ilene G. Rosenthal, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Theodore A. Shmanda, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee.

Before WRIGHT, EDWARDS, and DAVIS, ^* Circuit Judges.

Opinion for the court filed by Circuit Judge WRIGHT.

Opinion concurring in part and dissenting in part filed by Circuit Judge DAVIS.

J. SKELLY WRIGHT, Circuit Judge:

We review the criminal convictions of Roberto Hernandez and Jose Lopez-Leyva on charges of possession of an unregistered firearm and silencer, see 26 U.S.C. Sec. 5861(d) (1982), and possession of a firearm not identified by a serial number, see 26 U.S.C. Sec. 5861(i) (1982). In the course of the trial the District Court admitted evidence of an altercation that preceded the arrest of both appellants. This evidence was introduced for the purpose of showing that appellants had a motive for possessing a machine gun and silencer at the time of the arrest. Although only Hernandez was clearly involved in the fight, the evidence was admitted against both appellants. Finding that admission of this evidence against appellant Lopez-Leyva violated Federal Rules of Evidence 404(b) and 403, we vacate his conviction and remand for a new trial. As to appellant Hernandez, however, we affirm in all respects.

I. BACKGROUND

Around midnight on June 4, 1984 Officer David Myers of the District of Columbia Metropolitan Police, patrolling in an unmarked cruiser, observed three men in a small Toyota travelling without any head or tail lights. Myers followed the car for several blocks until they came upon a marked police car. At that point the car made a sharp right turn. Myers activated his emergency light and siren and gave chase for three blocks until successfully bringing the car to a stop. During the chase Myers observed the front seat passenger, later identified as appellant Lopez-Leyva, bend over and make a motion in front of his seat.

After asking Lopez-Leyva, the back seat passenger (appellant Hernandez), and the driver (Rolando Funes), ¹ to step out of the car, Myers searched the area where he had seen Lopez-Leyva bend down. On the floorboard he found a cocked and loaded automatic machine gun with a silencer attached. The gun was partially concealed by a Shell service station shirt bearing the name "Rolando." Funes, the registered owner of the car, was wearing an identical Shell shirt.

At trial the prosecution offered two witnesses who testified that around 5:00 P.M. on the day of the arrest appellant Hernandez and Mr. Funes had engaged in a fight with Alan Price who worked at the same "Barney Circle Shell" gas station as did appellant Lopez-Leyva. Price testified that Lopez-Leyva was present during the fight and that he had shouted "something" in Spanish. Trial Transcript (Tr.) 223-224. The fight stemmed from accusations by Hernandez that Price had stolen his car floor mats during the time his car was under repair at the gas station. Tr. 210-211, 400-402.

Around 10:00 P.M. Price visited another gas station owned by his employer--the "Southeast Shell" station--and was informed by one "Donny" that Funes, Hernandez, and Lopez-Leyva were looking for him. Tr. 219. Appellants denied that they were looking for Price, claiming that Funes was merely giving them a ride home and had only stopped at Southeast Shell to get some gas. ² Shortly thereafter appellants were arrested a few blocks from Southeast Shell. According to Price's testimony, however, the scene of the arrest was also approximately a block from his residence. Tr. 222.

At the point at which the evidence of the fight was introduced, Tr. 230-231, and at the close of trial, Tr. 522-523, the District Court instructed the jury that they could not use the evidence of the fight as a basis for finding that appellants had a propensity to engage in fights; the evidence was admitted for the limited purpose of showing "intent" or "motive" to possess the firearm in question. The evidence was admitted against both appellants.

The jury returned a verdict of guilty on all counts. Appellants sought a new trial on the basis of newly discovered evidence regarding the location of Mr. Price's residence. Their motion was denied, as was appellant Hernandez's motion for reconsideration of that ruling. This appeal ensued.

II. THE LAW OF CONSTRUCTIVE POSSESSION

To prove a charge of constructive possession the government must offer evidence that the defendant "was in a position or had the right to exercise dominion or control over the firearm." United States v. Lewis, 701 F.2d 972, 973 (D.C.Cir.1983). We have also insisted that such "dominion and control" be "knowing." See United States v. Whitfield, 629 F.2d 136, 143 (D.C.Cir.1980), cert. denied, 449 U.S. 1086, 101 S.Ct. 875, 66 L.Ed.2d 812 (1981). Although the imprecision of these general verbal formulae has long been noted, see United States v. Holland, 445 F.2d 701, 703-704 (D.C.Cir.1971) (Tamm, J., concurring), certain basic guidelines can be gleaned from our cases.

First, mere proximity to contraband is not enough to carry a case of constructive possession to the jury. United States v. Pardo, 636 F.2d 535, 549 (D.C.Cir.1980); United States v. Whitfield, supra, 629 F.2d at 143; United States v. Holland, supra, 445 F.2d at 702-703; United States v. Bethea, 442 F.2d 790, 793 (D.C.Cir.1971). Second, mere knowledge of the presence of contraband does not constitute constructive possession. See United States v. Pardo, supra, 636 F.2d at 549. Nor is mere friendship probative of constructive possession. See United States v. Whitfield, supra, 629 F.2d at 143 (mere friendship between driver and passenger in a car, combined with proximity to narcotics, did not create an inference of constructive possession of the narcotics). See also United States v. Holland, supra, 445 F.2d at 703 (fact that defendant was found in close proximity to the contraband in question and in an apartment belonging to someone with whom the defendant was having a love affair did not create an inference of constructive possession). ³

On the other hand, if proximity is coupled with a gesture toward the contraband, suggesting an ability to control the item in question, constructive possession might be inferred. See United States v. Whitfield, supra, 629 F.2d at 143. An occupant of a car therefore need merely signify control of a particular space in the car to give rise to an inference of constructive possession of contraband later found in that space. See United States v. Bethea, supra, 442 F.2d at 793 (suggesting that a jury could find constructive possession of drugs where an individual had been seen placing a gun in the same place where the drugs were ultimately found). Finally, evidence of motive or purpose in using the item in question can be probative of constructive possession. See United States v. Bethea, supra, 442 F.2d at 793 (citing Garza v. United States, 385 F.2d 899 (5th Cir.1967), for the proposition that where defendants have an ongoing purpose for the contraband, e.g., the sale of drugs in a drug possession case, such purpose can be probative of possession). Relatedly, the fact that a defendant took evasive action in response to the presence of police can be considered in inferring constructive possession. See United States v. Reese, 561 F.2d 894, 898 (D.C.Cir.1977). With these principles in mind, we turn to appellants' challenges to the legality of their convictions.

III. APPELLANTS' CLAIMS

A. Prejudice and the Evidence of the Fight

Appellants claim that the trial court erred by admitting evidence of the fight with Price on the afternoon before the arrest because such evidence was unduly prejudicial to their cases. In this context we also consider Lopez-Leyva's claim that this evidence was so prejudicial that his trial should have been severed from that of Hernandez. Although we do not believe the trial court abused its discretion in denying the motion for severance, we do believe it was error to admit the evidence of the fight against appellant Lopez-Leyva. We believe this error warrants a new trial for Lopez-Leyva.

1. Admissibility. Under Federal Rule of Evidence 404(b), evidence of a "prior bad act" is admissible to show motive or intent but not to show the propensity of an individual to commit the act of which he is accused. As to Hernandez, evidence of the fight clearly qualified under the "motive" exception of Rule 404(b). He had been involved in a fight a mere five or six hours previously. Tr. 217, 276-277. Price's account of Donny's statement, indicating that appellants were out looking for Price, also indicated that evidence of the fight was probative of motive. ⁴ This statement was circumstantially corroborated by the fact that the arrest took place within a short distance of an apartment where Price was thought to reside.

Appellant Lopez-Leyva, however, presents a different case. The record does not suggest that he was involved in the fight. He was merely present and, according to Price, was shouting "something" in a foreign language (i.e., Spanish). ⁵ At no time was it determined just what Lopez-Leyva was shouting. ⁶ On the basis of such "shouting" the District Court determined that Lopez-Leyva was a participant in the fight and therefore that evidence of the fight was probative of his motive as well....