U.S. v. McKnight, 91-2215

• Decision Date: 31 January 1992
• Docket Number: No. 91-2215,91-2215
• Citation: 953 F.2d 898
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gerald Francis McKNIGHT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 898

953 F.2d 898

UNITED STATES of America, Plaintiff-Appellee, v. Gerald Francis McKNIGHT, Defendant-Appellant.

No. 91-2215.

United States Court of Appeals Fifth Circuit.

Jan. 31, 1992.

Majorie A. Meyers, Asst. Federal Public Defender, Roland E. Dahlin, II, Federal Public Defender, Houston, Tex., for defendant-appellant.

Kathlyn G. Snyder, Asst. U.S. Atty., Paula C. Offenhauser, U.S. Atty., Daniel C. Rodriguez, Asst. U.S. Atty., Houston, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Southern District of Texas.

Before THORNBERRY, GARWOOD, and DAVIS, Circuit Judges.

GARWOOD, Circuit Judge:

Defendant-appellant Gerald Francis McKnight (McKnight) appeals his conviction following a jury trial, and resulting sentence, on charges of (i) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and (ii) possessing or using a firearm in connection with the possession of over 1000 grams of a mixture containing a detectable amount of methamphetamine with intent to distribute (in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)) resulting in a violation of 18 U.S.C. § 924(c)(1). Concluding that his claims of error on appeal do not warrant reversal of either his conviction or sentence, we affirm.

Facts and Proceedings Below

The evidence at trial showed that McKnight owned a small house in rural Hockley, Texas, which he shared with his eighty-four-year-old mother and a boarder, John Agnazoli (Agnazoli), who had been staying there about six weeks. The house had one bedroom, in the back, in which Agnazoli stayed. McKnight and his mother slept in the front room of the house and shared a dresser. Also on the property were chickens that McKnight and his mother raised and three pit-bull dogs.

At approximately 11:00 p.m. on May 18, 1989, pursuant to a warrant, officers from the Waller County Sheriff's Office, the Waller County Constable's Office, and the Houston Police Department searched McKnight's house for evidence of a methamphetamine operation about which they had received an informant's tip. Upon executing the warrant, the officers found McKnight and his mother present in the house, but no one else was in the house or on the premises (then or at any time during the more than two hours the officers remained there). The officers also then found a total of six firearms strewn about the residence, most of them loaded. Four were rifles, one was a shotgun, and one was a handgun found in the dresser that McKnight and his mother shared. McKnight's mother, the sole defense witness, testified that she kept the shotgun to ward off predatory animals interested in the chickens and that the rifles belonged to Agnazoli, who had brought them to the house earlier that day. ¹ She did not recognize, nor know the origin of, the handgun in the dresser.

The officers also found four large jars in the freezer compartment of the house's refrigerator, each jar being full of a liquid mixture containing a small percentage of methamphetamine. McKnight's mother testified that she had not seen the jars before, even though she had opened the freezer while preparing dinner that evening. One of the jars was successfully fingerprinted, but the otherwise unidentified fingerprints were not McKnight's. In the back bedroom there were a set of scales that smelled of methamphetamine and two more jars, one of which held methamphetamine-containing liquid. ²

At trial, the government proved, over defense objection, that McKnight, who did not testify, had been convicted in 1988 of delivery of methamphetamine. It was also stipulated that McKnight had a previous conviction for robbery and a previous conviction for burglary.

At trial, the defense theory of the case was that all of the firearms belonged to either McKnight's mother or Agnazoli and that McKnight was entirely unaware of the methamphetamine, which also belonged to Agnazoli. Pursuant to that defense, defense counsel offered alternative jury instructions on "mere presence," and "mere presence" plus "willful ignorance." After initially indicating he would grant McKnight's request to include a "mere presence" instruction, the trial judge later denied the request.

After the jury found McKnight guilty as charged, the district court sentenced him to 210 months' imprisonment on the first count and 60 months' imprisonment on the second count to be served consecutively. The district court also imposed two three-year terms of supervised release (to be served concurrently) and a one hundred dollar special assessment. McKnight filed a timely notice of appeal.

Discussion

McKnight appeals his conviction and sentence asserting four claims: (i) the evidence was insufficient to sustain his conviction; (ii) the trial court erred in refusing to include in its charge to the jury a "mere presence" instruction; (iii) the search warrant executed at McKnight's house was not supported by probable cause and the district court thus erred in denying McKnight's motion to suppress; and (iv) the district court erred in sentencing McKnight by refusing to depart downward from the Sentencing Guidelines range applicable to him.

1. Sufficiency of the Evidence

In challenging the sufficiency of the evidence, McKnight maintains that the government failed to prove that he knowingly possessed either the firearms or the methamphetamine. He argues that as a matter of law his ownership and occupancy of the house is not sufficient to establish knowing possession.

Possession of contraband may be either actual or constructive. United States v. Cardenas, 748 F.2d 1015, 1019 (5th Cir.1984). 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. Id. Constructive possession need not be exclusive, it may be joint with others, and it may be proven with circumstantial evidence. Id. ³ However, more evidence than mere physical proximity of the defendant to the controlled substance is required. Id. at 1019-20. McKnight relies on the Ninth Circuit case of United States v. Reese, 775 F.2d 1066 (9th Cir.1985), to support his claim that mere ownership of, and presence in, a living space inhabited by more than one person is insufficient, as a matter of law, to establish constructive possession. The Reese court stated: "Where, as here, a residence is jointly occupied, the mere fact that contraband is discovered at the residence will not, without more, provide evidence sufficient to support a conviction based on constructive possession against any of the occupants." Id. at 1073 (citing Delgado v. United States, 327 F.2d 641 (9th Cir.1964)). See also United States v. DiNovo, 523 F.2d 197 (7th Cir.), cert. denied, 423 U.S. 1016, 96 S.Ct. 449, 46 L.Ed.2d 387 (1975) (evidence that defendant lived with another in house in which contraband was found insufficient to sustain constructive possession conviction); United States v. Craven, 478 F.2d 1329, 1333 (6th Cir.), cert. denied, 414 U.S. 866, 94 S.Ct. 54, 38 L.Ed.2d 85 (1973) (possession of residence is insufficient in itself to establish possession of all contents therein).

Unlike the Ninth Circuit, however, this Court has not adopted a general, fixed rule of law regarding ownership of and presence in a residence in which contraband is found as a basis for permitting, or not permitting, a finding of constructive possession. In fact, this Court has stated that it prefers a "commonsense, fact-specific approach" to the constructive possession problem. United States v. Smith, 930 F.2d 1081, 1086 (5th Cir.1991) (declining to endorse the Texas Court of Criminal Appeals' "affirmative link" rule). This statement is in accord with the settled rule in this Circuit that "we examine the merits of each constructive possession case independently; previous cases serve as illustration only." United States v. Onick, 889 F.2d 1425, 1429 (5th Cir.1989) (citing Bujol v. Cain, 713 F.2d 112, 115 (5th Cir.1983), cert. denied, 464 U.S. 1049, 104 S.Ct. 726, 79 L.Ed.2d 187 (1984)).

In this case, five of the guns were strewn about the house in plain view. It is easy to conclude that even if none of the weapons belonged to McKnight, he had immediate access to them. A loaded handgun was found in a dresser used by McKnight and his mother that his mother testified she had never seen before. ⁴ Though according to the testimony of McKnight's mother all the firearms except one belonged to Agnazoli (she herself owned the .410 gauge shotgun), at the time the warrant was executed, McKnight was present in the house and Agnazoli was not anywhere on the premises. Thus, it was reasonable for a jury to infer that McKnight exercised dominion, and constructive possession over, the guns in his house, at the very least the handgun.

Further, the jars of methamphetamine liquid took up a large portion of the freezer compartment of the house's sole refrigerator. Uncontroverted evidence introduced at trial showed that it was impossible to open the freezer compartment (which was the top part of the refrigerator-freezer unit and had a separate door) and not notice the liquid-filled jars. The freezer-refrigerator unit was located at one end of the room (a converted living room) in which McKnight and his mother slept and their dresser was located. To reach the freezer-refrigerator unit from the back bedroom allegedly occupied by Agnazoli, one had to traverse a significant portion of the room in which McKnight and his mother slept, first going by one of the two beds there and the dresser where the handgun was. The scales, though in the back bedroom, were in plain view and smelled of methamphetamine. The prosecution clearly established McKnight's familiarity with methamphetamine. In such a small house it seems incredible that McKnight did not know of the methamphetamine's presence, as defense counsel argued at trial. The presence of McKnight's pit bulls is also...