                                                                            F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              OCT 2 1997
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                       No. 97-2025
                                                    (D.C. No. CR-95-636-JP)
 FERNANDEZ SANDOVAL,                                      (Dist. N.M.)

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before BRORBY, EBEL and KELLY, Circuit Judges.


      Fernandez Sandoval (“Sandoval”) and co-defendant Robert D. Gerold

(“Gerold”) were indicted for two bank robberies occurring in Albuquerque, New

Mexico. Sandoval was convicted of armed bank robbery, use of a firearm during

commission of bank robbery, and of felon in possession of a firearm. Sandoval


      *
        After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. The court generally disfavors the citation of orders and judgments;
nevertheless, an order and judgment may be cited under the terms and conditions of 10th
Cir. R. 36.3.
here appeals his convictions for use of a firearm during commission of a bank

robbery and for being a felon in possession of a firearm. Sandoval also

challenges the propriety of the district court’s admission of evidence of

Sandoval’s prior armed robbery convictions and raises a claim that ineffective

assistance of counsel resulted in an unfairly prejudicial trial. Upon review we

determine that there was no reversible error committed at trial.



                                BACKGROUND

      Both of the robberies for which Sandoval was convicted involved what is

commonly known as the “takeover” approach to bank robbery. (Tr. Rec. at 268-

69.) In a takeover robbery, the robber enters the bank, announces the robbery,

and prominently displays one or more weapons. (Id.) At trial, witnesses testified

that both Sandoval and his co-defendant carried and displayed weapons during the

course of the two robberies. In both robberies Sandoval held witnesses at

gunpoint, some of whom were so close to Sandoval that they testified that they

could have reached out and touched his weapon if they had been so inclined.

      In the course of investigating the robberies, police obtained a warrant to

search Sandoval’s residence. (Tr. Rec. at 266.) Sandoval lived with co-defendant

Gerold and Gerold’s girlfriend. In Sandoval’s room police found a pistol. The

government admits that this pistol was purchased subsequent to the robberies and


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thus could not have been used by Sandoval in either of the robberies. (Aplee. Br.

at 16.)

          Sandoval was arrested and indicted with two counts of armed bank

robbery, in violation of 18 U.S.C. § 2113(b); two counts of use of a firearm

during commission of a bank robbery, in violation of 18 U.S. C. § 924(c); and one

count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Sandoval admitted at trial to committing the robberies. (Tr. Rec. at 14.) The jury

found Sandoval guilty of all charges.

          Here, Sandoval claims that because he used toy guns during the robberies

instead of real ones and because the gun found in his room did not belong to him,

his convictions for use of a firearm during commission of a robbery and for felon

in possession of a firearm were in error. He also claims the district court erred in

admitting evidence of his previous armed robbery convictions. Furthermore, he

asserts that ineffective assistance of counsel deprived him of a fair trial.



                                    DISCUSSION

                                          I.

          Sandoval first asserts that insufficient evidence was adduced at trial to

support the jury’s finding that, beyond a reasonable doubt, he used a real gun in

committing the two robberies. Sandoval’s attorney raised this issue before the


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district court below when he moved for judgment of acquittal. (Tr. Rec. at 275-

76.) The district court overruled this motion and left the question to the jury.

(Id.)

         We will uphold a jury’s evidentiary determination “if a reasonable jury,

granting all favorable inferences to the government, could have concluded beyond

a reasonable doubt” that Sandoval used a real gun. United States v. Russell, 109

F.3d 1503,1505 (10th Cir. 1997). In short, we review the evidence in a light most

favorable to the government and accept the jury’s finding so long as it is within

the bounds of reason. See United States v. Ramirez, 63 F.3d 937, 945 (10th Cir.

1995).

         In order to be found guilty of use of firearm during commission of a bank

robbery under 18 U.S. C. § 924(c), the jury must find that the defendant used or

carried a “firearm” during the course of the crime. 18 U.S.C. § 924(c)(1)(West

Supp. 1997). A “firearm” is defined as “any weapon (including a starter gun)

which will or is designed to or may readily be converted to expel a projectile by

the action of an explosive.” 18 U.S.C. § 921(a)(3) (1976). While toy guns

qualify as “dangerous weapons” under other criminal statutes they do not qualify

as “firearms” under § 921(a)(3). See United States v. McCall, 85 F.3d 1193,

1197-98 (6th Cir. 1996); cf. United States v. Gilkey, 118 F.3d 702, 704 n.1 (10th

Cir. 1997)(applying the same analysis to the Sentencing Guidelines).


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       At trial for armed robbery, the Government is under no burden to produce

the actual weapon or weapons used. Witness identification of the weapon as a

firearm is sufficient. See United States v. Hamilton, 992 F.2d 1126, 1129 (10th

Cir. 1993) (citing United States v. Gregg, 803 F.2d 568, 571 (10th Cir. 1986)).

During Sandoval’s trial one witness clearly described Sandoval’s weapon as

appearing to be “fake.” (Tr. Rec. at 133.) 1 However, four witnesses testified that

the gun used by Sandoval during the robberies appeared to be real (Tr. Rec. at 40-

55; 62-70; 90; 106-108; 121) as did Sandoval’s co-defendant Gerold. (Id. at 107,

205-208, 222). Because of this perceived “confusion” among the witnesses,

Sandoval urges us to hold that no reasonable jury could have found, beyond a

reasonable doubt, that the guns he used were “firearms” under the statute.

       Taking the evidence adduced at trial in the light most favorable to the

government, we disagree. The four witnesses who testified that the guns were real

all were positioned close enough to Sandoval to get very good looks at the

weapon in his hand. (Id. at 37; 54; 88; 107.) One witness had the gun pointed



       1
        Two other witnesses testified as to the fake appearance of weapons used in the
crimes, but it is not clear from the portions of the record supplied by Sandoval whether
those witnesses’ testimony was about Gerold’s weapon or Sandoval’s. (Aplt. Br. at 7-8.)
The Government asserts that their testimony was to the appearance of Gerold’s gun, not
Sandoval’s. (Aplee. Br. at 15-16.) Sandoval fails to address this issue in his Reply Brief.
Therefore, we assume that the only witness’s testimony as to the “fake” appearance of
Sandoval’s gun was that of Cathryn Collins. The Government does not dispute this
testimony. (Aplee. Br. at 15.)

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right in her face while another observed the gun resting on the counter close

enough that she could have picked it up. (Id. at 54-56.) By contrast, the witness

who testified that Sandoval’s gun appeared to be fake was positioned farther away

from the locus of the action than were the others. (Id. at 134). What’s more, two

of the witnesses who testified that Sandoval used a real weapon have significant

experience with the care and handling of guns. (Id. at 40-41; 107.) The witness

who testified that the gun looked fake stated that she does not. ( Id. at 133.)

Based on this evidence a reasonable jury could have concluded that the guns used

by Sandoval were real. We affirm the jury’s conviction.

                                        II.

      Sandoval also challenges his conviction under 18 U.S.C. § 922(g)(1) for

being a felon in possession of a firearm. As this issue is raised for the first time

on appeal we review it under the “plain error” standard. See Federal Rule of

Criminal Procedure 52(b). Under this standard, we may only correct an error that

is “plain and that affects substantial rights” and “seriously affects the fairness,

integrity or public reputation of judicial proceedings.” United States v. Spring, 80

F.3d 1450, 1465 (10th Cir. 1996).

      It is a crime for a convicted felon to “possess . . . any firearm.” 18 U.S.C. §

922(g)(1)(Supp. 1997). In order to convict under § 922(g)(1), the Government

must prove beyond a reasonable doubt that (1) the defendant is a convicted felon,


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(2) the defendant knowingly possessed a firearm after the conviction, and (3) the

possession was in or affecting interstate commerce. See United States v. Wilson,

107 F.3d 774, 779 (10th Cir. 1997). Sandoval only claims that the Government

failed to prove the second element of knowing possession.

      Under § 922(g)(1) it is sufficient for the finder of fact to determine that a

convicted felon was in constructive possession of a firearm. United States v.

Mills, 29 F.3d 545, 549 (10th Cir. 1994). “In cases of joint occupancy . . . [the

Government] must present evidence to show some connection or nexus between

the defendant and the firearm.” Id. What’s more, “[a] conviction based upon

constructive possession will be upheld ‘only when there is some evidence

supporting at least a plausible inference that the defendant had knowledge of and

access to the weapon.” Id. (quoting United States v. Mergerson, 4 F. 3d 337, 349

(5th Cir. 1993)).

      The gun in question was found in Sandoval’s room in an apartment he

shared with Gerold and Gerold’s girlfriend. At trial, Gerold testified that the gun

belonged to him and that he kept it in a locked gun case in the closet in

Sandoval’s room in order to keep it out of the hands of Gerold’s children. (Tr.

Rec. at 201, 249-50.) Relying on Mills, Sandoval argues that based on this

testimony the jury could not find that he constructively possessed the gun.

However, Mills is readily distinguishable from the case at hand. In Mills, a third


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party had hidden guns in a common area of the shared dwelling unbeknownst to

the defendant. We held that on those facts the jury could not find that the

defendant had constructive possession of the weapons. Mills, 29 F.3d at 550.

Sandoval argues that the Government failed to prove he had knowledge of the

whereabouts of the gun. (Aplt. Br. at 12-13.) However, at trial Gerold testified

that he placed the gun in Sandoval’s closet with Sandoval’s full knowledge. (Tr.

Rec. at 199) On at least one occasion Sandoval and Gerold both fired the gun at a

practice range. (Id.) Sandoval had a key to the locking gun case. (Id. at 200.)

One police officer testified that the gun was found behind Sandoval’s television,

not in his closet where Gerold testified he kept it. (Id. at 267.) The facts adduced

at trial were more than sufficient to support “at least a plausible inference that the

defendant had knowledge of and access to the weapon.” Mills, 29 F. 3d at 550.

The jury’s finding that Sandoval was in possession of the gun was not plain error.

                                        III.

      Sandoval next claims that the district court erred by allowing evidence of

his prior felony conviction for armed robbery. The event Sandoval complains of

occurred when the Government called Sandoval’s parole officer to testify as to

his felony conviction, as part of its proof for the §922(g)(1) charge. In response to

the prosecutor’s question, the officer testified that he met Sandoval when

Sandoval was on parole for “one count of armed robbery and three counts of false


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imprisonment with a firearm enhancement.” (Tr. Rec. at 164.) Not only did

Sandoval’s counsel not object to this statement, he welcomed it in the interest of

“being candid and letting everything out so that [Sandoval] doesn’t lose

credibility.” (Id. at 165-66.) What’s more, in his opening statement Sandoval’s

counsel mentioned Sandoval’s previous armed robbery conviction. (Tr. Rec. at

13.) We deem that this failure to object and willful use of his prior conviction as

part of his trial strategy amount to a waiver of the issue and thus we do not review

it. See United States v. Jones, 44 F.3d 860, 875 (10th Cir. 1995).



                                        IV.

      Finally, Sandoval claims he was denied his Sixth Amendment right to a fair

trial due to ineffective representation by his lawyer. (Aplt. Br. at 20.)

Specifically, Sandoval claims that he was prejudiced because his attorney failed

to (a) stipulate to Sandoval’s prior conviction, (b) object to the admission of the

name, nature and circumstances of that conviction, and (3) move for severance of

the armed robbery and felon in possession of a firearm counts. (Id. at 20-25.)

      As a general rule, this Circuit does not consider claims of ineffective

assistance of counsel on direct criminal appeal. United States v. Galloway,

56 F.3d. 1239, 1240, 1242 (10th Cir. 1995)(en banc). Instead, the criminal

defendant should bring a claim of ineffective assistance of counsel in a collateral


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proceeding such as a writ of habeas corpus under 28 U.S.C. § 2255. Id. at 1240.

This rule allows the reviewing court to make a considered determination based

upon a complete record and the district court’s determinations. Only if the record

is unusually complete will we consider a claim of ineffective assistance of

counsel on direct appeal. Id. Such instances are rare. Id. at 1241.

      In his appeal Sandoval raises issues, most notably trial counsel’s decision

not to request severed trials of Sandoval’s armed robbery and felon in possession

of a firearm charges, for which there is no record for us to review. Therefore,

under Galloway we decline to consider Sandoval’s ineffective assistance of

counsel claims.

      For the above reasons the district court’s conviction is AFFIRMED for all

counts. The mandate shall issue forthwith.


                                       ENTERED FOR THE COURT



                                       David M. Ebel
                                       Circuit Judge




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