     Case: 10-10886          Document: 00512049680              Page: 1       Date Filed: 11/09/2012




             IN THE UNITED STATES COURT OF APPEALS
                      FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                      Fifth Circuit

                                                                                            FILED
                                                                                      November 9, 2012

                                               No. 10-10886                                Lyle W. Cayce
                                                                                                Clerk

UNITED STATES OF AMERICA,

                   Plaintiff - Appellee

v.

CRISTOBAL MEZA, III,

                   Defendant - Appellant



                        Appeal from the United States District Court
                                 Northern District of Texas


Before KING and HIGGINSON, Circuit Judges, and FOOTE, District Judge.*
HIGGINSON, Circuit Judge:
        On July 14, 2009, three shotguns and a rifle were stolen from a pawn shop
in Wichita Falls, Texas. The police determined that an individual named Chris
Sanchez (“Sanchez”) had committed the robbery and found one of the guns at his
house. After his arrest, Sanchez told police where he had sold another of the
guns, a Mossberg 12 gauge shotgun.                            Police searched the property of
defendant–appellant Cristobal Meza, III (“Meza”), a convicted felon, and found
the shotgun in a shed. They then searched Meza’s house and found two boxes
of ammunition (12 gauge Winchester shotgun shells). Each box could hold a


        *
            District Judge of the Western District of Louisiana, sitting by designation.
   Case: 10-10886   Document: 00512049680    Page: 2   Date Filed: 11/09/2012



                                No. 10-10886

maximum of fifteen shells. One box was full; the other had only seven shells,
with eight removed and placed in the shotgun. Meza was arrested a few blocks
away from the residence.
      On August 18, 2009, Meza was charged in a two-count indictment. Count
1 charged Meza with being a felon in possession of a firearm and Count 2
charged Meza with being a felon in possession of ammunition, both in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Meza reached a plea agreement with the
government, whereby he agreed to plead guilty to Count 1 in exchange for
dismissal of Count 2, thereby capping his maximum sentence at 120 months.
The magistrate judge recommended that the district court accept this plea
agreement, and the district court initially agreed to do so. Meza’s initial
Presentence Investigation Report (“PSR”) calculated his guideline range at 168-
210 months, but because Meza used cocaine while he was released on bond, his
guideline range rose to 235-293 months. Because this guideline range was more
than the 120 month sentence contemplated under the plea agreement, the
district court found that the agreement “undermine[d] the sentencing guidelines
and statutory purposes of sentencing,” and rejected the plea agreement. The
case proceeded to trial.
      The district court held a one day trial on April 12, 2010. The government
called five witnesses, consisting of four law enforcement officers and Sanchez.
The government began by calling Detective Gerald Schulte of the Wichita Falls
Police Department. Schulte testified that he investigated the pawn shop break-
in, and that Sanchez’s tip led the police to search Meza’s house. Schulte also
testified that, prior to execution of the search warrant, the police conducted
surveillance of the property, and observed Meza leaving the house. Schulte
testified that the shotgun was found in a shed on top of a washing machine and
that ammunition was found inside the house. On cross-examination, Schulte



                                      2
  Case: 10-10886     Document: 00512049680     Page: 3   Date Filed: 11/09/2012



                                  No. 10-10886

explained that the police verified that Meza owned the property after they found
his name on the property’s water bills.
      The government then called Sanchez to the stand. A week before trial,
Sanchez had told investigating agents that he had sold one of the stolen guns to
Meza. At trial, Sanchez admitted that he had stolen the guns from the pawn
shop, and had hidden one of the guns at Meza’s house, a so-called “trap house.”
Sanchez then, however, recanted his earlier statements to investigators:
      Q. So when you were arrested for the pawn shop break-in, did you
      talk to some police officers?
      A. Yes, ma’am.
      Q. And did you tell them what you did with the guns?
      A. Yes, ma’am. I lied and said I sold them to this man [Meza].
      Q. So you lied?
      A. Yes, ma’am.
      Q. And what about when you talked to Agent Benavides last week?
      What about that?
      A. I lied again.
      Q. Why did you lie?
      A. Because I was scared. I already told them I sold them to this
      man, and I never sold them to this man. This man didn’t have
      nothing to do with it.
      Q. Why did you say you sold them to him?
      A. Because I was scared. I didn’t know. I didn’t know what to do.
Sanchez continued:
      Q. Did you know that they found one of the guns you stole in his –
      at his house?
      A. That’s the trap house. Everybody goes in there. That’s where I
      had my guns hidden. I don’t even know if they know that they were
      there or not. That’s where everybody goes and chills.
      Q. So you’re saying he doesn’t live there?
      A. I don’t – everybody lives there. If you need a place to go, that’s
      where you go.
      Q. So when you told police officers that you sold the gun to him and
      then did you – do you recall going in the car with the police officers
      and pointing out the house where Meza lived?
      A. Yeah, I lied. I knew where he lived before.
      Q. I’m sorry, say that again?

                                     3
   Case: 10-10886    Document: 00512049680      Page: 4    Date Filed: 11/09/2012



                                  No. 10-10886

      A. I knew where he lived. I knew where –
      Q. So you’re saying he does live there?
      A. Where everybody goes and stays. I’m pretty sure he stayed there
      a couple of times, but – I don’t know if he lives there, but I seen him
      there a lot of times, but I don’t know if he lives there. I can’t say if
      the house is under his name or not. I can’t say if the house is under
      his name or if he resides under that residence. I ain’t going to sit
      here and lie and say he does because I don’t know.
      Q. Okay. So you’re saying that when you told the police officers
      back in July that you sold the gun to him and showed them where
      he lived – the gun was found there?
      A. Yeah, I put it there.
      Q. Oh, you put it there?
      A. Yes, ma’am.
      Q. Where did you put it in the house?
      A. In the back room.
      Q. In the back bedroom?
      A. Yes, ma’am.
      Q. Okay. And then what about when you spoke to Agent Benavides
      this past week and you told him that you sold the gun to him?
      A. I lied. I know I made a mistake. It’s just I didn’t want to dig
      myself into a deeper hole than what I’m already in. I thought
      because of putting it off on somebody else, I would get away with it,
      but I didn’t.
      Q. But you didn’t because you’re doing time for stealing those guns?
      A. Yes, ma’am.
      Q. So you’re saying if we found that gun in the back bedroom, you
      put it there?
      A. Yes, ma’am.
      Q. Okay.
On cross-examination, Sanchez stated that “[a] lot” of other people besides Meza
had access to the house, including a man named Salvador Aleman. Sanchez also
tried to explain his prior inconsistent statements, stating: “I just didn’t want to
get myself into anymore trouble, so I’m just going to go ahead and tell the truth.
I don’t want to get this man into something that he didn’t do, for him to be found
guilty of something that he didn’t commit.” On redirect examination, Sanchez




                                         4
   Case: 10-10886    Document: 00512049680     Page: 5   Date Filed: 11/09/2012



                                  No. 10-10886

said that the gun was not loaded when he put it in the bedroom. Sanchez also
denied that he was lying on the stand because he had been intimidated by Meza.
      After Sanchez, the government called FBI Special Agent Fernando
Benavides. Benavides testified about his interviews with Sanchez. According to
Benavides, Sanchez stated that he was fearful of Meza, and did not want to give
his name for the police reports. The government then sought to introduce an
audio recording of Benavides’s interrogation of Sanchez. Meza objected on
hearsay grounds, and at first suggested that it could be offered as impeachment
evidence with a proper limiting instruction. The government responded as
follows:
      Mr. Sanchez’s testimony was extremely relevant to certain
      elements, namely, Mr. Meza’s knowing possession of the firearm,
      the fact that firearm was found at Fillmore street, which Sanchez
      knew to be Meza’s residence.

      After the Government called him, he has changed his story and
      became, essentially, a hostile witness. So we are offering it, one, to
      impeach Mr. Sanchez’s testimony; but two, the evidence is relevant
      regarding the essential elements.
After further discussion with the district court, the government argued that the
statement was admissible under Federal Rule of Evidence 613(b) for
impeachment purposes. When asked whether Rule 613(b) applied, defense
counsel clarified:
      [I]f [the witness] den[ies] that statement—if he denied that he had
      made an inconsistent statement, then I think you’re able to offer
      extrinsic evidence to prove that he has, in the past, made a prior
      inconsistent statement. Here, I don’t think it applies to the extent
      that he admitted he made a prior inconsistent statement.
The district court overruled the hearsay objection, found the tape admissible
under Rule 613(b), and stated that it would give the jury a cautionary
instruction. Meza then objected on Rule 403 grounds. The district court also
overruled this objection.

                                        5
   Case: 10-10886   Document: 00512049680      Page: 6   Date Filed: 11/09/2012



                                  No. 10-10886

      The district court then played for the jury the audio recording of Sanchez’s
conversation with Benavides. When it did so, it provided a limiting instruction,
informing the jury that it could not consider the recording for the truth of the
matters asserted, but only to consider Sanchez’s credibility. The audio recording
is approximately eight minutes in duration. On the recording, Benavides asked
Sanchez about his sale of the stolen firearms. Sanchez at first stated that he did
not remember to whom he had sold the firearms, and asked to see his earlier
statement to police. When asked a second time, Sanchez said, “I sold one
[firearm] to Chris Meza.” When asked where the transaction occurred, Sanchez
again said that he could not remember, but eventually stated, “I guess I went to
his house,” which he identified as being on Fillmore Street (Meza’s street).
Sanchez further stated that he had been to that house many times, and had seen
drugs there, but not firearms.         Sanchez stated that Meza paid him
approximately $100 cash for the shotgun. When asked whether the shotgun had
any ammunition in it, or whether he sold any ammunition to Meza, Sanchez
responded in the negative. Sanchez also denied ever seeing any ammunition in
the house. After the recording was played, Benavides confirmed that Sanchez’s
testimony at trial contradicted what he had previously told investigators.
      The government then called two other witnesses: police officer Karl King
and ATF Agent Brandon Chenault. King testified that, during the search of
Meza’s house, he found in a back bedroom closet two boxes of shotgun shells and
a tin can containing paycheck stubs that belonged to Meza. He also testified
that there was ample evidence to prove that Meza resided at the house.
Chenault testified that the firearm and ammunition traveled in interstate
commerce.
      At the close of the government’s case, Meza moved for an “instructed
verdict.” The district court denied the motion.



                                        6
     Case: 10-10886   Document: 00512049680      Page: 7   Date Filed: 11/09/2012



                                   No. 10-10886

        On August 30, 2010, Meza was sentenced to consecutive 120 month
sentences on Counts 1 and 2, for an aggregate of 240 months. The district court
also imposed a 3-year term of supervised release. Meza then appealed, but
because the court reporter’s notes from the sentencing hearing were corrupted
and inaccessible, the district court requested that the case be remanded for
resentencing. This court granted the remand request. At resentencing, the
district court again imposed consecutive 120 month sentences, for a total of 240
months, with three years of supervised release. Meza timely appealed.
I.      Sufficiency of evidence supporting Meza’s convictions for being a
        felon in possession of a firearm and ammunition
        A.    Standard of Review
        Where, as here, a sufficiency of the evidence objection has been preserved,
this court will determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979) (emphasis in original); see United States v. Bellew, 369
F.3d 450, 452 (5th Cir. 2004). “When there is a conflict over testimony, the court
will defer to the fact finder’s resolution with respect to the weight and credibility
of the evidence. To be sufficient, the evidence need not exclude every reasonable
hypothesis of innocence, so long as the totality of the evidence permits a
conclusion of guilt beyond a reasonable doubt.” United States v. Hicks, 389 F.3d
514, 533 (5th Cir. 2004) (citations omitted).
        B.    Count 1, Firearm Possession
        To establish a violation of 18 U.S.C. § 922(g)(1) for unlawful possession of
a firearm by a felon, the government must prove three elements beyond a
reasonable doubt: (1) that the defendant previously had been convicted of a
felony; (2) that he knowingly possessed a firearm; and (3) that the firearm
traveled in or affected interstate commerce. See United States v. Ferguson, 211


                                          7
   Case: 10-10886    Document: 00512049680      Page: 8   Date Filed: 11/09/2012



                                  No. 10-10886

F.3d 878, 885 n.4 (5th Cir. 2000); see also 18 U.S.C. § 922(g)(1). Meza stipulated
to his felony conviction, and only contests the sufficiency of the evidence on the
second element (possession).
      Possession of a firearm may be actual or constructive, and it may be
proved by circumstantial evidence. United States v. De Leon, 170 F.3d 494, 496
(5th Cir. 1999). “Actual possession” means that “the defendant knowingly has
direct physical control over a thing at a given time.” United States v. Munoz, 150
F.3d 401, 416 (5th Cir. 1998). The government proceeded against Meza on a
constructive (not actual) possession theory. “Constructive possession” may be
found if the defendant had (1) ownership, dominion or control over the item itself
or (2) dominion or control over the premises in which the item is found. See De
Leon, 170 F.3d at 496; see also United States v. Hinojosa, 349 F.3d 200, 203 (5th
Cir. 2003). When a residence is jointly occupied, however, a more exacting
standard applies.    Hinojosa, 349 F.3d at 203-04 (“Although a defendant’s
exclusive possession of a house may establish his dominion and control over
contraband found there, his joint occupancy of a house will not, by itself, support
the same conclusion.”).     In cases of joint occupancy, this court “will find
constructive possession only when there is ‘some evidence supporting at least a
plausible inference that the defendant had knowledge of and access to’ the illegal
item.” Id. at 204 (emphasis added) (quoting United States v. Mergerson, 4 F.3d
337, 349 (5th Cir. 1993)).       Ultimately, “[t]he determination of whether
constructive possession exists is not a scientific inquiry,” and the court must
“employ a common sense, fact-specific approach.” United States v. Wright, 24
F.3d 732, 735 (5th Cir. 1994) (citing Mergerson, 4 F.3d at 349).
      On appeal, Meza acknowledges that the firearm was found on his property,
and does not seriously contest the sufficiency of the evidence under a single
occupancy constructive possession standard.        He argues instead that the
government failed to meet the standard required for joint occupancy constructive

                                        8
   Case: 10-10886   Document: 00512049680     Page: 9   Date Filed: 11/09/2012



                                 No. 10-10886

possession. Meza argues that the joint occupancy standard applies because he
shared his house with his girlfriend and another man, Salvador Aleman. He
further argues that, according to Sanchez, “everybody goes” on Meza’s property,
and “[t]hat’s where everyone goes and chills.” Applying the joint occupancy
constructive possession standard, Meza contends that there was insufficient
evidence to support at least a plausible inference that he had knowledge of and
access to the shotgun. In response, the government argues that this is not a
joint occupancy case and that there was ample evidence to demonstrate Meza’s
control over the property and the shotgun. The government maintains that
Sanchez’s testimony to the contrary was simply not credible.
      We find that there is sufficient evidence to support Meza’s firearm
possession conviction, whether it is evaluated under a single or joint occupancy
standard.   The government proceeded primarily under a single occupancy
theory, as it sought to prove Meza’s “dominion or control over the premises in
which the item is found.” De Leon, 170 F.3d at 496. Meza did not dispute at
trial, and does not now dispute on appeal, that the shotgun and ammunition
were found on his property.
      There was more than sufficient evidence to prove that Meza had “dominion
or control” over the property on which the shotgun was found. Dominion or
control over the premises may be shown by the presence of the defendant’s
personal belongings in the house, United States v. Onick, 889 F.2d 1425, 1430
(5th Cir. 1989), or by the presence of documents that are personal in nature, or
by evidence that a defendant “could come and go as he pleased.” De Leon, 170
F.3d at 497. Here, the evidence establishing that Meza had dominion or control
over the property includes testimony from Officers Schulte and King that: (1)
Meza’s name appeared on a water bill for the residence; (2) Meza departed the
residence while it was under surveillance; (3) Meza had paystubs in a bedroom
closet; and (4) mail addressed to Meza at that location was found in a car parked

                                       9
  Case: 10-10886        Document: 00512049680          Page: 10     Date Filed: 11/09/2012



                                        No. 10-10886

in the driveway. Although Officer Schulte testified that he did not know
whether other people also lived at the house, he agreed that he had no “reason
to believe that there were other people that lived at th[e] house.” The evidence
establishing Meza’s dominion or control over the property at issue was thus
sufficient to establish Meza’s constructive possession of the shotgun.1
       As noted above, Meza’s insufficiency argument relies upon his claim that
his house was jointly occupied. This argument, however, is undermined by the
fact that it was Sanchez who testified that others resided at Meza’s house.
Sanchez testified that another individual, Salvador Aleman, lived at the house,
and that the house was regularly used by other members of the community.
Given Sanchez’s significant credibility problems, however, the jury was free to
disbelieve his testimony in part or in whole. See, e.g., United States v. Jaramillo,
42 F.3d 920, 923 (5th Cir. 1995) (“The jury retains sole responsibility for
determining the weight and credibility of the evidence.”). In fact, we must
assume that the jury found Sanchez incredible. See United States v. Santillana,
604 F.3d 192, 195 (5th Cir. 2010) (“We consider all evidence, credibility
determinations, and reasonable inferences drawn therefrom in the light most
favorable to the prosecution.”). Without Sanchez’s testimony, the remaining
evidence at trial established that Meza alone exercised dominion or control over
the premises, and therefore constructively possessed the shotgun.2


       1
         The fact that the gun was found in an unlocked shed located approximately twenty
feet behind Meza’s house (rather than in the house itself) does not change our analysis. The
shed was located on Meza’s property, and a rational jury could infer that Meza exercised
dominion or control over his entire property, including the shed. See, e.g., United States v.
Carter, 953 F.2d 1449, 1456 (5th Cir. 1992) (finding sufficient evidence to show constructive
possession over contraband in a shed on defendant’s property and explaining, “[a] rational jury
could certainly find that Carter, as the lessee of the premises . . . exercised dominion over the
entire property, including the shed behind the house.”).
       2
       Meza contends that an agent testified that Meza’s girlfriend lived at the house. Agent
Benavides briefly discussed Meza’s girlfriend at Meza’s detention hearing, however, not his
trial.

                                               10
  Case: 10-10886    Document: 00512049680      Page: 11   Date Filed: 11/09/2012



                                  No. 10-10886

      Even if the evidence were evaluated under a joint occupancy standard, it
would still be sufficient to sustain the conviction. Meza’s argument with respect
to joint occupancy relies largely on United States v. Mergerson, 4 F.3d 337 (5th
Cir. 1993). In that case, police found a handgun between a mattress and
boxsprings in a bedroom of a house that was jointly occupied by Mergerson and
his girlfriend, Sheila Guy. Id. at 341, 348. There, unlike here, the parties did
not dispute that Mergerson and Guy were cohabiting in the apartment and
shared the bedroom in which the gun was found. Id. at 348. We explained in
Mergerson that “[w]e have found constructive possession in [joint occupancy]
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.” Id. at 349. We found in that case that the evidence was insufficient
to establish constructive possession because the handgun was not in plain view
and a receipt showed that Guy had purchased the gun. Id.
      This case is distinguishable from Mergerson in several respects. First, the
shotgun here was not hidden but rather was found in plain view on top of a
washing machine in Meza’s shed.          This location supports an inference of
constructive possession under a joint occupancy standard. In United States v.
Fields, 72 F.3d 1200 (5th Cir. 1996), for example, the defendant challenged the
sufficiency of the evidence with respect to his possession of a handgun and a
shotgun found in a house that he occupied with his wife. Id. at 1211-12. The
handgun was found underneath a mattress, but the shotgun was found leaning
against a wall.    Id. at 1211.    Applying the joint occupancy constructive
possession standard, we found sufficient evidence that the defendant had
knowledge of and access to the shotgun, explaining:
      Although the evidence seems insufficient to show that Ross
      possessed the handgun, it is sufficient to show that he
      constructively possessed the shotgun. . . . Because Ross jointly
      occupied the house with his wife, the prosecution must show that

                                    11
  Case: 10-10886    Document: 00512049680       Page: 12   Date Filed: 11/09/2012



                                  No. 10-10886

      Ross had access to and knowledge of the weapons. While there does
      not seem to be any evidence which shows that Ross had access to or
      knowledge of the handgun, the fact that the shotgun was found in
      plain view, leaning against a wall, is sufficient to establish that he
      had knowledge of and access to the shotgun.
Id. at 1212 (footnotes omitted); see also United States v. Eaglin, 275 F. App’x
344, 345 (5th Cir. 2008) (unpublished) (finding sufficient evidence of constructive
possession when firearm was in plain view).
      Second, the shotgun found in Meza’s shed was loaded with ammunition
from a box found inside Meza’s bedroom.          This also supports a plausible
inference that Meza had knowledge of and access to the gun. See United States
v. McKnight, 953 F.2d 898, 902 (5th Cir. 1992) (finding sufficient evidence of
constructive possession in a joint occupancy case where a loaded handgun was
found in a dresser that the defendant had used).
      In sum, the evidence demonstrating that the shotgun was loaded and in
plain view inside Meza’s shed supports a finding of constructive possession, even
under the more demanding joint occupancy standard. Indeed, the evidence at
trial that supported Meza’s innocence was Sanchez’s testimony that Meza did
not buy the gun from him and had nothing to do with the gun. Even putting
aside the credibility concerns with Sanchez’s testimony, it is well established
that our review of the sufficiency of the evidence must give “full play to the
responsibility of the trier of fact fairly to resolve conflicts in the testimony, to
weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts.” Jackson, 443 U.S. at 319. Sanchez’s testimony was contradicted
by other evidence in the record, and the jury was not bound to accept his
testimony over the other evidence presented.
      Applying the “common sense, fact-specific approach” used to determine
constructive possession, Wright, 24 F.3d at 735, we conclude that the evidence




                                        12
  Case: 10-10886    Document: 00512049680    Page: 13   Date Filed: 11/09/2012



                                 No. 10-10886

was sufficient to find that Meza constructively possessed the shotgun, under
either a single or joint occupancy theory.
      C.    Count 2, Ammunition Possession
      To obtain a conviction under 18 U.S.C. § 922(g)(1) for unlawful possession
of ammunition by a felon, the government must prove that the defendant had
“[1] been previously convicted of a felony, [2] that he knowingly possessed the
ammunition and [3] that the ammunition traveled in or affected interstate
commerce.” De Leon, 170 F.3d at 496. As with firearm possession, possession of
ammunition may be actual or constructive. Id.
      Meza argues that the evidence was insufficient to prove that he
constructively possessed the ammunition under a joint occupancy theory.
According to Meza, none of the evidence established that he knew about the
shells or had control over them. The government disagrees, asserting that there
was sufficient evidence to find constructive possession under either a single or
joint occupancy standard.
      As with Count 1, Meza does not seriously dispute that there was sufficient
evidence to convict under a single occupancy standard. Indeed, this analysis
remains much the same. The evidence was sufficient to establish that Meza had
dominion or control over the premises on which the ammunition was found. See
supra Part I.B. Even proceeding under a joint occupancy standard, the evidence
established at least a plausible inference that Meza had knowledge of and access
to the ammunition. See Mergerson, 4 F.3d at 349. The ammunition was found
in a back bedroom closet of Meza’s house, near “a tin container that contained
paycheck stubs belonging to Mr. Meza.”        This court has found sufficient
circumstantial evidence of constructive possession in joint occupancy cases
where contraband is found among a defendant’s personal items. For example,
in United States v. Hooper, 358 F. App’x 520 (5th Cir. 2009) (unpublished), the



                                       13
  Case: 10-10886    Document: 00512049680      Page: 14    Date Filed: 11/09/2012



                                  No. 10-10886

court found sufficient evidence that Hooper possessed a firearm that was found
in a bedroom. The court explained:
      The loaded firearm was found on a shoe box on top of a bedroom
      dresser; a man’s T-shirt was on top of the box; and a man’s belt
      buckle and belt were next to the box. The bedroom closet contained
      male clothing, including several items with Hooper’s name on them;
      the dresser contained male clothing, a glove bearing the name “Dre
      Hooper,” scales, and a warrant notice for Shannon Hooper; there
      were several pairs of men’s shoes on the floor in front of the dresser;
      and the microwave in the kitchen had the name “Shannon Hooper”
      written on the bottom. A rational juror could have found beyond a
      reasonable doubt that Hooper resided in the house and that he had
      knowledge of and access to the firearm.
Id. at 522; see also De Leon, 170 F.3d at 495, 497 (finding sufficient evidence to
infer constructive possession where ammunition was found near defendant’s
state parole document, inside a dresser in defendant’s girlfriend’s home); United
States v. Felan, 339 F. App’x 499, 499-500 (5th Cir. 2009) (unpublished) (finding
sufficient evidence that a male defendant constructively possessed cocaine
because “[t]rial testimony established that men’s clothing was in the closet
where the cocaine was found and that personal documents bearing [the
defendant’s] name were stored in the master bedroom where the closet was
located.”).
      Meza maintains that the paystubs are “not probative of anything,” as
“Meza’s girlfriend (or anyone else) could have just as easily gathered the stubs
and put them in the tin.” Besides the fact that no one other than Sanchez
testified that the house was jointly occupied, Meza’s argument misses the point.
In evaluating the sufficiency of the evidence, it is well established that “[t]he
evidence need not exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt, and the jury is free to
choose among reasonable constructions of the evidence.” United States v. Infante,
404 F.3d 376, 384-85 (5th Cir. 2005) (internal quotation marks omitted).


                                        14
  Case: 10-10886     Document: 00512049680       Page: 15    Date Filed: 11/09/2012



                                    No. 10-10886

Although it may be possible that someone other than Meza collected his
paystubs and put them in a can inside his bedroom closet, the jury was free to
conclude that Meza did so instead. From this conclusion, the jury could infer
that Meza constructively possessed the ammunition contained in the same
bedroom closet. See United States v. Flores-Chapa, 48 F.3d 156, 161 (5th Cir.
1995) (“Juries are free to use their common sense and apply common knowledge,
observation, and experience gained in the ordinary affairs of life when giving
effect to the inferences that may reasonably be drawn from the evidence.”).
      In sum, we conclude that the evidence sufficiently supported Meza’s
conviction on Count 2, under either a sole or joint occupancy standard.
II.   No material variance exists between the indictment, which
      charged Meza with possession of a firearm and a box of
      ammunition, and the proof at trial, which showed a loaded
      firearm and two boxes of ammunition.
      A.     Standard of Review
      Meza did not raise his material variance objection at trial, hence plain
error review governs. Meza must demonstrate the district court committed (1)
an error, (2) that was clear or obvious, and (3) that affected his substantial
rights. United States v. Burns, 526 F.3d 852, 858 (5th Cir. 2008). Even if these
conditions are satisfied, we will grant relief only if “the error seriously affects the
fairness, integrity, or public reputation of judicial proceedings.” United States v.
Salinas, 480 F.3d 750, 756 (5th Cir. 2007) (internal quotation marks omitted).
      B.     Discussion
      Count 1 of the indictment charged Meza with possession of “a firearm, that
is, a Mossberg 12 gauge shotgun with serial number L760489,” and Count 2
charged him with possession of “ammunition, that is, a box of 12 gauge
Winchester shotgun shells.” Meza contends that there was a material variance
between the indictment and proof at trial because the indictment charged him
with possession of “a firearm” and “a box” of shotgun shells, but at trial the

                                          15
  Case: 10-10886    Document: 00512049680     Page: 16     Date Filed: 11/09/2012



                                  No. 10-10886

government proved that there were two boxes of shells, one of which was
partially emptied and loaded into the shotgun.           According to Meza, the
government used this variance to its advantage, relying upon the fact that shells
from one box were loaded into the shotgun to prove that Meza possessed both the
shells and the firearm, and also to impeach Sanchez, who had said that the
shotgun was not loaded.
      The government argues that there was no variance. At trial, it proved
what the indictment alleged—possession of a firearm and a box of ammunition.
The government maintains that it must allege only the essential elements of the
crime in the indictment, and the additional details to which Meza objects are not
essential elements. The government also argues that, even if there was a
variance, it did not affect Meza’s substantial rights.
      A material variance may be found “when the proof at trial depicts a
scenario that differs materially from the scenario charged in the indictment but
does not modify an essential element of the charged offense.” United States v.
Mitchell, 484 F.3d 762, 769 (5th Cir. 2007) (internal quotation marks omitted).
To prevail on a material variance claim, the defendant “must prove that (1) a
variance existed between the indictment and the proof at trial, and (2) the
variance affected [his] substantial rights.” United States v. Lewis, 476 F.3d 369,
384 (5th Cir. 2007) (internal quotation marks omitted). This court determines
whether a variance occurred by comparing the evidence presented at trial with
the language of the indictment. Mitchell, 484 F.3d at 769. “The concerns
underlying our cases on variance are to ensure that the indictment notifies a
defendant adequately to permit him to prepare his defense, and does not leave
the defendant vulnerable to a later prosecution because of failure to define the
offense with particularity.” United States v. Hernandez, 962 F.2d 1152, 1159 (5th
Cir. 1992).



                                       16
  Case: 10-10886        Document: 00512049680          Page: 17     Date Filed: 11/09/2012



                                        No. 10-10886

       As an initial matter, Meza has not demonstrated a clear material variance
(as required for plain error) with respect to either count of the indictment.
Although Meza is correct that Count 1 refers only to “a firearm” and not a loaded
firearm, § 922(g) does not distinguish between loaded and unloaded firearms.
See United States v. Munoz, 150 F.3d 401, 417 (5th Cir. 1998) (“The
felon-in-possession statute, 18 U.S.C. § 922(g)(1), just requires the defendant to
possess ‘a firearm’ to violate it.”). An indictment “need only charge the essential
elements of the offense,” United States v. Chappell, 6 F.3d 1095, 1099 (5th Cir.
1993), and the indictment did so here. The indictment need not specify that the
shotgun was loaded.
       With respect to Count 2, Meza is correct that there is some variation
between the indictment and proof at trial. The indictment charges Meza with
possession of “ammunition, that is, a box of 12 gauge Winchester shotgun shells.”
At trial, the government presented evidence of two boxes of ammunition, and
demonstrated that the firearm was loaded with shells from one of the partially
emptied boxes. This variance, however, is minor and insufficient for purposes
of plain error review. This court has been reluctant to find a material variance
where there were only minor variations between an indictment and proof at
trial, even when not limited to plain error review. See, e.g., United States v.
Girod, 646 F.3d 304, 316 (5th Cir. 2011) (finding no material variance where
there was a four month discrepancy in date of offense charged in indictment);
United States v. McCullough, 631 F.3d 783, 793 (5th Cir. 2011) (finding no
material variance where indictment referred to “Victim 2” but government
limited its case at trial to one victim).3


       3
        Meza relies upon United States v. Leichtnam, 948 F.2d 370 (7th Cir. 1991). There, the
indictment charged the defendant with use of a “Mossberg rifle,” but the government
introduced three guns at trial and the jury was instructed that it could convict if the defendant
had used “a firearm.” Id. at 379. Meza analogizes that case to this one: the government
presented evidence of two boxes of ammunition, but only one box was charged in the

                                               17
  Case: 10-10886       Document: 00512049680          Page: 18      Date Filed: 11/09/2012



                                       No. 10-10886

       Finally, even if a variance with respect to Count 1 or Count 2 were
considered material (and a clear error), Meza has not shown that it affected his
substantial rights.        This court has explained that “a variance between
allegations and proof is fatal ‘only when it affects the substantial rights of the
defendant by failing to sufficiently notify him so that he can prepare his defense
and will not be surprised at trial.’” Girod, 646 F.3d at 317; see also United States
v. Valencia, 600 F.3d 389, 432 (5th Cir. 2010) (“A variance is material if it
prejudices the defendant’s substantial rights, either by surprising the defendant
at trial or by placing the defendant at risk of double jeopardy.”) (internal
quotation marks omitted).           The indictment specifically identified both the
shotgun and ammunition at issue, and Meza has not persuasively argued that
the variance took him by surprise or that he would have defended the case
differently had the indictment been more precise. Meza’s lack of surprise is
demonstrated by the fact that he did not object to the variance at trial.
       Because Meza has failed to demonstrate that any material variance
“affected the fairness, integrity or public reputation of judicial proceedings,” as
is required on plain error review, e.g. United States v. Rodriguez-Parra, 581 F.3d
227, 229 (5th Cir. 2009), we reject Meza’s material variance argument.
III.   Evidentiary Rulings
       A.     Standard of Review
       This court “‘review[s] a district court’s evidentiary rulings for abuse of
discretion,’ subject to harmless-error analysis.”Girod, 646 F.3d at 318 (internal


indictment, and the jury was instructed that it could convict based upon a finding that Meza
“possessed ammunition.” In Leichtnam, the court was concerned that the jury could have
convicted the defendant for possessing any of the firearms introduced at trial, not just the one
charged in the indictment. Id. at 380-81. Leichtnam does provide some support for Meza’s
position that a variance existed, although “ammunition” is a less discrete concept than “a
firearm.” In other words, whether Meza had one box or two, he still possessed ammunition,
and was convicted on that count. There is little danger that the jury convicted Meza of
possessing ammunition based upon one box of shotgun shells but not the other. Any variance
here was not clear enough to rise to plain error.

                                              18
  Case: 10-10886    Document: 00512049680      Page: 19   Date Filed: 11/09/2012



                                  No. 10-10886

quotation marks omitted). “[F]or any of the evidentiary rulings to be reversible
error, the admission of the evidence in question must have substantially
prejudiced [the defendant’s] rights.” Id. (internal quotation marks omitted).
“[E]rror in admitting evidence will be found harmless when the evidence is
cumulative, meaning that substantial evidence supports the same facts and
inferences as those in the erroneously admitted evidence.” United States v. El-
Mezain, 664 F.3d 467, 526 (5th Cir. 2011).
      B.    The district court did not abuse its discretion in allowing the
            government to impeach its witness, Chris Sanchez, with a
            prior inconsistent statement pursuant to Federal Rule of
            Evidence 613(b).
      When Sanchez was questioned by investigators after his arrest, he told
them that he had sold the shotgun to Meza. At trial, however, Sanchez testified
that he “never sold [the gun] to [Meza]. This man didn’t have nothing to do with
it.” When confronted with the prior inconsistent statements, Sanchez did not
deny making them, but rather on direct, cross, redirect and recross examination,
explained that he had lied because he had been scared and did not know what
to do. When the government offered audio recording of Sanchez’s original
statements to law enforcement incriminating Meza, Meza’s counsel objected on
hearsay and Rule 403 grounds. The district court heard argument, recessed, and
then overruled the objections, including a sufficiently preserved one under Rule
613(b), allowing, in part, the government to call Agent Benavides to play the
recording. In the recording, Sanchez told investigators that he had sold the
stolen shotgun to Meza for approximately $100 in cash, at Meza’s house. The
district court gave limiting instructions (consistent with Meza’s original request)
that the recording be limited to impeachment use only, under Rule 613(b).
Thereafter, the district court sustained Meza’s objections to questions asked of
Agent Benavides about the recorded statements.



                                        19
  Case: 10-10886    Document: 00512049680      Page: 20   Date Filed: 11/09/2012



                                  No. 10-10886

      On appeal, Meza argues that Sanchez’s prior statements to Benavides
were inadmissible even under Rule 613 because Sanchez did not deny making
those statements. Meza argues that he was substantially prejudiced because the
prosecutor relied on Sanchez’s statements during closing arguments, contending
also that the district court’s limiting instructions were ineffectual. In response,
the government argues that the extrinsic audio recording was admissible
because Sanchez “attempted to explain [his prior inconsistent statement] by
claiming that he was afraid of being caught in a lie by the authorities,” whereas
in fact he had told authorities that he was scared of Meza. The government
argues that the jury was entitled to consider Sanchez’s prior statement to judge
his credibility. The government also argues that any error was harmless.
      We hold that the district court did not err in admitting, along with explicit
limiting instructions for impeachment use only, Sanchez’s prior statements
under Rule 613(b), which provides, “[e]xtrinsic evidence of a witness’s prior
inconsistent statement is admissible only if the witness is given an opportunity
to explain or deny the statement and an adverse party is given an opportunity
to examine the witness about it, or if justice so requires.”
      The plain language of the Rule makes no exception for prior inconsistent
statements that are explained instead of denied. What the Rule does require is
a foundation requirement that a witness have the chance either to explain or to
deny the inconsistent statement before extrinsic proof is allowed.             Not
surprisingly, explanations and denials run the gamut of human ingenuity,
ranging from a flat denial, to an admitted excuse, to a slant, to a disputed
explanation, or to a convincing explanation.          Whether flatly denied or
convincingly explained, the inconsistency can stay inconsistent. By contrast, an
unequivocal or obliging admission of the prior statement may indeed render it




                                        20
  Case: 10-10886       Document: 00512049680          Page: 21      Date Filed: 11/09/2012



                                       No. 10-10886

consistent,4 hence inadmissible under Rule 613(b).5 The framers of Rule 613(b)
were prudent, therefore, not to turn admissibility strictly on whether and how
litigants later characterize the variability of explanations and denials. For
example, here, Meza contends that Sanchez spoke truthfully at trial when he
explained his earlier statement incriminating Meza as a frightened but false
effort to blame-shift; the government, contrastingly, contends that Sanchez’s
denial of the correctness of his earlier statement is the evasion, an attempt to
exculpate Meza, whom Sanchez fears. Either purpose is plausible but neither
is determinative for Rule 613(b) admissibility. Notably, the jury heard without
objection Sanchez’s explanation, and was instructed as to the limited
impeachment use of Rule 613(b) evidence altogether.
       Slightly more elaboration is warranted because of caselaw Meza draws to
our attention. He points to a footnote in United States v. Seale, 600 F.3d 473,
493 n.11 (5th Cir. 2010), which, in turn, quotes United States v. Devine, 934 F.2d
1325, 1344 (5th Cir. 1991). Devine was a failure to remember case, however,
which, we acknowledge, supra note 4, can present a district court with a fact-
specific inquiry of whether a claim of forgetfulness about a prior statement is
genuine or feigned, and therefore consistent or inconsistent, respectively. See
Fed. R. Evid. 104; see also United States v. Hale, 685 F.3d 522, 539 (5th Cir.
2012) (citing Devine, 934 F.2d at 1344). Our short discussion in United States


       4
        Facts can complicate whether a claim of forgetfulness, not a denial or an explanation,
creates an inconsistency for purposes of Rule 613(b). Compare United States v. Devine, 934
F.2d 1325, 1344-1345 (5th Cir. 1991); United States v. Balliviero, 708 F.2d 934, 939-40 (5th
Cir. 1983), with United States v. Grubbs, 776 F.2d 1281, 1287 (5th Cir. 1985); United States
v. Bigham, 812 F.2d 943, 946-47 & n.3 (5th Cir. 1987). This case does not present that issue.
       5
         This discussion is confined to Rule 613(b). A district court may have separate
authority to exclude a prior statement as, for example, hearsay, if it is being offered as such,
or by balancing its probative value against incidental probative dangers under Rule 403. See
also Fed. R. Evid. 613(b) (additional catchall “interests of justice” authority over extrinsic
evidence of prior inconsistent statement). Again, hearsay and Rule 403 were Meza’s primary
objections, he prevailed on the first and, as discussed below, lost on the second.

                                              21
  Case: 10-10886       Document: 00512049680         Page: 22     Date Filed: 11/09/2012



                                      No. 10-10886

v. Greer, 806 F.2d 556, 558-559 (5th Cir. 1986), is more difficult to harmonize.
In Greer, a cooperating co-defendant testified for the government and implicated
defendant Greer in an obstruction of justice scheme, but “admitted on cross-
examination that he made [a] previous inconsistent [tape-recorded] statement”
when he denied the obstruction. Id. at 559. That admission, we stated, made the
recording “excludable.” Id. (citing both Rule 613(b) and United States v. Roger,
465 F.2d 996, 997-98 (5th Cir. 1972)). Our discussion in Greer, however, gives
no insight into whether and how the admission was less an explanation of an
inconsistency–contemplated by Rule 613(b) still to permit extrinsic proof for
impeachment, see, e.g., United States v. Jones, 135 F. App’x 651, 652 (5th Cir.
2005) (unpublished)–than an unequivocal or obliging admission making any
inconsistency negligible, so warranting exclusion under common law as applied
in Roger, under Rule 403 today, or under Rule 613(b)’s interests of justice
catchall provision.
       Regardless, we find that any evidentiary error would have been harmless
for several reasons. First, as described above, there was more than sufficient
evidence to convict Meza under Count 1 and Count 2, without Sanchez’s
statement.6 Second, if Sanchez’s explanation were an unequivocal or obliging
admission, the recording reiterates statements that Sanchez admitted to making
when he was questioned by the prosecutor. The recording allowed the jury to
hear Sanchez himself state that he sold the gun to Meza, but the statements
were short in duration and made only after Sanchez first claimed that he did not
remember to whom he sold the guns or where the transaction occurred.




       6
         Other than his testimony regarding joint occupancy (which was not contradicted on
the recorded statement), Sanchez’s prior statement to investigators had no effect on Count 2.
Sanchez told investigators that he did not sell or give Meza any ammunition and that he never
saw any ammunition in Meza’s house.

                                             22
  Case: 10-10886    Document: 00512049680      Page: 23   Date Filed: 11/09/2012



                                  No. 10-10886

      Meza is mistaken when he argues that the government relied upon
Sanchez’s recorded statements during closing argument. The government did
refer to Sanchez’s testimony during its closing argument, but only to discuss his
credibility. The closest the prosecution came to relying upon Sanchez’s recorded
statements for their truth came at the beginning of the closing argument, when
the prosecutor began:
      Let’s start off from the very beginning with Chris Sanchez, okay.
      Chris Sanchez is a young man who talked to police officers and
      agents two different times before appearing here today, nine months
      apart, not looking at any statements or reports, and what did he say
      to the police officers? The same basic facts, that he stole those
      firearms from the pawn shop, that he broke into –
At that point, defense counsel objected that the prosecutor was “trying to use
that statement as evidence of [Meza’s] guilt when it’s only offered for the limited
purpose of impeachment.” The district court, in abundance of caution, reiterated
its limiting instruction, and the prosecutor continued:
      And the reason I bring Mr. Sanchez and the testimony up and the
      conflicting statements is because I want you to use your common
      sense and reasoning regarding his truthfulness on the stand,
      regarding his credibility. Obviously this is an individual who got up
      here and said something very different from what he said on a prior
      occasion.

      Now, why he came up here today and said what he said, that’s for
      y’all to decide. Why, when talking to police officers, he iterated
      certain facts not once but twice over, the very same set of facts; and
      then today, when facing all of us, he changes his story. Well, that’s
      for y’all to decide. You need to take that and consider what you will
      with it.

      But I will point out, specifically, regarding his credibility at this
      point, what did he say? Well, I put that gun in a back bedroom.
      And y’all know that wasn’t the case. It wasn’t found in a back
      bedroom. It was found in a shed. What else did he say? Well, he
      said it wasn’t loaded. You all also know that that wasn’t the case.
       It had eight live rounds in it.

                                     23
  Case: 10-10886       Document: 00512049680          Page: 24     Date Filed: 11/09/2012



                                       No. 10-10886

Additionally, the prosecutor said: “With regard to Chris Sanchez, it is up to you
to determine his credibility. I would submit to you that he came in here and he
lied. That’s up to you.” The prosecutor thus did not rely upon Sanchez’s
recorded statement to support the truth of the matter asserted. Indeed, when
the prosecution explained why it believed that it had proven the possession
element beyond a reasonable doubt, it did not discuss Sanchez’s recorded
statement at all, but instead summarized evidence showing that Meza lived at
the address where the shotgun was found: “Mail was found there with his name
and his address. Pay stubs, belonging to him, were found in the closet. He was
seen leaving that location when he was arrested on that date.”7 In sum, the
record does not reflect that the prosecution improperly relied upon Sanchez’s
prior inconsistent statement, or did anything other than question his credibility
in light of the evidence presented at trial.
       As emphasized above, the district court gave limiting instructions on three
separate occasions. This court has relied upon proper limiting instructions to
support a finding of harmlessness. See, e.g., United States v. Cisneros-Gutierrez,
517 F.3d 751, 762-63 (5th Cir. 2008) (finding no error in admitting a prior
inconsistent statement as impeachment evidence where the district court
provided the proper limiting instructions to the jury).




       7
         The government also argued that even if the jury were to believe Sanchez’s in-court
testimony, it conflicts with other evidence. The prosecutor argued, “[Sanchez] said he put the
shotgun in the back bedroom. That wasn’t where it was, and he said it wasn’t loaded. So even
if you buy that part of his story, that means somebody loaded that gun with those shells that
were in that closet and put it in the shed. It’s Christobal [sic] Meza’s house. Christobal Meza
did that.”

                                              24
  Case: 10-10886    Document: 00512049680      Page: 25   Date Filed: 11/09/2012



                                  No. 10-10886

      C.    The district court did not abuse its discretion under Federal
            Rule of Evidence 403 in admitting Sanchez’s prior
            inconsistent statement.
      Meza also objected to the admission of Sanchez’s statement on Rule 403
grounds, an objection he re-urged after his Rule 613 objection was overruled.
The district court overruled this objection.
      Under Rule 403, a district court may “exclude relevant evidence if its
probative value is substantially outweighed by a danger of . . . unfair prejudice.”
The standard of review for an alleged Rule 403 violation is “‘especially high’ and
requires ‘a clear abuse of discretion’ for reversal.” United States v. Setser, 568
F.3d 482, 495 (5th Cir. 2009); see also El–Mezain, 664 F.3d at 511 (stating that
this court shows “significant deference . . . to the district court in Rule 403
matters”). “Any error in admitting such evidence is subject to harmless error
review, and reversal is not required unless there is a ‘reasonable possibility that
the improperly admitted evidence contributed to the conviction.’” United States
v. Williams, 620 F.3d 483, 492 (5th Cir. 2010).
      Meza argues that the probative value of Sanchez’s prior statements was
minimal, as Sanchez had acknowledged his recantation on the stand. Meza
maintains that the potential for undue prejudice was great because it allowed
the government to “improperly focus the jury on an inculpatory (but unsworn)
prior version of Sanchez’s statement rather than the exculpatory trial testimony
made under oath.” Meza further argues that the evidentiary error affected his
substantial rights because the government intended to use Sanchez’s statements
as more than impeachment evidence.           The government contends that the
probative value of Sanchez’s prior statement was high because Sanchez’s
credibility was a critical issue at trial, whereas any prejudicial effect was
minimal because the district court issued limiting instructions regarding the
recording and the statement was cumulative of Sanchez’s admission on the


                                        25
  Case: 10-10886    Document: 00512049680      Page: 26   Date Filed: 11/09/2012



                                  No. 10-10886

stand. The government also argues that admission of the statement, even if
erroneous, was harmless.
      We hold that the district court did not commit a clear abuse of discretion
in admitting the statements. As the government notes, the prior statements
were probative of Sanchez’s credibility, a central issue in the case. Indeed, even
Meza relied upon Sanchez’s testimony to support his joint occupancy argument.
Although the statements prejudiced Meza, this prejudice was not unfair and did
not substantially outweigh the statements’ probative value.
IV.   The government did not engage in misconduct during closing
      argument.
      A.    Standard of Review
      This court “analyze[s] assertions of prosecutorial misconduct in closing
arguments in two parts. [First, the court] consider[s] whether the prosecutor
made an improper remark; if so, [the court] then evaluate[s] whether the remark
affected the substantial rights of the defendant. The first question is reviewed
de novo; the second is reviewed for abuse of discretion.” United States v. Turner,
674 F.3d 420, 438-39 (5th Cir. 2012) (internal quotation marks and footnotes
omitted). “Ordinarily, a defendant’s substantial rights are affected only where
the error in question affected the outcome of the district court proceedings. To
make that determination, [the court must] assess (1) the magnitude of the
statement’s prejudice, (2) the effect of any cautionary instructions given, and (3)
the strength of the evidence of the defendant’s guilt.” Id. at 439 (internal
quotation marks and footnotes omitted). Where, however, a defendant fails to
object, the court will apply a plain error standard of review. See United States
v. Garcia, 522 F.3d 597, 599-600 (5th Cir. 2008).
      B.    Discussion
      Meza challenges several statements that the prosecution made during
closing argument.      First, Meza objects to the prosecutor’s “open-ended


                                        26
  Case: 10-10886    Document: 00512049680      Page: 27   Date Filed: 11/09/2012



                                  No. 10-10886

speculation” as to the reasons for Sanchez’s inconsistent statements on the
stand. Specifically, Meza takes issue with the following statement: “Now, why
[Sanchez] came up here today and said what he said, that’s for y’all to decide.
Why, when talking to police officers, he iterated certain facts not once but twice
over, the very same set of facts; and then today, when facing all of us, he changes
his story. Well, that’s for y’all to decide. You need to take that and consider
what you will with it.” Second, Meza objects to the prosecutor’s statement
regarding the short duration of the trial: “Ladies and gentlemen, I would like to
thank you again for your attention. It’s great that this trial was so brief because
you—all the testimony will be very fresh in your mind.” Finally, Meza objects
to what he claims to be the prosecutor’s “expressed personal opinions and
beliefs.” He points to these statements:
      And the reason I bring Mr. Sanchez and the testimony up and the
      conflicting statements is because I want you to use your common
      sense and reasoning regarding his truthfulness on the stand,
      regarding his credibility. . . . But I will point out, specifically,
      regarding his credibility at this point, what did he say?

      And I can’t urge you enough that these are two separate counts in
      the indictment, and you are not to consider them together, you need
      to consider one at a time, and hold him accountable for each.

      Again and again, I don’t think there is any issue at all regarding Mr.
      Meza living at that house, that being his house.
In response, the government argues that plain error review applies because
Meza never properly objected to these statements, and that the prosecutor did
not make improper or prejudicial remarks. Even if any of the comments were
improper, the government maintains that they did not affect Meza’s substantial
rights.
      As an initial matter, we limit our review to plain error with respect to all
three alleged errors.   Meza admits that he did not object to the last two


                                        27
  Case: 10-10886   Document: 00512049680     Page: 28   Date Filed: 11/09/2012



                                 No. 10-10886

statements at issue, but claims that he preserved his objection with respect to
the prosecutor’s allegedly improper credibility argument. The record does not
so reflect.   Meza’s only objection to the arguments regarding Sanchez’s
credibility was to the prosecutor’s attempt to use impeachment evidence for an
improper purpose: “Judge, I’m going to object. I think he is trying to use that
statement [from Sanchez] as evidence of his guilt when it’s only offered for the
limited purpose of impeachment.” Without a proper objection on the ground now
asserted on appeal, plain error review is proper.
      Regardless of the standard of review, we do not see how any of the
prosecutor’s statements were improper. This court has explained that “[a]
prosecutor is confined in closing argument to discussing properly admitted
evidence and any reasonable inferences or conclusions that can be drawn from
that evidence.” Turner, 674 F.3d at 439 (internal quotation marks omitted).
Considering first the prosecutor’s statements regarding Sanchez’s inconsistent
testimony, the prosecutor did not “personally vouch for the credibility of a
government witness.” United States v. Munoz, 150 F.3d 401, 414 (5th Cir. 1998).
Instead, he merely recited “to the jury those inferences and conclusions []he
wishe[d] [the jury] to draw from the evidence.” Id. at 414. The prosecutor
repeatedly told the jury that they were to determine Sanchez’s credibility, and
only highlighted discrepancies between Sanchez’s testimony on the stand and
his prior statements. This argument was not improper.
      Second, the prosecutor’s comment regarding the short duration of the trial
was not improper. Meza relies upon cases in which a prosecutor alluded to the
testimony of uncalled witnesses during closing argument. In United States v.
Maddox, 156 F.3d 1280, 1283 (D.C. Cir. 1998), the District of Columbia Circuit
warned that “[w]hen a prosecutor starts telling the jury about what other
potential witnesses would have said if the government had only called them, it
is time not merely to sustain an objection but to issue a stern rebuke and a

                                      28
     Case: 10-10886    Document: 00512049680          Page: 29     Date Filed: 11/09/2012



                                       No. 10-10886

curative instruction, or if there can be no cure, to entertain a motion for a
mistrial.” The prosecutor’s brief statement regarding the short duration of the
trial is wholly different in kind from the statements at issue in Maddox, and was
not improper.
        Finally, Meza has failed to identify statements that constitute improper
expressions of the prosecutor’s personal beliefs. While the prosecutor spoke in
the first person, the record does not demonstrate that he attempted to provide
a personal opinion as to Sanchez’s credibility.8 The comments are different from
those at issue in the cases upon which Meza relies, all of which involved
improper efforts by prosecutors to bolster the credibility of testifying law
enforcement officers. See United States v. Gallardo-Trapero, 185 F.3d 307, 319-
20 (5th Cir. 1999); see also United States v. McCann, 613 F.3d 486, 496 (5th Cir.
2010); United States v. Garza, 608 F.2d 659, 662-66 (5th Cir. 1979).
        In sum, there is no clear and obvious error in this case, as required for
plain error review. Even if there were, Meza has not demonstrated that these
isolated comments affected his substantial rights or that they “affected the
fairness, integrity or public reputation of judicial proceedings.” United States v.
Rodriguez-Parra, 581 F.3d 227, 229 (5th Cir. 2009) (internal quotation marks
omitted).
V.      Meza’s separate sentences under 18 U.S.C. § 922(g)(1) for
        possession of a firearm and possession of ammunition violate the
        Double Jeopardy Clause.
        As noted above, the indictment charges Meza with simultaneous
possession “on or about July 22, 2009” of a firearm and of ammunition, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Meza was convicted on both

        8
        There is one possible exception. During closing, the prosecutor stated, “[w]ith regard
to Chris Sanchez, it is up to you to determine his credibility. I would submit to you that he
came in here and he lied. That’s up to you.” This comes closer to a personal opinion as to
Sanchez’s credibility; however, Meza has failed to demonstrate that it affected his substantial
rights.

                                              29
  Case: 10-10886    Document: 00512049680       Page: 30   Date Filed: 11/09/2012



                                  No. 10-10886

counts and sentenced to consecutive 120 month terms on each count. This runs
afoul of our decision in United States v. Berry, 977 F.2d 915 (5th Cir. 1992); see
also United States v. Dunford, 148 F.3d 385, 389-90 (4th Cir. 1998) (listing
consensus of courts applying this double jeopardy rule).
      In Berry, a search of the defendant’s apartment yielded two handguns with
ammunition, a third without ammunition, and a photograph of the defendant
holding two of the weapons. Id. Berry (a convicted felon) was tried and
convicted on three counts of possession of a firearm and one count of possession
of ammunition by a felon, in violation of 18 U.S.C. § 922(g), as well as one count
of carrying a firearm in relation to a drug-trafficking crime, in violation of 18
U.S.C. § 924(c). Id. at 917-19. Thus, “Berry’s conviction was premised on one
episode of possession of firearms and ammunition but he was convicted and
sentenced separately for each weapon and the ammunition possessed.” Id. at
918. According to the court, “[t]his raise[d] serious questions of double jeopardy.”
Id.
      The court in Berry first found that the conviction under § 924(c) did not
raise double jeopardy concerns because it “involves an element distinct from any
other offense charged, drug trafficking, and does not require proof of a prior
felony conviction.” Id. at 919. The court, however, reached a different result
with respect to the convictions under § 922(g)(1). The court explained:
      Berry’s multiple convictions and sentences for violation of 18 U.S.C.
      § 922(g)(1) . . . are not so readily dispatched. Berry was convicted
      for possession of the guns only, there was no allegation or proof of
      other elements such as a separate act of transportation in interstate
      commerce, that the guns were procured by misrepresentation, that
      Berry was illegally in the country, or that one of the weapons was
      illegally altered. The evil Congress sought to suppress by section 922
      was the arming of felons; the section is based on the status of the
      offender and not the number of guns possessed. For the same
      reasons, we cannot conclude that Congress intended the



                                     30
  Case: 10-10886    Document: 00512049680     Page: 31    Date Filed: 11/09/2012



                                  No. 10-10886

      simultaneous possession of ammunition to stand as a distinct unit
      of prosecution.
Id. (emphasis added) (footnotes omitted). The court continued:
      In such an instance, the government may charge and try a
      defendant for multiple offenses, but there may not be simultaneous
      convictions and sentences for should the jury return guilty verdicts
      for each count, . . . the district judge should enter judgment on only
      one of the statutory offenses.

      If in doubt of its ability to prove possession of any of the weapons
      involved, the government properly could have sought to prove
      possession of all. Moreover, had the government evidence that
      Berry obtained the guns at different times or stored them in
      separate places, then it could have sought to prove that. But
      simultaneous convictions and sentences for the same criminal act
      violates the double jeopardy clause. We perforce must vacate those
      sentences . . . .

Id. at 920 (citations and internal quotation marks omitted). The court rejected
the government’s argument that Berry’s failure to object to the indictment bars
his double jeopardy argument, explaining, “[w]e apply a rule which allows the
criminal defendant to complain of non-concurrent multiple sentences on appeal
despite a failure to complain of the multiple indictments.” Id.
      This court repeatedly has applied Berry, often in short per curiam
decisions after multiple convictions for firearm and ammunition possession
under § 922(g)(1). See, e.g., United States v. Ayala-Juarez, 472 F. App’x 307, *1
(5th Cir. 2012) (unpublished) (“Ayala appeals the sentence he received after he
pleaded guilty to possession of a firearm by a convicted felon and to possession
of ammunition by a convicted felon. Each count charged a violation of 18 U.S.C.
§ 922(g)(1). Ayala argues that under [Berry], his conviction and sentence on one
of his counts must be vacated because his two convictions and sentences are
multiplicitous and violate the Double Jeopardy Clause. The government agrees
. . . .”); United States v. Fields, 225 F. App’x 292, 292-93 (5th Cir. 2007)


                                       31
  Case: 10-10886       Document: 00512049680         Page: 32     Date Filed: 11/09/2012



                                       No. 10-10886

(unpublished) (“Fields appeals following her guilty-plea convictions for being a
felon in possession of a firearm (Count One) and for being a felon in possession
of ammunition (Count Two), in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2). .
. . Simultaneous convictions and sentences for the same criminal act involving
possession of a firearm and possession of ammunition violate double jeopardy.”);
United States v. Saldua, 120 F. App’x 553, 554 (5th Cir. 2005) (unpublished)
(same).
       As in Berry, Meza was convicted under § 922(g)(1) for simultaneous
possession of a firearm and ammunition, both of which were found during the
single police search of his property. The indictment alleges that Meza possessed
both the firearm and ammunition that day (July 22, 2009). We perceive no
relevant distinctions between this case and Berry, therefore.
       In several unpublished decisions, this court has quoted Berry to
distinguish its outcome if the record “prove[d] that [the defendant] obtained the
firearm and ammunition on different occasions.” United States v. Castro, 227 F.
App’x 386, 386 (5th Cir. 2007) (unpublished); see also United States v. Everett,
237 F.3d 631, *6 (5th Cir. 2000) (unpublished).                   Legally, however, the
government did not charge Meza with receiving or possessing at some earlier
date the gun or the ammunition. Meza was charged, in each count singularly,
with possession on July 22, 2009. Correspondingly, factually, none of the
witnesses testified as to earlier dates on which Meza received or obtained, hence
earlier possessed, the firearm and ammunition.9 The only relevant, affirmative

       9
         The government contends that “Everett aligns with binding precedent,” citing United
States v. Bullock, 615 F.2d 1082 (5th Cir. 1980); however, the government also candidly quotes
that in Bullock, this court applied a predecessor statute and highlighted that the defendant
was charged conjunctively with receiving and possessing, hence could be “punished separately
for separate receptions and separate possessions.” Id. at 1085-86. Here no separate reception
and possession was charged or proven or even argued against Meza. See United States v.
Hodges, 628 F.2d 350, 352 (5th Cir. 1980) (finding double jeopardy violation under predecessor
statute despite appellate effort by government to differentiate receptions of firearms “when
the case was tried to the jury as one essentially of simultaneous possession,” i.e. when “[n]o

                                             32
  Case: 10-10886       Document: 00512049680         Page: 33     Date Filed: 11/09/2012



                                      No. 10-10886

proof implying any such argument would be Sanchez’s prior inconsistent
statement that he sold the gun (but not ammunition) to Meza. This recanted
statement, however, was admitted for impeachment only. In summary, absent
an indictment charging Meza with possessing or receiving the firearms and
ammunition on separate occasions, and proof and argument supporting the
same, his dual convictions and sentences under § 922(g)(1) cannot stand under
Berry.
       Although Meza failed to raise this double jeopardy concern at trial and in
initial briefs on appeal, the Supreme Court has recognized an appellate court’s
ability to address certain issues sua sponte:
       In exceptional circumstances, especially in criminal cases, appellate
       courts, in the public interest, may, of their own motion, notice errors
       to which no exception has been taken, if the errors are obvious, or
       if they otherwise seriously affect the fairness, integrity, or public
       reputation of judicial proceedings.
United States v. Atkinson, 297 U.S. 157, 160 (1936); see also Silber v. United
States, 370 U.S. 717, 718 (1962) (“The Court has ‘the power to notice a plain
error though it is not assigned or specified.’”). Consistent with Atkinson, this
court has reviewed unpreserved double jeopardy issues for plain error. See
United States v. Pineda-Ortuno, 952 F.2d 98, 105 (5th Cir. 1992) (reversing
conviction on double jeopardy grounds and stating, “[w]here plain error is
apparent, the issue may be raised sua sponte by this court even though it is not
assigned or specified.”). This standard is met here. As explained above, the
double jeopardy error is clear in light of Berry, 977 F.2d at 920, and if it were not
recognized, Meza would serve a consecutive 120 month sentence on his second


attempt was made at trial to differentiate the firearms”); United States v. McCrary, 643 F.2d
323, 326-28 (5th Cir. Unit B Apr. 1981) (double jeopardy violation when argument and verdict
supported singular possession of several guns even when stored separately in one dwelling);
United States v. Harper, 802 F.2d 115, 118-119 & n.4 (5th Cir. 1986) (no double jeopardy
violation when each count involved different firearms received and possessed at different
times).

                                             33
  Case: 10-10886       Document: 00512049680          Page: 34     Date Filed: 11/09/2012



                                       No. 10-10886

conviction. Moreover, because the issue might be raised in subsequent habeas
proceedings, judicial economy, as commendably acknowledged by the
government during oral argument, suggests that the court address the issue
now. See Pineda-Ortuno, 952 F.2d at 105 (“Fairness as well as judicial economy
dictate that we address now this issue that would doubtless otherwise be raised
in a subsequent habeas proceeding.”).10
       As a remedy for this double jeopardy circumstance, we generally vacate a
defendant’s sentences, remand for dismissal of one of the multipicitous
convictions (at the election of the government), and order resentencing. See, e.g.,
Berry, 977 F.2d at 920; Saldua, 120 F. App’x at 554. We may deem the
conviction on the remaining count affirmed. See, e.g., United States v. Osunegbu,
822 F.2d 472, 481 (5th Cir. 1987) (“We conclude . . . that Mrs. Osunegbu was
improperly convicted twice for the same offense. Mrs. Osunegbu’s sentence is
therefore vacated. The matter is remanded with instructions that the conviction
of Mrs. Osunegbu on one of the possession counts, at the election of the
government, is to be reversed and that count is to be dismissed. The convictions
on the remaining possession count and the conspiracy count shall be deemed
affirmed, and Mrs. Osunegbu shall be resentenced on those counts.”); United
States v. Greer, 46 F. App’x 225, *2 (5th Cir. 2002) (unpublished) (“[T]he
sentences are vacated and the matter remanded to the district court with
instructions that the conviction of Greer on one of the counts, at the election of
the Government, is to be reversed and that count is to be dismissed. The district
court is further instructed to resentence Greer on the remaining conviction. The
conviction on the remaining count is deemed affirmed.”).


       10
          In abundance of caution, both parties were instructed to submit supplemental
argument on this issue, and it was a focus of oral argument as well as additional post-
argument filings pursuant to Federal Rule of Appellate Procedure 28(j). It is worth noting that
Meza’s original plea contemplated conviction on one count only, hence the district court and
counsel for both parties would have anticipated no double jeopardy concern.

                                              34
  Case: 10-10886   Document: 00512049680    Page: 35   Date Filed: 11/09/2012



                                No. 10-10886

                              CONCLUSION
      For the reasons stated above, we AFFIRM Meza’s judgment of conviction,
but vacate Meza’s sentences, remand for dismissal of one of the counts of the
indictment (at the government’s election), and order resentencing on the count
selected by the government.




                                     35
