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

                                                 FILED
                                                                         December 22, 2009

                                       No. 09-30168                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                   Plaintiff-Appellee
v.

DAMIEN D ALLEN,

                                                   Defendant-Appellant




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:08-CR-197-1


Before STEWART, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Damien D. Allen appeals his conviction for
possession of a firearm by a convicted felon under 18 U.S.C. § 922(g)(1). We
AFFIRM.
                    I. FACTS AND PROCEEDINGS BELOW
       “We recite the facts in the light most favorable to the verdict.” United
States v. Olis, 429 F.3d 540, 541 n.1 (5th Cir. 2005). Corporal James Reed of the
Calcasieu Parish Sheriff’s Office conducted a routine traffic stop of a vehicle

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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operating without functioning taillights. As Reed came to a stop on the roadside,
he illuminated the vehicle with a floodlight and the headlights from his patrol
car. From his position, Reed observed two individuals in the stopped car: Allen
and a passenger, later identified as Roland Jack. Immediately after coming to
a stop, Allen exited his vehicle while waiving his hands in the air and stating:
“I ain’t got nothing. I ain’t did nothing.” Reed ordered Allen to get back into the
vehicle and then approached the driver’s side door while keeping a close eye on
both occupants of the vehicle. Reed testified at trial that he maintained visual
contact with both individuals during this entire interval out of concern for his
safety.
      Seconds after pulling Allen over, Reed was joined by two other officers,
Mott and Wilcox, who had been traveling on the same road just a short distance
behind Reed; they decided to provide assistance after hearing Reed report the
stop over the radio. Wilcox took up a position behind Reed on the driver’s side
of Allen’s vehicle. Mott proceeded to the passenger side of the vehicle to watch
Jack. According to their combined testimony, at least one officer was watching
Jack at all times during the traffic stop.
      After ordering Allen back into the vehicle, Reed, now supported by Mott
and Wilcox, began speaking with Allen.           Reed testified that Allen was
exceptionally nervous–more so than Reed typically observed in individuals
pulled over for traffic violations. Reed asked Allen if any illegal items were in
the vehicle and Allen said there were not. Reed next sought Allen’s permission
to search the vehicle because he had smelled marijuana as he approached the car
and because of Allen’s excessive nervousness. Allen refused to consent.
      Reed then requested a K-9 officer be dispatched to confirm his suspicions
that marijuana odors were emanating from the vehicle. Based on the dog’s
positive response, the officers conducted a search of Allen’s vehicle. No drugs
were found but Mott located a firearm in the center console of the vehicle. The

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console was located between the driver and passenger seats in the front of the
vehicle and could only be accessed by way of a hatch on the top of the console.
The console was closed at the time officers conducted the search but the firearm
was not concealed or covered within the console. Allen was then placed under
arrest. Jack was also advised of his rights and questioned on the scene but he
was never placed under arrest by any of the officers. Instead, he agreed to be
transported to the police station to provide a voluntary statement.
      Upon arriving at the police station, Jack was interviewed by Lt. Ray
Laviolet of the Lake Charles Police Department. According to the testimony at
trial, Laviolet asked Jack where he was going that evening, whether or not he
owned the firearm discovered in Allen’s car, and whether he knew who owned
the firearm. Jack’s answers to these questions were never admitted at trial in
any form. Laviolet then testified that, based on this interview, he no longer
believed Jack was a suspect.      Following his interview with Jack, Laviolet
continued his investigation into the discovery of the firearm. Laviolet conducted
a title search and found that Allen was the sole owner of the vehicle.
      Allen was subsequently indicted with possession of a firearm by a
convicted felon in violation of 18 U.S.C. § 922(g)(1). Allen pled not guilty and
was tried before a jury. At trial, Allen stipulated that: 1) he had previously been
convicted of a felony; 2) the firearm discovered in his vehicle was manufactured
in California and, thus, necessarily traveled in interstate commerce to reach
Louisiana; and 3) the firearm was fully operable at the time it was seized.
Allen’s defense focused exclusively on whether he had knowingly possessed the
firearm discovered in his vehicle.     The thrust of the defense case involved
suggesting Jack had secreted the firearm in console during the traffic stop while
the officers were occupied with Allen. At the end of a two-day trial, the jury
returned a guilty verdict. Allen was subsequently sentenced to seventy-eight



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months imprisonment and three years supervised release.              Allen timely
appealed.
                               II. DISCUSSION
      Allen asserts two claims of error on appeal.       First, Allen claims the
evidence presented at trial was not sufficient to establish that he constructively
possessed the firearm discovered in the center console of his vehicle. Second,
Allen claims the district court admitted impermissible hearsay evidence in
violation of the Confrontation Clause. We address each claimed error in turn.
A. Sufficiency of the Evidence
      Allen first claims that the Government failed to produce legally sufficient
evidence to permit his conviction under 18 U.S.C. § 922(g)(1). To convict a
defendant under § 922(g)(1), the Government must prove: 1) the defendant was
a convicted felon; 2) the defendant possessed a firearm in or affecting interstate
commerce; and 3) the defendant knowingly possessed the firearm. United States
v. Ferguson, 211 F.3d 878, 885 n.4 (5th Cir. 2000). Allen stipulated to the first
and second elements required by the statute, denying only the “knowing
possession” element.
      Where, as here, a sufficiency of the evidence argument is raised in a timely
motion for judgment of acquittal, we “examin[e] the evidence and all reasonable
inferences drawn therefrom in the light most favorable to the verdict, and ask
whether a rational trier of fact could have found guilt beyond a reasonable
doubt.” United States v. Garcia, 567 F.3d 721, 731 (5th Cir. 2009). “‘It is not
necessary that the evidence exclude every reasonable hypothesis of innocence or
be wholly inconsistent with every conclusion except that of guilt, provided a
reasonable trier of fact could find that the evidence establishes guilt beyond a
reasonable doubt.’” Id. (quoting United States v. Bell, 678 F.2d 547, 549 (5th Cir.
Unit B 1982) (en banc)).         “‘A jury is free to choose among reasonable
constructions of the evidence.’” Id. (quoting Bell, 678 F.2d at 549).

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      “‘Constructive possession’ [of contraband] is ownership, dominion, or
control over the [contraband] itself, or control over the premises in which the
[contraband] is concealed.” United States v. Houston, 364 F.3d 243, 248 (5th Cir.
2004) (citations omitted); see also United States v. Speer, 30 F.3d 605, 612 (5th
Cir. 1994) (applying same “constructive possession” definition to contraband
discovered in a vehicle); United States v. Knezek, 964 F.2d 394, 400 (5th Cir.
1992) (“[C]onstructive possession may also be inferred from the exercise of
dominion or control over the vehicle in which the contraband is found.”).
“Although a defendant’s exclusive occupancy of a place may establish his
dominion and control over an item found there, his joint occupancy of a place
cannot, by itself, support the same conclusion.” Houston, 364 F.3d at 248. “In
cases of joint occupancy, like the matter sub judice, we find constructive
possession only where there is evidence supporting a plausible inference that the
defendant had knowledge of, and access to, the item.” Id. (citing United States
v. Hinojosa, 349 F.3d 200, 203-04 (5th Cir. 2003)).
      The Government contends that Allen’s demeanor and excessive
nervousness during the stop, coupled with his exclusive ownership of the vehicle
and the unlikelihood that Jack could have concealed the weapon without being
seen by the officers, provide sufficient evidence to uphold the verdict. Allen
contends that the evidence of both his nervousness and his decision to jump from
the car proclaiming his innocence was consistent with his claim that he was
concerned about being caught smoking marijuana. He also argues that Jack
might have been the one to conceal the gun, despite the fact Jack was watched
by the officers throughout the traffic stop. These arguments misunderstand our
requirement that the Government must demonstrate a “plausible inference” of
knowledge. We will not reach beyond the proper bounds of review to weigh the
evidence as Allen implicitly requests. See Brennan’s Inc. v. Dickie Brennan &
Co., 376 F.3d 356, 362 (5th Cir. 2004) (“[T]he court may not make credibility

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determinations or weigh the evidence, as those are jury functions.”). While the
jury could have believed Allen’s suggestion of what happened, it was under no
obligation to do so. Accordingly, we find no basis upon which to set aside the
jury’s verdict.
B. The Confrontation Clause
      Allen also claims the district court impermissibly allowed the introduction
of hearsay statements throughout the course of the trial in violation of his rights
under the Confrontation Clause.         Specifically, Allen claims that several
witnesses were permitted to testify as to statements made by Jack immediately
following Allen’s arrest. After reviewing the trial record, we find that the trial
court did not err in allowing any of the disputed testimony.
      Allen made no objection to the admission of any of the testimony he now
claims violated his confrontation right. When the complaining party fails to
object at trial we review a district court’s evidentiary ruling only for plain error.
United States v. Thompson, 454 F.3d 459, 464 (5th Cir. 2006). To demonstrate
plain error, the appellant must show the district court committed an error that
was clear or obvious and that affected the defendant’s substantial rights. Id.
Even if the district court plainly erred, we will not correct the error unless “the
error has a serious effect on the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Alvarado-Santilano, 434 F.3d 794, 795
(5th Cir. 2005).
      The Confrontation Clause bars the admission of out-of-court testimonial
statements against a criminal defendant, unless the prosecution shows the
out-of-court declarant is unavailable to testify at trial and the defendant had a
prior opportunity to cross-examine the declarant on the out-of-court statement.
United States v. Pryor, 483 F.3d 309, 312 (5th Cir. 2007) (citing Crawford v.
Washington, 541 U.S. 36, 59 (2004)). Testimonial statements may be admitted,
however, so long as they are used to prove something other than the truth of the

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matter asserted. United States v. Holmes, 406 F.3d 337, 349 (5th Cir. 2005); see
also Crawford, 541 U.S. at 59 n.9 (“The [Confrontation] Clause . . . does not bar
the use of testimonial statements for purposes other than establishing the truth
of the matter asserted.”(citing Tennessee v. Street, 471 U.S. 409(1985)).
      The district court did not plainly err by allowing the admission of any of
testimony cited by Allen. We do not know what Jack said to the various officers
who interviewed him December 4, 2005. Neither did the jury. At no point did
any witness testify to any piece of information conveyed by Jack. Laviolet
testified that he asked Jack whether the weapon was his and whether he knew
to whom it belonged, and Jack responded.           But, ultimately, Laviolet never
testified as to the content of Jack’s responses.
      Allen argues that, by implication, the jury was told that Jack denied
ownership of the gun. Even assuming, though, that the “statement” was
“admitted” by inference and such admission triggers the Confrontation Clause,
Allen still cannot prevail. Laviolet’s testimony and all other references to Jack’s
statements were not offered to prove the truth of any statement by Jack.
Instead, the disputed testimony was offered to explain why the officers did not
fingerprint the firearm, look for DNA, or otherwise perform their investigation
differently. Allen’s defense strategy was to suggest the officers conducted a
sloppy investigation. Laviolet’s testimony was designed to show that the officers
at least spoke with Jack before deciding to focus on Allen. That justification
constitutes use of Jack’s “statements,” insofar as they were introduced, to prove
something other than the truth of the matter asserted. Accordingly, Allen fails
to show plain error under the Confrontation Clause. See Crawford, 541 U.S. at
59 n.9.
                              III. CONCLUSION
      The jury had more than sufficient evidence to conclude that Allen
knowingly possessed the firearm discovered in his vehicle. His conduct the night

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of his arrest, coupled with his ownership of the vehicle and the implausibility of
the contention that Jack secreted the gun while being watched, was sufficient
to create a plausible inference of knowledge and the Government was under no
obligation to affirmatively disprove Allen’s theory of the case.
      Allen’s Confrontation Clause claim similarly fails. Even assuming the
disputed testimony introduced out-of-court statements, the admitted evidence
was not offered to prove the truth of Jack’s statements. Instead, the questioning
of Jack was introduced to rebut Allen’s contention that the officers’ failed to
conduct a complete and thorough investigation. As such, the admission of the
disputed testimony did not violate Allen’s confrontation right.
      Accordingly, we AFFIRM.




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