                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 05-5006



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


RAYSHARD D. DUNCAN,

                                              Defendant - Appellant.


Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(CR-04-370-RWT)


Submitted:   October 24, 2007          Decided:     November 16, 2007


Before NIEMEYER, MICHAEL, and KING, Circuit Judges.


Affirmed by unpublished per curiam opinion.


James Wyda, Federal Public Defender, Denise C. Barrett, Assistant
Federal Public Defender, Sherri Keene, Staff Attorney, Greenbelt,
Maryland, for Appellant.      Rod J. Rosenstein, United States
Attorney, Emily N. Glatfelter, Assistant United States Attorney,
Greenbelt, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

            Rayshard Duncan appeals the jury verdict convicting him

of being a felon in possession of a firearm, in violation of 18

U.S.C. § 922(g)(1) (2000).          Duncan was subsequently sentenced to

fifty-seven months’ imprisonment.             On appeal, Duncan asserts two

challenges to his conviction, but does not appeal his sentence.

Duncan first asserts the district court erred in denying his motion

to suppress the inculpatory statement Duncan offered to a police

officer upon his arrest.           Duncan also challenges the instruction

given the jury regarding constructive possession.              For the reasons

set forth below, we reject both assignments of error and affirm.

            Taken in the light most favorable to the Government,

United States v. Grossman, 400 F.3d 212, 216 (4th Cir. 2005), the

evidence    presented   at    the    hearing   on   the    motion    to   suppress

established the following facts. On the morning of March 24, 2004,

Corporal Travis Fowble of the Prince George’s County, Maryland,

Police Department observed a vehicle drive toward the end of a dead

end street located in a high crime area.                   After learning the

vehicle’s registration had been suspended, as had the driver’s

license issued to Duncan, the registered owner of the vehicle,

Fowble initiated a traffic stop. Fowble approached the vehicle and

spoke with the driver, later identified as Duncan. Because another

officer observed what appeared to be a marijuana cigarette on the

vehicle’s    dashboard,      the    officers   asked      Duncan    and   his   two


                                      - 2 -
passengers   to   exit   the   vehicle     and    handcuffed      them.        After

confirming   their    suspicions    that    the       cigarette    was    in   fact

marijuana, the officers placed all three men under arrest.                      The

officers did not apprise Duncan of his Miranda1 rights.                          In

conducting an inventory search of the vehicle, Fowble discovered a

loaded .9 mm handgun under the driver’s seat.

          While      transporting   Duncan       to    the   precinct,     Fowble

received a radio communication from Corporal Price, one of the

other officers who had assisted on the scene, inquiring whether

Fowble recovered any firearms from the vehicle.              Fowble responded

that he had in fact seized a firearm, that he believed the firearm

had been stolen, and that he further believed the firearm had

recently been fired.       Immediately after Fowble articulated his

response to Price, Duncan spontaneously stated:              “That gun has not

been shot.   I’ve had that gun for a long time.”                  Fowble did not

respond in any way, and Duncan made no further statements.

          In support of his motion to suppress this statement,

Duncan asserted the discourse in Fowble’s police cruiser amounted

to the functional equivalent of interrogation and further posited

the conversation between Fowble and Price was designed to elicit an

incriminating statement from Duncan. Citing Rhode Island v. Innis,

446 U.S. 291 (1980), the district court concluded Miranda was not

implicated because there had been no express interrogation or the


     1
      Miranda v. Arizona, 384 U.S. 436 (1966).

                                    - 3 -
functional   equivalent   thereof.      Moreover,   the   district   court

categorically rejected Duncan’s contention that the conversation

between Price and Fowble was orchestrated to induce Duncan to offer

an inculpatory statement.

           After losing his suppression motion, Duncan proceeded to

trial.   At the conclusion of Duncan’s second jury trial,2 the

district court provided the following instruction regarding the

possession element of the charged offense:

     “To possess” means to have something within a person’s
     control.    This does not necessarily mean that the
     defendant must hold it physically. That is having actual
     possession of it. As long as the firearm was within the
     defendant’s control, he possesses it.

     If you find that the defendant either had actual
     possession of the firearm, or that he had the power and
     intention to exercise control over it, even though it was
     not in his physical possession, you may find that the
     government has proven possession. . . .

     Proof of ownership of the firearm is not required. To
     satisfy this element, you must also find that the
     defendant knowingly possessed the firearm. This means
     that he possessed the firearm purposely and voluntarily
     and not by accident or mistake.

Duncan   raised   no   objection   to   this   instruction.    The    jury

subsequently found Duncan guilty.




     2
      Duncan’s first trial ended in a mistrial.

                                   - 4 -
I.   Denial of Motion to Suppress

            As he argued in the district court, Duncan asserts on

appeal that his inculpatory statement to Fowble resulted from the

functional    equivalent     of    a   custodial   interrogation,      conducted

without Duncan being properly informed of his Miranda rights.

            Statements that result from interrogation by officers are

subject to suppression.           A person is “interrogated” for Miranda

purposes not only when police expressly question him, but also when

the police use any words or actions (other than those normally

attendant    to   arrest    and    custody)    that   they    should    know    are

reasonably likely to elicit an incriminating response.                 See Innis,

446 U.S. at 301.     However, “since the police surely cannot be held

accountable    for   the    unforeseeable      results   of    their    words    or

actions, the definition of interrogation can extend only to words

or actions on the part of police officers that they should have

known were reasonably likely to elicit an incriminating response.”

Id. at 301-02.

            This court reviews the district court’s factual findings

underlying a motion to suppress for clear error, and the district

court’s legal determinations de novo.              Ornelas v. United States,

517 U.S. 690, 699 (1996); United States v. Kimbrough, 477 F.3d 144,

147 (4th Cir. 2007).       “The reviewing court should take care both to

review findings of historical fact only for clear error and to give




                                       - 5 -
due weight to inferences drawn from those facts by resident judges

and local law enforcement officers.        Ornelas, 517 U.S. at 699.

            The district court properly denied Duncan’s motion to

suppress his statement regarding his possession of the firearm

because it was not the product of either express interrogation or

the functional equivalent of interrogation.         Duncan offered his

statement    after   overhearing    Fowble’s   discussion   with   Price

regarding the firearm Fowble recovered from Duncan’s vehicle.          At

no point did Fowble direct any comments regarding the firearm to

Duncan.   As we explained in United States v. Payne, 954 F.2d 199,

202 (4th Cir. 1992), “the Innis definition of interrogation is not

so broad as to capture within Miranda’s reach all declaratory

statements by police officers concerning the nature of the charges

against the suspect and the evidence relating to those charges.”

As was the case in Payne, the statement here, which was made by one

police officer to another, was simply an “innocuous” statement to

which no response from the defendant was sought or required.        Id.3




     3
      Although Duncan attempts to distinguish his case from Payne
by emphasizing that the defendant in Payne had in fact been read
his Miranda rights, this is a distinction without substance.
Miranda warnings are required only when a suspect is in custody and
subjected to interrogation.     Innis 446 U.S. at 300.      As the
district court properly concluded, the custody prong was clearly
satisfied here.       However, because there was no express
interrogation or the functional equivalent thereof, Miranda was not
triggered and thus there was no basis for suppressing the
incriminating statement Duncan spontaneously and voluntarily
offered.

                                   - 6 -
II.   Jury Instructions

            Duncan next challenges the district court’s instructions

regarding the possession element of the felon-in-possession charge.

Although     Duncan    concedes   the    district     court’s    instructions

accurately stated the law on constructive possession, he maintains

these instructions were insufficient because of the prosecution’s

erroneous statements to the jury pertaining to this issue.

            The decision whether to give a jury instruction, and the

content    of   that   instruction,     are   reviewed    for    an   abuse   of

discretion.      United States v. Burgos, 55 F.3d 933, 935 (4th Cir.

1995).    Where, as here, the appealing party does not object to the

jury instruction (or lack thereof) in the district court, this

court will review only for plain error.             Fed. R. Crim. P. 52(b);

United States v. Olano, 507 U.S. 725, 731-32 (1993).                  Under the

plain error standard, Duncan must show:          (1) there was error; (2)

the error was plain; and (3) the error affected his substantial

rights.    Olano, 507 U.S. at 732-34.           When these conditions are

satisfied, we may exercise our discretion to notice the error only

if the error “seriously affect[s] the fairness, integrity or public

reputation      of   judicial   proceedings.”       Id.   at    736   (internal

quotation marks omitted).

            Duncan fails to carry his burden of demonstrating plain

error.    We agree with Duncan that the district court’s instruction

on constructive possession comported with governing law.                 As we


                                    - 7 -
explained in United States v. Blue, 957 F.2d 106, 107 (4th Cir.

1992), “to establish constructive possession, the government must

produce evidence showing ownership, dominion, or control over the

contraband   itself    or   the    premises   or    vehicle   in   which   the

contraband is concealed.” (alteration and citations omitted). The

district court’s instruction encompassed these principles.

            Further,   we   reject       Duncan’s    contention    that    the

Government’s closing argument so grossly misstated these principles

such that the district court was obligated to further instruct the

jury.    The Government’s closing argument essentially restated the

instruction presented by the district court: that control over the

contraband itself or control or ownership of the vehicle in which

the contraband is found is sufficient to establish the individual’s

constructive possession of the contraband.4

           We   thus   affirm     the   district    court’s   judgment.     We

dispense with oral argument because the facts and legal contentions

are adequately presented in the materials before the court and

argument would not aid the decisional process.

                                                                    AFFIRMED


     4
      Duncan’s   contention   that   the    Government’s   evidence
established nothing more than Duncan’s “mere presence” in the
vehicle, thus entitling him to “mere presence” instruction, is
belied by the record. As established by Fowble’s testimony both at
the suppression hearing and at trial, the vehicle was registered to
Duncan, Duncan was driving the vehicle, and the firearm was found
under the driver’s seat, easily within Duncan’s reach and control.
These facts fit squarely within the parameters of constructive
possession as established in Blue.

                                    - 8 -
