                                                            [DO NOT PUBLISH]



              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                             ELEVENTH CIRCUIT
                                                               MARCH 19, 2008
                               No. 07-12536
                                                              THOMAS K. KAHN
                           Non-Argument Calendar
                                                                  CLERK
                         ________________________

                     D. C. Docket No. 06-20385-CR-DLG

UNITED STATES OF AMERICA,


                                                       Plaintiff-Appellee,

                                     versus

PEDRO HORTON,

                                                       Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        _________________________

                               (March 19, 2008)

Before TJOFLAT, BLACK and CARNES, Circuit Judges.

PER CURIAM:

     This is Pedro Horton’s appeal of his convictions for possession of a firearm
by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession of an

unregistered firearm, in violation of 26 U.S.C. § 5861.

                                          I.

      Around June 23, 2001, Horton was dealing drugs in North Carolina with a

man named Rollie Crawley. Horton and Crawley decided to try to buy two

kilograms of cocaine. They spoke to Crawley’s brother-in-law, Richard Neil, who

directed them to Ian Hunt. Horton and Crawley drove to Miami to buy the cocaine

from Hunt. Once there, Crawley, Neil, and another drug associate, Dexter Milton,

went to Hunt’s house. They decided that they would buy half a kilogram of

cocaine, verify that it was good, and then buy the rest. Hunt called an unknown

confederate, who came over, took the money, and left the cocaine. When Crawley

and Milton checked it, they discovered that it was actually flour. They beat Hunt

and forced him into Milton’s black Mustang. The four men then drove around

trying to find the man who had taken the drug money.

      While driving, Milton called someone to tell him that they had been tricked

and to “bring some fire.” Milton then met up with a man in what Hunt later

described as a “gold four-door Chevy.” Milton went to the car and returned with a

black Tech-9 machine gun. Unable to find Hunt’s confederate, Milton, Crawley,

Neil, and Hunt returned to Hunt’s house. Horton, who was not present during the



                                         2
deal, arrived shortly after them in a gold Nissan Altima. When they arrived back at

the house, Crawley and Milton began beating Hunt. Neil decided that things had

gotten “out of hand” and left the house. Crawley and Milton then allowed Hunt to

use the phone. He called a friend, and the friend called the police to report a

robbery in progress at Hunt’s home. When the police arrived, Horton and Crawley

ran out the back door, and Milton ran out the front. All three were arrested. The

police also found Neil and detained him for questioning.

      Three cars were parked around the house—a gold Nissan Altima, Milton’s

black Ford Mustang, and a white van. Officer Cary Sykes, one of the officers who

responded to the robbery-in-progress call, looked in the Nissan and saw what

appeared to be the butt of a shotgun wrapped in plastic and wedged between the

passenger seat and the center console. When the Nissan was searched, this gun

turned out to be an unregistered Ruger mini-14 .223 caliber semi-automatic rifle.

The following items were also found in the Nissan: (1) Horton’s driver’s license;

(2) a Western Union MoneyGram receipt in Horton’s name; (3) a rental car receipt

made out to Tameka Griffin and listing Horton as an authorized driver; and (4) a

warning citation from almost a month earlier issued to Crawley by the North

Carolina Highway Patrol. Neither Horton’s DNA nor his fingerprints were found

on the Ruger mini-14, but his fingerprint was found on the citation.



                                          3
      When the police arrived, Hunt initially gave a false name—“Paul

Hunt”—and gave an account of what happened that omitted the cocaine. When the

police discovered that Hunt had used a false name, they questioned him further.

Hunt then recounted a more complete version of events. Hunt was a Jamaican

citizen, and, on October 11, 2001, the government began removal proceedings

against him. He was deported on December 20, 2001.

      The state of Florida initially investigated this case, but the state attorney’s

office declined to prosecute Horton. On November 6, 2001—about a month before

Hunt was deported—the Bureau of Alcohol, Tobacco, Firearms and Explosives

brought the case against Horton to the U.S. Attorney’s Office for the Southern

District of Florida. On May 31, 2002, the U.S. Attorney’s Office closed the case

for lack of evidence.

      In the course of investigating unrelated crimes possibly committed by

Horton, an Assistant U.S. Attorney met with Tyrone Taylor, who provided her with

information concerning this case. The investigation was then delayed for nearly a

year because the AUSA went on maternity leave. Upon her return in November

2005, she continued investigating. On May 1, 2006, the AUSA met with Neil, who

gave her further information on the case. She presented the case to the grand jury,

and on June 23, 2006, eleven days before the five-year statute of limitations would



                                           4
have run, the grand jury returned an indictment against Horton for five gun- and

drug-related crimes.

      Horton filed a motion to dismiss the indictment based on pre-indictment

delay. He argued that the nearly five-year delay in seeking an indictment

prejudiced him because during that time Hunt was deported, one potential defense

witness died, and another could no longer be found. Before the hearing on

Horton’s motion to dismiss, the government attempted to find Hunt. Hunt

eventually called the government investigator to tell him that he would not return

to the United States and would not allow himself to be interviewed about the case.

After the hearing on Horton’s motion to dismiss, a magistrate judge issued a report

and recommendation that the motion be denied, to which Horton objected. The

district court overruled the objection and summarily adopted the report and

recommendation.

      Horton proceeded to trial. The government called Officer Sykes, Crawley,

and Neil as witnesses. Cumulatively they testified to the facts recounted above

about the day Horton was arrested. Additionally, the government called Taylor,

who recounted a meeting he had with Horton shortly after Horton’s arrest. Taylor

testified that Horton told him that the police had taken his money and his mini-14.

Taylor went on to say that he had seen Horton with a mini-14 before, that not all



                                          5
mini-14s looked alike, and that the mini-14 recovered from the gold Nissan Altima

appeared to be Horton’s. Finally, the government read into the record stipulations

agreed upon by both sides. The list of stipulations included Hunt’s post-arrest

statement and the absence of fingerprints on the Ruger mini-14.

      After the government’s case, Horton moved for a judgment of acquittal,

which the district court denied. Horton then put on two witnesses. The first, the

lab supervisor who tested the Ruger mini-14 for DNA, testified that Horton’s DNA

was not on any of the parts of the gun most likely to have it. The second, the

investigator who spoke with Hunt, testified about the efforts to find Hunt so that he

could testify at trial. Horton entered into the record Milton’s post arrest

statements—the most relevant of which was that Milton denied knowing that

Horton had a gun in his car—and then rested his case. Horton again moved for a

judgment of acquittal, and the court denied the renewed motion.

      Following the closing arguments, Horton requested that the district court

include two additional jury instructions. One stated that the jury could conclude

that the government deported Hunt because his testimony would hurt the

government’s case. The other said that the jury could consider the delay in

bringing the case when determining Horton’s guilt.

      The district court declined to charge the jury with those instructions, but did



                                           6
instruct the jury that it should consider whether the witness had a good recall of the

incident in determining whether to believe that witness’ testimony. The jury

returned a verdict of not guilty on the three drug-related offenses and guilty on the

two that related only to Horton possessing the Ruger mini-14—possession of a

firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and possession

of an unregistered firearm, in violation of 26 U.S.C. § 5861.

      Horton now appeals, arguing that the district court erred when it: (1) did not

dismiss the indictment on the grounds of pre-indictment delay by the government;

(2) declined to give the jury the instructions that Horton requested; and (3) did not

grant Horton’s motion for acquittal based on insufficiency of the evidence.

                                          II.

      Horton first contends that the district court erred by denying his motion to

dismiss the indictment because of delay by the government in obtaining it. We

review a district court’s decision on a motion to dismiss an indictment because of

pre-indictment delay only for abuse of discretion. United States v. Foxman, 87

F.3d 1220, 1222 (11th Cir. 1996). To permit a court to dismiss on that ground, a

defendant must show: (1) that the government deliberately delayed to get a tactical

advantage and (2) actual substantial prejudice from the delay. Id.

      Horton argues that the first prong of the analysis can be met on the ground



                                          7
that the government acted recklessly by delaying the indictment until after Hunt

was deported. However, we have specifically held that recklessness is not

sufficient to justify a dismissal based on pre-indictment delay. See Stoner v.

Graddick, 751 F.2d 1535, 1543 (11th Cir. 1985). The delay must be intentional

and for the purpose of gaining a tactical advantage. Id.

      Whether the government acted with the intent to gain a tactical advantage is

a question of fact. Id. We review the factual findings of the district court only for

clear error. United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006). The

magistrate judge heard all of the evidence and found that the government did not

act with the requisite intent. The district court then heard Horton’s objections and

reached the same conclusion. Hunt was deported approximately one month after

the government started its investigation. Even if the government believed that

Hunt’s deportation would improve its case against Horton, it is unclear how its

delaying the indictment for four years after Hunt’s deportation would further

benefit the government. The government’s reason for delaying Horton’s

indictment—it only obtained sufficient evidence to obtain a conviction after

speaking with Neil—was not to gain tactical advantage through delay. The

Supreme Court has made it clear that “investigative delay is fundamentally unlike

delay undertaken by the Government solely to gain tactical advantage over the



                                          8
accused.” Lovasco, 431 U.S. 783, 795, 97 S. Ct. 2044, 2051 (1977) (quotation

marks omitted). The district court did not clearly err in finding that the delay was

not intentional for the sake of tactical advantage, and, therefore, Horton failed to

meet the first requirement of a dismissal for pre-indictment delay.

                                          III.

      Horton next contends that the district court erred by not giving his requested

jury instructions. We review a district court’s refusal to give a jury instruction

requested by the defense only for abuse of discretion. United States v. Chastain,

198 F.3d 1338, 1350 (11th Cir. 1999). A district court’s decision not to give a

requested jury instruction will be reversible error only if the defendant shows that

the instruction: “(1) was a correct statement of the law; (2) was not adequately

covered in the instructions given to the jury; (3) concerned an issue so substantive

that its omission impaired the accused’s ability to present a defense; and (4) dealt

with an issue properly before the jury.” United States v. Brazel, 102 F.3d 1120,

1139 (11th Cir. 1997) (citation omitted).

      Horton’s proposed instruction read:

      You will remember that the parties presented evidence that Ian Hunt
      was present when the crime is supposed to have been committed.
      This may have caused you to wonder why Mr. Hunt was not called as
      a witness to answer questions in this trial. The Government deported
      Mr. Hunt in January 2002. If you believe that the government was
      responsible for his absence, then you may consider his absence when

                                            9
       you decide whether the government has proved, beyond a reasonable
       doubt, that the defendant committed the crimes. In other words, you
       may conclude that the government did not call Ian Hunt as a witness
       because his testimony would have hurt the government case.


This is not a correct statement of the law.

       We held in United States v. Chapman, 435 F.2d 1245 (5th Cir. 1970),1 that it

is improper for the jury to hold a party’s failure to call a witness against that party

when the witness is equally unavailable to both sides. Id. at 1247. Hunt was in

Jamaica, and thus could not be served with compulsory process by either the

government or Horton. Further, when, after a thorough search, the government

managed to contact Hunt, he refused to return to the United States and would not

discuss the case. He was unavailable to the government as well as Horton, so the

government’s failure to call Hunt as a witness cannot be held against it. Therefore

a jury instruction to the contrary does not correctly state the law, and the refusal to

give the requested instruction cannot be reversible error.

       The second instruction that Horton requested concerned the pre-indictment

delay. Both parties characterize this as a theory of the defense instruction. A

district court’s decision not to give a theory of the defense instruction will be



       1
         All decisions from the Fifth Circuit rendered before October 1, 1981 are binding
precedent on the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th
Cir. 1981) (en banc).

                                              10
reversible error only if: “(1) the requested instruction was a correct statement of

the law, (2) its subject matter was not substantially covered by other instructions,

and (3) its subject matter dealt with an issue in the trial court that was so important

that failure to give it seriously impaired the defendant’s ability to defend himself.”

United States v. Paradies, 98 F.3d 1266, 1286 (11th Cir. 1996). The requested

instruction read: “The events in question in this case allegedly occurred in July

2001. The case was not charged until June 2006. In determining whether or not

there is reasonable doubt in this case, you are entitled to take into account this

delay.”

      Assuming that this is a correct statement of the law, the point was

substantially covered by an instruction that was given. The district court instructed

the jury that it should consider witnesses’ recall when deciding whether to believe

their testimony. Additionally, Horton’s “central theme throughout the trial” was

that the pre-indictment delay led to lapses in memory. The jury knew the events

had occurred five years before and that memory fades with the passage of time.

Because jury instructions are to be considered in the context of the entire oral

charge and the events at trial, the requested instruction would not have given any

new information or guidance to the jury. The requested theory of the defense

instruction was substantially covered by the instructions given, so the district court



                                           11
did not err in declining to give the requested theory of the defense instruction.

                                          IV.

      Horton’s final contention is that there was insufficient evidence to convict

him of the firearm possession offenses. We review de novo the sufficiency of the

evidence supporting a criminal conviction, but we examine the evidence in the

light most favorable to the government and make all inferences and credibility

choices in favor of the jury’s verdict. United States v. Tinoco, 304 F.3d 1088,

1122 (11th Cir. 2002). The only element of either offense about which Horton

argues there is insufficient evidence is the actual or constructive possession of the

firearm.

      A defendant has actual possession of an object when he has physical

possession or actual personal dominion over it. United States v. Derose, 74 F.3d

1177, 1185 (11th Cir. 1996). A defendant has constructive possession of an object

when he “has knowledge of the thing possessed coupled with the ability to

maintain control over it or reduce it to his physical possession even though he does

not have actual personal dominion.” Id. (internal citation and quotation marks

omitted). He will also have constructive possession if he has “ownership,

dominion, or control over the [object] itself or dominion or control over the

premises or the vehicle in which the contraband was concealed.” Id.



                                          12
      The evidence in the record, viewed in the light most favorable to the

government, would allow a reasonable jury to conclude that Horton actually or

constructively possessed the firearm. More than one witness testified that Horton

had driven the gold Nissan Altima only minutes before the gun was found there.

Officer Sykes testified that the Ruger mini-14 was visible from outside the car, so

Horton could not have been unaware that it was there. Crawley testified that

Horton was the last to arrive at Hunt’s house, so the jury could have inferred that

no one had an opportunity to put the firearm in the car after he exited the it. These

facts alone would allow a jury to conclude that Horton had at least constructive

possession of the firearm by virtue of his ability to take actual possession of it or

his control over the car where it was located. See United States v. Wright, 392

F.3d 1269, 1273–74 (11th Cir. 2004) (holding that a defendant had constructive

possession of a firearm that was in the car that he was driving). Additionally,

Taylor’s testimony that the Ruger mini-14 found in the Nissan appeared to be one

that he had seen Horton with in the past is circumstantial evidence that Horton had

possession of it on the day in question. We conclude that based on this evidence a

reasonable jury could have found that Horton was guilty beyond a reasonable

doubt of possession of a firearm by a convicted felon and possession of an

unregistered firearm.



                                           13
AFFIRMED.




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