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

                                                                              FILED
                                                                          October 28, 2009

                                       No. 08-20472                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA

                                                   Plaintiff - Appellee
v.

HENRY HORDGE

                                                   Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:07-CR-169-1




Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Henry Hordge was found guilty after a jury trial of one count of possession
of a firearm by a convicted felon. On appeal, Hordge alleges that the evidence
was insufficient to establish he knowingly possessed the firearm. He also claims
that several statements made by the prosecutor during closing arguments were
improper and prejudicial. We AFFIRM.



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-20472

                                     I. FACTS
      On January 3, 2007, at about 2:30 a.m., police officer Brandon Baker was
patrolling in southwest Houston. He stopped a lone woman walking in the
middle of the road. The woman informed the officer that she had a room at the
Knights Inn and her identification was in the room. Officer Baker and the
woman went to the hotel. At the hotel, they met Officer Guy Majors. The
officers were next to her as the woman opened the door to her room. Officer
Baker saw another woman walk toward the door and throw a crack pipe and two
rocks of crack cocaine to the floor.     Officer Baker entered the room and
handcuffed the second woman.
      As Officer Baker arrested her, Officer Majors saw Hordge sitting on the
bed. Hordge’s hand was concealed under the pillow beside him on his right. He
was moving his hand under the pillow. Officer Majors pulled out his weapon and
ordered Hordge to show his hands. Hordge failed to comply; the officer repeated
his order. Officer Baker then approached Hordge, pulled him off the bed, and
handcuffed him. Officer Baker looked under the pillow and discovered two crack
pipes and a gun. There is evidence that the gun was closer to Hordge than the
pipes. The gun was later found to be inoperable, but it contained one live round.
No fingerprints were retrieved from the gun or the crack pipes. Hordge was
indicted for unlawful possession of a firearm after having been convicted of a
felony. See 18 U.S.C. § 922(g)(1).
      After the prosecution presented its evidence, Hordge moved for a judgment
of acquittal.   He argued there was insufficient evidence that he knowingly
possessed the firearm because it was equally plausible that he was reaching only
for the crack pipes. Hordge also asserted that there was no physical evidence


                                        2
                                  No. 08-20472

linking him to the gun; he did not have exclusive control over the room; and
others had been present in the room. The district court overruled the motion.
                                 II. DISCUSSION
      We consider separately the sufficiency of the evidence and whether closing
arguments made by the prosecutor were reversible error.
A. Sufficiency of the Evidence
      Hordge challenges the evidence of his knowing possession of the firearm.
Where a defendant has preserved a challenge to the sufficiency of evidence, as
did Hordge, we review the denial of a judgment of acquittal de novo. United
States v. Burns, 162 F.3d 840, 847 (5th Cir. 1998). We determine whether, when
viewing the evidence in the light most favorable to the verdict, “a rational trier
of fact could have found that the evidence established the essential elements of
the offense beyond a reasonable doubt.” United States v. Ferguson, 211 F.3d 878,
882 (5th Cir. 2000). The jury can freely choose among reasonable constructions
of the evidence; the evidence “need not exclude every reasonable hypothesis of
innocence or be wholly inconsistent with every conclusion except that of guilt.”
Id. “If, however, the evidence gives equal or nearly equal circumstantial support
to a theory of guilt, as well as to a theory of innocence, the conviction must be
reversed.” Id. at 882-83.
      For a felon-in-possession offense, the Government must prove 1) the
defendant has been convicted of a felony, 2) the defendant possessed a firearm
in or affecting interstate commerce, and 3) the defendant knew he possessed the
firearm. United States v. Ybarra, 70 F.3d 362, 365 (5th Cir. 1995). The first two
elements are undisputed. Hordge argues only that the Government failed to
prove knowing possession.


                                        3
                                  No. 08-20472

      Possession may be actual or constructive. Id. at 365. Actual possession
requires direct physical control over the gun. See United States v. Munoz, 150
F.3d 401, 416 (5th Cir. 1998). Constructive possession is “ownership, dominion,
or control over the contraband itself, or dominion or control over the premises in
which the contraband is concealed.” Ybarra, 70 F.3d at 365. However, where
there is joint occupancy such as in this motel room with multiple occupants,
mere control or dominion is insufficient. Rather, constructive possession will be
shown only when there is some evidence supporting a plausible inference that
the defendant knew about the weapon. Id.
      In the principal case relied on by Hordge, the police found a gun between
the mattress and box springs in the bedroom that the defendant and his
girlfriend shared. United States v. Mergerson, 4 F.3d 337, 348 (5th Cir. 1993).
We concluded that there was insufficient evidence to demonstrate constructive
possession because the weapon was not in plain view, there were no other
circumstances establishing Mergerson knew of the weapon, and there was
evidence his girlfriend had purchased the weapon before he had moved in with
her. Id. at 349. Hordge argues that the Government here has similarly failed
to meet its burden because Hordge and two women occupied the room; the
weapon was not in plain view; there were no fingerprints on the gun; and the
room was registered to another person, Frank Quinn. Hordge further argues
that it is equally plausible that he was reaching for or hiding the two crack pipes
that were also found under the pillow.
      The facts in Mergerson are not the same as here. In Mergerson, the room
was unoccupied; someone else owned the gun; and the gun was out of the
defendant’s reach. Rather differently, Hordge was in the room, there was no


                                         4
                                  No. 08-20472

evidence of who owned the gun, and Hordge was sitting on the bed with his hand
under the pillow within reach of the gun.        Additionally, Hordge was twice
ordered to remove his hand from beneath the pillow, and he refused. A fact-
finder was entitled to conclude that if Hordge had only been trying to place
something under the pillow, he would not have needed to leave his hand there
after an officer with his weapon drawn ordered him to show his hands. A fact-
finder could conclude Hordge was reaching for something useful, not leaving his
hands in place after hiding something incriminating. This is “some evidence
supporting at least a plausible inference” that Hordge had knowledge of and
access to the weapon. The evidence supporting Hordge’s conviction is sufficient.
B. Prosecutorial Remarks
      Hordge also argues that statements made by the Assistant United States
Attorney (“AUSA”) during closing arguments were improper and prejudicial. He
claims these statements appealed to the jury to support law enforcement,
vouched for the credibility of Government witnesses, and were inflammatory.
      We must decide whether the prosecutor made an improper remark and if
so, whether the remark affected the substantial rights of the defendant. United
States v. Duffaut, 314 F.3d 203, 210 (5th Cir. 2002). To determine whether the
defendant’s substantial rights have been affected, “this court considers 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 211. The “determinative question is whether the prosecutor’s remarks
cast serious doubt on the correctness of the jury verdict.” United States v.
Insaulgarat, 378 F.3d 456, 461 (5th Cir. 2004) (citation omitted).




                                        5
                                   No. 08-20472

      There were objections at trial to only two of the statements that are the
subject of this argument on appeal. First, the AUSA stated, “Those officers leave
their family and friends to go out and put their life on the line in order to protect
us from that criminal activity out there. Unfortunately, it’s rampant.” Second,
the AUSA told the jury that they should
      focus on the thoughts of the police officers. . . . Those officers want
      to go home tonight and to see that everybody in that room is safe as
      well. They don’t take their jobs lightly. These are the most serious
      of circumstances. And this case – this is the most deadly weapon in
      our society. It’s made for one purpose, to kill.

      The district court sustained Hordge’s objection that the first statement
was an improper plea for law enforcement. Hordge objected to the second
statement, and the court told the AUSA to “stick to just the facts of the case.”
      Neither statement expressly vouched for the credibility of the witnesses
nor asked the jury to believe the officers simply because they were doing their
jobs. Cf. United States v. Gracia, 522 F.3d 597, 601 (5th Cir. 2008); United
States v. Ramirez-Velasquez, 322 F.3d 868, 874 (5th Cir. 2003). Appeals to the
jury to act as the conscience of the community are permissible as long as they
are not intended to inflame. Duffaut, 314 F.3d at 211. No intent to inflame
appears. The district court sustained the first objection and gave a corrective
instruction to the AUSA after the second. At least three cautionary instructions
were given to the jury that statements made by the attorneys are not evidence.
We find no error in the resolution of these issues.
      Hordge also asserts that other statements by the AUSA require reversal,
but to those, Hordge did not object. Consequently, we review them for plain
error. Gracia, 522 F.3d at 599-600. We must find 1) there was error, 2) the error


                                         6
                                   No. 08-20472

was plain (clear and obvious), and 3) the error affected his substantial rights.
Id. at 600. Even if this standard is met, we will not reverse unless the “plain
error seriously affected the fairness, integrity, or public reputation of the judicial
proceeding.”   Id.   Therefore, a prosecutor’s improper statements constitute
reversible plain error when “the defendant’s right to a fair trial is substantially
affected.” United States v. Burns, 526 F.3d 852, 857 (5th Cir. 2008).
      Hordge points to three statements that he argues are reversible as plain
error. The AUSA told the jury that “whether [the firearm] is functional or not,
it still meets the definition of being a firearm.” The AUSA’s next sentence is
somewhat obscure, but it is the one to which objection is made: “And that
firearm, as a plea to law enforcement, was seized because you can use that
firearm to hold people up, threaten them, or any other illegal activity.” Hordge
argues that the AUSA was making a “blatant and improper appeal[] to the jury”
to play a law enforcement role rather than be fact-finders.
      It is difficult to know what interpretation jurors would give the latter
sentence, but we conclude it encouraged jurors to be mindful of the importance
of law enforcement and of getting dangerous weapons away from the criminally
minded. During closing arguments, an attorney may urge conclusions to be
drawn from the evidence as long as it is clear that the conclusions must be based
on the evidence. United States v. Thompson, 482 F.3d 781, 786 (5th Cir. 2007).
There was evidence presented at trial that the weapon satisfied the definition
of a firearm. Hordge’s counsel questioned the witness regarding the inoperable
nature of the weapon. Hordge asserted that the weapon was only good for
“point[ing] at somebody, not to fire at somebody.”         As an attempt to rebut
Hordge’s effort to invalidate the nature of the weapon, the Government elicited


                                          7
                                  No. 08-20472

testimony from the witness that regardless of whether there was a magazine or
firing pin in the weapon at the time it was examined, it still meets the definition
of a firearm. We find no effect on substantial rights.
      The last two statements were these. The AUSA said that Officer Baker
was a “dedicated, passionate young man that believes in his job and puts his life
on the line every day going out there in crime-infested areas” for the safety of the
people in the community. The AUSA asked rhetorically what would it take for
Officer Majors to pull his firearm. He also supplied an answer: it would have to
be “a deadly situation, a very deadly situation. And thank God for officers like
that, Brandon Baker and Guy Majors.” It is argued that one statement vouched
for the credibility of the witnesses and the other appealed to emotions.
      The first issue is whether these statements were error – a “deviation from
a legal rule.”   Gracia, 522 F.3d at 600-01.       During closing arguments, a
prosecutor may discuss evidence actually admitted and reasonable inferences
that can be drawn from that evidence. United States v. Mendoza, 522 F.3d 482,
491 (5th Cir. 2008). Additionally, a prosecutor may argue “fair inferences from
the evidence that a witness has no motive to lie, but cannot express a personal
opinion on the credibility of witnesses.” Gracia, 522 F.3d at 601. The AUSA’s
statements that he believed Officer Baker to be a “dedicated, passionate young
man” who risked his life daily by entering crime-infested areas was an appeal
to the jurors’ emotions, a statement about the witness’s courage, and an
implication about his honesty. The AUSA’s speculation about what it would take
for Officer Majors to pull his gun was not based on evidence.
      Despite our concern about the statements, whatever error existed here was
harmless. The magnitude of any prejudice from the AUSA’s comments during


                                         8
                                  No. 08-20472

closing argument when viewed in the context of the entire trial is outweighed by
other factors.   These counterweights include the effect of three cautionary
instructions given to the jury, the judge informing the AUSA to refer only to the
facts of the case, and the statement by the AUSA that “nothing more need be
said about the facts of the case other than what you recall, and that’s what I
would defer to.” These two statements do not cast serious doubt on the
correctness of the jury verdict. Gracia, 522 F.3d at 603.
      Relying on Gracia, Hordge argues that even if these statements are
individually insufficient to warrant reversal, their cumulative effect is
sufficiently prejudicial. In Gracia, the prosecutor told the jury that the agents
were “very, very credible;” he asked the jury if they thought an agent who had
worked in law enforcement for many years would risk his career and family by
lying under oath; and he told the jury to respect the efforts of law enforcement
and if they were to acquit Gracia they would have to believe the agents got out
of bed that day and decided they were going to start a conspiracy to wrongfully
convict Gracia. Id. at 600. These statements were prejudicial and improperly
encouraged jurors to substitute the government’s credibility assessment of its
witnesses for jurors’ independent determination. Id. at 606. We do not have
such explicit or excessive comments here.
      Additionally, “occurrences of prosecutorial misconduct ordinarily must be
viewed individually,” and instances where improper statements are viewed
cumulatively are “rare in this circuit.” United States v. Fields, 483 F.3d 313, 358
(5th Cir. 2007).     The statements made by the AUSA, even if viewed
cumulatively, are insufficient to warrant reversal.
      We AFFIRM the judgment of conviction and the sentence.


                                        9
