               Case: 11-15436       Date Filed: 11/21/2012      Page: 1 of 17

                                                                      [DO NOT PUBLISH]

                  IN THE UNITED STATES COURT OF APPEALS

                            FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 11-15436
                              ________________________

                        D.C. Docket No. 1:98-cr-00263-DMM-2



UNITED STATES OF AMERICA,

                                                                          Plaintiff-Appellee,

                                            versus

RAUL DE LA CRUZ-SOSA,

                                                                      Defendant-Appellant.

                              ________________________

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

                                   (November 21, 2012)

Before HULL and BLACK, Circuit Judges, and WHITTEMORE,* District Judge.

PER CURIAM:


       *
         Honorable James D. Whittemore, United States District Judge, Middle District of
Florida, sitting by designation.
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      Raul De La Cruz-Sosa appeals the district court’s revocation of his

supervised release after having served a term of imprisonment for drug-related

offenses. After oral argument, review of the parties’ briefs, and consideration of

the record, we reverse the district court’s order revoking supervised release and

remand for clarification of its findings.1

                                    I. BACKGROUND

A.    Initial Criminal Proceedings

      In 1998, Cruz-Sosa pleaded guilty to conspiring to distribute marijuana and

cocaine, in violation of 21 U.S.C. § 846, and distributing cocaine, in violation of

§ 841(a)(1). He received a sentence of 135 months’ imprisonment, followed by 5

years of supervised release. As a condition of supervised release, Cruz-Sosa was

prohibited from possessing any firearm. Cruz-Sosa began his term of supervised

release in March 2008.

      On July 1, 2011, Cruz-Sosa’s federal probation officer, Nelson Valenzuela,

was told by an informant that he feared Cruz-Sosa because the latter “often

possesses a firearm which he carries in the small of his back.” Because

Valenzuela knew that Cruz-Sosa was also on probation for a Florida conviction

for third-degree theft, Valenzuela shared the tip with Christine Bullins, a state

      1
          We deny the government’s motion to supplement the record on appeal.

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probation officer. Around eleven o’clock that same evening, Bullins and other

probation and local officers drove to the house of Cruz-Sosa’s girlfriend, Janet

Rosillo-Dominguez (“Rosillo”), where Cruz-Sosa had been living for

approximately five weeks. Bullins and another state probation officer, Freddy

Vidal, entered Rosillo’s house and followed her to a bedroom that she shared with

Cruz-Sosa. The officers found Cruz-Sosa lying on the bed. While Vidal went to

search Cruz-Sosa’s truck, Bullins searched the bedroom closet and found a loaded

.45 caliber Taurus pistol with a full magazine and extra bullets, all concealed in a

fanny pack.

B.    Detention Hearings

      Probation officer Valenzuela petitioned the district court to revoke Cruz-

Sosa’s supervised release, and a magistrate judge held two detention hearings

about whether to detain Cruz-Sosa pending his revocation hearing.

      At the initial detention hearing, Rosillo produced her permit to carry the

firearm. Rosillo testified that officers discovered the firearm inside the trunk of

her car and the officers said that they were going to use the firearm against Cruz-

Sosa. On cross-examination, Rosillo acknowledged that Cruz-Sosa was a felon

and was not allowed to possess firearms. Rosillo admitted that she had shared the

closet with Cruz-Sosa, but denied that the officers found the firearm in the closet.

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       At the second detention hearing, state probation officer Bullins testified

about receiving the tip from Valenzuela, entering the house to find Cruz-Sosa

lying on a bed adjacent to a closet, and finding the firearm in the closet on the

same day as the tip. The defense introduced the testimony of Rosillo’s son,

Manuel Lopez, who was present in the house during the search. Lopez testified,

inter alia, that Rosillo usually stored the firearm at her sister’s house; the firearm

was in his car2 on the evening of the search; he heard the officers say that they

found the gun in the car and would use it against Cruz-Sosa; and the officers failed

to find any evidence in Rosillo’s bedroom, given that Lopez did not see them carry

anything out of the house. At the conclusion of the evidence, the magistrate judge

ordered Cruz-Sosa detained without bond.

C.     Revocation Hearing

       Subsequently, the district court held a hearing to determine whether Cruz-

Sosa’s supervised release should be revoked. At the revocation hearing, federal

probation officer Valenzuela testified about the informant’s tip and sharing the tip

with state probation officer Bullins. Bullins and Vidal testified that, when they

came to search the house, Rosillo answered the door and led them to the bedroom.



       2
       According to Lopez, the gun was found in his car, but Rosillo had bought the car for
Lopez and used that car to pick-up the gun from her sister’s house.

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Bullins testified that she saw Cruz-Sosa lying in bed, escorted Cruz-Sosa to the

living room, and discovered inside the bedroom closet a closed fanny pack

containing the firearm and some ammunition. With regard to the closet, Bullins

testified that “it was a very tight space and the door didn’t open up all the way and

there was a lot of clothes in there. It was a very packed closet.”

      The defense called Rosillo as a witness, who testified that she owned the

firearm and that she always kept it inside a fanny pack in which she also stored her

jewelry. Rosillo produced her permit to carry the firearm and a receipt that stated

that she purchased the firearm in December 2001 at the Miami Police Supply.

Rosillo testified that she stored the firearm at her sister’s house because she

wanted Cruz-Sosa to move in with her, and that she had retrieved the firearm on

the day of the search because she was going on a trip and wanted her son to have a

firearm for protection. Rosillo also stated that, when Cruz-Sosa moved in with

her, Cruz-Sosa’s ex-wife would call numerous times, to the point that Cruz-Sosa

had to change his number. In one voicemail message, the ex-wife stated that

Cruz-Sosa was a convict and that “she was going to put him back in prison.”

Rosillo further testified that she never told Cruz-Sosa that she owned a firearm;

Cruz-Sosa did not know that the firearm was in the house; and Cruz-Sosa had

never seen the firearm. On cross-examination by the government, Rosillo insisted


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that the officers found the firearm in her car and that Cruz-Sosa had been standing

in the hallway when the officers entered the house.

      At the close of the hearing, the government argued that the evidence

demonstrated Cruz-Sosa’s constructive possession of the gun, given his proximity

to the gun. The government also argued that Rosillo’s testimony was not credible.

      In response, Cruz-Sosa’s defense counsel argued that he was not relying on

Rosillo’s testimony about the gun being found in the car and that he did not know

whether this testimony was true or not. Defense counsel pointed out that he did

not elicit this testimony. Rather, Cruz-Sosa’s defense counsel argued that there

was no evidence to show that Cruz-Sosa knew that there was a gun in the closet.

D.    The District Court’s Findings

      After the parties made their closing arguments, the district court found that

the gun was located in the closet next to the bed on which Cruz-Sosa was lying.

The district court, however, found that Cruz-Sosa’s proximity to the gun “probably

would not be enough even on a preponderance of the evidence standard” to show

that Cruz-Sosa knew about the gun, stating:

            Certain things are clear. First, I find that [Cruz-Sosa] was in the
      bed in the house. There was proximity. . . . Very close by is the closet
      where the Taurus revolver and two magazines were in a fanny pack.

            Now, if you stop there, I think there would be a stronger case. It


                                         6
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      is clear the gun belonged to her. There’s the receipt. But he had been
      living in the house for some time. Proximity is not enough. You need
      to have knowledge. I agree with you on that. He has to know the gun’s
      there.

            Usually I think people who are right next to a closet in which they
      keep some of their clothes know what’s in that closet. But even that
      probably would not be enough even on a preponderance of the evidence
      standard.

(emphasis added).

      The district court then found that Rosillo’s testimony—that the gun was not

in the house but was found in the trunk of her car—was not credible. The court

inferred from this adverse credibility finding that Rosillo was deliberately lying to

protect and exonerate Cruz-Sosa, which meant that Cruz-Sosa must have known

about the gun. The district court found that Rosillo’s deliberate false testimony

constituted the principal evidence of Cruz-Sosa’s guilt, stating:

             What troubles me, frankly, here is the testimony of Ms. Rosillo-
      Dominguez. If she had come in and said, look, it’s my gun, he never
      knew about it, I never told him about it that would be one thing. But her
      testimony is not that. She instead says the gun was not in the house, it
      was at my sister’s house, and it was brought back that day and was in the
      car outside. And her testimony, which is contradicted by the other two
      witnesses, is that somebody, either the Hialeah Police or the Florida
      probation people, went out, searched her car, not his car, which is
      contrary to their testimony, got the gun, came in, put it in the closet.
      And that’s not believable to me. I find that not to be credible evidence.
      So the question is why does she make that story up. And I think
      she—that story is just too strong an effort to try to exonerate him, and
      I think in the same way you look at flight or you look at someone who
      just tells an untruth I think that is a factor that really makes a big

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      difference in my mind in terms of—it’s true that’s not him, but why is
      she making a deliberate falsehood to try to protect him but for I think the
      clear implication that he knew the firearm was there. And you couple
      that with the circumstance, and I don’t put a lot of weight in it because
      we don’t know the identity of the tipster or any of that, this is all started
      by someone who comes in and says I’m in fear of this guy and he’s
      carrying a gun and they go to the house and lo[] and behold they find a
      gun and then the girlfriend lies about it.

(emphasis added). The district court concluded that Cruz-Sosa violated the terms

of his supervised release by constructively possessing the firearm in the closet.

The district court sentenced him to 30 months’ imprisonment, the low end of the

guideline range, with no further term of supervised release.

                                  II. DISCUSSION

      On appeal, Cruz-Sosa argues that the district court erred by treating the

discredited testimony of Rosillo, a non-party witness, as substantive evidence of

his guilt, rather than simply disregarding her testimony. Cruz-Sosa also contends

that, even if Rosillo’s discredited testimony was properly treated as substantive

evidence of his guilt, the government presented insufficient corroborating

evidence that he possessed a firearm.

A.    Applicable Legal Standards

      A district court may revoke a term of supervised release whenever it “finds

by a preponderance of the evidence that the defendant violated a condition of



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supervised release.” 18 U.S.C. § 3583(e)(3).3 Cruz-Sosa was charged with

violating the condition of his supervised release that he not possess a firearm. See

18 U.S.C. § 3583(g) (mandating revocation of supervised release for possessing a

firearm). Possession of a firearm may be actual or constructive. United States v.

Perez, 661 F.3d 568, 576 (11th Cir. 2011). “Constructive possession of a firearm

exists when a defendant does not have actual possession but instead knowingly

has the power or right, and intention to exercise dominion and control over the

firearm.” Id. Constructive possession may be proved by circumstantial evidence.

Id.

A.     Rosillo’s Discredited Testimony as Evidence of Guilt

       As an initial matter, Cruz-Sosa concedes, and we agree, that the district

court did not err in disbelieving Rosillo’s testimony. United States v. Copeland,

20 F.3d 412, 413 (11th Cir. 1994) (“The credibility of a witness is in the province

of the factfinder and this court will not ordinarily review the factfinder’s

determination of credibility.”). The main question before us is whether the district

court erred in treating witness Rosillo’s discredited testimony as substantive



       3
        We review the revocation of supervised release for abuse of discretion, United States v.
Cunningham, 607 F.3d 1264, 1266 (11th Cir. 2010), and review related findings of fact for clear
error, United States v. Almand, 992 F.2d 316, 318 (11th Cir. 1993). Questions of law are
reviewed de novo. See United States v. Frazier, 26 F.3d 110, 112 (11th Cir. 1994).

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evidence of Cruz-Sosa’s guilt, rather than simply disregarding that testimony and

determining guilt or innocence based on other evidence presented by the

government.

      It is well-established in this Circuit that testimony by a defendant in a

criminal trial, “if disbelieved by the jury, may be considered as substantive

evidence of the defendant’s guilt.” United States v. Brown, 53 F.3d 312, 314

(11th Cir. 1995). As we have explained, “[d]efendants in criminal trials are not

obliged to testify. And, a defendant who chooses to present a defense runs a

substantial risk of bolstering the Government’s case.” Id. However, this Court

has never extended this rule to non-party witnesses who testify for the defense.

Although our circuit precedent is silent on the propriety of treating the discredited

testimony of non-party defense witnesses as substantive evidence of guilt, we

review several cases that provide some guidance on the issue.

      We begin with our binding Fifth Circuit precedent in Seymour v. Oceanic

Navigating Co., 453 F.2d 1185 (5th Cir. 1972), a civil case in which the plaintiff

sued a crane operating company for negligence after being injured in a cargo-

loading accident. The accident occurred when the plaintiff was helping load cargo

inside the ship’s hold, underneath a hatch in the deck, and several boxes fell on

him through the hatch from a pallet that was being hoisted onto the deck by the


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crane operator. Id. at 1186-87.

      At trial, the plaintiff presented one witness on the question of the

defendant’s liability, a witness who had observed the accident and described the

accident during his testimony. Id. at 1187.4 After the presentation of evidence,

the district court made certain findings of fact regarding how the accident

occurred, including the following: (1) the pallet was improperly loaded to begin

with; (2) the crane operator placed the pallet on top of “ropes and dunnage” that

were lying on the deck near the hatch, as a result of which the pallet tilted and the

boxes fell into the hatch, injuring the plaintiff; (3) the defendant crane operator

was not responsible for loading the cargo onto the pallet; and (4) the crane

operator did not, and could not, know of the existence of the ropes and dunnage on

the deck. Id. at 1189 n.5. The district court also found that the liability witness’s

testimony “was not believable or entitled to any credence or weight.” Id. Based

on these findings, the district court concluded that the defendant crane operator

was not liable. Id. at 1189 & n.5.

      On appeal, the Fifth Circuit concluded that the district court’s findings were

“self-contradictory and confusing,” in part because the district court appeared to

reject the liability witness’s entire testimony, but nevertheless used portions of that


      4
          The liability witness’s entire testimony is not described in Seymour.

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testimony as a basis for its findings, given that “[t]here was no other evidence

upon which the district court could have based its version of the accident reflected

in the findings.” Id. at 1190 (emphasis added). The Fifth Circuit stated:

      Although a trial court may, of course, choose to reject certain portions
      of a witness’s testimony while accepting other portions, the court’s total
      rejection of [the witness’s] testimony leaves us in doubt as to the source
      of the court’s findings. A trial judge may not use his disbelief of a
      witness as affirmative support for the proposition that the opposite of the
      witness’s testimony is the truth.

Id. at 1190-91 (emphasis added). The Fifth Circuit remanded the case back to the

district court for clarification of its findings. Id. at 1191.

      Another decision dealing with a non-party’s discredited testimony is United

States v. Grubbs, 506 F.3d 434 (6th Cir. 2007), which concerned a defendant’s

direct appeal from a felon-in-possession conviction. In Grubbs, the defendant

stood trial for illegal possession of, among other things, a Beretta nine-millimeter

handgun. Id. at 436-37. The trial evidence showed that the gun was found in the

room of the defendant’s brother, in a house where the defendant’s mother and

brother lived, and where the defendant stayed the night before but visited only

occasionally. Id. The government presented the testimony of a neighbor, who

testified that the defendant previously had threatened him with a gun, although the

neighbor could not tell whether that gun was the same as the Beretta charged in

the indictment. Id. at 437-48.

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      The defense introduced the testimony of the defendant’s brother, who

testified that the Beretta gun was his and that the gun was discovered under a

pillow on which he, the brother, regularly slept. Id. at 437. The defendant’s

mother also testified for the defense, stating that the defendant slept in a different

room than where the gun was found. Id.

      The Sixth Circuit reversed the defendant’s conviction, concluding that there

was insufficient evidence to show that the defendant constructively possessed the

gun. Id. at 443. The Sixth Circuit reasoned: “Of course, the jury may choose not

to credit testimony that [the defendant’s brother] owned the nine-millimeter and

we must accept such findings. But even if the jury disbelieved all the witnesses,

that disbelief alone cannot constitute affirmative proof of constructive

possession.” Id. at 440.

      The third relevant case is United States v. Mills, 29 F.3d 545 (10th Cir.

1994), where, like in Grubbs, the defendant Mills was convicted at trial for being a

felon in possession of a firearm. Trial evidence showed that the two guns in

question were found inside a compartment in a dining-room table in a common

area of the house in which the defendant lived. Id. at 547. The table was owned

by Judy Hall, a co-occupant of the house. Id. Hall testified that she placed the

guns in the dining-room table without defendant Mills’s knowledge and contrary


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to his instructions. Id. at 550. On appeal, the Tenth Circuit reversed and held that

the evidence was insufficient for conviction, stating: “if the jury disbelieved the

entire defense testimony, that disbelief cannot constitute evidence of the crimes

charged and somehow substitute for knowing constructive possession in this joint

occupancy situation.” Id. (emphasis added).

       Although the above cases may not be perfectly analogous to the present

case, they all reflect the principles (1) that disbelief of a non-party witness’s

testimony cannot be used as the sole substantive evidence of the defendant’s guilt

of possessing a gun, such as to fill an otherwise fatal gap in the government’s

proof, and (2) that the fact finder may draw negative inferences from untruthful

testimony, as long as there is other sufficient, affirmative evidence of guilt.5

       Applying these principles, if the district court found Cruz-Sosa guilty based

solely, or even primarily, on Rosillo’s discredited testimony, that would be error.

Thus, we look to whether there was sufficient, affirmative evidence independent

of Rosillo’s discredited testimony to justify the revocation of Cruz-Sosa’s

supervised release and what the district court said about that other evidence.

B.     Other Evidence of Cruz-Sosa’s Guilt


       5
        See also United States v. Eisen, 974 F.2d 246, 259 (2d Cir. 1992) (“[T]he jury is free to
draw negative inferences from an untruthful witness’s testimony as long as there is affirmative
testimony to supplement or corroborate those negative inferences.”).

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      The government argues that, even if the district court erred in considering

Rosillo’s discredited testimony as substantive evidence of guilt, the government’s

other evidence alone was sufficient to find Cruz-Sosa guilty. Specifically, the

government relies on evidence that: (1) the probation officer received a tip and

later the same evening found the gun in a fanny pack in the closet, as described

above; and (2) Cruz-Sosa lived in the house and used the bedroom where the gun

was found, was in the bedroom when the officers arrived, and, thus, had dominion

and control over the bedroom and closet where the gun was found, indicating that

he constructively possessed the gun. Therefore, the government contends, the

district court’s error was harmless.

      Indeed, we have stated multiple times that evidence that the defendant had

control over the premises where the contraband was found was sufficient to find

that the defendant constructively possessed the contraband. See, e.g., United

States v. Woodard, 531 F.3d 1352, 1360 (11th Cir. 2008) (“A defendant’s

constructive possession of a substance can be proven by a showing of ownership

or dominion and control over the drugs or over the premises on which the drugs

are concealed.” (internal quotation marks omitted)). It is undisputed that Cruz-

Sosa had control over the premises (the bedroom and closet) where the gun was

located.


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      However, control over the premises does not per se, or as a matter of law,

constitute constructive possession of the contraband found therein in every case.

Rather, control over the premises raises a permissible inference that the defendant

possessed the contraband, and it is up to the fact-finder, not the appellate court, to

make that inference. See United States v. Cochran, 683 F.3d 1314, 1320 (11th

Cir. 2012) (“[T]he essence of constructive possession is the power to control the

contraband itself and . . . control of the premises simply permits an inference of

that power.”).

      The problem for the government here is that the district court’s findings are

unclear. It is not entirely clear whether the district court chose to infer, from

circumstantial evidence other than Rosillo’s discredited testimony, that Cruz-Sosa

constructively possessed the gun found in the closet. The district court stated that:

(1) “[u]sually I think people who are right next to a closet in which they keep

some of their clothes know what’s in that closet,” and (2) “[b]ut even that probably

would not be enough even on a preponderance of the evidence standard.” This

statement could mean that (1) the district court permissibly chose not to infer

constructive possession from Cruz-Sosa’s proximity to the gun, or (2) the court

erroneously believed that the proximity evidence was legally insufficient to raise

an inference of constructive possession. See Cochran, 683 F.3d at 1320 (stating


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that it is the fact-finder’s “choice and responsibility to draw inferences”).

Certainly, in finding Cruz-Sosa guilty, the district court appeared to give primary

weight to Rosillo’s discredited testimony about the gun, and, as discussed above,

this discredited testimony could not be used as affirmative, substantive evidence

of possession. We note that the district court also mentioned in its findings the

informant’s tip that Cruz-Sosa was carrying a gun, but the court did not give this

evidence much weight, stating that “we don’t know the identity of the tipster or

any of that.” We do know that the tipster called, and the gun was found the same

day. On the other hand, the gun was in a closed fanny pack in the closet with

Rosillo’s jewelry, and that pack belonged to Rosillo.

       Because it is not entirely clear whether the district court chose, or would

choose, to infer Cruz-Sosa’s possession of the gun from circumstantial evidence

outside Rosillo’s discredited testimony, we remand this case to the district court

for a clarification of its findings as to the charge against Cruz-Sosa.6

       We reverse the district court’s order of revocation and remand for further

proceedings consistent with this opinion.

       REVERSED and REMANDED.



       6
         Of course, the district court should not disregard those parts of Rosillo’s testimony that it
did find credible, such as the fact that Rosillo owned the gun and the fanny pack.

                                                 17
