                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                    UNITED STATES COURT OF APPEALS
                         For the Fifth Circuit                   May 4, 2007

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 06-20404




                      UNITED STATES OF AMERICA,

                                                  Plaintiff-Appellee,


                                VERSUS


                            ALFRED HORACE,


                                                  Defendant-Appellant.



             Appeal from the United States District Court
                  For the Southern District of Texas
                              H-CR-05-369



Before KING, DAVIS and BARKSDALE, Circuit Judges.

PER CURIAM:*

      Horace was found guilty of being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1) and sentenced to 40

months confinement plus a term of supervised release.            In this

appeal, Horace challenges his conviction on a number of grounds.

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opinion should not be published and is not precedent except under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.
                                 I.

     During daylight hours on May 6, 2005, Houston police officers

Hassan and Saucedo responded to a call reporting a gang disturbance

or fight in progress at the Premier Apartments in Houston.     Upon

their arrival they saw two males and two females arguing at the end

of the parking lot near a parked maroon Ford Thunderbird.

     The two males fled and the officers gave chase.      When the

officers were unsuccessful in catching the two men, they returned

to their patrol vehicle which was near the Ford Thunderbird.   When

they returned, they saw the same two men nearby.    One of the men

was the defendant, Horace.   The officers saw that he was holding a

pistol in his hand.   Horace was standing near the driver’s side of

the Ford Thunderbird.

     The second male, who was standing on the opposite side of the

vehicle, alerted Horace to the officers’ presence.     Horace then

turned, looked at the officers then leaned toward the open window

and placed both hands into the Ford.    When his hands came out of

the vehicle, he no longer held the pistol.      Horace then walked

quickly away.   Officer Hassan ran after Horace and within seconds,

Officer Hassan saw Horace after he rounded a corner and ordered him

to the ground.    Horace complied and was handcuffed by Officer

Saucedo.   Officer Saucedo patted Horace down to be certain there

was no other weapon.      Officer Saucedo then checked the Ford

Thunderbird and found a Browning semiautomatic pistol on the



                                 2
driver’s seat. The parties stipulated that Horace was a felon

before May 2005, and that the pistol had traveled in foreign

commerce before its arrival in Texas.

      At trial the defendant’s primary argument was that the gun was

not his but rather was possessed by the other male who was with him

that afternoon who went by the nickname, Red.        The defendant also

produced evidence that Red had been seen earlier that day driving

the Ford and in fact had been seen in this area in the Ford on

several occasions.    One witness testified that he saw Red carrying

a pistol at one time that appeared to be a revolver.

      The defendant raises a number of claims of error which we will

discuss below.

                                    II.

                                    A.

      The defendant argues first that the district court abused its

discretion    in   charging   the   jury   on   constructive   and   joint

possession.   He argues that the only evidence of possession was the

officers’ testimony that Horace held the pistol in his hand and

that this was direct evidence of actual possession. He argues that

the charge on a theory of constructive possession allowed the jury

to convict Mr. Horace based on this erroneous jury instruction and

is grounds for reversal.2


  2
   The charge the court gave to the jury is as follows:

      “Possession”, as this term is used in th[e] case, may be of

                                     3
       We review a district court’s decision to give or exclude a

jury   instruction      for    abuse   of   discretion.   United    States   v.

Ragsdale, 426 F.3d 765, 779 (5th Cir. 2005).          “A district court has

broad discretion in framing the instructions to the jury and this

court will not reverse unless the instructions taken as a whole do

not correctly reflect the issues and law.”           United States v. Dien

Duc Huynh, 246 F.3d 734, 738 (5th Cir. 2001).

       The trial court’s charge must not only be legally accurate but

also factually supportable, and the court may not instruct the jury

on a charge that is not supported by the evidence.            United States

v. Mendoza-Medina, 346 F.3d 121, 132 (5th Cir. 2003).              Any error is

subject to harmless error review.           Id.

       Horace   makes     no    argument     that   the   district     court’s

instructions on constructive and joint possession are an incorrect

statement of the law.         He simply argues that the evidence does not



  two kinds: actual possession and constructive possession. A
  person who knowingly has direct physical control over a thing,
  at a given time, is then in actual possession of it. A person
  who, although not in actual possession, knowingly has both the
  power and the intention, at a given time, to exercise dominion
  or control over a thing, either directly or through another
  person or persons, is then in constructive possession of it.

     Possession may be “sole” or “joint.” If one person alone
  has actual or constructive possession of a thing, possession
  is sole. If two or more persons share actual or constructive
  possession of a thing, possession is joint.

     You may find that the element of possession, as that term
  is used in these instructions, is present if you find beyond
  a reasonable doubt that the defendant had actual or
  constructive possession, either alone or jointly with others.

                                        4
support the instruction.

     Following an objection by defense counsel and lengthy exchange

between counsel   and   the   court,   the   trial   court   accepted    the

government’s argument that when the defendant ran away from the car

the first time and returned and placed the pistol in the car, this

represented circumstantial evidence that he intended to associate

himself with the car and the gun he left in the car.            The court

concluded that the jury could infer that the defendant had access

to the vehicle based on this evidence.               The court concluded

therefore that the government was entitled to argue that after

Horace walked away from the car where he left the pistol, he

continued to have constructive possession of the weapon. The court

informed defense counsel that whether Horace had access to the

vehicle was a permissible inference.         The court informed defense

counsel that he was also entitled to make a contrary argument and

contend that the defendant abandoned the pistol when he left it in

the car.

     Our review of the record persuades us that the district court

did not abuse its discretion in charging the jury on constructive

and joint possession.   No evidence was produced as to who owned the

car or what the legal relationship was between Horace and the car

or Red and the car.     But, the jury was entitled to find that the

evidence of Horace’s association with the car along with his

concealment of a gun in the car raised an inference that he had the

right to exercise some degree of control over the car.                  This

                                   5
satisfies      our    definition     of   constructive        possession    as   “the

ownership, dominion or control over an illegal item itself or

dominion or control over the premises in which the item is found.”

United States v. DeLeon, 170 F.3d 494, 496 (5th Cir. 1999).                        We

also stated that “in determining what constitutes dominion and

control over an illegal item, this court considers not only the

defendant’s access to the [place] where the item is found, but also

whether the defendant had knowledge that the illegal item was

present.”      Id. at 497.

       The   evidence       also   supports    the   joint     possession    charge.

Horace argued that the gun did not belong to him but rather it

belonged to Red, the other man with him that evening.                       Both men

were associated with the Ford Thunderbird.                    This evidence would

support a verdict that Horace and Red were in joint possession of

the    firearm.       The   defendant’s       reliance   on    United   States     v.

Mergerson, 4 F.3d 337 (5th Cir. 1993), is misplaced.                  In Mergerson,

we held that the defendant must have both knowledge of and access

to    the    weapon    in    order   to   be    convicted     under   constructive

possession theory of liability. Id. at 349.                  Both were present in

this case.

                                          B.

       Horace argues next that the conviction should be reversed

because the government engaged in an improper closing argument. He

contends that the prosecutor (l) improperly asked the jury to



                                          6
enforce   the   law,     (2)    unfairly     attacked      his    character,     (3)

improperly vouched for the credibility of his own witnesses, (4)

improperly expressed his own opinion about the credibility of the

witnesses and (5) improperly shifted the burden of proof to him.

     We review a claim of prosecutorial misconduct in two steps:

first we must initially decide whether or not the prosecutor made

an improper remark.       United States v. Gallardo-Trapero, 185 F.3d

307, 320 (5th Cir. 1999).         “If an improper remark was made [we] .

. . must then evaluate whether the remark affected the substantial

rights of the defendant.”         Id.

     Horace only made a timely objection to the first challenged

comment by the prosecutor.           His remaining challenges are reviewed

for plain error only.          United States v. Harms, 442 F.3d 367, 378

(5th Cir. 2006).         Even when the objection is preserved, “the

determinative    question       in    such    an     inquiry     is   whether    the

prosecutor’s remarks cast serious doubt on the correctness of the

jury’s verdict.”       United States v. Guidry, 456 F.3d 493, 505 (5th

Cir. 2006). “Inappropriate prosecutorial comments, standing alone,

would   not   justify    a     reviewing     court    to   reverse     a   criminal

conviction obtained in an otherwise fair proceeding.”                      Id.    In

determining whether inappropriate prosecutorial argument warrants

reversal, we must weigh “(1) the magnitude of the prejudicial

effect, (2) the efficacy of any cautionary instruction and (3) the

strength of the         evidence supporting the defendant’s guilt.”

United States v. Newell, 315 F.3d 510, 527 (5th Cir. 2002).

                                         7
               1. Improper Plea for Law Enforcement.

      Horace points to the following passage from the prosecutor’s

argument:

      Now in situations like these in cases like this where
      you’re brought the facts that we have in this case, facts
      that clearly show the defendant is guilty of what he did,
      when that situation occurs, you people are the only folks
      in this courtroom who can actually enforce the law. The
      police officers, all they can do is arrest people. They
      can investigate people. We can prosecute people, but in
      the end when you’re given facts that show[s] somebody
      guilty, you’re the only folks who can ultimately enforce
      the law–

Defense counsel immediately objected and the court sustained the

objection and gave the jury a careful cautionary instruction.3

      We are satisfied that any suggestion of impropriety was cured

by the district court’s cautionary instruction.   See United States

v. Duffaut, 314 F.3d 203, 211 (5th Cir. 2002).



  3
      Ladies and gentlemen, your job is to serve as judges of
      the facts. The only thing that is relevant to you is,
      has the government proved beyond a reasonable doubt in
      all of your minds that the defendant knowingly possessed
      the weapon involved. That’s the issue.

      And you don’t have an obligation to be out there as a
      posse or law enforcement group.    You don’t have an
      obligation to do anything but determine what the
      government has or has not proven.

      So you may disregard–you must disregard any appeal about
      you enforcing the law. Your job is to apply the law that
      I have given you. You have an oath to do that. The oath
      requires that you consider the elements that I have
      explained to you and the evidence that has been presented
      to you after you weigh the evidence and decide who you
      believe and what importance to give that evidence.


                                 8
          2.   Alleged improper attack on Horace’s character.

     In the initial segment of the prosecutor’s closing argument he

suggested that a defense witness, Lisa Sherman, had a motive to

lie. Lisa Sherman lived in the apartment complex where the arrests

were made and testified as an eyewitness to a version of events

very different from that described by the police.         The prosecutor

stated:

     Maybe she might be a little afraid of those folks? She’s
     got kids. Maybe she might be afraid. Maybe she might
     want to come in here–she’s asked to come and testify. Do
     you think she’s willing to come in here and say, “He had
     a gun.   They’re bad.” And all that?     No.   She has a
     motive not to tell the truth. She has a motive in it?
     No.   Whatever you think about that motive, she’s got
     kids. Maybe she’s trying to protect them. I don’t know,
     but that’s a motive for her not to tell the truth in this
     situation.


     Defense     counsel   interpreted   the   prosecutor’s   argument   as

suggesting that Sherman was afraid of Red.          When the prosecutor

made the final segment of his closing argument, he responded to

this by saying two experienced police officers had no reason to lie

and there is no evidence they lied.       He then stated:

     But there is, through reasonable inference, evidence that
     Ms. Sherman has a reason to lie.      We talked about it
     earlier. The defense would suggest to you that well, if
     the person she’s scared – the only person she should be
     scared of is Red. Well, who’s hanging out with Red? The
     defendant.    Who’s not here?    Red.    Who’s here? The
     defendant, Red’s buddy, I mean, who is she going to be
     scared of in this courtroom?      It’s going to be Mr.
     Horace.

     The prosecutor’s argument that Sherman may have harbored some



                                    9
fear of Red and therefore of his companion Horace, is not totally

unfounded. The government presented evidence that Red, who did not

live in the apartment complex with Sherman, frequently visited

there and that the police had been called on at least one occasion

to the apartment complex because of Red’s interference with a

tenant’s access to his apartment. Sherman testified that she heard

Red refer to his gun while she was walking with her children and

another defense witness saw Red in possession of a gun while he was

at the apartment complex.      The jury could have found that the

witness knew that Horace and Red were associated together.      No

plain error is demonstrated.

                                 3.

      We have made a careful review of the record in connection

with Horace’s remaining arguments of improper closing argument and

find no plain error was demonstrated.

                                 C.

     Horace argues finally that the statute under which Horace was

prosecuted, § 922(g)(l) is unconstitutional because it does not

require substantial connection to interstate commerce but rather

requires only some effect on interstate or foreign commerce.

Alternatively, defendant argues that there is an insufficient

factual basis for conviction because the mere movement of a firearm

from one state to another at some undetermined time in the past

does not constitute a substantial effect on interstate commerce.


                                 10
     Horace acknowledges that this court has rejected the argument

made here.   See United States v. Daugherty, 264 F.3d 513 (5th Cir.

2001).   This issue is therefore foreclosed by circuit authority.

                                 D.

     Horace argues finally that the conviction must be reversed due

to the cumulative effect of the errors in this case.         After

reviewing the record, we are satisfied that the cumulative effect

of any errors committed in this case do not warrant reversal.

     AFFIRMED.




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