Filed: Nov. 21, 2012
Latest Update: Mar. 26, 2017
Summary: Case: 11-15436 Date Filed: 11/21/2012 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-15436 _ D.C. Docket No. 1:98-cr-00263-DMM-2 UNITED STATES OF AMERICA,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. Whittemo
Summary: Case: 11-15436 Date Filed: 11/21/2012 Page: 1 of 17 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 11-15436 _ D.C. Docket No. 1:98-cr-00263-DMM-2 UNITED STATES OF AMERICA,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. Whittemor..
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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[DO NOT PUBLISH]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.
2
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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.
4
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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
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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
