Unpublished Disposition, 927 F.2d 611 (9th Cir. 1991)

MEMORANDUM^* 

Jose Luis Figueroa appeals his conviction, following a jury trial, for possession with intent to distribute a controlled substance, in violation of 21 U.S.C. § 841(a) (1) (Count Four), for possession of firearms by an illegal alien, in violation of 18 U.S.C. §§ 922(g) (5), 924(d) (1) (Count Five), and for possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d) (Count Six). Figueroa argues that Counts Five and Six should be reversed because the evidence was insufficient to support the jury's guilty verdict. Alternatively, Figueroa argues that Counts Four, Five and Six should be reversed because the district court gave an erroneous instruction on constructive possession. We have jurisdiction under 28 U.S.C. § 1291 and affirm the convictions.

Insufficiency of the Evidence

A defendant waives a sufficiency claim by failing to file a motion for acquittal pursuant to Fed. R. Crim. P. 29. See United States v. Hernandez, 876 F.2d 774, 777 (9th Cir.), cert. denied, 110 S. Ct. 179 (1989) (citation omitted). Nevertheless, this court may review a defendant's sufficiency claim despite his failure to move for acquittal "to prevent a manifest miscarriage of justice or for plain error." United States v. Mora, 876 F.2d 76, 77 (9th Cir. 1989) (citations omitted). Since Figueroa failed to move for an acquittal at the close of the evidence, this court reviews only for plain error.

Figueroa contends that the firearm convictions (Counts Five and Six) should be reversed because the evidence introduced at trial was insufficient to establish his constructive possession of the firearms. In particular, Figueroa argues that the evidence did not establish his knowledge of the weapons. This contention lacks merit.

The firearms were recovered pursuant to a legal search of Figueroa's residence. The firearms were found in Figueroa's living room and bedroom. The .22 caliber rifle was in plain view when the government agent entered the living room. The dresser where the government agents recovered the .22 caliber pistol also contained a postage pocket scale commonly used by drug dealers to weigh "items that they are going to sell." The .30 caliber carbine was found in the bedroom dresser along with a plastic bag containing cocaine. The shotgun was located in Figueroa's bedroom closet. Although Figueroa lived with his spouse and young children, no evidence suggested that these occupants were involved in illegal conduct.

The evidence, when viewed in the light most favorable to the government, could lead a rational trier of fact to find that Figueroa knew of the location of each weapon and that he had control over these weapons. See Hernandez, 876 F.2d at 777; Jackson v. Virginia, 443 U.S. 307, 319 (1979). Accordingly, we find that the evidence was sufficient to sustain the jury's verdict based on constructive possession. See United States v. Terry, 911 F.2d 272, 278 (9th Cir. 1990).

Jury Instructions

Generally, an issue not presented to the trial court cannot be raised for the first time on appeal. United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100, 104 S. Ct. 1593, 80 L. Ed. 2d 125 (1984). Nevertheless, " [w]hen the defendant fails to object to the jury instructions at trial, the court reviews the instructions under a plain error standard." United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990). Figueroa failed to raise his objection to the trial court, thus this court reviews for plain error. See id.

Figueroa contends that the district court's instruction for constructive possession was flawed because it would allow a conviction based on mere accessibility without knowledge or actual dominion or control. See Terry, 911 F.2d at 279.

Here, the district court used the 1985 Ninth Circuit Pattern Instruction on constructive possession ("1985 Instruction") along with instructions setting forth each element of Counts Four, Five and Six. This court has recently determined that the 1985 Instruction is defective because it fails to make the knowledge requirement for possession explicit. See id. at 280. Nevertheless, the district court cured the deficiencies of the 1985 Instruction by providing element-by-element instructions, which repeatedly articulated the knowledge requirement, for Counts Four, Five and Six. The 1985 Instruction and the district court's subsequent instructions read together correctly stated the law and covered the issues presented. See Thorsted v. Kelly, 858 F.2d 571, 573 (9th Cir. 1988). The district court did not plainly err.

We AFFIRM Figueroa's convictions.